Ex-Hawks boss is NPA’s star witness - and target
It's using Johan Booysen to make case against businessman stick, but wants him for racketeering too
The National Prosecuting Authority is defending its decision to prosecute former Hawks boss Johan Booysen and 17 former Cato Manor unit officers for racketeering – at the same time as it uses Booysen’s evidence to justify the corruption prosecution of Edward Zuma’s alleged business partner, Thoshan Panday.
Booysen is the state’s star witness in its case against Panday, a politically connected businessman who was reportedly recorded boasting about how he had contributed towards “houses at Nkandla” and had donated “one or two bar”– one or two million rand – to the Jacob Zuma Foundation.
Panday denies this and is currently challenging the decision by former National Director of Public Prosecutions Shaun Abrahams to charge him over his alleged involvement in a World Cup police accommodation tender. He’s also facing corruption charges for trying to bribe Booysen to backdate a report linked to that investigation.
But that hasn’t stopped the NPA from continuing to pursue Booysen for being an alleged “manager” in what the state alleges was a criminal “enterprise”, according to the definitions of the Prevention of Organised Crime Act: an “enterprise” allegedly based in the Cato Manor unit.
The unit’s members face 116 charges, including 28 of murder. It is the state’s case that these killings were sparked by the August 2008 murder of Superintendent Zethembe Chonco, the police’s taxi violence coordinator for KZN.
The unit’s members implicated in these killings have claimed that the dead were suspects who resisted arrest or tried to shoot at them, but Abrahams was not convinced.
In court papers filed before he was removed as NDPP, Abrahams provides his reasons for issuing POCA authorisations against Booysen and his co-accused.
These include: “The intrinsic unlikelihood of 28 people being killed by a single relatively small police unit, none being captured alive";
“The fact ... that in 26 of 28 cases there was no arrest or search warrants for those they shot dead;"
“The ballistics reports which cast doubt on the claims that those shot dead by Cato Manor SVC were resisting arrest";
“The fact that no officers were harmed and police vehicles reported as damaged likewise cast some doubt upon the version of (the accused unit members)”. Abrahams further says the state alleges that Booysen and officers Willem Olivier, Anton Lockem and Jan van Tonder were “co-managers” of a criminal enterprise, which “provided the accused with a continuity of structure, where under they conducted unlawful activities, with the purpose of, inter alia, assassinating criminal suspects for reward”.
According to Abrahams, someone who is alleged to be a manager of a criminal enterprise under POCA can be found guilty if it can be shown that they knew, or “ought reasonably to have known”, that people associated with the enterprise were witting or unwitting participants in that enterprise’s affairs through a pattern of racketeering activity.
“Hence, Booysen, and other unit commanders, charged as co-managers of the enterprise, could be criminally liable even if there were no evidence linking them to any individual offense” (sic).
Booysen remains adamant that there is no rational or legal basis for him to be charged with racketeering, and says this charge is motivated by the NPA’s need to connect him to alleged crimes he is not linked to by any objective evidence.
He and his co-accused have brought separate legal challenges to the decisions by former acting NPA head Nomgcobo Jiba and Abrahams to authorise their prosecution for racketeering under POCA. If convicted, they face a 25-year jail term.
The Durban High Court last week ruled in favour of Jiba’s application to belatedly hand over nine volumes of evidence she says informed her decision to authorise the racketeering prosecutions of the unit’s members, a decision Booysen successfully challenged in court.
That means that this material, which includes ballistics reports and witness statements, will now form part of the documents considered by the court when it decides whether Jiba’s decision to authorise racketeering charges against the unit’s members was rational.
Booysen, meanwhile, says he will file his response to Abrahams's affidavit in the coming days. But he remains adamant that Abrahams's decision to pursue racketeering charges against him was one built on dishonesty and incorrect information, and was manifestly irrational.