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OPEN SECRETS: UNACCOUNTABLE #34

Why has Sello Maema, the NPA’s deputy prosecutions boss in North West, not been suspended?

Why has Sello Maema, the NPA’s deputy prosecutions boss in North West, not been suspended?

The National Prosecuting Authority is facing widespread pressure over its failure to convict perpetrators of State Capture crimes. In this series, Open Secrets investigates prosecutors inside the NPA who instituted prosecutions without sufficient evidence against officials who investigated State Capture-linked cases. This instalment focuses on Sello Maema, the NPA’s deputy head of public prosecutions in North West.

In previous instalments of this series, Open Secrets documented the erosion of public trust in the National Prosecuting Authority (NPA), particularly during the period under former president Jacob Zuma’s watch, when former NPA National Directors of Public Prosecutions (NDDPs) Nomgcobo Jiba and Shaun Abrahams made contentious prosecutorial decisions. 

Sello Maema is the prosecutor inside the NPA who led three of the authority’s most questionable cases at that time. Allegations of Maema’s misconduct were documented in Open Secrets’ latest investigative report: Bad Cops, Bad Lawyers.

Maema is the current Deputy Director of Public Prosecutions in North West, and his prosecutions history dates to 1995. He led prosecutions on three high-profile cases that weakened public confidence in the NPA. 

They include the racketeering charges against former KwaZulu-Natal Hawks boss Johan Booysen, the fraud case against former Independent Police Investigative Directorate (Ipid) head Robert McBride, and the prosecution of former SARS officials falsely implicated in the so-called “rogue unit” case. The “rogue unit” case involved allegations that former SARS officials Ivan Pillay, Johann van Loggerenberg, and Andries Janse van Rensburg had operated an illegal clandestine unit in SARS that bugged the NPA’s offices. 

Each of these cases has since been debunked, but Maema has not faced any consequences for his role in these prosecutions. Open Secrets sent detailed questions to Maema regarding the allegations against him in each case. He responded by saying he could not provide answers to the questions without the approval of NDPP Shamila Batohi.

“Section 41(6) of the NPA Act 32 of 1998 requires written authorisation from the National Director before disclosure of any information that came to your knowledge in the performance of your functions, l have no such authorisation & cannot do so, until there is authorisation, l cannot assist you,” Maema said.

The NPA confirmed to Open Secrets in June 2022 that Maema — along with Andrew Chauke, whose role in delaying high-profile cases was documented in Unaccountable 00033 — is the subject of an internal NPA investigation for his role in the Booysen case. In a recent interview, Batohi stated that the NPA’s internal investigations found no evidence that its members had been involved in direct sabotage.

“There have been people who have been implicated — staff members who have been implicated at the Zondo Commission — and as I explained in the press briefing earlier today, there are internal processes that are dealing with these issues, but we have not had any evidence of overt sabotage by members of the NPA,” Batohi said in an interview with the SABC.

While the NPA’s disciplinary processes have so far not shown an indication of corruption by its members, the allegations of misconduct against these officials are serious, and may indicate serious incompetency within senior ranks of the institution.

Despite the investigation against him, Maema has not been placed on precautionary suspension pending the outcome of the investigation. Instead, he remains the NPA’s second-in-command in North West, despite a track record of questionable decisions which have had grave consequences.

The failed Booysen prosecution

Maema played a key role in the Booysen prosecution as the lead prosecutor on the case. The prosecution involved charges of racketeering and extrajudicial killings against Booysen and several other police officers in KwaZulu-Natal.

At the time that the charges against Booysen were authorised, the KZN Hawks boss was investigating a R60-million corruption case against Thoshan Panday — a dubious businessman linked to Jacob Zuma’s son, Edward. The prosecution against Booysen delayed the Panday investigation, but in 2020 Panday was finally charged with corruption, money laundering, fraud, and racketeering, signifying that the Hawks investigation under Booysen was important. 

In 2012, then acting NDPP Nomgcobo Jiba authorised the prosecution against Booysen, but her decision was set aside by the Durban High Court in 2015. The charges were reinstated by Jiba’s predecessor, Shaun Abrahams, in 2016, but an internal NPA investigation in 2019, led by current National Deputy Director of Public Prosecutions, Rodney de Kock, found that neither Jiba nor Abrahams had sufficient evidence to authorise the prosecutions. Batohi dropped the racketeering charges against Booysen in 2019 after the De Kock report was finalised. 

According to the De Kock report, Maema was involved in the daily operations of the case and had access to the evidence. His role in preparing a prosecution memorandum for then NDPP Shaun Abrahams has come under scrutiny. The prosecution memorandum is an important document prosecutors prepare for the NDPP that explains the evidence in the case. The NDPP uses this document to decide if there is enough evidence to authorise a prosecution.

On 17 August 2015, Maema signed a prosecution memorandum that recorded detailed evidence in the case to motivate Abrahams to approve racketeering charges against Booysen. The memorandum was submitted to Abrahams on 19 August 2015. At the time, however, Abrahams stated there was insufficient evidence to bring charges against Booysen and instructed the prosecutors to investigate the case further.

A new memorandum was submitted to Abrahams in October 2015, but still dissatisfied, the NDPP instructed Maema and a colleague, Dawood Adam, to interview a witness and former policeman Ari Danikas, who resided in Greece. Danikas’ statement was about incidents of police violence that preceded the Booysen charges, but which prosecutors hoped would help prove the Booysen case. Upon returning to South Africa, Maema and Adam verbally briefed Abrahams on the trip and the NDPP approved racketeering charges against Booysen in February 2016. 

Both Abrahams and Maema stated that the October 2015 memorandum was amended to include the new evidence. However, the De Kock report found that while the memorandum had been edited, these edits were not of substance, and no new evidence had been introduced to the October 2015 memorandum. This contradicts the claim that Maema found new and sufficient evidence to prosecute Booysen on racketeering charges. 

“We are of the view that these changes to the October memorandum were merely cosmetic changes made to the memorandum based on information and evidence already in possession of the prosecution,” the De Kock report states.

Abrahams stated that the October 2015 memorandum — specifically Maema’s inputs into the report, and the Danikas statement — were some of the key documents that he relied upon to authorise the racketeering charges against Booysen. 

However, Maema, in an email to Danikas’ lawyer, stated that he was concerned the Greek national had not made full disclosures in his statement and that the South African prosecuting authorities were unconvinced that Danikas’ evidence would “assist the state[’s] case in any way”. It is, therefore, clear that Maema knew Danikas’ evidence might not be sufficient to support the charges, yet the statement was still used to ostensibly substantiate the Booysen charges.

According to the De Kock report, Maema made another vital admission in an email dated 24 April 2019: a statement in English from Danikas had never been lawfully obtained. Instead, according to Maema’s email, Danikas’ signature was “superimposed” on the English version. In his email, Maema noted that the Greek refused to sign the English translation because it contained errors, according to the report.

Danikas later stated that he had never been requested to sign the English version. The Booysen case had initially been prosecuted in 2012. By 2019, Maema had still not been able to obtain a signed English statement from Danikas. Later that year, in July, Batohi withdrew charges after the De Kock investigation was completed.

Maema’s conduct in obtaining the Danikas evidence alone provides a strong basis for the NPA to investigate him for violating the NPA’s prosecution policy. The policy states that a prosecutor can only proceed with a case if there is sufficient and admissible evidence, and a reasonable prospect of successful prosecution. 

Owing in part to Maema’s representation of the evidence, Abrahams decided to authorise charges of racketeering against Booysen, saying the Danikas statement was a key piece of new evidence. Yet, details contained in the De Kock report show that Maema would have known that the Danikas statement was incomplete and inadmissible, and therefore, could not be used to prove the charges.

The NPA, under Shamila Batohi’s leadership, has been slow to act in response to allegations of misconduct involving Maema. The NPA’s leadership has been in place for almost four years, but it has yet to finalise its internal investigation of Maema and other prosecutors involved in the Booysen case.

While the NPA conducts its internal investigation, there is a possibility  that the senior prosecutor may face more serious criminal charges over his role in the Booysen case.

The criminal charges

Booysen — the subject of the racketeering charges brought by the NPA — opened a case against Maema with the Hawks in 2016 and referred the matter to the Investigating Directorate (ID) of the NPA in 2019. 

In his complaint to the Hawks and the ID, Booysen stated that Maema should be charged with fraud for his role in misrepresenting evidence to Abrahams in the prosecution memoranda he signed in August 2015 and October 2015. 

In 2021, Booysen wrote to the NPA to request feedback on the status of the complaints he had made. To date, it remains unclear if the Hawks or the ID have investigated the complaints.

In an affidavit to the Zondo Commission, Maema stated that he was aware a case had been opened against him, but he had not been approached by any investigating officers and did not know the status of the investigation.

Maema’s affidavit and Booysen’s correspondence with the NPA are clear indications that the NPA is aware a criminal case has been opened against one of their most senior prosecutors in North West. Yet the prosecuting authority has still not moved to suspend Maema pending an outcome of the investigation, and there is no evidence they have urged the Hawks to investigate the charges.

Johan Booysen submitted an affidavit to the Zondo Commission alleging that a series of prosecutors — including Maema — were “captured”. Lawyers representing these prosecutors submitted a document recording their version of events, to the Zondo Commission. 

The document was submitted after the prosecutors, including Maema, withdrew an application to cross-examine Booysen and instead opted to have their versions read into the record of the commission. The document stated that the department of justice was dealing with the Danikas statement at the time the signature may have been superimposed, as it was the justice department that had arranged for the statement to be translated from Greek into English. The document read: “The allegations sought to be imputed to Maema in this regard demonstrate the extent to which Booysen can go in placing untruthful information before the Court.”

In an affidavit submitted to the Zondo Commission, Maema denied Booysen’s allegations, saying they were “without merit” and that there “still is prima facie evidence” implicating Booysen in the racketeering charges. Maema went on to say that Batohi’s decision to drop the charges against Booysen and his co-accused was “unlawful”, “irrational” and “subvert[ed] the rule of law”. 

He added that Booysen’s claim about his role in writing the prosecution memoranda was misleading as several prosecutors and investigators were involved in the process. While Maema confirmed he signed the documents, he said it was only in his capacity as the team leader. 

However, Maema is now the subject of an internal NPA investigation for his role in the Booysen saga. The NPA’s investigation gives impetus to questions raised over Maema’s conduct in the Booysen prosecution.  However, despite the concerns raised at the NPA, Maema has not been placed on precautionary suspension and remains in his position as North West DDPP.

It is vital that the NPA take action to suspend Maema pending the outcome of the investigation, and that Maema is dismissed if he is found guilty of misconduct.

Maema’s role in prosecutions of the SARS “rogue unit” and McBride cases gives further urgency for the investigations into his conduct to be completed.

The McBride and SARS cases

In 2016, former Ipid boss Robert McBride was accused of fraudulently amending a report that cleared senior Hawks officials Anwa Dramat and Shadrack Sibiya of wrongdoing in relation to the alleged illegal rendition of Zimbabwean nationals. He also faced charges of defeating the ends of justice.

McBride told the Zondo Commission that there was no basis for the fraud charges against him in relation to his amendments to the Ipid report. Maema was the lead prosecutor on the case. 

In an affidavit to the Zondo Commission, McBride said, “I have already expressed my concern that Advocate Sello Maema saw fit to prosecute us in respect of the rendition matter, as I know that there was not a shred of evidence to substantiate his decision to charge us with fraud and defeating the ends of justice (or any other charges).”

In 2016, just months after announcing the charges, the NPA announced it was dropping the charges against McBride. At the time, NPA spokesperson Luvuyo Mfaku said the state could not prove a case of fraud against McBride. Mfaku said, “The charges have been withdrawn after consultation with witnesses. The state would be unable to prove its case beyond any reasonable doubt.”

The NPA’s statement showed the McBride case to be yet another example of a prosecution led by Maema which was not supported by sufficient evidence, in violation of the NPA’s prosecution policy. 

Maema, however, told the Zondo Commission that at the time the decision was taken to prosecute McBride and his co-accused, it had been “justified”. 

Maema stated in his affidavit that McBride and his co-accused made changes to the Ipid report “solely with the intention of exonerating Dramat and Sibiya”. This formed a large part of the reason the prosecution went ahead, according to Maema. 

While Maema maintained in his affidavit to the Zondo Commission that the charges against Dramat and Sibiya were valid, the NPA leadership, in contradiction to Maema’s claims, found it necessary to drop the charges five years ago. 

The timing of the investigation into the McBride matter is significant as it occurred in a politically charged environment.

McBride had been investigating corruption charges against former national police commissioner Khomotso Phahlane, who had been appointed to the top job by Jacob Zuma in 2015, while Dramat and Sibiya had been working on cases that posed a challenge to Zuma’s interests.

They had been investigating the case against former Crime Intelligence boss Richard Mdluli, a Zuma ally, over murder charges related to a 1999 case, and Dramat had taken a decision to investigate upgrades to Zuma’s Nkandla homestead. The rendition charges against them were brought in this context, and McBride’s amended report posed a challenge to the charges that appeared to be trumped up to push Dramat and Sibiya out of the Hawks.

In addition to the Booysen and McBride cases, Maema was also the lead prosecutor on the SARS “rogue unit” case, in which SARS officials Ivan Pillay, Johann van Loggerenberg and Andries Janse van Rensburg were accused of operating an illegal clandestine unit in SARS that bugged the NPA’s offices.

The tax officials were members of the enforcement department at SARS — namely, the High Risk Investigation Unit — which had powers to investigate tax compliance of wealthy, high profile and politically connected individuals, as well as those linked to organised crime and industries like tobacco. 

Former SARS Commissioner Tom Moyane had “ordered the disbandment of the High Risk Investigation Unit, and the termination of surveillance of those who were under investigation by the unit”, according to the first interim report of the Nugent Commission — a presidential commission of inquiry which investigated wrongdoing at SARS in 2018.

Moyane’s efforts to disband the unit indicate that it was part of concerted efforts to destructively restructure SARS. Reports of the “rogue unit” emerged soon after Tom Moyane became SARS Commissioner. The Zondo Commission found that Moyane colluded with consulting firm Bain and Company and Zuma to dismantle SARS

The charges against the SARS officials have since been debunked, and in 2020, Batohi announced she was dropping the case against the trio after they had made representations to the NPA. The Sunday Times, which carried stories about the “rogue unit”, has since apologised and admitted that the stories were false.

While Maema defended the case as legitimate at the Zondo Commission, NPA spokesperson Bulelwa Makeke confirmed, in 2020, that an internal NPA panel had reviewed the case and found the evidence would not support a reasonable prospect of a successful prosecution. 

Makeke said, “After a careful assessment of the evidence and other relevant material, the unanimous conclusion of the panel in respect of all counts, is that there are no reasonable prospects of a successful prosecution.”

The SARS and McBride matters were important cases that defined a loss of public trust in the NPA as speculation mounted that these cases were pursued for ulterior motives. 

In both cases, the NPA has admitted that the evidence did not support the charges which Maema attempted to bring against the accused, who at the time were investigating important corruption cases. 

There is little doubt that these prosecutions have had dire consequences for those who attempted to investigate and prosecute corruption. 

Booysen and McBride are no longer employed by their former agencies, and many of the important cases they were working on have taken years to reach court. Both Panday and Phahlane are facing charges in court in connection with allegations of impropriety that Booysen and McBride had been investigating. But these cases have faced delays because of the now debunked and dropped charges against McBride and Booysen.

Holding Maema to account

The persistent attempts to push for the prosecution of Booysen, McBride and the SARS officials indicate that Maema may have abused his role as a senior prosecutor, and he should be fully investigated for repeatedly prosecuting cases without sufficient evidence.

The NPA’s internal investigation must determine if Maema violated the authority’s prosecution policy. In addition, it should also pressure the Hawks to investigate the case opened by Booysen to determine if Maema violated the law by fraudulently misrepresenting evidence to Abrahams.

While these investigations take place, Maema should be placed on precautionary suspension from his office as DDPP in North West until it is clear he is fit to remain in office.

It is unclear why the NPA has not yet taken such steps, when it is in the urgent interests of justice for it to employ reliable and credible prosecutors.

There can be no more delays in determining if Maema is fit to retain the office he continues to hold.

Unaccountable, we have not forgotten. DM

Open Secrets is a non-profit organisation which exposes and builds accountability for private-sector economic crimes through investigative research, advocacy and the law. To support our work including the investigations that go into the Unaccountable series visit Support Open Secrets

Read more profiles from the Unaccountable series here

 

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