EXHIBIT Z
(a) & (b)

AFFIDAVIT & ANNEXURES
OF
JOHAN WESSEL
BOOYSEN

JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE,
CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE

2nd floor, Hillside House
17 Empire Road,
Parktown
Johannesburg
2193
Tel: (010) 214-0651
Email:
inquiries@sastatecapture.org.za
Website: www.sastatecapture.org.za

INDEX: EXHIBIT Z

Description

FILE

PAGES

Affidavit of Johan Wessel Booysen

(a)

001 to 071

Annexure “JWB 1“

(a)

72 to 76

Annexure “JWB 2“

(a)

77 to 80

Annexure “JWB 3“

(a)

81 to 86

Annexure “JWB 4“

(a)

87 to 89

Annexure “JWB 5“

(a)

90 to 94

Annexure “JWB 6“

(a)

95 to 103

Annexure “JWB 7“

(a)

104 to 106

Annexure “JWB 8“

(a)

107 to 111

Annexure “JWB 9“

(a)

112 to 120

Annexure “JWB 10“

(a)

121 to 129

Annexure “JWB 11“

(a)

130 to 143

Annexure “JWB 12“

(a)

144 to 145

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Description

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PAGES

Annexure “JWB 13“

(a)

146 to 147

Annexure “JWB 14“

(a)

148 to 149

Annexure “JWB 15“

(a)

150 to 152

Annexure “JWB 16“

(a)

153 to 189

Annexure “JWB 17“

(a)

190 to 202

Annexure “JWB 18“

(a)

203 to 289

Annexure “JWB 19“

(b)

290 to 304

Annexure “JWB 20“

(b)

305 to 313

Annexure “JWB 21“

(b)

314 to 346

Annexure “JWB 22“

(b)

347 to 350

Annexure “JWB 23“ - No Annexure

(b)

351 to 352

Annexure “JWB 24“

(b)

353 to 441

Annexure “JWB 25“

(b)

442 to 470

Annexure “JWB 26“

(b)

471 to 498

Annexure “JWB 27“

(b)

499 to 508

Annexure “JWB 28“

(b)

509 to 511

Annexure “JWB 29“

(b)

512 to 518

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JWB-001

AFFIDAVIT

I the undersigned,
JOHAN WESSEL BOOYSEN

do hereby state under oath that:

1.
I am an adult male South African citizen residing in Pretoria, Gauteng Province.

2.
All facts stated herein are, unless the context indicates otherwise, within my own
personal knowledge and are to the best of my belief both true and correct.

3.
I will attempt to keep my submission brief in order to avoid prolixity and to
unnecessarily burden the Commission. I will seek to highlight key aspects, events
and dramatis personae. Should it become necessary I will provide additional facts.

MY POLICE CAREER AND QUALIFICATIONS

4.
I was a career policeman having joined the South African Police in 1976. I was an
officer before our democracy in 1995 and was part of the transformation process
from a Police Force to a Police Service. I regard my integration into the new Police
Service, including my promotion to the ranks of Colonel, Brigadier and MajorGeneral subsequent to the democratic dispensation in South Africa, as one of my

JWB-002

significant achievements.

I served in various capacities, mostly in managerial

positions until 2016.
5.

I retired from SAPS in February 2016, five months before my due retirement date
whilst holding the rank of Major-General and a position as Provincial Head of
Directorate of Priority Crimes Investigation ("DPCI"), commonly known as the
"HAWKS". This for reasons I will expound on later herein.

6.
I hold a National Diploma in Police Administration as well as Bachelor degree in
Policing. I also completed a post graduate Presidential Strategic Leadership
Programme. I have attended a number of international courses by inter alia the
Federal Bureau of Investigation (FBI) USA, The China Police University China and
the Bundeskriminalampt from Germany. I successfully completed a variety of
courses in South Africa ranging from Investigator, Forensic and Management
courses. I have received awards from National and Provincial Commissioners. I also
received recognition from the Head of Interpol. I have received a number of medals
including the Police Service medal (gold) for faithful service.
7.

I have testified in various High Courts, Regional Courts and Magistrate Courts
throughout South Africa on cases ranging from murder, aggravated robberies and
other high profile cases. I have also testified at various Judicial Commission of
Enquiries. I have been commended by presiding officers and have never been the
subject of adverse criticism by any of the presiding officers. I regard
expert in investigations and policing matters.

self as an

JWB-003

8.
Following the dissolution of the Directorate of Special Operations also known as the
Scorpions, the HAWKS was established.

9.
It was during March 201 O that I was appointed as the Provincial Head of the HAWKS
in Kwa-Zulu Natal. I held the rank of Major-General. I was also the Deputy Provincial
Commissioner in KZN at the time.
10.
Prior to this appointment, I was the KZN Provincial Commander of the Organised
Crime Units. As Head of the HAWKS, a number of Organized Crime Units and
Commercial Crime unit commanders in the Province reported to me. These units all
had sub-sections.
11.
One such subsection was the Cato Manor Serious-and-Violent Crime Unit. In
addition to overseeing these units I was also seized with the management of Human
Resources, Supply Chain Management (SCM) and Financial Management of the
HAWKS in KZN.
12.
I believe, for reasons set out below, that segments or individuals within the South
African Police Services ("SAPS"), the HAWKS, and the National Prosecuting
Authority ("NPA") were captured by persons with political authority, or by persons
with political links, to illegitimately control certain criminal investigations and
prosecutions for self-serving reasons.

JWB-004

13.
Since the start of my career in 1976, I had an unblemished record in my police
career and was considered a dedicated police officer. This changed when I first
became involved in an investigation relating to alleged fraud and corruption
perpetrated by a local businessman, Mr Thoshan Panday.

THE THOSHAN PANDAY CORRUPTION INVESTIGATION

14.
On 28 April 2010 Brigadier Kemp, the Provincial Head: Financial Services reported
to me a possible multi-million-rand corruption relating to the hiring of accommodation
for policeman tasked with the 2010 World Cup Soccer duties. I then requested him to
compile a short report about it outlining his findings. On receipt of the report on
29 April 2010 I determined that on the face of it there existed enough information to
institute an investigation. It appeared that Colonel Navin Madhoe ("Madhoe") from
SAPS Provincial Supply Chain Management Unit ("SCM") had colluded with a local
businessman, Thoshan Panday ("Panday"}, to inflate and/or split quotations.

15.
On 3 May 2010 I caused an enquiry to be registered at the Durban Commercial
Branch under the command of Brigadier Andre Lategan ("Lategan") for further
investigation as he was the Provincial Commander: Commercial Crime Unit. This
unit was tasked to investigate financial related fraud matters.
16.
During early May 2010 I was travelling home from the office when I received a cell
phone call from the Provincial Commissioner ("PC"), Lieutenant-General Mmamonye

JWB-005

Ngobeni ("Ngobeni"). She wanted to know what investigation I was busy with. I
asked her which one she was referring to, as by virtue of my appointment I was
seized with a number of investigations. She responded that it related to the SCM
one. Before I could respond she said to me that there was enough going on in the
Province and that the police could not be embarrassed any further because there
was already an ongoing investigation at Mountain Rise in Pietermaritzburg pertaining
to corruption. I wanted to explain to her that it was better to bring it into the open but
she continued to interrupt me by telling me to stop the investigation. She never
asked me for any details concerning the magnitude of the investigation or the role
players involved. She then ended the call.

17.
On the following day I called Lategan to my office. I told him that I had been
instructed by Ngobeni to stop the investigation and that he should return the enquiry
file to me. He was not happy and wanted to know why. I informed him that the
instruction came directly from the PC and we therefore had to comply. I informed him
that I was also not happy and that we needed to see how we would take the matter
forward.
18.
On Saturday 8 May 2010, I was at home when Ngobeni phoned me on my cell and it
was obvious from her tone of voice that she was very agitated. She shouted at me
asking me "what is wrong with you people?" I told her that I did not know what she
was talking about to which she responded "I told you to stop the investigation, but

your people are still continuing with the investigation", or words to that effect. I told
her that I had retrieved the file from Lategan so there could be no investigation, but
that I would confirm with Lategan in any event. I phoned Lategan who confirmed t

>

5

j; ,

<O.

JWB-006

the investigation had been stopped. I then phoned Ngobeni back and informed her
that Lategan had confirmed that the investigation had indeed stopped. Ngobeni
terminated the call.

19.
During mid-June 2010 I was summoned to Ngobeni's office. When I attended her
office, the following people were present:
•

Ngobeni;

•

Major-General Bongani Ntanjana ("Ntanjana"): Provincial Head, Support
Services, comprising SCM, Financial Services ("FS") and Human Resource
Management ("HRM"). He is now deceased;

•

Major-General Fannie Masemola ("Masemola"): Provincial Head: Operational
Response, dealing with amongst other things, the deployment of police
officers in the Province;

•

Brigadier Lawrence Kemp ("Kemp"): Provincial Head: Finance;

•

Colonel Navin Madhoe: SCM who was one of the subjects of the investigation
who allegedly colluded with Panday.

20.
Ngobeni was very vociferous and she accused us of being more concerned about
finances than the lives of the public. Kemp attempted to explain to her what the
concerns were but she would have none of what he was trying to tell her. The more
Kemp tried to explain, the more she remonstrated with him. She then looked at me
and asked me what I had to say, whereupon I told her that I would much rather
discuss this matter with her in private. Although I never informed her of my reason to
discuss this matter in private, the reason was that Madhoe, who was one of th
suspects, was present at the meeting.
/

JWB-007

21.
She then excused Madhoe and Kemp from the meeting. I told her that I did not think
that she realised what our gripe was and what the gravity and implications of the
situation was as the initial investigation revealed a large number of contracts going
through Panday's books and that there were indications of the SCM procedures
being flouted.
22.

In response to this she reiterated that I must stop my investigation and bizarrely
instructed Ntanjana to conduct the investigation instead. To my mind Ntanjana did
not have the resources, the capacity or the ability to undertake such an investigation.
I suspected it to be a smoke screen to exclude me from the investigation whilst
creating an impression that the matter would continue to receive attention. The
meeting ended and I left.

23.
My suspicions were confirmed when I approached Ngobeni about 2 weeks later and
handed her a report from Colonel Vasan Soobramoney ("Soobramoney"), one of
the investigators. When giving the report to Ngobeni, I made it clear to her that we
had a legal obligation to investigate what emerged from Soobramoney's report. She
summoned Ntanjana to her office to enquire from him what progress he had made in
the investigation. Ntanjana told her that he was waiting for some or other document.
It did not make sense to me and it was clear to me that Ntanjana had done
absolutely nothing about the investigation. Both Ntanjana and Ngobeni asked me for
a copy of Soobramoney's report which I handed to them.

7

JWB-008

24.
During late June 2010 I was summoned to Ngobeni's office. She confirmed to me
that the investigation had ceased. She then asked me to join her in her boardroom
adjoining her office. On entering the boardroom I noticed a person whom I
recognised as Advocate Mkhize. Also present were the following people whom
Ngobeni introduced to me as:
•

Panday (He was the main suspect in the investigation. I had never met him
before); and

•

Mrs Tasha Giyapersad ("Giyapersad"), an attorney.

25.
During this meeting I was peppered with questions about the investigation by
Panday and Giyapersad. They also accused the investigators of investigating
Panday without a mandate. Panday also threatened to sue 'us', being the police.
Giyapersad also alleged that the one investigator, Soobramoney, attempted to extort
R1 million from Panday, which Panday confirmed. To my surprise Ngobeni did not
intervene but rather, in front of the rest of the persons present, instructed me to
institute an investigation into the conduct of Soobramoney.

26.
Within a week I caused a case docket to be opened for investigation regarding the
allegations against Soobramoney, despite my reservations. I commenced and
finalised the investigation, presented the case to the Senior Public Prosecutor

("SPP")

for a decision and the SPP declined to prosecute Soobramoney or any other

investigators.

JWB-009

27.
About a week later, I was again summoned to Ngobeni's office where she again
confronted me about the investigation. On entering her boardroom this time, I found
Advocate Chowdree SC ("Chowdree") and Advocate Stix Madlala ("Madlala") who I
know, seated there. As before, both Panday and Giyapersad were again present.
28.
This time around Advocate Chowdree, instructed by his client Panday, complained
about the underhanded way in which Soobramoney was conducting the
investigation. Soobramoney was accused of accessing Panday's bank accounts
without a section 205 subpoena, as required by law. I explained to them that it would
have been foolish of Soobramoney to have done so as this would render his
evidence inadmissible.
29.
At the meeting I had a heated discussion with Giyapersad as I had been informed by
Soobramoney that she had approached a number of the witnesses in the
investigation against Panday, from whom affidavits had already been obtained. She
had obtained further affidavits from them wherein they contradicted information
contained in their affidavits already given to our investigators. One statement I can
specifically remember was in fact compiled by her and sent to the witness, Mr
Edward Ngwenya the owner of Crocodile Creek Guesthouse, to sign who in fact did.
Giyapersad disputed my contention that she was not entitled to do so, however
Chowdree indicated to her that I was indeed right and we left the matter there.

JWB-010

30.
At some stage Soobramoney complained to the National Head of the HAWKS,
Lieutenant-General Anwa Dramat ("Dramat"), that the investigation was being
stopped. Dramat was my superior. During late May 2011 I met with Dramat in
Pretoria at the Burgerspark Hotel, where he asked me about the reasons for
stopping the investigation. I briefed him accordingly. I also explained to him that at
that stage I had to report to both him and the PC (a decision later successfully
challenged in the High Court and the Constitutional Court where it was held that my
reporting line would be directly to the National Head: HAWKS, and not to the PC).
31.
After having briefed Dramat, I suggested that the investigators report directly to his
office and not to me to obviate the PC interfering with the investigation. He agreed
and "appointed" Brigadier Nkosi from the Office of Serious Economic Offences in
Pretoria as the person to whom the investigators should report. I would continue to
assist in the investigation, albeit surreptitiously.
32.
On 28 June 2010 the then National Police Commissioner, General Bheki Cele
("Cele") telephoned me to enquire about the attempts that were being made to

interfere with the investigation. I did not elaborate that it was the PC who was
interfering as I was still busy with the investigation. Cele instructed me to continue
with the investigation and that the reporting lines 'should be to me and not to the
National office as I was the Head for the HAWKS in KZN. We then continued with
the investigation.

JWB-011

33.
As the investigation proceeded Panday unsuccessfully attempted to set aside
subpoenas issued in terms of section 205 of the Criminal Procedure Act, in the High
Court, which the investigators had obtained to access his bank accounts in relation
to the investigation against him.

34.
On 24 August 2011, before the court action could be concluded, I was approached
by Warrant officer Deena Govender ("Govender") who informed me that Madhoe
wanted to meet with me. We agreed that Govender could set up the meeting.

35.
On 25 August 2011 Govender again contacted me and suggested that Madhoe
wanted to meet with me at Jaipur Palace Restaurant, but I recommended the
Elangeni Hotel as this was within close proximity to my office.

36.
When I met with Madhoe, Govender was initially present but left shortly after
Madhoe asked to speak to me alone. Madhoe then elicited my assistance in the
investigation against him. Madhoe opened his laptop and showed me a series of
photographs of crime scenes depicting dead bodies. It was evident from these
photographs that they were from police dockets. I asked him what it was about as
they appeared to be normal crime scene photographs and he informed me that he
could get more. I did not know what to make of it but my interpretation was that he
was subtly trying to intimidate me.
37.

Thereafter Madhoe asked me if it was possible for me to assist him with the
investigation against him. I played along and asked him how I could be of

11

I

JWB-012

assistance. He mentioned that there was a report that I had which originated from
the investigators and he wanted me to manipulate Soobramoney's investigation
report. Had I done so it would have had the potential to compromise the entire
corruption investigation in that it would indicate that the investigators had accessed
the bank accounts of Panday, prior to the section 205 subpoena having been
obtained.

38.
On the same day Captain Hennie Pelser ("Pelser") from my office who was the
coordinator of all section 252(a) operations and I immediately arranged authorisation
to engage Madhoe from Advocate Gert Nel from the Pietermaritzburg office of the
Prosecuting Authority, in terms of section 252(a) of the Criminal Procedure Act.
39.
During my further engagements with Madhoe, he indicated that Panday had 2 "bar"
(sic) available that would be paid to me for my so called co-operation. After a number

of pre-meetings with Madhoe I arranged for a sting operation where I would hand
Madhoe the report in exchange for the money.
40.
On 08 August 2011, during the authorised sting operation, I caused Madhoe to be
arrested after he had placed R1 ,372,000.00 in the boot of my car at the KZN police
headquarters. Panday was later arrested and joined as an accused with Madhoe for
attempting to bribe me, as will become evident later in this affidavit.

41.
During the investigation we obtained search warrants for SAPS Provincial Head
Office's SCM Unit, Financial Services and the National Intervention Unit. We also
obtained search warrants for Panday, Madhoe and a Captain Narainpersad's

JWB-013

premises. During the subsequent searches a number of incriminating documents
were seized. One such document was the confidential Soobramoney progress report
into the investigation, which I had provided to the Provincial Commissioner, Ngobeni,
and Ntanjana. A copy of the progress report is attached as Annexure "JWB 1."

42.
In a brazen attempt Panday approached a member of Cato Manor, Warrant-Officer
Paul Mostert ("Mostert"), and requested him to either steal the exhibits or to set the
building where the exhibits were kept alight. Panday told Mostert that he could name
his price. Panday somehow knew exactly where the files were kept. This was told to
me personally by Mostert.

43.
We attempted to set up a sting operation in terms of section 252(a) of the Criminal
Procedure Act, but Panday must have suspected something as he did not engage
further with Mostert when Mostert phoned him back.

44.
It later emerged during the investigation communication interceptions authorised in
terms of Act 70 of Act 2002, that one of the Colonels at the HAWKS,
Colonel Welcome S (WS) Mhlongo ("Mhlongo") had links with Panday and I
therefore· had good reason to suspect that Mhlongo had informed Panday where the
files were kept.

45.
Mhlongo was later implicated by Advocate Mxolisi Nxasana for attempting to 'find
dirt' on Nxasana at the behest of Advocate Nomgcobo Jiba ("Jiba"). This was when
Nxasana had succeeded Jiba as the National Director of Public Prosecutions

13

JWB-014

("NDPP"). I acquired a copy of the statement of Mr Terence John Joubert
("Joubert"), a Risk Specialist contracted to the office of the NPA, which confirms

this. A copy of Joubert's statement is attached Annexure "JWB 2."

46.
Further communications intercepted revealed that on the same day that Madhoe had
been arrested, Panday had phoned Deebo Mzobe ("Mzobe") during the evening and
complained to Mzobe that I set them up. I believe that Mzobe is the relative of former
President Jacob Zuma ("Zuma"). During the intercepted discussion. between Panday
and Mzobe they commented that "Booysen had to be taken care of because

Booysen was standing in the way of everything and that Booysen's wings must be
clipped'. The discussion related to the investigation against Panday who was a
business partner of Mzobe, See attached Annexure "JWB 3." This is an example of
one of the conversations that were recorded. The other recordings relating to the
Panday investigation can be made available to the Commission's investigators, if so
required.

47.
Panday also had close business ties with one of Zuma's sons, namely Mr Edward
Zuma. During the investigation it came to light that Panday had already received
approximately R45 million from SAPS and that a further R 15 million was about to be
paid to him. I immediately informed SAPS's financial services not to release the
money to Panday until the corruption investigation had been concluded. Panday
initially threatened me with legal action, however he did not pursue the threats.

JWB-015

48.
Sometime later I was visited by Edward Zuma at my office at Police Provincial
Headquarters. Edward Zuma wanted me to release the R15 million which I had
frozen. According to him, he was a 'silent' business partner of Panday and was not
receiving his dividends as I had frozen the R15 million pay-out. I made it clear to
Edward Zuma that if I heeded to his request, it would make me guilty of corruption.
Edward Zuma later denied having visited me. The Comrnissicns investigators
obtained an affidavit from my secretary at the time, Elaine Latchanah confirming the
visit. Statement of Ms Latchanah is attached as Annexure "JWB 4."

49.
Soon after Madhoe and Panday appeared in court, the prosecutor in the matter,
Advocate Bheki Mnyati (uMnyati"), received a letter from Advocate Laurence Mrwebi
("Mrwebi") who was at that stage the Head of the NPA Commercial Crimes Court in
Pretoria. The letter essentially interrogated why Madhoe had been charged. He also
mentioned that Madhoe's attorney had approached him. In the letter Mrwebi
downplayed the strength of the evidence against Madhoe and it seems that he
agreed with some of Mad hoe's outlandish averments. A copy of the letter is attached
as Annexure "JWB 5."

50.
In my view, Mrwebi failed to adhere to protocol by entertaining Madhoe directly. He
should have informed Madhoe's attorney to make representations to the Director of
Public Prosecutions ("OPP") in KwaZulu Natal ("KZN") and thereafter to the NDPP if
he was not satisfied with the response of the OPP.

JWB-016

51.

Mnyati in response penned a detailed legal opinion, setting out the evidence against
Madhoe. See attached Annexure "JWB 6." In his reply to Mrwebi he concluded that
he intended to indict Madhoe in the High Court for corruption. Any benefit Madhoe
might have gained by approaching Mrwebi obviously would have benefitted Panday
too.

52.
During July 2012 the Acting OPP in KZN Advocate Simpiwe Mlotshwa ("Mlotshwa")
was replaced with Advocate Moipone Noko ("Noko"), as the Acting OPP for KZN.
Shortly after her appointment, Noko withdrew the charges against Panday and
Madhoe. I suspect that Noko had been appointed on the recommendation of
Advocate Jiba, as Jiba was the acting NOPP when advocate Noko replaced
Mlotshwa.

53.
Advocate Noko later issued a media statement stating: "... while there was a
prosecutable case, she had concerns "regarding justice", based on representations
which Panday had made and which needed further investigation". The media article

is attached as Annexure "JWB 7."

54.
Mnyati later informed me that his stance in the matter was the reason for being
overlooked for promotion and that he intended resigning from the NPA which he later
did. I understand that he is now in private practice.

JWB-017

55.
It later turned out, according to an independent forensic audit report by
PricewaterhouseCoopers ("PWC"), that the then Provincial Commissioner Ngobeni
had a corrupt relationship with Panday and Madhoe. Panday paid a substantial
amount of R20 000 to R30 000 for an extravagant birthday party for her husband at
an upmarket hotel in Umhlanga Rocks. The PWC audit report and other evidence is
contained in the case docket, Durban Central CAS 781/06/2010, which is with the
Public Prosecutor, Advocate Wendy O'Brien. The payment was confirmed in the
bank statements of Panday. This period coincides with the time period where the PC
was continually harassing me to stop the investigations in which Panday was being
implicated.

56 .
.4tthough I understand that a decision was subsequently taken to re-prosecute
Panday, Mad hoe and others .for corruption and the attempt to bribe me, to date none
of the accused have appeared in court. I am informed that a decision to now
prosecute Panday and Madhoe for attempting to bribe me had been taken on review
by Mad hoe. I understand that the review application had been struck off the roll. I am
not sure as to the reasons why this was done. It is further my understanding that
Advocate Wendy O'Brien from the Specialised Commercial Crimes Court in Durban
is preparing to proceed with this case. With regards to the main corruption case, I am
informed that a decision was taken to prosecute Madhoe, Panday and others, but
the accused have also taken this decision on review. This matter is still pending.

57.
Whereas I am not privy to the founding affidavit for the review application in the main
corruption case and can therefore not comment thereon, I have seen the founding

JWB-018

affidavit of Madhoe in the review application for the attempt to bribe me. It is
significant that although I am not cited as a respondent, much of the points taken by
Madhoe relates to imputations against the Independent Police Investigative
Directorate ("IPID") Robert McBride, Nxasana and myself. Therefore I submit that the
review application, if it had not been struck off the role, could not have been
successfully opposed by the then NDPP, Advocate Shaun Abrahams ("Abrahams")
unless I was approached to submit an affidavit or at the very least, submit a
confirmatory affidavit in opposing the review application.

58.
THE AMIGO'S CASE

In another investigation, which I had 'inherited' in 2010 from the Commercial Crime
Unit in KZN, after the establishment of the HAWKS, I was informed that whilst still
the Acting OPP in KZN, Mlotshwa, had been pressured to withdraw charges against
Peggy Nkoyeni ("Nkonyeni") and Mike Mabuyakhulu ("Mabuyakhulu"), who I recall
were members of the KZN Legislature.

59.
I was informed about this by Lieutenant Colonel Piet du Plooy ("du Plooy"), the
investigating officer in the case at the time. Nkoyeni and Mabuyakhul were coaccused, in what became commonly known as the 'Amigo' Case. It related to the
corrupt acquisition of water purifying plants for hospitals in KZN. They were
prosecuted for racketeering along with businessman Gaston Savoi ("Savoi").
According to Du Plooy, he and the Forensic Auditor in the investigation, Mr Trevor
White ("White") from PWC, were summoned to Pretoria by Mrwebi and Anthony
Mosing ("Moslng"). Du Plooy informed me that it was evident that the two advocates

18

JWB-019

had aligned themselves with the notion that the case against Nkoyeni and
Mabuyakhulu did not have sufficient evidence to proceed against them.

60.
Because I had inherited the investigation in its final stages, I was not conversant with
the evidence in the docket and enquired from Du Plooy what Advocate Mlotswa's
position on the matter was. Colonel Du Plooy assured me that there was a prima

facie case against the two and that Advocate Mlotswa was going ahead with the
prosecution.

61.
Significantly, during July 2012, Mlotswa was replaced with Noko as the Acting OPP
for KZN. Within two weeks after taking up the post, Noko withdrew the charges
against Nkoyeni and Mabuyakhulu. The Amigo case was also removed from the
assigned prosecutor, namely Advocate Ndlilele Dunywa ("Dunywa"), and reassigned
to Advocate 'Bulelwa Vimbani ("Vimbani"). Since then no prosecutions have been
reinstituted on these charges against Nkoyeni and Mabuyakhulu.

62.
LOOTING OF THE SECRET SERVICES ACCOUNT

Minister Mthethwa himself was responsible for the controversial appointment of
Mdluli as Head of Crime Intelligence. The Acting National Police Commissioner at
the time, Tim Williams ("Wiliams"), commented publically then that Mdluli's
appointment was "completely unusual' and "not regular'.
63.
A researcher at the Institute for Security Studies, Dr Johan Burger ("Burger"),
remarked that Mdluli's appointment was clearly a political appointment which

JWB-020

interfered with police processes. A copy of this article is attached as Annexure
"JWB 8."

64.

Mdluli was Head of Crime Intelligence and was at the time responsible for allegedly
looting the Secret Services Account for his and others' benefit. One significant
example is the building of a fence at a cost of R195 581.45 at the private residence
of the then Minister of Police, Mthethwa, which had been paid for from the Secret
Services Account.

65.
During a live interview with political analyst Karima Brown ("Brown") on radio 702 on
17 October 2018, Mthethwa attempted to defend the unlawful expenditure saying
that he had been exonerated by the Inspector General of Intelligence ("IGI"). He
claims that as a Minister he was entitled to the installation of security measures at
his residence. This may be so but is a disingenuous deflection of the real issue at
hand. The payment thereof should not have been procured from the SAPS Secret
Services Account.

66.
From reading the Ministerial Handbook approved by Cabinet on 7 February 2007,
the correct procedure is that the SAPS Protection and Security Services should have
conducted a 'risk assessment' at the Minister's residence after he had requested
security improvements at his residence. The risk assessment would have been
evaluated and thereafter referred to the Department of Public Works ("DPW"). Once
approved by the Minister of Public Works the project will be dealt with through DPW
with funding coming from the Parliamentary Budget.

JWB-021

67.
In any event, on his own version during the radio interview, the expenditure incurred
was higher than permitted by National Treasury which limits the State's contribution
to R100 000.00. According to the Handbook, "should the cost of the security

measures be more that R100 000.00 the difference shall be borne by the Public
Office Bearer', in this instance Minister Mthethwa. Besides not conforming to the
requirements of the Ministerial handbook the utilisation of the Secret Services
Account to fund a wall around his private residence also remains unlawful no matter
what benefits he as a Minister was entitled to, as described in the Ministerial
Handbook. An extract relevant to the "POLICY ON SECURITY MEASURES AT THE
PRIVATE RESIDENCES OF PUBLIC OFFICE BEARERS" is attached as Annexure

"JWB 9."

68.
Details of the wall is confirmed in a report by the Auditor-General ("AG"). An extract
from the AG report is attached as Annexure "JWB 10."

69.
I also assisted in the investigation of Mdluli for the looting of the Secret Services
Account. Although the main investigation was being conducted by Roelofse from the
HAWKS, there was an auxiliary investigation pertaining to the looting of the Secret
Services Account in KZN conducted by Brigadier Simon Madonsela ("Madonsela").
Madonsela elicited my assistance and advice because elements from Crime
Intelligence ("Cl") in KwaZulu-Natal were obstructive during the investigation.

JWB-022

70.
I recall having read the dockets and having recorded the names of witnesses. I also
made a summary of what the witnesses had stated in their affidavits. A copy of my
handwritten notes as well as a transcription thereof is attached as Annexure "JWB

11."

71.
After Madonsela had subpoenaed documents from Cl in KZN he was recalled to
Pretoria and the investigation removed from him by General Lesetja Mothiba
("Mothlba"). Mothiba indicated to Madonsela that the instruction emanated from

Phiyega.
72.
The investigation into the looting of the Secret Services Account in KZN was then
handed to a less experienced junior investigator, Captain Ramesh Heerlal ("Heerlal)
from Moonoo's office.

73.
Sometime later, McBride of IPID enquired from me if I could get copies of the
dockets and I managed to obtain copies of the dockets. On a cursory perusal of
copies of the dockets I noticed that any statements that incriminated Mdluli and other
police officials were not in the copies of the dockets now provided to me.
74.
I handed the copies to McBride and thereafter submitted an affidavit to him in which I
listed the names of witnesses whose statements had been 'sanitized' from the
dockets.

22

JWB-023

75.
CATO MANOR INVESTIGATION

In 2015, in a criminal investigation against Advocate Jiba (in which I was the
complainant), Mlotswa filed a witness affidavit wherein he stated that Jiba had
phoned him in the beginning of 2012 and requested him to sign an indictment for the
Cato Manor officials and me to be prosecuted for racketeering. Mlotshwa declined to
do it because there was no accompanying documents to support the indictment for
charges of racketeering because there was no evidence linking us individually or
collectively to sustain a charge of racketeering.

76.
Mlotswa informed me that Jiba later again discussed the authorising of an indictment
against us with him in Pretoria, but he again informed her that he will only do so if
and when the indictment is accompanied by documents, linking us individually and
collectively to the charges of racketeering. It is significant that during 2012, the same
time that Jiba phoned Mhloswa, I was involved in the investigations of Panday and
supervising the Nkoyeni and Mabuyakhulu investigations.

77.
INTERFERENCE BY MINISTER MTHETHWA

Mosing of the NPA recorded handwritten minutes of a meeting between the then
Minister of Police, Nathi Mthethwa ("Mthethwa") and prosecutors at the NPA head
office, which coincides with the timeline during which Mlotshwa was pressured by
Jiba to authorise the Cato Manor officials and my prosecution ("the Mosing notes").
According to the Mosing notes, Mthethwa 'wanted arrests within a week'. I have
obtained a copy of the Mosing notes attached as Annexure "JWB 12."

23

JWB-024

78.
In Mosing's handwritten minutes, I am referred to as a 'suspect'. To emphasize my
suspicions concerning the involvement of Mthethwa's office, I am in possession of a
NPA letter wherein it is evident that one, Mr Skhumbuzo Ndhlovu from the Civilian
Secretariat in the Ministers office was assisting the NPA related to the Cato Manor
investigation. A copy of this letter is attached as Annexure "JWB 13."

79.
The involvement of Minister Mthethwa to have the Cato Manor policeman and myself
prosecuted is further confirmed in an email from Adv Chauke ("Chauke") of the NPA
to Advocate S Mlotswa, the then acting DPP in KZN. This email is one of a sequence
of emails between Chauke and Mlotswa. The general gist of the emails are that
Chauke wants Mlotswa to cooperate in having the Cato Manor members and me
prosecuted but Mlotswa appears reluctant to do so because he requires certain
supporting information. In the email dated 12 June 2012 Chauke writes inter alia to
Mlotshwa, "if this makes you uncomfortable please indicate so that I may urgently

take up the matter with the acting NDPP as well as the minister'. A copy of this email
is attached as Annexure "JWB 14."
80.
Mosing's notes reveal how Minister Mthethwa wielded pressure on the police and
prosecutors to 'make arrests'. The notes further reveal how prosecutors conspire to
exclude KZN prosecutors and to involve prosecutors at National level (essentially
themselves). This clearly highlights how Mthethwa and the group of prosecutors pay
scant regard to the constitution by disregarding the doctrine of the separation of
powers between the Executive and the Judiciary.

JWB-025

81.
The notes by Mosing must not be viewed in isolation. During the live radio interview
with Brown, mentioned earlier, Mthethwa conceded that he had had a meeting with
prosecutors and was attempting in the same vain to justify having had the meeting.

82.
It is my respectful opinion that Minister Mthethwa had no legitimate reason to meet
with prosecutors and to make demands. If he wanted to obtain feedback regarding
the investigation he should have followed protocol and requested feedback via the
SAPS's National Commissioner or his counterpart Minister Masutha, the Minister of
Justice.

83.
THE PROSECUTORS

The malicious prosecutions of inter alia, Gordhan, Dramat, McBride, Sibiya,
Breytenbach, Johann Van Loggenberg ("Van Loggenberg»), Ivan Pillay ("Plllay"),
the Cato Manor detectives, Oupa Magashula ("Magashula"), Mathews Sesoko
("Sesoko"), Andries Janse van Rensburg ("Janse van Rensburg"), Gerhard

Wagenaar ("Wagenaar") and myself, all at the hands of the same regime of
prosecutors, suggests that the prosecutors mentioned below were essentially
designated through political manipulation to disrupt investigations into corrupt
politicians and their associates by targeting

individuals seized with those

investigations.

84.
In some instances, they acted with patent disregard to the constitution and their oath
of office, by unlawfully withdrawing criminal charges against certain individuals

25

JWB-026

including Mabuyakhulu, Nkoyeni, Mdluli, Jiba and Panday. In other instances they
disingenuously contrived reasons not to prosecute certain individuals where prima
facie cases exists and conversely prosecuted others where NO prima facie evidence

existed such as Sibiya, Dramat, Gordhan, Breytenbach, McBride and myself.

85.
These prosecutors comprise of certain prosecutors of the Priority Crimes Litigation
Unit ("PCLU") created by Presidential Proclamation on the 23rd of March 2003, or
prosecutors working closely with them at the NPA. The mandate of the PCLU is to
direct and manage investigations into matters such as Genocide, Crimes against
Humanity, War Crimes, Crimes against the State, National and International
Terrorism, Contraventions of Foreign Military Assistance Act, Nuclear Energy Act
and the Intelligence Service Act etc.

86.
There are many serious matters such as, amongst others, Bosasa, State Capture,
the Guptas and Steinhoff that effects the economy and stability of the country, that
warrant the attention of the PCLU, however they elected to focus on relatively minor
cases such as alleged fraud against Pillay and Gordhan and defeating the ends of
justice by McBride.

87.
It is now public knowledge that the individuals mentioned above were all involved in
various sensitive investigations by the HAWKS and SARS respectively, such as the
Nkandla debacle, illicit tobacco trade involving Edward Zuma and Yusuf Kadjee
("Kadjee"), the looting of the Secret Service Account involving Mdluli, tax evasion by
Robert Huang ("Huang') - a former business associate of Khulabushe Zuma (in this

�

26�

JWB-027

regard I attach a news report from News24 dated 29 March 2019 wherein it was
reported that SARS are seeking to recover R236 million in debt from Huang, see
Annexure "JWB 15."), senior police officers and politicians and corruption by
Panday who had links to Edward Zuma.

88.
Some of the Advocates, who I believe form part of a captured group within the NPA
are listed below. I will demonstrate the involvement of certain prosecutors in various
persecutions of individuals who were essentially in the forefront of investigations of
individuals with political links, to offset legitimate prosecutions of those with political
links.
89.
I firmly believe that these prosecutors acted at the instance of Advocate Jiba who in
turn did the bidding of Mr Jacob Zuma, Mdluli and those associated with them. Some
of the prosecutors that I believe have been captured by individuals with a vested
interest in having investigations manipulated are those listed below.
90.
ADVOCATE NOMGCOBO JIBA
Jiba has been at the centre of controversy at the NPA for almost a decade. She
played a prominent role in the arrest of Nel, who investigated the then SAPS Police
Commissioner, Selebi, for corruption. She played a key role in shielding Zuma from
prosecution by evading scrutiny of the so called 'spy tapes'. The 'spy tapes' were
central to a decision for racketeering charges to be dropped against Zuma.

JWB-028

91.
During a review application by lobby groups to have the charges against Zuma
reinstated, Jiba frustrated the applicants and the courts by not releasing the 'spy'
tapes. Jiba's conduct was criticised by the Supreme Court of Appeal.

92.
Jiba also played a major role, along with Mrwebi, to withdraw criminal charges
against the then National Head of Crime Intelligence, Mdluli. This too courted
criticisms from the courts as the withdrawal of charges against Mdluli was held to be
irrational. Breytenbach, who insisted on prosecuting Mdluli, was suspended and
charged internally by Jiba. Breytenbach was acquitted and resigned from the NPA.
This did not deter Abrahams from continuing the persecution of Breytenbach once
he assumed office. Raymond Mat_henjwa ("Mathenjwa"), was assigned to prosecute
her criminally on spurious charges. The court acquitted her on all charges.

93.
Advocate Jiba played a key role in prosecuting me for racketeering. I took Jiba's
decision to prosecute me on review, where Jiba was found to be mendacious in
court papers, by Gorven J from the Durban High Court, where he ruled that her
authorisation to prosecute me was irrational. Gorven J held as follow in my review
application "I can conceive of no test for rationality, however relaxed, which could be
satisfied by [Jiba's] explanation. The impugned decisions were arbitrary, offend the
principle of legality and therefore, the rule of law and are unconstitutionar. A copy of

Gorven J's Judgement is attached as Annexure "JWB 16."

JWB-029

94.
It is my view that Jiba is at the heart of all the nefarious activities that I have been
describing in this submission, by using her influence as an executive member of the
NPA to direct the fate of others. During her tenure as Acting NDPP when she was
appointed in 2012, the NPA was turned into a battleground where she and a faction
under her charge, pitted themselves against those who pursued prosecutions of their
political acolytes. When Abrahams' predecessor, Nxasana was appointed as NDPP
in October 2013, Jiba and Mrwebi were particularly disruptive and recalcitrant.

95.
In an effort to stabilize the NPA, Nxasana requested retired Constitutional Court
judge, Justice Yacoob, to conduct an internal enquiry regarding the problems at the
NPA at the time. I understand that Advocates Jiba and Mrwebi refused to cooperate
prompting Justice Yacoob to call for a Judicial Commission of enquiry at the NPA.
Nothing came of his recommendation.

96.
Various disparaging remarks have been levelled at Advocate Jiba by the courts. This
culminated in her being prosecuted for fraud, perjury and obstructing the course of
justice. When Nxasana was elbowed out by the then President Jacob Zuma,
Abrahams withdrew the criminal charges against her. The· High Court in Gauteng
North found that the withdrawal of the criminal charges was irrational which means
that Jiba will have to stand trial. The same court made adverse findings on the
integrity of Advocates Abrahams and Mokgathle, but there was no action taken as a
result of the findings.

JWB-030

97.
Jiba was struck from the roll of Advocates by the Gauteng North High Court for her
handling of the Mdluli matter. The Supreme Court of Appeal upheld her appeal but
Freedom Under the Law ("FUL") has applied to the Constitutional Court for leave to
appeal the SCA decision. The matter is pending.

98.
In the meantime Jiba has been suspended by the current State President,
Cyril Rhamaposa ("Ramaposa"). Evidence has been led in the Mokgoro inquiry into
her fitness to hold office. In terms of the gazetted Terms of Reference the inquiry
must probe whether Jiba properly exercised her discretion in relation to instituting
and conducting criminal proceedings on behalf of the state with reference to inter alia
Booysen v Acting NDPP. I indeed testified at the inquiry on the 4th of February 2019.

99.
ADVOCATE SELLO MAEMA

It is evident from the exposition below that Advocate Maema has been the 'cleanup'-and 'go-to-person' whenever the political elite and or their associates have to be
protected from prosecutions. Maema is the lead prosecutor in the prosecution
against the Cato Manor officials and myself.

100.
In the wake of Govern J's findings in Booysen v Acting NDPP a criminal investigation
against Jiba ensued. Maema made a false statement under oath in this matter to the
police. He stated that an apparent witness in the Cato Manor case had been "killed",
whereas Maema knew full well that the person that he had referred to was Bheki
Londlo Mthiyane ("Mthiyane") who had died of natural causes.

30

JWB-031

101.
I have registered a criminal case against Maema for perjury and fraud at the
Silverton

Police Station vide CAS 156-6-2016,

in

regard

to a

prosecution

memorandum to the then NDPP Abrahams, in which he was dishonest and
misrepresented evidence to persuade Abrahams to authorise our prosecution. I have
detailed the falsehoods succinctly in my two complainant statements, copies of
which are attached as Annexure "JWB 17." The investigation is being conducted by
Lieutenant Colonel Pharasa ("Pharasa"} from the HAWKS. Pharasa has informed
me that the docket has been submitted to the Public Prosecutor for decision. I have
also reported Maema's conduct to the General Council for the Bar.

102.
I am also aware that Van Loggenberg is the subject of prosecutions by Maema.
Maema did this in collaboration with NDPP prosecutors Pretorius and Sibongile
Mzinyathi (Mzinyathi}. Van Loggenberg filed a formal complaint to the then NDPP,
Abrahams because Maema lied under oath pursuant to an application Van
Loggenberg had brought pertaining to his prosecution. Van Loggenberg also
informed Abrahams how Pretorius and Mzinyathi had lied in the same application.

103.
Maema was also the prosecutor in the aborted so-called 'Rendition' saga when
members from the Independent Police Investigative Directorate ("IPID") including the
Executive Director, McBride, were prosecuted for obstructing the course of justice.
They were prosecuted because they updated a report to the Minister of Police, Nathi
Nhleko ("Nhelko"), which evidently did not fit in with Nhleko's plans to get rid
Dramat who was the Head of the HAWKS at the time.

31

JWB-032

104.
Nhleko suspended McBride and Maema took up the criminal prosecution. The
Constitutional Court held that McBride's suspension was unlawful and criminal
charges were eventually withdrawn against McBride and his co-accused. By then
certain investigations McBride had undertaken had suffered a setback. Maema and
Nhleko's actions, in my view, constitute a criminal offence of defeating the ends of
justice.

105.
The suspensions of McBride, Dramat and myself were held to be unlawful by the
courts, whilst the others did not challenge their suspensions. Consequent to these
persecutions, various HAWKS and SARS investigations were compromised.

106.
Maema previously publicly took responsibility in the media for interfering with a
political sensitive prosecution in the Brett Kebble ("Kebble") case, as well as the
prosecution of former Crime Intelligence Head, Mphego. He replaced Nel and
Andrea Johnson in the Kebble case for no apparent reason. Agliotti was not
surprisingly acquitted for the murder of Kebble. Mphego was charged for defeating
the ends of justice after he allegedly interfered with a witness (Agliotti) in the Selebi
case. I understand that the case against him did not proceed after he made
representations to the NDPP.

107.
It cannot be said that it is a coincidence that Maema happens to be involved in the
prosecution in all three matters. Furthermore, it is my understanding that he is based
at the OPP office in Mmabatho, but is designated to conduct these 'prosecutions' in

32

JWB-033

other parts of the country. Considering his history, (i.e. in the Selebi and Mphego
cases referred to previously) it amplifies my contention that he is in effect a proxy
who is deployed where and when it is required, to protect certain connected
individuals by prosecuting those who are investigating those with political links. In my
experience dealing with High Courts spanning almost 40 years I have never
encountered a situation where prosecutors from one provincial jurisdiction undertake
prosecutions in another provincial jurisdiction.
108.
ADVOCATE ANTHONY MOSING

Advocate Mosing along with Mrwebi facilitated the withdrawal of racketeering
charges against two politicians, Nkoyeni and Mabuyakhulu. They had summoned the
investigating officer, Du Plooy, to Pretoria where the wheels were set in motion for
the charges against them to be ultimately withdrawn by Noko. Mosing played a major
role in my prosecution. In the Mosing notes, Mosing writes that he and other
prosecutors, all whom are involved in the persecution of people like McBride and
Dramat et al, met with the then Police Minister Mthethwa on 08 March 2012, where
the plan to arrest myself and exclude KZN prosecutors from the process, was
conceived.
109.
The relegation of Mlotswa and the deployment of Noko to KZN, the subsequent
withdrawal of cases against Panday, Madhoe, Nkoyeni and Mabuyakhulu and the
subsequent deployment of Mathenjwa and Maema to spearhead our prosecution,
suggests, at a minimum, a familiar pattern similar to other prosecutions such as
those of Breytenbach, McBride, Sibiya, Dramat, Van Loggenberg and Pillay.

33

JWB-034

110.
ADVOCATE MOIPONE NOKO

When the previous acting OPP in KZN, Mlotswa, refused to yield to Jiba, he was
replaced with Noko, who wasted no time in effecting Jiba's wishes.
APPOINTMENT OF NOKO TO DPP IN KZN

Considering the above, particularly with reference to Advocate Mlotshwa's affidavit
and crucially the timing of ostensible unrelated events, the only reasonable
conclusion I can come to is that Advocate Mlotshwa was replaced with Advocate
Noko on the recommendation of Advocate Jiba because;
110.1. Mlotshwa refused to withdraw the racketeering charges against Nkoyneni
and Mabuyakhulu (Amigo case);

110.2. He refused to sign an indictment to prosecute Cato Manor officials and me
for racketeering because he stated that there was no supporting evidence;
and

110.3. Noko had to facilitate the withdrawal of corruption charges against
Panday, who was a business associate of Edward Zuma and Mzobe,
(family members of the then President Jacob Zuma).
111.
Advocate Noko was appointed by the then President Jacob Zuma as the permanent
OPP for KZN a year later. In my view Noko's permanent appointment as OPP in KZN
was to entrench her as a gate keeper to protect certain politicians and their allies
against prosecution.

JWB-035

112.
Noko along with Maema conspired to re-authorise my prosecution, after it was set
aside by the High Court. They both presented falsehoods in a prosecution
memorandum, and a PowerPoint presentation to Abrahams to persuade him to
prosecute me again. They openly lie and make misrepresentations in these
documents. I have opened a criminal case against them. A copy of the Prosecution
Memorandum compiled by Maema and the PowerPoint presentation compiled by
Noko is attached as Annexure 11JWB 18."
113.
During a recent interview for the appointment of a new NDPP, Noko misled the panel
when questioned about the 'Booysen' case. She informed the panel that when she
arrived in KZN she 'found the case on the court roll'. She did not disclose to the
panel that she and Maema did a presentation to Abrahams to re-authorise my
prosecution. Neither did she disclose that she had signed the indictment for my
prosecution on the 9th of October 2015. It is disturbing how individuals who are
entrusted with authority which can ultimately affect the lives of others, can be so
blatantly dishonest on national television. It undermines the integrity of the NPA.
114.
Noko was later involved in the prosecution of the KZN Judge President at the time,
Justice Patel. The State was ordered to pay damages to the Judge and the court
criticized Noko's testimony in the case.

JWB-036

115.
ADVOCATE (DR) TORIE PRETORIUS

Advocate Pretorius had a hand in the aborted prosecution of Minister Gordhan, the
present Minister of Public Enterprises.
116.

Subsequent to Abrahams' ill-considered decision to prosecute Gordhan, it was
reported that the previous State President, Jacob Zuma had served Pretorius with a
notice of intention to suspend him along with Abrahams and Mzinyathi, pending an
inquiry into their fitness to hold office. Despite this, neither Abrahams, Mzinyathi nor
Pretorius were suspended and to my knowledge no inquiry was held pertaining to
their conduct or their fitness to hold office.

117.
Considering the catastrophic effect on the country, consequent to their reckless
conduct, it is curious why no probe was initiated into their conduct, apropos the failed
attempt to prosecute Gordhan. The reasons ought to be found in the representations
made to Zuma by Pretorius, Abrahams and Mzinyathi. It may shed light on whether
the prosecution of Gordhan was justified, and it may also reveal whether there was a
political agenda to prosecute Gordhan.

118.
It simply cannot be so that Pretorius, Abrahams and Mzinyathi's whose conduct
which adversely affected the country, escapes sanction.

119.
As previously discussed, I am advised that fraud does not fall in the remit of the
Priority Crimes Litigation Unit (PCLU). Therefore in my view, the participation of

36

JWB-037

Pretorius from the PCLU in the prosecution of Gordhan is not only an abuse of
power, but strongly suggests a political motive by Pretorius, Abrahams and Mzinyathi
to unlawfully target Gordhan. I understand from Sibiya that Pretorius also played a
key role in the now aborted Rendition prosecution of the Head of the HAWKS,
Dramat and Sibiya.
120.
I am informed by Van Loggenberg that he, Pillay and Janse Van Rensburg,
previously from SARS, have lodged complaints of dishonesty against Pretorius at the
NPA. The complaints emanates from Pretorius's alleged dishonesty in a High Court
application by Van Loggenberg, which is set down for some time in 2019.
121.
Pretorius also defended the prosecution of the Cato Manor officials and me in a
'legal opinion.
122.
I believe that Pretorius has allowed himself to be deployed as a 'lightning conductor'
in these matters to deflect attention from those in the coalface of the malicious
prosecutions.
123.
ADVOCATE RAYMOND MATHENJWA

I find it extraordinary that Advocate Mathenjwa appeared in two different courts in
two different provinces in one week as the prosecutor. He appeared for the State on
15 February 2016 against Breytenbach in Pretoria and a few days later on
19 February 2016 in Durban when Abrahams re-authorised my prosecution. I am
advised that the designation of Mathenjwa to act in my matter, is irregular. I have

JWB-038

been informed by two persons from the NDPP office that Mathenjwa was promised
promotion to OPP for Nelspruit where a new post would be created. According to the
two persons from the NPA, Abrahams had already approved his promotion along
with others of Jiba's captured group, but before former president Zuma could sign
their appointment letters, he resigned as President, which negated their promotions.
124.
ADVOCATE SHAUN ABRAHAMS

Former President Zuma appointed Abrahams after he unlawfully deposed Nxasana
as the NDPP. Some of the reasons for Nxasana's departure were amongst others
his preparedness to review the withdrawal of criminal charges against Panday and
his role in sanctioning Jiba's prosecution. Nxasana told me that he suspected that
the rumours going around at the time, that he intended to prosecute former President
Zuma, were part of an elaborate scheme by Jiba et al to alienate former President
Zuma from Nxasana. I am inclined to agree with him.
125.
Soon after taking office, Abrahams withdrew the charges of fraud and perjury against
Jiba. These charges emanated from the findings of Govern J in Booysen v Acting
NDPP [Jiba) in which I am the complainant. Jiba had already appeared in court and
her trial was about to commence in August 2015. The withdrawal of these charges
were reviewed and set aside by the High Court in Gauteng North.

126.
In defending the review application by FUL to reinstate the charges against Jiba,
Abrahams misled the court by stating it was Mokgathle who withdrew the charges
against Jiba. The High Court found that it was indeed Abrahams and not Mokgath

JWB-039

who withdrew the charges and raised questions as to Abrahams' and Mokgathle's
integrity. No enquiry was instituted against either Mokgathle or Abrahams,
consequent to the adverse remarks by the court. This shows how individuals within
the faction consistently get away with infringements, while those outside the
captured group are ostracized and vilified.
127.
It is evident from evidence submitted to this Commission by Advocate Sam Muofhe
("Muofhe") in November 2018, that former President Zuma was unhappy with the
prosecution of Jiba and that the former President Zuma wanted to appoint Muofhe as
NDPP as long as Jiba was left alone.
128.
After listening to Muofhe's testimony at the State Capture Commission, I am now
more convinced that former President Zuma had a hand in my prosecution. Although
Jiba's prosecution commenced under Nxasana's watch, I was the complainant that
culminated in her prosecution, and l was also the key witness against her.

129.
Under Abrahams' watch, the destabilisation of the NPA intensified. There was for
instance, the Gordhan affair, his unyielding defence of Jiba, his elevation of Jiba to
the second most powerful position at the NPA as head of the National Prosecuting
Service ("NPS"), his removal of Hofmeyr at the Asset Forfeiture Unit, his removal of
the NPA CEO, Advocate Karen van Rensburg ("van Rensburg"), his handling of the
Gupta saga and his resolve to protect former President Zuma from prosecution.

JWB-040

130.
The High Court ruled in "Booysen v Acting NDPP" that there is no evidence linking
me to the commission of an offence as purported by Jiba in 2012. Despite the court's
findings, Abrahams re-authorised my prosecution in 2016.
131.
I am convinced that if I had not worked my way back into office after my unlawful
suspension, revived the cases that had become dormant, accepted the golden
handshake that the former National Police Commissioner Riah Phiyega ("Phiyega")
had offered me and if I had not pursued the likes of Jiba and Panday, Abrahams
would not have been coerced into reauthorizing my prosecution, because I would
thus no longer have been a threat.
132.
When re-authorising my prosecution Abrahams falsely claims that the statement that
finally 'satisfied' him when he decided to prosecute me is from a Greek citizen, Aris
Danikas ("Danikas"), which he claims is 'now' signed. This is deceitful as the only
'statement' that Abrahams could have seen, at the time, is the same document that
served before Gorven J who held that "it was not a statement as it was neither
signed nor commissioned. Further to that, even if the contents in the document can
be attributed to Danikas, it relates to events outside the indictment period except tor
one incident that does not relate to "Mr Booysen ".
133.
By November 2018, six years on, neither Abrahams nor Maema, could produce a
signed English version of Danikas' statement. According to Maema the statement is
in Greek, and by late 2018, had not been translated from Greek into English. Unless

JWB-041

Abrahams and Maema are conversant in Greek, which I submit they· are not, it is
disquieting how Abrahams attempts to deceive the court in purporting to have
considered the statement when taking such a crucial decision. For all intents and
purposes, the Greek statement which he claims is from Danikas may very well
contain exculpatory evidence, or it is the same information contained in the unsigned
version which had already served before Gorven J.

134.
Despite written requests by my attorney, I have yet to receive Danikas' statement in
English.
135.
The reinstituted prosecution against me, authorised by Abrahams, is currently the
subject of a review in the KZN High Court. I brought the review proceedings during
2016 and the matter is still to be heard because of delays occasioned by the office of
the NDPP.
136.
OTHER PROSECUTORS
Other prosecutors too played roles behind the scenes to enable the captured faction
to function unfettered. They are Advocate JJ Mlotswa who is a co-prosecutor in
many of the cases mentioned above and Advocate Dawood Adams ("Adams") who
according to a report that I had seen appears to have committed fraud by
appropriating funds from the Witness Protection Programme for his personal benefit.
The alleged fraud was investigated at the time by Advocate Hofmeyr of the Special
Investigating Unit ("SIU"). Despite evidence of wrongdoing, nothing came of it.

JWB-042

Adams too was involved in my prosecution in that he accompanied Advocate Maema
to Greece in order to obtain a statement from Danikas.

137.
The NDPP personnel, which I have listed above, have in one way or another
contributed to invent cases against Dramat, Sibiya, Pillay, Breytenbach, McBride,
Van Loggenberg, members of Cato Manor and myself, in order to disrupt legitimate
investigations by abusing state machinery and processes. Instead of acting as
guardians of the Constitution of the Republic of South Africa, they have undermined
and violated it.

138.
PROSECUTORS RESIGNING DUE TO INTERFERENCE
Advocate Mlotswa resigned from the NPA becoming the second casualty of political
meddling at the NPA in KZN. Mnyati, the initial prosecutor in the Madhoe and
Panday matter, being the first. This is one example of the insidious developments at
the NPA and how the capturing of the NPA started to manifest itself. Prosecutors
who stood for justice and who prosecuted without 'fear or favour', were
systematically worked out and replaced by pliable prosecutors who acted towards
political objectives and not in the interest of justice. Other prosecutors that resigned
from the NPA because of the machinations at the NPA are inter alia Advocates
Glynnis Breytenbach ("Breytenbach") and Nel.

JWB-043

139.
LAW ENFORCEMENT: HAWKS AND THE SAPS

I now turn to deal with the capture of the HAWKS and to a lesser extent the SAPS
under the regime of Major-General Berning Ntlemeza ("Ntlemeza") and Phiyega
respectively.
140.
MAJOR - GENERAL BERNING NTLEMEZA

Ntlemeza was appointed on 24 December 2014 as the Acting Head of the HAWKS
after the unlawful suspension of Dramat on contrived charges.

141.
On 1 January to 2015, within a week of his appointment, it became clear to me that
Ntlemeza, who was based in Pretoria, had been deployed to take care of certain
investigations. Ntlemeza called me to the office of Ngobeni situated in Durban (KZN)
at which I am also based, at 08:00 on New Year's Day. On my arrival he was with
Ngobeni in her office. I was instructed by Ngobeni's secretary to wait in another
office down the passage. Ntlemeza later joined me in the office where he tried to
disguise his visit as an assessment of my office's equity profile. This was surprising
because the information had been previously provided to his office in the first place.

142.
Usually the Head of the HAWKS would enlist my help for transport from the airport,
but to my surprise I noticed that on 01 January 2015, Ntlemeza was transported by a
Colonel Clarence Jones ("Jones"), who I know had a shady relationship with
Panday. Jones tried to facilitate the payment of the R15 million which I had frozen, to
Panday. This can be confirmed by Advocate Knorx Molele ("Molele") at the NPA and

JWB-044

retired Brigadier Kemp. Advocate Molele informed me of this at the 'Bite Your
Tongue' restaurant in Durban North and Kemp alerted me to attempts to have the

money paid out surreptitiously. Incidentally, Jones was arrested last year for
corruption in an unrelated matter.

143.
At one stage I confronted Ntanjana from Support Services after a senior officer from
SAPS' financial services in KZN alerted me that there were moves afoot to release
the money to Panday. I warned Ntanjana that he would be complicit in corruption if
the money was paid out. I also reported the conduct of Jones on no fewer than three
occasions, in writing, to Ntlemeza. I queried Brigadier Kubi Moodley ("Moodley")
from Ntlemeza's office, responsible for these investigations, about progress in the
investigation and Moodley's response was that he was stifled by Ntlemeza. I wrote to
Ntlemeza that their failure to act constituted a criminal offence. Ntlemeza never
bothered to acknowledge receipt of my complaints.

144.
Incidentally I am aware that Ntlemeza also visited Cape Town during the same
period, where he indirectly intimidated Colonel Kobus Roelofse ("Roelofse"), the
chief investigator in the looting of the Secret Services Account by Mdluli. Ntlemeza
later removed the investigation from Roelofse.

145.
Ntlemeza's links with Mdluli are publicly well known. He initially 'investigated' the
kidnapping and murder allegations against Mdluli which he effectively whitewashed
to exonerate Mdluli.

JWB-045

146.
The real extent of the nefarious alliance between Ntlemeza and Mdluli was laid bare
in an affidavit of Mr Innocent Khuba ("Khuba") from IPID. Khuba was the
investigating officer in the so-called 'Rendition' case in which it was alleged that
Dramat and Shadrack Sibiya ("Sibiya"} facilitated the unlawful rendition of
Zimbabweans to the Zimbabwe authorities. (Dramat and Sibiya directed the Mdluli
corruption and murder investigations at the time). In Khuba's affidavit, he describes
how Ntlemeza put pressure on him in 2013 to finalize the investigation against
Dramat. He even visited Khuba at his residence and phoned him on his wife's
phone. He told Khuba that Mdluli would protect him if need be. A copy of Khuba's
affidavit is attached as Annexure "JWB 19."
147.
On the day of Dramat's suspension on 24 December 2014, for the so-called
Rendition case, Ntlemeza went to Khuba and told him that his, Ntlemeza's, time had
come to "head" the HAWKS.
148.
It is evident from Ntlemeza's behaviour that there was a grand stratagem between
him and people like Mdluli from as early as 2013 to oust Dramat.
149.
It is not disputed that Dramat at the time supported my investigations, much to the
disquiet of certain officers, especially Phiyega. Dramat of course also sanctioned the
investigation of Mdluli. I also know that Dramat had shown an interest in the Nkandla
docket. He confirmed this to me during September 2016, in Somerset-West, a day
after I launched a book in Cape Town.

JWB-046

150.
This investigation had another unsavoury aftermath. In a preliminary report to
Nhleko, it became public knowledge, that IPID concluded there was a prima facie
case against Dramat and Sibiya. After further investigations by McBride, McBride
advised Nhleko that the investigations now revealed that they were not implicated in
the rendition of Zimbabweans. For reasons, best known to Nhleko, he suspended
McBride for 'changing' the report. When I asked Khuba later, why he had forwarded
the docket to the NPA before all the investigations were concluded, Khuba told me
that Mosing had requested a report on the investigation. (Mosing, as I indicated
earlier in this submission, was instrumental in withdrawing racketeering charges
against Mike Mabuyakhulu and Peggy Nkonyeni. He also met with Minister
Mthethwa when the plan to arrest me was conceived). The inference I draw from this
is that Ntlemeza, Mdluli or Minister Nhleko wanted Dramat to be dealt with
expeditiously so as to pave the way for Ntlemeza's appointment.

151.
The strategy was obvious. To neutralize Dramat, Sibiya and others such as Roelofse
and myself and therefore directly impacting the sensitive investigations we were all
dealing with, they invented false charges against some of us. Dramat was
suspended and replaced with Ntlemeza who is an Mdluli collaborator. Ntlemeza
wasted no time to take control over the sensitive investigations by driving out those
involved with the investigations or directly interfering with investigative processes.

152.
Ntlemeza destroyed the HAWKS. He immediately took charge of all processes
relating to promotions. I challenged him once in a management meeting in

JWB-047

Polokwane about it, but he was evasive and dismissive. All the Provincial Heads
were unhappy with him hijacking the promotion processes in the HAWKS.

153.
Ntlemeza co-opted Major-General Ngembe from Support Services in KZN, who had
no relevant experience and wasn't attached to the HAWKS, to travel across the
country to Chair promotions panels in the HAWKS with him. Where all provincial
promotions were previously handled by the respective provinces, Ntlemeza took over
the process and excluded the provinces. Ngembe confessed this to me and
commented that it was not her 'environment and that she did not know anything
about investigations'. This is an example of how senior SAPS personnel, such as
Ngembe, allowed themselves to become pawns in the capture of state institutions.

154.
Ntlemeza ensured that only those loyal or close to him were promoted. In some
instances, if not the majority, the appointees lacked the skills and· experience
required to investigate complicated cases. Brigadier Renelle Vermaak, and Colonel
Lynn Devashayam from the HAWKS Human Resources department were excommunicated. Ntlemeza made their lives at the office unbearable until they both
eventually left the HAWKS. This amplifies my submission that Ntlemeza wanted total
control on who is appointed and or promoted within the HAWKS. I attach a copy of
the Brigadier Ronelle Vermaak's affidavit as Annexure "JWB 20."

155.
In fact, he orchestrated the replacement of 8 of the 9 Provincial Heads of the
HAWKS, almost all at the same time. In KZN he advertised and permanently
appointed Major-General Zikhali into my position as Provincial Head, shortly after I

JWB-048

was suspended. My suspension was found to be unlawful. I attach a copy of the
judgement by Van Zyl J, as Annexure "JWB 21."
156.
After Dramat settled his own disputes with SAPS in around April 2015 and retired
with a special dispensation, the post for National Head of the HAWKS was
advertised. During an open meeting in Polokwane with all the Provincial Heads and
National Heads in the HAWKS, Ntlemeza stated that he did not apply for the post. I
applied for the post and was shortlisted for the interviews.
157.

THE APPOINTMENT OF THE HEAD OF THE HAWKS:

MY EXPERIENCE AT

THE GUPTA SAXON WORLD COMPOUND
158.
On 16 August 2015, a few days before I was interviewed for the post as Head of the
Hawks, I was contacted by Captain Dirk Swart ("Swart'') from Durban SAPS, on
behalf of Duduzane Zuma ("Duduzane"), the former President's son who wanted to
meet me which I agreed to. I knew Duduzane as a result of a fraud investigation in
which he was a co-complainant in a criminal matter. The investigation related to a
complaint by Duduzame and 'one' Winston Innes against Ian Endres ("Endres")
concerning a fraud in an on-line betting scam (gambling). At the time I had appointed
Lieutenant Colonel Marthinus Botha ("Botha") from the Hawks in KZN to investigate
the alleged fraud. I had previously met Duduzane a few times when he had enquired
about progress in the investigation. One of these meetings took place at his office in
Sandton when I was in Gauteng for a meeting.

JWB-049

159.
I met Dududzane at the Sandton Gautrain station where I took it he wanted to
discuss his matter. Duduzane was driving a black Rolls Royce. Duduzane had
suggested that I get into the vehicle with him. I told my son who was with me at the
time, that I would be driving with Duduzane and that he should follow us. My son
followed us in his own vehicle. I took it that we were going to his office in Sandton.
We chatted about odds and ends. There was no discussion about his fraud matter.
Prior to our arrival Duduzane had made no mention that we were in fact going to the
Gupta Compound or anything regarding my interview to the position of National
Head of the HAWKS.

160.
The next moment we pulled up at a residence in Sandton which I recognised as the
Guptas' Saxonwold compound. I alighted from the vehicle by which time my son had
walked up to me and asked me "whether we were where he thought we were". I
responded and told him that I thought so. Although I was caught by surprise I
decided to see how things would unfold. We were escorted by security guards and
entered the house where we handed our cell phones over to them before entering
the lounge. Tony Gupta ("Tony"), was the only Gupta brother present.

161.
There were also house staff present, which I gathered were from India, who served
us some light Asian snacks.

162.
Tony spoke to my son, who is an IT specialist and told him if he wanted to go into a
business venture he should speak to them.

JWB-050

163.
There were no significant discussions, but what I indeed considered curious, was
that Tony knew that I was about to be interviewed a few days later, for the post of
National Head of the HAWKS, although I recall that a daily local newspaper in KZN,
The Mercury, at the time, reported that I had applied for the post as National Head of
the HAWKS. Tony said that if I was appointed we should have supper together in
Durban. I did not know what to make of his statement, but suspected that he wanted
to create the impression that should I be appointed, he had had a hand in it and that
I would consequently be indebted to him. I would like to reiterate that Tony did not
say this directly and that it is merely speculation on my part. I laughed and said that
we could.

164.
Duduzane, who was present, did not partake in the conversation other than
discussing generalities. After having had refreshments my son and I left. I did not
hear from the Guptas again. This was my one and only visit to the premises.

165.
Since I did not trust Ntlemeza, my Commander at the time, I did not report this to
him.

166.
On 13 June 2017 at 15:30 after the Supreme Court of Appeal removed Ntlemeza
from office, I handed an unsigned affidavit, see Annexure "JWB 22.", to the Acting
Head of the HAWKS Major-General Matakata ("Matakata"), who succeeded
Ntlemeza, in which I described how I was taken to the Gupta residence. I met her at
the Irene Mc Donald's and she was in a hurry because she had to catch a flight to

JWB-051

Cape Town. I told her that I will be available to sign and commission the statement,
but I have not heard from anyone in this regard.

167.
THE APPOINTMENT OF NTLEMEZA AS HEAD OF THE HAWKS

The following week three other candidates and I had to present ourselves for
interviews at Minister Nhleko's office at Parliament in Cape Town. The secretary was
Major-General Matakata from the HAWKS. Ntlemeza, who was not present on the
day of the interviews, was ultimately appointed as National Head of the HAWKS. I do
not know if he was interviewed and if he was, why he was treated differently to the
rest of the candidates.

168.
One of the first things Ntlemeza did after his permanent appointment, was to
suspend me unlawfully based on a false allegation of fraud concerning a
performance incentive. I took the decision by Ntlemeza to suspend me on review.
The High Court in Durban declared my suspension unlawful and I was awarded a
punitive cost order.

169.
In the judgement of review, Justice Van Zyl found no evidence that I could be
implicated in wrongdoing. He commented as follow, "A strong suggestion arises that

there is an ongoing move. possibly even a campaign to unseat the applicant."
{Booysen.). [Emphasis added by me].

170.
I am aware of instances after Zikhali was appointed that Ntlemeza started ostracising
HAWKS members that were perceived to be associated with me. One such membe

JWB-052

was Lieutenant Colonel Adele Sonnekus ("Sonnekus"). Ntlerneza had previously
suspended her unlawfully and after she returned to work she was unlawfully
removed from her post by Zikhali. Sonnekus was the Support Head who dealt with
promotions and appointments in KZN. I regard this move as being part of Ntlemeza's
strategy to control placements and promotions. Zikhali resisted attempts by
Sonnekus to return to her post. I understand that SAPS have now settled the dispute
and Sonnekus has returned to her post and she was awarded damages, by consent,
for an unfair labour practice. Zikhali himself is now being investigated for an
unrelated criminal matter and has been temporarily removed from his post.

171.
Ntlemeza purged the entire leadership of the HAWKS in the provinces and at
National Head Quarters. The new regime in turn made changes to the structures
downwards that were calculated to seize complete control of the HAWKS by
Ntlemeza by placing pliable people in strategic positions. This resulted in a mass
exodus of competent skilled personnel from the HAWKS. The few skilled and
competent investigators that remained were at the mercy of those who were
positioned to do the gatekeeping.

172.
For example, he replaced Major-General Mosipi ("Mosipi") as National Head of
Commercial Crime with Major-General Alfred Khana ("Khana").

173.
Khana had previously resigned from SAPS "under a cloud" after he was the subject
of an investigation by Major-General Hans Meiring of Commercial Crime. (Now
retired).

JWB-053

174.
Ntlemeza assigned Khana to commence with investigations against me that were
based on manifestly false allegations. I am aware of other cases where Khana
interfered to the extent that I believe it warrants a criminal investigation. I handed
documents to the Anti-Corruption Unit of the HAWKS in this regard.

175.
He sent Major-General Ledwaba to serve a suspension notice on me, accompanied
by members of the National Intervention Unit, in riot gear, to my house and my
attorney's office. To my mind he wanted to make an example of what would happen
to those who thought of opposing him.

176.
He openly displayed his association with Ngobeni, whom I was investigating for
corruption, when he marched into my office, accompanied by Ngobeni, where he
intimidated my secretary to open my office when I was suspended.

177.
Ntlemeza was undoubtedly 'handpicked' for the position, despite having been found
to have made a false statement under oath and having been described as
"dishonest' and "lacking integrity'' by Justice Motojane of the High Court pursuant to

setting aside the unlawful suspension of Major-General Sibiya by Ntlemeza.

178.
In my view he certainly did not have the required skills to manage the HAWKS and
was only appointed to take care of, or to suppress certain investigations, which he
did.

JWB-054

179.
I am convinced that he was placed in the position to protect former President Jacob
Zuma, Mdluli, Ngobeni and acolytes such as Panday who had Zuma links.

180.
I believe that he was also commissioned to disembowel the HAWKS so as to strip
them from any ability to investigate the Guptas, Mdluli's and Zuma's of the day, now
or in the future.
181.
Mr Mcebisi Jonas ("Jonas") has already testified in the State Capture Inquiry that
Major-General Mnonopi, from Ntlemeza's office, had attempted to cover up an
investigation regarding the Guptas. Mnonopi was suspended by the current Head of
HAWKS, pending an inquiry.
182.
The newly appointed head of the HAWKS, Lieutenant-General Godfrey Lebeya

("Lebeya") inherited a wholly dysfunctional HAWKS which I attribute directly to
political interference and the appointment of Ntlemeza.
183.
Lebeya has to undo the damage occasioned by Ntlemeza's appointment, who I
believe was an expendable tool to ensure that certain prosecutions don't proceed
and to cripple the HAWKS so that certain politicians won't have to fear or face
effective investigations into their unlawful activities.

JWB-055

184.
RIAH PHIYEGA

Phiyega was appointed as SAPS National Commissioner after the departure of then
General Bheki Cele. It is my view that she initially came across as an intellectual who
intended to make a success of her career in the Police, but certain events convinced
me that she too was placed there to take care of certain investigations.

185.
I was told by Cele that while he was the National Commissioner of SAPS, Mdluli had
implored him to stop the corruption investigation against him (Mdluli) and that he,
Cele, had refused.

186.
Soon afterwards the much publicised 'Ground Coverage' ("GC") document surfaced
from Crime Intelligence ("Cl") in KZN.

187.
The report, inter alia, purported that Cele was part of a group who conspired to oust
the former President, Jacob Zuma. It was further alleged in the document that Cele
owned taxis in KwaDukuza in KZN and that Cele had promoted me to the rank of
Major-General as a quid pro quo to neutralize his opposition in the taxi industry.

188.
It is important to contextualize the significance of this narrative which resurfaced later
when I was arrested and prosecuted. The crux of the report relating to me would
later form the basis of the allegations of the so called Cato Manor 'Hit Squad'. It later
unfolded that the allegations contained in the document were conjured up as part of

--

JWB-056

an elaborate scheme by Mdluli to get rid of Cele and myself. This same GC report
was declassified by Mdluli and sent to the former President, Jacob Zuma.

189.
I approached Major-General Deena Moodley ("Moodley"), who at the time was the
Head of Cl in KZN. I wanted to know from him how this report, comprising serious
allegations, which emanated from KZN, was sent to Mdluli, without him (Moodley)
signing it off. He informed me that Colonel NH Singh ("Singh") from KZN Cl, was coopted by Mdluli to craft this report and that Singh reported directly to Mdluli.
According to Moodley, Singh was transferred temporarily to Pretoria for the purpose
of compiling this report.
190.
Prior to these occurrences, on the 3rn of November 2011, Mdluli wrote to the former
President Zuma and accused Lieutenant-Generals Dramat, Lebeya and Sandile
Petros ("Petros") of conspiring to get rid of him. Mdluli also stated that in the event
that he (Mdluli) returned to work, he would assist the former President to succeed
the following year, a reference to the ANC's 2012 elective Congress in Mangaung. At
that time, Mdluli was on suspension pending investigations.
191.
My observations of the sequence of events depicted below are conspicuous.
191.1.

Mthethwa irregularly appoints Mdluli as Cl Head.

191.2.

Mdluli allegedly loots the Secret Services Account.

191.3.

Minister Mthethwa is a benefactor. A wall is built around his private
residence, courtesy of the Secret Services Account.

JWB-057

191.4.

Major-General Mark Hankel (Hankel) blows the whistle on the
looting of the Secret Services Account.

191.5.

An investigation into the looting of the Secret Services Account
commences.

191.6.

The KZN leg of the investigation is conducted by Brigadier Simon
Madonsela ("Madonsela").

191.7.

Madonsela elicits my assistance in the investigation after Crime
Intelligence refuse to release documents, required to finalize the
investigation.

191.8.

Mdluli earlier requested Cele to stop the investigation initiated by
Dramat and Sibiya.

191.9.

Cele refuses.

191.10.

The GC document surfaces.

191.11.

Cele is suspended as National Commissioner for an unrelated
matter.

191.12.

The Sunday Times article (Cato Manor), which contain the same
allegations which are in the GC document, is published.

191.13.

Attempts are made to suspend me. I obtain an interdict prohibiting
SAPS from doing so. SAPS nevertheless suspend me, but the Court
reverses the decision and remand contempt proceedings against
SAPS sine die.

191.14.

Minister Mthethwa meets prosecutors essentially demanding our

JWB-058

arrests.

191.15.

Cato Manor detectives are arrested for racketeering. Two months
later I am arrested for 'managing a so-called criminal enterprise',
namely Cato Manor.

191.16.

Mdluli is ultimately suspended pending the corruption and murder
investigations. When he attempts to return to office, Freedom Under
the Law ("FUL") files an application in the High Court to prevent him
from doing so.

192.
In an extraordinary development, Phiyega filed an affidavit, opposing FUL's
application. In his judgement Judge Murphy criticised Phiyega for wanting Mdluli to
return to work despite him having serious allegations hanging over his head. A copy
of the Judgement as is attached as Annexure "JWB 24."

193.
If one juxtaposes Phiyega's position in the Mdluli matter with my matter it is evident
that she too protected Mdluli and actively plotted to get rid of me.

194.
The High Court in Durban held that there was no evidence against me and charges
against me were withdrawn.

Phiyega then

belatedly instituted disciplinary

proceedings against me. Phiyega even went to the extent of flying to Durban in a
police aircraft to testify that she did not know about the investigation against Ngobeni
even though she had been cited as a respondent in my review application to set
charges aside. The extent of Ngobeni's involvement in the investigation was
described in my Founding affidavit.

JWB-059

195.
After a protracted hearing, chaired by Advocate Cassim SC, I was acquitted. Cassim
had inter alia the following to say in his findings in his evaluation of the evidence, "/
will consciously scrutinize material facts uninfluenced by political considerations and

motive. I do this because the entire proceedings appear to have been permeated by
political agenda". See attached copy of the disciplinary findings as Annexure "JWB

25."

196.
During the disciplinary hearing, it also emerged that Mdluli had 'interfered' with the
Panday investigation. Soobramony, who was one of the main investigators in the
investigation against Panday testified how Mdluli and Major-General Solly Lazarus
(who is now dismissed from SAPS) had coaxed him by alleging that there were
threats against his life. They offered to transfer him to Benoni. According to
Soobramoney, he was virtually excised from the Panday investigation once he
located to Benoni.

197.
In spite of Cassim exonerating me and the findings of the High Court that there is no
evidence linking me to any offence, Phiyega was resolute to get rid of me. I declined
to accept a 'golden handshake' which she offered me, after which she served me
with a notice of her intention to dismiss me from the Service. I approached the court
and obtained an interdict against her preventing her from dismissing me.

JWB-060

198.
I believe that she supported and colluded with Mdluli, who faced serious criminal
charges, to return to work but went out of her way to remove me from office. I am
convinced that she protected Mdluli and was determined to neutralise me and the
other investigations I was busy with.

199.
I was informed by retired Major-General Ntombela ("Ntombela") that Phiyega had
instructed him to conduct an investigation against Hankel who blew the whistle on
Mdluli's looting of the Secret Services Account. When he concluded that Hankel had
done nothing wrong, she was livid and remonstrated with him. Hankel was ultimately
removed from Cl and placed in the uniform branch.

200.
Ntombela's contract as Provincial Commissioner was not renewed whereas
Ngobeni's contract was, in spite of the pending investigation against her. These are
examples of how innocent individuals, who call out politically linked corrupt
individuals, are ostracized.

201.
Phiyega later confirmed her dubious relationship with Jiba when she got involved in
an ugly public spat with Advocate Mxolisi Nxasana ("Nxasana), the NDPP at the
time, because the NPA decided to prosecute Jiba for lying under oath in my review
application to set the racketeering charges against me aside. Phiyega was so
incensed that she summarily terminated the SAPS' contract with the investigating
officer Colonel Christoffel Botha, who is since deceased. Colonel Christoffel Botha
had earlier reported to me that Jiba had visited Phiyega at her office, who referred

JWB-061

her to Lieutenant-General Vishnu Moonoo ("Moonoo"). Moonoo, was obviously
taking instructions from Phiyega so Moonoo replaced Botha as the investigating
officer and transferred the case to Major-General Norman Taioe ("Taioe") who
conducted the rape investigation wherein the former President Jacob Zuma was the
accused. The former President Zuma was acquitted.
202.
also know that there was tension between Moonoo and Dramat when Moonoo
apparently refused to cooperate with Dramat in the Nkandla investigation. Dramat
confirmed to me in September 2016, that he had requested the Nkandla docket from
Moonoo, the National Head of Detectives. At the time, this docket involved the abuse
of state funds at Nkandla, the private residence of former President Jacob Zuma.
203.
Phiyega went on to dismiss Lebeya from SAPS. Lebeya had previously headed
Organized Crime and had also ordered an investigation into Mdluli. I was privy to
Lebeya's correspondence as it formed part of Madonsela's investigation into the
looting of the Secret Services Account in KZN by Cl.
204.
Colonel Brian Padayachee ("Padayachee") from Crime Intelligence who had
managed the intelligence in the Panday investigation, in terms of Act 70 of 2002
(communication interception) submitted two affidavits dated 28 January 2019 and
4 February 2019 with regards to his investigation. Copies of these affidavits are
attached as Annexure "JWB 26.".

JWB-062

205.
Padayachee was also targeted by Phiyega and was suspended on spurious
grounds. He has also informed me that Phiyega had uplifted the Act 70
communication recordings in the Panday/Madhoe investigation. This may constitute
a criminal offence if the necessary prescripts were not followed.
206.
Phiyega also obstructed the investigation into the looting of the Secret Services
Account by Mdluli and Crime Intelligence in KZN. She gave an instruction that the
investigation into the KZN leg, which was conducted by Madonsela, must be
removed from Madonsela after he, Madonsela, subpoenaed documents from Crime
Intelligence in terms of section 205 of the Criminal Procedure Act, Act 51 of 1977.
207.
Phiyega was also the subject of a criminal investigation when she alerted LieutenantGeneral

Arno

Lamoer

("Lamoer"),

the

Western

Cape

Police's

Provincial

Commissioner, of a criminal investigation against him. The OPP in the Western Cape
at the time declined to prosecute her. It was my observations there was clearly
tension between her and Dramat under whose auspices the investigation was
conducted. Lamoer is currently serving a prison sentence after entering into a plea
bargain with the State on the criminal investigation mentioned.
208.
MAJOR-GENERAL JAN MABULA
Major-General Jan Mabula ("Mabula'') is a known Mdluli ally. Mabula and Jiba
previously teamed up to arrest Advocate Nel when Nel prosecuted the former Police
Commissioner Jackie Selebi ("Selebi"), for corruption. Mabula was later involved i

JWB-063

an investigation, where several million rand of exhibit money which was recovered,
after a heist at OR Thambo airport, was stolen from the Benoni police station.

209.
During this investigation a suspect, Solomon Nengwane ("Nengwane"), died during
interrogation at the Macau Police station, at the hands of detectives under Mabula's
command. There is evidence, which was handed to IPID that Mabula was the
mastermind in covering up the murder. According to the information provided by a
person who was present when Nengwane died, one of the persons present with the
unlawful interrogation was Mdluli's son. I have not been able to independently verify
this.

210.
I have however been able to establish that Nengwana died of asphyxiation whilst in
the custody of policeman working under the direct command of Mabula, who was a
Colonel at the time. It also emerged that a number of witnesses in this investigation
died under mysterious circumstances, prompting the State Prosecutor, Peter Smith
("Smith") to remark, "it seemed that the police were knocking off witnesses to cover
their own tracks in the case."

211.
Mabula later led a team of detectives to investigate the now debunked Sunday
Times story about the Cato Manor 'Death Squad'. It was clear that I was the
intended target of Mabula's investigation.

212.
According to a witness, Captain Sibusiso Zungu ("Zungu"), Mabula was present
when his detectives attempted to coerce him (Zungu) to change his statement so

JWB-064

to falsely implicate me for a murder after one Bongani Mkize, a taxi operator from
Kwa-Maphumulu, was shot in a shootout with police. See attached statement of
Zungu as Annexure "JWB 27."
213.
COLONEL RAJEN AIYER

The immediate Unit Commander of Cato Manor was Colonel Rajen Aiyer ("Aiyer").
Aiyer reported to me from 2006 to 2010 and thereafter he reported to Brigadier
Madonsela, who in tum reported to me.

214.
Mabula's team won over a notorious Police Colonel to implicate me in Racketeering.
Aiyer, who was the Commander at Cato Manor, was used by them to contrive a case
of Racketeering against the Cato Manor Unit. Once this was accomplished I was
opportunely framed as the manager of the Criminal Enterprise, being the Cato Manor
unit, by Mabula's team.
215.
Mabula and prosecutors Maema, Noko, Mathenjwa and Jiba conspired to have me
prosecuted under The Prevention of Organized Crime Act (POCA) Act 121 1998
sec 2 (4) 1 (f), managing a criminal enterprise, despite the fact that Aiyer was the
direct Commander of Cato Manor.
216.
During a failed attempt by Phiyega to get rid of me, Aiyer was caught out lying on
every aspect of his statement in my disciplinary hearing. The Disciplinary
Chairperson, Advocate Cassim SC described him as a "dismal witness in material
aspects". Aiyer was recently dismissed from SAPS for fabricating evidence in an

JWB-065

unrelated matter. The criminal case is currently with the OPP for a decision. Aiyer
was also arrested and is currently standing trial in an unrelated case, also for falsely
implicating innocent people in offenses.

217.
Notwithstanding this, Mabula and the prosecutors Noko, Maema, Jiba, Abrahams et
al seek to rely on Aiyer to implicate me in wrongdoings. This illustrates how

desperate they are to neutralize and get rid of me. They know full well that his
evidence will not pass muster. That does not deter them however because by then
they would have achieved their goal to neutralize me or so they imagine.
218.

BRIGADIER NYAMEKA XABA
Brigadier Xaba hails from KZN where he worked under my command. As far as I
know Xaba is the Commander of the Crimes against the State ("CATS") Unit, at the
HAWKS Head Office in Pretoria. During Ntlemeza's tenure at the HAWKS, Xaba was
used by Ntlemeza to investigate the complaint from the sacked SARS Commissioner
Tom Moyane ("Moyane") regarding the SARS saga.
219.

Under Xaba's command, Mr Vlok Symmington ("Symmington") from SARS was
unlawfully held captive in his office where he was assaulted. Not surprisingly the
NPA under Abrahams' declined to prosecute Xaba notwithstanding the evidence that
was there for all to see when it was televised on National television.

220.
Xaba was also the investigator against McBride, Sesoko and Khuba.

JWB-066

221.

Xaba met with Jiba on the 18th of November 2018 to commission her affidavit in
litigation with the Cato Manor detectives.
222.

I find it unusual that a Brigadier in charge of the HAWKS Crimes against the State
would involve himself with a complaint from SARS and commissioning the statement
of Jiba in civil litigation against me. It is my submission that Brigadier Xaba is part of
the Ntlemeza and Jiba alliance.
223.

BRIGADIER PHARASA NCUBE

Brigadier Pharasa Ncube ("Ncube") was sent by Mabula and later Ntlemeza to arrest
me.
224.

After Ncube arrested me he was promoted from the rank of Colonel to Brigadier.
225.
ROLE OF INTELLIGENCE SERVICES AND SUNDAY TIMES

Three sagas, namely: the Cato Manor 'Death Squad' (Booysen), the 'Rendition'
(Dramat, Sibiya, and McBride) and the SARS 'Rogue Unit' (Vail Loggenberg and
Pillay) are all strikingly similar, as all of us were conducting sensitive investigations at
the time of our prosecution.

JWB-067

226.
In all three sagas information was leaked to the same two journalists, Stephan
Hofstatter and Mzilikazi Wa Afrika, from the Sunday Times newspaper by the
intelligence services who were invariably behind these 'leaks'.

227.
After the Sunday Times had dropped a 'bombshell' with the so called 'Cato Manor
Death Squad' story ("Cato Manor publication"), they later confirmed to the press
ombudsman that one of their sources in the Cato Manor story was none other than
Colonel NH Singh from Mdluli's Crime Intelligence and author of the GC document,
mentioned above.

228.
In October 2018 the editor of the Sunday Times, Mr Bongani Siqoko, apologised for
getting the Cato Manor publication wrong and for wrongly implicating me. Ironically
these reports, that we now know originated from Cl, formed the basis of the Sunday
Times' 'expose'. I was informed by one of the senior managers at the Sunday Times
that they had decided to part ways with the two journalists, Stephan Hofstatter and
Mzilikazi Wa Afrika. A copy of this public apology is attached as Annexure "JWB

28."

229.
Consequent to the Cato Manor publication, Minister Mthethwa expediently met with
Prosecutors in the subsequent Cato Manor investigation. I mention this because
Mdluli, who was controversially appointed by Minister Mthethwa in March 2012, had
'procured' the "Ground Coverage" report, that formed the basis of the allegations in
the Cato Manor publication, from Colonel NH Singh.

JWB-068

230.
CLOSING REMARKS

230.1.

It is uncontrovertibly so, that it is always the same protagonists within
Law Enforcement and the National Prosecuting Authority, who are
seized with protecting certain politically connected individuals from
facing justice and then to investigate and persecute those who
investigate those politicians

and their associates.

These

Law

Enforcement officials, namely Phiyega, Ntlemeza, Xaba, Ncube and
Ngobeni, were all part of a captured faction together with prosecutors
Jiba, Mrwebi, Abrahams, Maema, Noko, Mosing, Pretorius, Mokgathle,
Adams, Mathenjwa and JJ Mlotshwa.

230.2.

In my view, they were all complicit in actively or tacitly promoting state
capture. This culminated in institutions like the NPA, HAWKS and
SAPS being subverted to ensure the shielding of certain individuals
from criminal sanction. Their actions have eroded the capacity within
these organizations to deal with large scale corruption and organized
crime in the country. It will take many years of intensive efforts to
restore the damage they have inflicted on these institutions.

230.3.

It defies logic and reason how the HAWKS, SAPS and the NPA have
spent more than five years wasting valuable scarce resources to
persecute innocent loyal and hardworking Public Servants in order to
protect corrupt politicians and other State officials from prosecution.

230.4.

It is my respectful submission to this Commission that the unlawful acts
which I describe herein by those that I discuss in this submission are in
violation of the Prevention of Organized Crime Act, Act 121of 1989
chapter 2 (1) (e) and (f) in that they either participated or managed the
affairs of a criminal enterprise [Racketeering] or for obstructing the
course of justice.

JWB-069

230.5.

It is a dark irony that many of the individuals they sought to protect
such as former President Zuma, Mabuyakhulu and Nkoyeni faced
racketeering charges, while the captured factions at the NPA now seek
to prosecute the investigators for racketeering.

230.6.

The HAWKS and the NPA are now under new leadership. It is my
submission though, as long as the individuals I have mentioned in my
evidence, including their associates, remain within the NPA, SAPS and
the HAWKS, these institutions will remain captured and consequently
stay ineffective to address serious crime. This in tum will undermine our
democracy and stifle foreign investments which are essential to recover
and grow our ailing economy.

230.7.

Even then, it remains an unfortunate reality that many careers were
ruined by the actions of those mentioned in this submission. The
compounding effect of their malicious acts can never be measured.
Dedicated public servants had to spend years and millions of rand to
clear their names and to battle the captured factions. It is upsetting that
the public who are ultimately the victims of the evisceration of the NPA
and Law Enforcement, have to pay for the litigation cost of these
factions.

230.8.

I have taken them to court no fewer than seven times, winning each
time with cost orders awarded to me. My disciplinary hearing stretching
over 6 months, alone cost the taxpayer R1.7 million rand, as was
reported in Parliament. I estimate that litigation with SAPS and the NPA
versus McBride, Sibiya, Dramat, Lebeya to be in the region of R20
million, all paid for by the taxpayer.

230.9.

The monetary and human cost aspects aside, the wasted resources
could have made an enormous contribution to fight crime which
escalated to an all-time high during the period that we were all
persecuted.

JWB-070

230.10. "It will take South Africa's criminal-justice sector years to recover from
the disruptive impact of the Zuma era, during which good men were
booted from their jobs for doing the right thing. The chilling impact this
had on prosecutors and police officers is immeasurable. Those who
were willing to bend the rules and apply two sets of rules, one for Zuma
and his cronies and another for the rest of us, thrived".

Adriaan

Sasson & Pieter du Toit. In their book "Enemy of the People' page 95.

230.11. I was interviewed by researchers for "State Capacity Research Project
titled "Betrayal of the Promise: How South Africa is being stolen"
published in May 2017. I have read the report. The chapter dealing with
"Securing a Loyal Intelligence and Security Apparatus", [pages 19 and
20] accurately chronicles some of the events I have described above.
Pages 50 to 52 under the heading "Investigations and prosecutions"
are also relevant. I attach an extract from this report as Annexure

"JWB 29."
230.12. I have titled a book which I co-wrote with journalist Jessica Pitchford
"Blood on their Hands" I sincerely believe that those who allowed
themselves, for whatever reason, to become part of the captured
factions at the NPA and in Law enforcement have done our country a
grave disservice. They have blood on their hands.
231.
I know and understand the contents of this declaration.
I have no objection to take the prescribed Oath.
I consider the oath to be binding on my conscience.

JWB-071

I certify that the deponent who acknowledges that he knows and understands the
contents of this affidavit; that it is the truth to the best of his knowledge and belief
and that he has no objection to taking the prescribed oath and regards the same
as binding on the deponent's conscience and the administration of the oath
complied with the Regulations contained in Government Gazette No. R1258 of
21 July 1972, as amended. This affidavit is signed and sworn to before me at
Centurion on this the

2nd

Day of April 2019 at

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JWB-072

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JWB-077

ANNEXURE ''JWB2''

JWB-078

AFFlDAVJT

I, the undenigoed,
TERENCE JOHN .JOUBERT,

States under oath in English:

1.

I am an adult male 45years· old with ID no. 680728 5526 085, and residing

at 32 Roosevelt Road, Padfield Park, Pinetown. 3610 with telephone number
(031) 3345095, with cell number 0765966332 and I am employed as a Risk

Specialist for the National Prosecuting Authority of SA, 88 Field Street, 3RD

( _)

Floor, Southern Life Building, Durban, 400 I.

2.
I hereby make oath and say that the facts deposed to herein are within my
own personal knowledge and belief unless otherwise stated and arc true and
correct.
3.
On the 2013-09-18, I was on duty and I was supposed to fetch Adv. Jiba

(_)

from the Ushaka International Airport. After making the arrangements I got
a call from Adv. Jiba's secretary to say that she would be fetched by Col.
Mhlongo on instructions from the DPP-KZN. Col. Mhlongo is currently
seconded to NPA's Missing Person's Unit, that is headed by Debra Quinn in
the province and by Shawn Abrahams at VGM. Their job is to assist

members of the NPA to obtain information by interviewing witnesses to

conclude their investigations. Shortly after the meeting between Adv. Jiba
and Col Mhlongo, he (Col. Mhlongo) came to me in my office and told me
that the new guy (referring to the new NDPP Mr. Nxasana), does not like
Adv. Jiba and Adv. Mrwebi. He is aware that I do have a great relationship
with Adv. Mrwebi and he was playing on my emotions. I asked why he
thought so, and he said that he was sent by Jiba, as she is convinced that this
guy is not the right person for the job and that we should try and find
something on him as they did against Mr. Gum.ede.

JWB-079

AFFIDAVIT

4.

Mr. Oumedc was the first person that we had heard about who would have

been appointed the NDPP. The DPP had then insisted that Adv. Makhosi
(prosecutor) make a statement against Mr. Gumede concerning the manner
in which he (Mr. Gumede) had ill-treated her. This incident gave us
indications as to the kind of people we were dealing with and to what
lengths these people would go to get their way. Col. Mhlongo was
instrumental in mobilizing people to gang up against Mr. Gumede.

s.
I then told him that this would be playing with fire as we are only small fries
and when elephants fight the grass suffers was my oomment to his
suggestion. Col. Mhlongo assured me that their efforts would not be in vain
as Jiba had said if this man (Mr. Nxasana) is removed, then she would be
appointed again. The plan was not whether Mr. Nxasana is guilty but the
mere fact that they wanted to embarrass him and insist that he be removed.

6.
On the 18th November 2013 we (Col. Mhlongo and I) had another meeting,
but this time to discuss the fact that there are two unknown police officials
occupying an office next to the OPP. When I raised this with the OPP, my
executive manager, Mr. Ramahana flew down to Durban to infonn me that
the OPP complained about the manner in which I bandied the issue of the
police officials. I should leave those members as they are. and I should not
ask too many questions. The police officials are said to be here to protect the
DPP, but this is done without any TRA (Threat Risk Assessment) as per the
security policy. We have requested secondment letters from SAPS but to
date we have not received any correspondence from SAPS.

7.
Col Mhlongo then informed me that I should not worry about these two
members as they were brought to work on the project against the NDPP.
They went to Umlazi SAPS where they found people that could implicate
Mr. Nxasana in a murder case. This case apparently happened in 1985/6 and
his mother (who is

a teacher) paid for the docket to disappear. The police

•

JWB-080

AFFIDAVIT

officials interviewed people in the Umlazi area to see whether they could not
get tangible evidence out of them. These two police members were given a
vehicle from the Provincial Commissioner to do their investigations against

theNDPP.

8.
Col.' Mb.longo also asked that I must assist them with somebody that works
at RAF (Road Accident Fund) because the information was that he, Mr.
Nxasana had embezzled money from RAF. He also mentioned that Mr.
Nxasana wife worked there. I told him that I would talk to people that I
knew to see whether they could assist us. He then infonned me that even if
he is moved from the NPA to another place, he would continue his
investigation from wherever he is.

9.
I know and understand the contents of this statement
I have no objection to taking the prescribed oath.
I consider the prescribed oath to be binding to my conscience.

DATED AT DURBAN Tms

ERT

The abovementioned statement as taken
me and the deponent has
acknowledged that he knows and understands the content of this statement
This statement was sworn to before me and the deponent's signature was
placed thereon in my presence at Durban on 2013-11-25.

JWB-081

ANNEXURE ''JWB3''

JWB-082
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MALE2 ••. (indistinct] ... [inaudible]
MALE1
10

But can you talk?

MALE2 •.• PndiltinctJ

MALE l

Okay. You know, I told you our pressure was denied?

MAl,E2 Hmm.

MALE1 The PC[?) sent a parcel with one of the boys who's a colonel.
M&-E2 Hmm.
15

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MALE1

Of some cash.

MALE2

Sony?

MALJ; 1 R2 miMion cash.

20

MALE2

Yes?

MALE1

Because .Booysen wanted that.

MAl,1;2 Sorry?

MALE1

canyoutak?

MALE� Yes, yes, yea, I can hear you now.

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of R2 mllion cash.
25

MAlE 2

Yes.

Tllll'IICribld by. SuteTYl>e Typing & TIW\so,iptlon SeMOU
Tai: 031 fi62 8008 • Cell: D82 SOS 5754 • &Mil: aure�l.co.za

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JWB-084

MALE 1

DIRECTION 23512010

2

INDIA 5692 11026320

That's what -Booysen wanted. And then Booysen made ·ft into a

trap.

5

MALE 2

[whistles]

MALE 1

They arrested the guy.

MAL,.E 2 Don't tell me.

MAt.E 1

Honest, my brother, that's why I didn't answer your ()8� to�y. I

·was. running around to help the brother out.

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I got the general In Pretoria

phoning me, because she

went -

whatever ... (indistinct] she

was busy ... [indistinct]

some stats are

out for

go help

ctime; ..... ·or

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out

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MALE 1 You see, if you're playing ball,· you're playing ball, you know what
I'm saying? He went against, he reckoned, "No ... • - I mean, I don't know

what went into him. He arranged the trap and he sorted it out and the guy 15

he took the bag of money, there's no doubt about that, R2 miion in R100
notes in cash.

MALE 2 How,

man, I don't believe this.

MALE 1 That's what happened. It wil be in the paper tomorrow morning,
so It's a big thing.

20

MALE 2 That means that your name is not there?
MALE 1

My lady is not here, she's in Joburg, but this was our boy.

MALE 2 No, I'm saying that you name is not there?

MALE

1

No, my name's not there. No, lt's;not there.- .. But obvious_ly, they

know my name Is there, because

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we arranged that, vou know that I'm

saying? ... (speaking simultaneously) they suspect we did this. But this thing

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JWB-085

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DIRECTION 2�010

INDIA 5692 11026320
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is getting out of hand� Booyseo.

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know?

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. � evef)'One efse

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now. Maybe we need to clp him a bit.

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Ja, ha did that, that fucking white baltard, a�- I

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he's going to play �If. he'n do this. he'll do that.·. and whatever.

MALE 2 ... (speaking sinuttaneousayJ

MALE

1

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... [indlstinctJ

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15

MALE 2

But your aunty, she's not Involved?

MALE 1 No, she and I are not involved.

You see, we� someone eis. to

go there and sort it out, you know what I'm saying?

...,

UALE2 Okay.

MALE 1 Ja. But we'N meet and we'n have a briefing and we'I decide how
20

we're going to take care of this guy, because he's obViously going to stand In
the way for everything.

MALE 2 Ja. No, It's fine, it's fine. But ... [1fltefV8ntion) - okay, no, it's fine,
it'a fine.

MALE 1
25

... [speaking simuJtaneouslyJ ... [indistinct] I aaidJ must get baU tor

this boy ••. [indistinctJ I can't ten him, I said, •No, I don't know what you're

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JWB-086

•

INDIA 5692 0026320

•

4

DIRECTION 23512010

tal<lng about.•, because I don't know.-�ttier it's a trap or not a

a

MALE2

Yes.

MALE 1

But then I phonecf �'baek .from the call>ox, he says

trap, you

no, just help

htm wherever you can, b� he's a good man, he said the guy that got
errested is a colonel. he said he's a good man, just help him whelever you

can help him.

MALE 2 •.. [inaudible]
MA!J: 1

10

So, t said, "listen, I wHI help him. We'll sort the bail out, we'U get

the advocate, whatever:, he reckoned, "'This Is a good man, don't let him

faN.•, f redtoned, "No, we'U help him, don't stress.

MALE 2 How, how, how, man, this is- no, but it's fine .... pnaudlble) Can
you organise something for my chldren, you know l left ••• (inctlStinct} you

promised that ... (intervention]
1&

MALE 1 Where are they now, where are they naw?
MALE 2

In a flat- no, in Durban North.

MALE 1

Send me their address, I'll send my boy to give them ... (lncUstlnctJ

or whatever now.

M6J.;F 2 It's No 3 Westminster.
20

MALE 1

... [lndlltlnct], my brother, I don't have a pen.

Please send

... [intervention)

MA& 2 Okay, I'll send •.. (speaking simuttaneously]

MALE 1 Okay, brother. But we'U sort out tomorrow, don't stress.
[call ends]

25
Tl"IMCtl>ed by: SureTw,e Typing & T� Servi<:1el
Tel: 031 562 8006 • C-. 082 50515764 • EIMil: a&ntypeO\lodem...co.z•

JWB-087

ANNEXURE ''JWB4''

I

•

•

JWB-088

...

Elaine Regina Latchanah - States under oath in English :1.

I, Elaine Regina Latchanah, with PERSAL number 70017956, an Indian female, employed as a
Captain in the SAPS : DPCI : Organised Crime Durban : Support Head : Kwazulu Natal, 136
Victoria Embankment:

4th

floor, Room 15, Telephone Number 031 - 333 8009 and Cell phone

071 481 2460.

2.
I was placed as the Support Head: DPCI Organised Crime Durban, Kwazulu Natal on
2017/02/06.
3.
I was appointed as a Secretary to Major General Booysen in 2010. As a Secretary part of my
duties were to make and receive calls including confirmation of appointments. According to my
recollection a person, who identified himself as Mr Edward Zuma, requested an appointment
with Major General Booysen. Mr Zuma called several times to secure an appointment. A date
which I do not recall was agreed upon after consulting with Major General Booysen. Mr Edward
Zuma did not inform me as to what the meeting was about. Mr Edward Zuma did arrive on the
day agreed upon and met with Major General Booysen in General Booysen's office. I do not
recall how long the meeting was and after the meeting Mr Zuma left.
4.

• know and understand the contents of this statement.
I have no objection of taking the prescribed oath.
I consider the prescribed oath to be binding on my conscience.
PLACE: ----DEPONENTS SIGNATURE :

DATE:

)..°t:,

No"GM-&82. dO\ iTIME:

-------

��
.............................. CAPT

LATCHANAHER

I hereby certify that this statement was taken down by me and that the deponent has
acknowledged that he/she knows and understands the contents of this statement. This
statement was duly sworn to before me and deponent's signature was placed thereon i my
presence AT

OIAJ/;11:w

ONTHIS l.:Jl-1'} DAYOF

µocJ�N 2018AT

o<r.l,.

JWB-089

FULL NAMES
S.A.P.S : ORGANISED CRIME DURBAN

136 VICTORIA EMBANKMENT
DURBAN

2.

JWB-090

ANNEXURE ''JWBS''

..

..

JWB-091

Specialised Commercial
Crime Unit
�

A

The National Promoting Authority of South Africa
lgunya Jikelele labetshulshisi boMzontsi Alrika
Die Nosionale Vervolgingsgesag van Suid-Alrika

HEAD OFFICE
INTERNAL MEMORANDUM
Tel : +27 12 845 6702
Fax: +27 12 845 6686
Victoria & Griffiths

ADVWMULLER

TO:

ACTING REGIONAL HEAD: SCCU DURBAN.

Mxenge Building

123 Westlake Avenue

CC:

ADV. MLOTSHWA
ACTING DIRECTOR OF PUBLIC PROSECUTIONS;
KWAZULU- NATAL

FROM:

ADV LS MRWEBI
SPECIAL DIRECTOR: SCCU

DATE:

09 JANUARY 2012

SUBJECT:

COLONEL NAVIN MADHOE: DURBAN
CENTRALCAS 466/09/2011 AND CAS
781/06/2010: COMMERCIAL CRIME COURT
DURBAN CASE NO 41/1388/2011:
DISCIPLINARY HEARING CASE NO TR
03/11/2011.

Weavind Park
Silverton
Pretoria
0184
P/Bag X752
Pretoria

0001
South Africa

Email:
111J9.omana@npa.gov.za

wvvw. npa.qov.za

1.

On 6 December 201 this office received representations
from the lawyer representing Colonel Madhoe in the
abovementioned
representations is

matters.

A

copy

of

the

said

attached hereto for your information.>,-

Justice in our society. so that people can live in freedom and security

JWB-092

In order for this office to meaningfully respond to the said representations,

2.

the prosecutor dealing with the matter must please ensure that the
following is submitted to this office:
a. A summary of both dockets Durban CAS 466/09/2011 and Durban CAS
781/06/2011
b. In respect of both dockets the prosecutor must set out a clear factual basis
and indication of the link of Col Madhoe to the crimes allegedly committed
in respect of matters investigated under the said dockets
c. In respect of both dockets the prosecutor must give an indication of the
legal basis of the link of Col Madhoe to the said crime. The evidential
aspects must be clearly set where it is indicated how the prosecutor will
set out to present these in proof of the crimes allegedly committed.
d. An indication of any anticipated difficulties in any of the matters must be
given with an indication of how these would be dealt with.
e. An indication of any circumstances/evidence favourable to the accused
must be set out.
f. A motivated recommendation on the merits of the representation
g. A copy of the section 252A authorisation and the affidavit in support
thereof as well as the reports that General Booysen alleges he provided to
adv. Nel.

h, Electronic copies of both dockets Durban CAS 466/09/2011 and Durban
CAS 781/06/2011 must be submitted to this office.
With reference to Durban CAS466/09/2011 and Durban CAS 781/06/2011

3.

and in order to save time in the matter; I raise the following preliminary
issues based on the affidavits presently annexed to the representations:
l.

As it is alleged that Madhoe made the said payment in order to have the
undated report pre-dated; how did or how could Madhoe have known
about the existence of the said report?

JWB-093

ii.

Clearly the contents of the report refer to evidence or information in the
source documents; how can it or having it predated affect anything? Or
can the report be used to prove anything?

iii.

Supposing the section 205 subpoenas were based on the report and not
on the evidence (something which is inconceivable of course) and were to
be set aside based on the said pre-dated report what would have
prevented the police from getting other subpoenas?

iv.

In reality does it make sense that a court can set aside a subpoena based
on the report as the report is not evidence nor can it have any impact on
any procedural steps involved in obtaining a section 205 subpoena?

v.

How could Madhoe ask General Booysen about the investigations of the
R60million fraud when he was not the investigator?

vi.

What is the nature of benefit or advantage that the state seeks to prove in
the case against Madhoe taking into account that:
)"" He was/is not challenging the validity of any section 205
subpoenas.
)"" He naturally would not have been acting to advance the case of Mr.
Panday, as on the version of the state he believes Panday is the
person who put him in trouble.
)"" Madhoe knows and has evidence that the contract in respect of the
R60 million tender was personally authorised by the National
Commissioner on under his signature on 7/06/2010.
)"" Madhoe through correspondence dated 17/02/2010 and 14 June
2010 alerted the police management on the problems related to
sourcing of accommodation.

vii.

It appears that General Booysen is the single witness in the case against
Madhoe; how does the prosecutor propose to overcome any difficulties
associated with his evidence to satisfy the cautionary rule, taking into?
account the following:

JWB-094

) From his statement it appears that General Booysen did not see it
fit to ensure that the events relating to any discussions on the
request of Madhoe were recorded at any stage from 25/08/2011 to
8/09/2011. It appears that, save for an sms and an FNB scrap
paper, reliance will mainly be on the viva voce evidence of Gen.
Booysen.

>" The instruction he gave as per minute dated 16 September 2011
that nobody else shall visit Madhoe whilst in custody except certain
persons listed in the said minute.
4.

The requested information must be submitted to this office on or before
Friday

ts" January 2012.

Regards

ADVOCATE L.S.MRWEBI
SPECIAL DIRECTOR: COMMERCIAL CRIME UNIT
PRETORIA
DATE: 04 DECEMBER 2011

JWB-095

ANNEXURE ''JWB6''

JWB-096

MEMORANDUM
TO: Adv LS Mrwebi
Special Director: SCCU
CC: Adv CS Mlotshwa
ADPP:KZN
CC: Adv S Ramouthar
DOPP: Durban
FROM: BF Manyathi
SSA: DOPP- Durban
DATE: 22/01/12
RE: Representations - Col N Madhoe
Durban Central Cas 466/09/11 (Corruption)

1 . I have been on leave from 22/12/11 until 16/01 /12, hence the delay in
responding to your memo dated 6/01 /12.
2. I am only dealing with the corruption matter (Cas 466/09/11). Ms Wendy
Greet (Clark) is dealing with the fraud matter (Durban Central Cas
781/06/10). I have given her copies of your memo and attachments. She
will respond with regard to the fraud matter.
3. I will endeavour to respond as best as I can, however I believe that it
would be more appropriate for Wendy and I to brief you in person. If you
share my belief, I would await your further directive in that regard.
Background

4. Col Madhoe ("Madhoe") was working at the procurement section. He and
business man Thoshan Panday ("Panday") are suspects in the fraud
matter involving R60 million. I understand that section 205 subpoenas
were duly obtained and Panday's business and personal bank statements
were obtained. As a result thereof, a preliminary report was compiled by
the investigators alleging wrong doing on the part of Madhoe and Panday.
The fraud matter is investigated by the Hawks and they fall under the;?
command of Major General Booysen ("Booysen").

1

>

JWB-097

2
5. At the bail hearing for the corruption matter, it was common cause that
Panday had instituted civil action in order to have the section 205
subpoenas set aside. I believe the civil matter was heard in December
2011 and judgment has been reserved.
Summary of evidence f n the corruption matter

6. Due to bits and pieces of evidence constituting a mosaic, it would be
difficult to summarise it comprehensively for purposes of responding to
your memo. A copy of the uA" clip is attached herewith for completeness.
In the course of my response, I will refer to specific witnesses whose
statements are part of the evidence.
7. In short, Madhoe approached Booysen and asked him about the fraud
investigation. There were several meetings and communication between
them which culminated in Madhoe handing Booysen R1 ,362 million cash
and Booysen handing him a pre-dated report. Madhoe was arrested on the
spot and the said report was found in his car. The cash was found in
Booysen's car.
8. In my view, Madhoe's conduct falls squarely within the ambit of sections
3(b) and 4(1 )(b) of the Prevention and Combating of Corrupt Activities Act
12 of 2004. The said provisions are attached hereunder.
Madhoe's representations

9. Madhoe is clouding issues and is making extremely serious allegations,
including treason. He avers that he is a potential witness in matters of
national interest. I cannot comment on his averments as there is nothing in
my matter relating to his allegations. I also fail to comprehend how the
corruption matter is being used to possibly "silence" him as a potential
witness.
10. One should look at the essence of his one "defence" as raised in his bail
application affidavit. He stated that he was approached by Booysen and
asked to obtain certain discs containing incriminating evidence against a

JWB-098

3
unit falling under his command. He further stated that he handed discs and
a hard drive containing such material to Booysen. The state's case differs
materially from Madhoe's version as to how it came about that he gave
Booysen the said material. It is however common cause that he did give it
to Booysen. It is significant to note that the material was handed into the
SAP13 exhibit register. If Booysen was so determined to destroy the
damning evidence, it defies logic why he allowed it to be handed into the
exhibit register.
11. The material is actually crime scene photos depicting dead persons. In my
experience, several parties have access to such photos and they include
LCRC members, detectives in general and prosecutors.
12. It is nonsensical for Booysen to fabricate the corruption charge if Madhoe
had helped him by giving him the supposed damning evidence. In any
event, Sandesh Dhaniram ("Dhaniram"), a former policeman, has made a
statement (A21) to the effect that he gave the said material to Madhoe.
Dhaniram states that he got it from Col Aiyer, who was in bad terms with
Booysen. It would seem that Madhoe naively believed that the material
was indeed damning against Booysen and/or his unit and that he could
use it to blackmail him so that he would help him with the fraud matter.
13. Mad hoe's other theory is that the corruption charge is an attempt to
persuade him to implicate the Provincial Police Commissioner of KZN
("PC") and Panday. I fail to understand how.
14. One should also look at another "defence" averred by Madhoe to Major
General Moodley ("Moodley"), who has made a statement (A 14}. He
stated that he had information that "would turn the (corruption) case on its
head". He told Moodley that he had approached Booysen previously and
told him of damning evidence possessed by his "contacts" that implicated
Booysen and a unit falling under his command. Booysen then asked him
to get the evidence so that he would destroy it. Madhoe further stated t
Moodley that his "contacts" wanted R2 million for the material.

JWB-099

4
Booysen handed him R1 ,362 million and undertook to pay the balance on
receipt of the material. Madhoe then took the money to his "contacts", but
they refused to accept the lesser amount. When he was arrested, he was
actually returning the said money to Booysen. I must say that this is the
most absurd averment I have ever come across.
15. That was not the end of the matter. Madhoe told Moodley that he had
evidence to substantiate his allegations against Booysen and was willing
to hand it to Moodley. Moodley then arranged Col Chetty and Col
Padayachee (A27) to book Madhoe out in order to retrieve the evidence.
Madhoe took them to his residence, did a prayer and asked to be taken
back to the cells where he was detained. It was clearly a false alarm.
16. Based on the state's case, Madhoe seems to be "bluffing" with these
"defences", allegations and theories. From the time of the bail hearing, he
has been saying that he will divulge at the right forum the real state of
affairs underlying his arrest. I suggest that his attorney should obtain a
"without prejudice" statement from him pertaining to the allegations in
respect of which he claims to be a potential witness and submit it to your
office for consideration.
Alleged conflict of interest

17. There is substance in the concern that the matter is being investigated by
members of the Hawks who fall under Booysen's command. I am however
surprised that the issue is being raised again. It was first raised at the bail
hearing and was discussed between myself and his defence team. They
suggested the Public Protector or SIU or ICD. We deliberated the issue
and they then reconsidered and decided to withdraw it. I should however
not be construed as saying that the matter should not be transferred to an
"independent" investigative unit.

JWB-100

5
Issues raised in para 3 of your memo
AD3i
18. In his bail application affidavit, Mad hoe stated that a copy of the report was
forwarded to his office while he was at procurement. On his own
admission, he had access to it.
AD 3ii-iv
19. My understanding is that the report was compiled on the basis of the

information obtained, inter alia, from the bank statements. One should
keep in mind that Booysen is simply stating what Madhoe stated to him. In
para 7 of his affidavit, he states: " ... if I could help him. I asked in what way.
He said that if I pre-dated a report that the investigating officer had
submitted to me, it would assist them in getting the section 205 subpoenas
to be set aside". In para 12, he states: "I asked him how the pre-dating
would help, to which he responded that it would get the subpoenas
overturned". As indicated above, Panday had already instituted civil action
which was due to be heard in December 2011 in the High Court.
20. There is substance in your reasoning in para 3ii-iv and I agree with it.
However, one should not speculate as to the logic or otherwise of predating the report in order to have subpoenas set aside. As already pointed
out, Booysen is simply stating what Madhoe stated to him. One aspect is
nevertheless apparent, that is, a pre-dated report would logically mean
that the relevant bank accounts were accessed illegally. Perhaps one
needs to look at the papers filed in the civil action in trying to figure out the
sense in this regard. In any event, I will illustrate hereunder that this issue
has no bearing on the legal requirements (elements) on a charge of
corruption.
AD3v
21. Mad hoe had a copy of the report and he knew that Booysen was the head
of the Hawks who were investigating the fraud.

JWB-101

6
AD 3vi
22. My understanding of the relevant provisions of the Prevention and
Combating of Corrupt Activities Act 12 of 2004 is that the prosecution is
not required to prove that the accused would have benefited or gained
advantage from the commission of the offence. In the context of the
evidence, the logic or otherwise of pre-dating a report in order to have
subpoenas set aside will not be a hindrance in proving the requisite
elements of the offence. Sections 3(b) and 4(1 )(b) are relevant in this
regard:
3 General offence of corruption
Any person who, directly or indirectly(b) gives or agrees or offers to give to any other person any gratification,
whether for the benefit of that other person or for the benefit of another person,
in order to act, personally or by influencing another person so to act, in a
manner(i) that amounts to the(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the course of the,
exercise, carrying out or performance of any powers, duties or functions arising
out of a constitutional, statutory, contractual or any other legal obligation;
(ii) that amounts to(aa) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules,
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement to do or
not to do anything, is guilty of the offence of corruption.
4 Offences in respect of corrupt activities relating to public officers
(1) Any(b) person who, directly or indirectly, gives or agrees or offers to give any
gratification to a public officer, whether for the benefit of that public officer or for
the benefit of another person, in order to act, personally or by influencing another
person so to act, in a manner(i) that amounts to the(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the course of the,
exercise, carrying out or performance of any powers, duties or functions arising
out of a constitutional, statutory, contractual or any other legal obligation;
(ii) that amounts to(aa) the abuse of a position of authority;
(bb) a breach of trust; or

JWB-102

7
(cc) the violation of a legal duty or a set of rules;
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement to do or
not to do anything, is guilty of the offence of corrupt activities relating to public
officers.

Madhoe and Panday are suspects in the fraud matter. The fraud and
corruption matters are inter-related. It would be unrealistic to think that
Madhoe was advancing only his own interests in his dealings with
Booysen. The evidence reasonably indicates that the R1 ,362 million must
have come from Panday. It would also be unrealistic to think that if Panday
succeeds with his civil action, Madhoe will not derive any advantage.
23.1 assume that the averment that "Panday is the one who put Madhoe in

trouble" is based on para 12 of Booysen's statement. It states " ... he would
let the bastard pay for what he had put him through". Once again, one
should not speculate as to what Madhoe meant. However, as pointed out
above, Madhoe had every reason to advance Panday's course. I have not
been aware that the R60 million tender was personally authorised by the
National Commissioner and that Madhoe sent correspondence dated
17/02/10 and 14/06/10 respectively to police management. Wendy should
deal with those aspects.
AD3vii
24. It is quite correct that Booysen is essentially a single witness against
Madhoe. However it is trite that a court may convict on the evidence of a
single witness. I need not deal with the test, suffice to say that there is
substantial other evidence giving credence to Booysen's version. For
instance, the pre-dated report that Booysen handed to Madhoe was
recovered on the spot by members of the sting operation in Mad hoe's car.
25. During the course of the bail hearing, Madhoe was being detained at
Durban Central police cells. At some stage, he alleged that he was being
visited in the cells by certain police members who wanted to exert
pressure on him to implicate the PC and Panday.

'

'

JWB-103

\

8
Based on that, I informed court that police management had decided that
he should no longer be detained in the police cells. I accordingly
suggested that he should be detained in prison. His defence team did not
take kindly to that and it was apparent that Madhoe had shot himself in the
foot. In the light of that, I do not believe that the minute dated 16/09/11 that
restricted his visitors will adversely affect the credibility and essence of
Booysen's evidence.
Conclusion

26. In my view, the case against Madhoe is overwhelming and I recommend
that he must be indicted in the High Court.
Regards

B.F. Manyathi
SSA - DOPP Durban

JWB-104

ANNEXURE ''JWB7''

Graft charges against Panday withdrawn I IOL News

4/2/2019

JWB-105

[I] IOL
Graft charges against Panday withdrawn
NEWS/ 3 APRIL 2013, 11:16AM I TANIA BROUGHTON

THOSHAN Panday coming out from Magistrate court Picture; DOCTOR NGCOBO

Durban Businessman Thoshan Panday walked scot-free from the Durban Magistrate's Court on
Tuesday after charges of corruption and conspiracy to commit fraud were provisionally
withdrawn.
Although still under investigation for an alleged R60 million police accommodation tender scam,
Panday no longer faces any criminal charges in spite of being arrested twice in connection with
allegations of bribery and corruption.
Earlier this year, the provincial prosecutions boss, advocate Moipone Noko, instructed that
charges against him and supply chain unit policeman Navin Madhoe, involving an alleged
attempt to bribe KZN Hawks head Johan Booysen with R2m, be provisionally withdrawn.
bs
She said that while there was a prosecutable case, she had concerns "regarding justice",�
on representations which Panday had made and which needed further investigation.

-

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Bugged Panday calls
set to shock

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Panday i
century'
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Graft charges against Panday withdrawn I IOL News

4/212019

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I
----------�-----

NPA spokeswoman Natasha Ramkisson told The Mercury on Tuesday that Noko still had not
made a final decision in this matter.
On Tuesday, Panday and another supply chain policeman, Captain Aswin Narainpershad,
appeared before Durban Regional Court magistrate Nanette Otto at what was to be the start of
their trial in which they are charged with allegedly offering R1 m to Captain Kevin Stephen to
help them generate false invoices worth R1 Sm for submission to the SAPS.
But State advocate Dorian Paver said the State could not proceed "because of problems
regarding the preparation of evidence".
He said the charges would be provisionally withdrawn and the magistrate recorded that they
would be reinstated only if and when the investigations were concluded.
In response to a question from The Mercury, Ramkisson said Panday had not made any
representations about these charges and the reason for the provisional withdrawal was "as
stated in court by Paver".
Auditors are still probing the alleged R60m tender scam, and a decision will be made about
possible prosecutions once the report is finalised.
The Mercury

Related Tags
Crime and Courts

https:/Jwww.iol.co.zalnews/graft-charges-agalnst-panday-withdrawn-1494815

212

JWB-107

ANNEXURE ''JWBS''

Crime intenigence boss Mdluli a 'political appointment' I News I M&G

4/2/2019

JWB-108

NEWS (HTTPS://MG.CO.ZAISECTION/NEWS)

Crime intelligence boss Mdluli a 'political appointment'

Staff Reporter (https:11mg.co.z1/.uthor/no·profHe) 03 Apr 201114:48
Llnkedfn

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.. COMMENTS (HTI'PS://MG.CO.ZNARTICLE/2011-04-03-CRIME·INTELLIGENCE·BOSS-MDLUU·A·POLillCAL·APPOINTMENT#COMMENT_THREAD)

Email

Police crime intelligence boss Lieutenant-General Richard Mdluli was a "political appointment", City Press
newspaper reported on Sunday.
In an interview with the newspaper, former acting national police commissioner Tim Williams described Mdluli's
appointment process as "completely unusual" and "not regular".
Mdluli and Colonel Nkosana Sebastian Ximba were arrested last week in connection with a murder committed 12
years ago.

Appointment process 'hijacked'
Williams, who retired from the police in 2009, reportedly claimed Mdluli was promoted from deputy head of Gauteng
earlier in 2009 after a panel of four ministers, led by Police Minister Nathi Mthethwa, hijacked the appointment
process.
The others were State Security Minister Siyabonga Cwele, the then home affairs deputy minister Malusi Gigaba-now
minister of public enterprises-and former safety and security deputy minister Susan Shabangu, who is now minister
of mineral resources.
"The normal [appointment] process would involve the commissioner, deputy national commissioner andthe deputy
minister," Williams told City Press.
Also commenting in the newspaper, Institute for Security Studies researcher Johan Burger said that if this was indeed
the case, the appointment was "a clear case of political interference and a political appointment in which the normal
orocedures of the police were completely ignored".
Burger is a former police officer with 36 years experience.
Also quoted in City Press, Mthethwa's spokesperson Zweli Mnisi confirmed that a panel of four ministers made the
recommendation, but said "this was not an unusual process".

Appointment 'based on his capabilities'
He said the Police Act did not prohibit a panel of ministers from being directly involved in the appointment process.
Mnisi denied that Mdluli's appointment was politically motivated and said he was "solely appointed based on his
capabilities to head crime intelligence and met all the terms of the appointment".
At the time, the panel was not aware of murder allegations against Mdluli.

https:llmg.co.za/article/2011-04-03-crirne-intelligence-boss-mdlufl-a-politlcal-appointment

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Crime intelligence boss Mdluli a 'political appointment' I News I M&G

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JWB-109

Oupa Ramogibe, who was killed in Vosloorus, Boksburg, in 1999, was apparently involved a love triangle with Mdluli
and a woman.
At the time, Mdluli was the station commander at the Vosloorus police station, where Ximba also worked.
Last year, Mdluli apparently promoted Ximba seven ranks-from constable to colonel-in one day, according to the

Sunday Times.
The newspaper reported that this promotion was now the subject of an internal investigation by the Hawks, who
arrested the men for the murder of Ramogibe.
The two face charges of murder, kidnapping and defeating the ends of justice with Warrant Officer Samuel Dlomo and
a fourth man, who is also a colonel. - Sapa

� Mdluli (https://mg.co.za/t�,lrichard-mdlcll)J r South Africa (https://mg.co.za/tag/south-africa) )

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https://mg.co.za/article/2011-04-03-crime-lntelllgence-boss-mdluli-a-political-appolntment

214

4/2/2019

Crime intelligence boss Mdluli a 'political appointment' J News I M&G

JWB-110

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JWB-111

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4/4

JWB-112

ANNEXURE ''JWB9''

JWB-113

I .CONTENTS

JWB-114

. .

PREFACE

3

DEFINITIONS

4

CtfAPTER 1 •

EXECUTIVE ETHICS CODE

7

CHAPTER2·

ACCEPTANCEOFOFACE

18

CHAPTER 3 •

BENEFITS, RElMBURSIVE ALLOWANCES AND
OTHER PROVISIONS

20

CHAPTER 4 •

RESIDENCES

28

CHAPTER 5 •

MOTOR TRANSPORT

36

CHAPTER 6 -

AIR TRANSPORT

42

CHAPTER 7 -

TRAIN TRANSPORT

46

CHAPTER 8 -

PRIVATE OFFICE OF THE MEMBER

48

CHAPTER 9 •

RELINQUISHING OF OFFICE

52

CHAPTER 10 • TRAVEL PRIVILEGES OF FORMER MINISTERS
I DEPUTY MINISTERS AND THEIR SPOUSES

54

CHAPTER 11 • ENTERTAINMENT I RECEPTIONS

56

CHAPTER 12 • MISCELLANEOUS

58

ANNEXURE A - GUIDELINES FOR OFFICIAL TRAVEL ABROAD:
MINISTERS AND DEPUTY MINISTERS

62

ANNEXURE B • TRANSPORT ARRANGEMENTS - SESSION & RECESS

66

ANNEXURE C • PRESIDENTIAL GUESTHOUSE

68

ANNEXURE D -STATE, OFFICIAL AND PROVINCIAL OFFICIAL FUNERAL
POLICY MANUAL

70

ANNEXURE E - POLICY ON SECURITY MEASURES AT THE PRIVATE
RESIDENCES OF PUBLIC OFFICE BEARERS

101

ANNEXURE F • APPOINTMENT AND REMUNERATION OF SPECIAL
ADVISERS APPOINTED TO EXECUTING AUTHORITIES

104

ANNEXURE G • DEPARTMENTAL SPONSORED CREDIT CARDS

111

L......IEXURE H - PRESTIGE ACCOMMODATION: CHIEF JUSTICE;

DEPUTY CHIEF JUSTICE AND EXECUTIVE MAYORS

115

JWB-115

This Handbook is a guideline for benefits and privileges, to which Members and their
fammes are entitled, in the execution of their duties. These benefits and allowances
refer to both the time during term of office and in some cases to the time thereafter.
The Handbook incorporates the Executive Code of Ethics, which regulates probity
in public life.
The guidettnes with regard to administrative and support services, and the benefits,
privileges associated with occupying these offices, provide assistance in ensuring
good governance in line with the Code. The Handbook seeks to sensitise members
on the security measures that have to be observed in co-operation with the National
Intelligence Agency and Safety and Security Services.
·, ne interpretation of anything relating to these guidelines rests with Cabinet. Any
person interpreting this Handbook should consult Cabinet Secretariat when in doubt.
In the event of the latter having doubts about the interpretation of the provision(s)
in question, the matter should be referred to Cabinet.
All staff members providing support services to the portfolios mentioned above are
expected to acquaint themselves thoroughly with the provisions contained in these
guidelines. Specialised training can be provided for members of staff through the
South African Management Development Institute (SAMDI).
Anything not mentioned in these guidelines does not form part of the benefits,
allowances and support services envisaged for Political Office Bearers.

Confidential

Hiiit4il=.J
DEFINITIONS
In these guidelines, unless the context otherwise indicates:

"adult" means a person who has reached the age of legal majority of 18 years.
"department" means any department listed in the Schedules 1, 2 and 3 of the
Public Service Act, 1994 and includes national and provincial legislatures.
"domestic worker" means an employee who performs domestic work in the home
of his or her employer and includes

(a}

a gardener;

(b)

a person employed by a household as driver of a motor vehicle;
and

(c}

a person who takes care of children, the aged, the sick, the frail or
the disabled, but does not include a tam, worker.

"dependant" means a child, adopted child and/or foster child whom the Member
is legally obliged to support financially and is in fact supporting.
"Driver I Aide" means a staff member of the office serving a Member, employed
to perform driver and messenger functions as envisaged in Chapter 8.
"family" in relation to any person, means his or her parent, child or spouse, and
includes a person living with that person as if they were married to each other, i.e.
a spouse/ life partner and/or the following dependants:

Any child recognised as a dependant for the purpose of the Parmed Medical
Aid Scheme; and
Any relative (child, parent, brother or sister, whether such a relationship
results from birth, marriage or adoption) who resides permanently with the
member and is of necessity dependent, and whose income, from whatever
source, does not exceed the amount of the applicable maximum basic social
pension prescribed in regulations made under the Social Pension Act, 1973.

Confidentlol

JWB-116

JWB-117
"Member/s" means a Minister, Deputy Minister, Premier, Member of the Executive
Council (MEC) and a Presiding Officer/Deputy Presiding Officer in Parliament or in
a Provincial Legislature, except in cases where specific categories of the above
members are mentioned as national or provincial members.

"National member/a" means a Minister, Deputy Minister, Presiding Officer and

Deputy Presiding Officer.

"Offfcial. Residence" means a state owned residence or a private residence
designated by a member as to be used, amongst others, for official purposes at the
seaVs of office.

"Parliament" refers to both national and provincial legislatures.
"permanent companion" means a person who is cohabiting with the member and
is publicly acknowledged by the member as a permanent companion, provided the
member has informed his/her Department in writing of such a companion.
"Private Residence" means a privately owned house.
"Provincial member/&" means a Premier, Member of the Executive Council (MEC),
"'-43siding Officer or Deputy Presiding Officer.

"SAPS VIP Driver I Protector" means a member of the SAPS VIP Protection Unit,
allocated I appointed to provide security and driving services to the member.
"Spouse" means person legally married to the member including a spouse in a
polygamous marriage or a permanent companion/life partner.
"State-owned Residence" means housing, furniture and effects owned by the
State.

"Support services and benefits to the Spouse" means support services and
benefits to the spouse of a member and who as part of the household of the member
supports him/her in the execution of his/her official functions.

Confidential

JWB-118

POLICY ON SECURITY MEASURES AT THE PRIVATE RESIDENCES OF PUBLIC
OFFICE BEARERS
Cabinet approved on 11 June 2003 the following provisions of the above policy:

mar

1.

The Minister of Public Works
approve a State contribution of a nonrecoverable maximum amount o R100 000, or the total cost of security
measures not exceeding R100 000.

2.

Should the cost of the security measures be more than R100 000, the
difference shall be borne by the Public Office Bearer.

3.

The State's contribution of R100 000 should be reviewed every five years
to match with the changing costs for security systems.

4.

The following procedure should be followed to obtain approval from the
Minister of Public Works for the State's contribution of R100 00 to be made
towards security measures at the private residences of Public Office Bearers:

4.1

The South African Police (Protection and Security Service) should at the
request of a Public Office Bearer, conduct a security evaluation of such
Public Office Bearer's private residence.

4.2

SAPS (Protection and Security Service) would discuss the Public Office
Bearer's personal circumstances with him/her, with a view to inform the
recommendations to be made.

4.3

SAPS (Protection and Security Service) should submit the security evaluation
report to the Department of Public Works. Directorate: Prestige
Accommodation (Head Office) for consideration by the Interdepartmental
Security Coordinating Committee (ISCC) and for cost estimates to be
prepared.

4.4

The Directorate: Prestige Accommodation will provide SAPS (Protection
and Security Service) with the cost estimate to be attached to the Public
Office Bearers copy of the security evaluation report and to be forwarded
to the relevant Public Office Bearer.

4.5

Upon receipt of the report and cost estimate, the Public Office Bearer may
submit a formal request to the Minister of Public Works for this Department
to make a contribution towards the security measures.

4.6

The Office Bearer may effect security measures at a lower level than
recommended by SAPS (Protection and Security Service), provided that
he/she first obtains the approval of the Minister of Safety and Security.

Con fiden tiol

-

-

.

-

-

·�

- -: :.

. ..

.

JWB-119
4.7

Once the Minister of Public Works has approved the contribution by the
Department towards the security measures, the Public Office Bearer should
obtain quotations for the work to be executed and forward the preferred
quote to the relevant Regional Office of the Department for technical
scrutiny, bearing in mind the fact that the State may only contribute a
maximum amount of R100 000 towards the security measures.

4.8

Should the quotation be found reasonable and in accordance with the
approved security measures, the Public Office Bearer may enter into
agreements with contractors for the work to be executed.

4.9

Upon completion of the work, the Public Office Bearer must furnish the
relevant Regional Office with receipts of the work executed. The Officer
Bearer must certify that the work has been executed to his/her satisfaction.
On receipt thereof, the relevant Regional Office, in collaboration with the
SAPS ((Protection and Security Service), will inspect the completed work.
If the Regional Office and SAPS are satisfied that the work has been
completed in accordance with the tender/quotations and the recommendation
of South African Police Service, payment would be made directly to the
Office Bearer, who would in turn be responsible for the payment of
contractors.

5.

Standard security measures, as recommended by SAPS (Protection and
Security Service) for the private residence of Public Office Bearers, may
include the following:
Bulletproof guard hut.
Perimeter fencing, 2 100 mm high (or any appropriate height
recommended by the SAPS).
Vehicle and pedestrian gates, 2 100 mm high (or any appropriate
height recommended by the SAPS for the perimeter fence).
Security gates for external doors.
Burglar proofing to windows.
Window glazing to prevent spalling in case of an explosion.
Illumination (Security lights).
Intercom system.
Alarm system.
Fire extinguishers.

6.

The Department does not accept responsibility for the maintenance and
running costs of the above security measures {excluding guard hut, should
it be of the pre-fabricated removable type provlded and constructed by the
Department of Public Works as a temporary facility, according to the
specific request of the SAPS).

7.

The relevant Regional Office is responsible for the provision of removable
bulletproof guard huts, if specifically required by SAPS, at the private
residences of Public Office Bearers.

Confident la!

.

.

ANNEXTURE
.
.::rt..:�.•

• , "_<__ .::.-:�.. -�

J

_.,...,

8.

The relevant Regional Office is also responsible for the payment of water
and electricity consumption from the guard huts. The Regional Office should
reimburse Public Office Bearers, on a monthly basis or as mutually agreed
with the Public Office Bearers, for water and electricity consumption from
the guard huts.

9.

The Department may make advance payments to Public Office Bearers for
the Implementation of security measures at their private residences, should
a Public Office Bearer requiring an advance payment make a presentation
to the Minister of Public Works to this effect.

10.

A period of five (5) years should lapse before a Public Office Bearer may

11.

Security measures may be implemented at Public Office Bearers' private
residences occupied on a regular basis in areas other than Cape Town or
Pretoria.

12.

In terms of the Handbook for Members of the Executive and Presiding
Officers, (Chapter 2, paragraph 3) approved by Cabinet on 5 February 2003,
Premiers and Members of the Executive (MEC's) may apply for financial
contributions towards security measures at their private residences. Such
applications should, however, be submitted to the relevant MEC of the
Provincial Department of Public Works and all other responsibttities and
expenditure would be undertaken by the Provincial Department of Public
Works.

again request funds for the implementation of security measures, and only
after the original private residence where security measures were affected,
had been disposed of.

Confidential

JWB-120

JWB-121

ANNEXURE ''JWB10''

Annexure "JWB10"
(pages JWB-122 to JWB-132)
of Exhibit Z(a) & Z(b) was not
timeously declassified at the time of
Maj-Gen Johan Wessel Booysen's
evidence and accordingly not referred
to in his evidence.

JWB-130

ANNEXURE ''JWB11 ''

JWB-131

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JWB-144

ANNEXURE ''JWB12''

.. "'

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JWB-146

ANNEXURE ''JWB13''

JWB-147

Ret�QJPk2012J0112

Enq

s Maerna

=��Dlrecto,..
=��
IVo;

Mr<lAngus

Date: 25 Septen,ber 2012

ANO

<3aneral MabUla

North Welt

Crimea lnvesug.r1on

roJect

RE<lugST FOR SECURING A CONSUlJATION WITH A WITNESS:
AJYER 1· 4 OCTOBER 2012 AND SKHUMBUZQ NDHLOVU 5
COLONEL
ocroaER 2012.
The Pl'ONCUflon team had a consu1tat1on w1b Colonel At,J« on ThWaday \o
Friday 8-7 September 2012 In the OPP offlce. Johanneablq. The r!WlneU tdl
has a lot to consult about. he had dealt with the background of lhe C8to Manos'
Unit, how It wu oomposed, how Chey operated ale. Wl8ft we ren out d time en
Friday 7 September 2012, he hadjuat arted dNllng wlh what he knew aboUt
Che various scenes al whldl the Cato Manor office was lnvowed In.

JWB-148

ANNEXURE ''JWB14''

JWB-149

Director of Public Prosecutions

Soltlh Gaufeng High Coutt

Johannesburg

Tel: (011) 220-4122
Fax: (011) 220-4232

From: Andrew KMA. Chi!uke

Sent: 12 June 2012 OS:14 PM

To: Cyrll s. Mlotshwa

Cc: Thoko J MajOkwenl; Palesa NP. Mats!; Selk> MAEMA (GS); Raymond R. Mathe,uw�
Subject: RE; INDICTMENT - CATO MANOR
Dear adv Mfotshwa,

Who Is the prosecutor that you are referring to? I have forwarded to you the Indictment which has all the detailed
summary, by which you ought to be In a position to open your office tile. I also fQrwarded to you detalls of the
Inquests with police cas numbers etc to which Y<>U refe·rred to adv Thoko Majok.wenl for reasons that t do not follow
.:�,d understand. The Indictment with respect gives you the whole view of the matter.
ou are kindly and fervently requested to please discuss arr( issues If any with me. I really do not see any need for
m '.) give you any report other than what I have forwarded to you already. Please if I misunderstand you, make me
unaerstand. I do not want to play you or undermine your Jurlsdfctlonal authority In any way whatsoever. There are
serious Issues of security In thts matter, which If necessary you wHI be briefed about whtch are not relevant to you
and I cannot expose such to you at this stage.
I have also learnt with utter dismay that you have now issued an lnstr11<;tJon to the senior prosecutors that all
dockets that are with us must be brought to you. What Is not happening here my brother? Please If you have any

Issue again talk to me or arrange that we $e& the ANDPP urgently.

Another Issue of concern to me ls the delay In you Issuing the Instruction of the reopening of the inquests in view of
the fact that you have been requested to sign the Indictment which must be preceded by your declslon to reopen
the Inquests. If thls makes you uncomfortable please Indicate so that I may urgently take the matter up with the
Acting NDPP as well as the minister.
• ·� not want to step on your toes, I was informed that you agreed and arranged with the ANDPP for somebody

; 'Jin outside to do the prosecution of this matters. If you have now a change of heart please Indicate so that we
.1ay resolve It as soon as possible

R�drds
Andrew Chau/<8
Director of Public Prosecutio11s
South Gauteng High Court
Johannesburg
Tel: (011) 220-4122
Fax: (011) 220-4232

--------------------------�---------From:
s. Mlotshwa
Cyril

Sent 12 June 2012 03:21 PM

To: Andrew KMA. Chauke
Subject: FW: INDICTMENT • CATO MANOR

Dear Adv Chauke
1. Our telephonic conversation today refers.
3

JWB-150

ANNEXURE ''JWB15''

3/30/2019
News24

-- ---EXGl;-JSIVE!·Sheriff-ralds properties of Robert Huang to pay R236m SARS-de&�ews24-·----

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EXCLUSIVE: Sheriff raids properties of Robert Huang
to pay R236m SARS debt
2019-03-29 13:00
Alex Mltchley and Kyle Cowan

news24
Olf'IClals from the sheriff of the High Court in
Pretoria are In the process of attaching assets at
five properties belonging to controversial Zumalinked Taiwanese businessman and ANC
benefactor Jen-Chlh "Robert" Huang and his wife,
Shou Fang.

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MOST READ j NEWS IN YOUR AREA f TOP UFl:SlYl.E

AS IT HAPPl!NED; Gwede Mantaahe'a security
systems 'without a shadow of a doubt' paid for
by BONaa • Agrlzzl taatmes et
#Stateeapturelnqulty
EXCLUSIVE: Sheriff raids properties of Robert
Huang to pay IU36m SARS debt
Wife of SA ambassador to Gennany found
guilty of fraud • Ntporta
Bad news wine loV8"', appanntly ftnlahlng a
bottM of red or White Is the equivalent of

smoking 10 cigarettes
Court dltmfaaes Duduzane Zuma'a application

to dlscherge culpable homicide charge

More••

This as the South African Revenue Service
(SARS) attempts to recover R236m, a portion of a
long-outstanding debt to the taxman, reportedly
running Into the billions.
Huang was once a business partner of former
president Jacob Zuma's nephew, Khulubuse
Zuma, and has been embroiled in a fight with
SARS over outstanding debts since 2012.
SARS obtained two summary judgments aganst
the Huangs in the High Court In Pretoria on
Thursday, resulting in two writs of execution
authorising the sheriff to seize movable assets at
five properties, four of which are situated inside the
upmarket WoodhWI Golf Estate in Pretoria.
The Judgments are only for personal income tax
owed by the Huangs.

Asman truck is seen loaded with fumiture taken by
the Sh9l1lr rrom insldo a home belonging to Rob9rt
Huang Inside the Woocllill Golf Es1ate in Pretoria.
(Alex Mltchley, News24)
MultllNCII• • UHt GellerlM · News in PicturM
S.nd us your pictures • Send us your atorlff

Related Links
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subpoenaed by Public Protector
WATCH: SARS swoops on Bosasa
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support 'irrelevant'· Ramaphosa

On Friday morning, News24 observed officials
from the office of the sheriff and SARS outside one of the homes Inside the estate.
Fumiture and one dishwasher were carried out of the premises and loaded onto a truck. It is
understood the house was almost entirely empty and that no electronics were seized.

https:/lwww.news24.com/SouthAfrica/News/exclusive·sheriff-raids-properties-0f-robert-huang-to-pay-r236m-sars�ebt-20190329

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----- -- ·EXGLUSIVE: Sheriff raids properties of Robert Huang to·pa�m-SARS debt·! News24

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A smaU truck Is ssen loaded with furniture taken by the sheriff from Inside a home belonging to
Robert Huang inside the Woodhill Golf Estate in Pretoria. (Alex Mitchley, News24)

One Mercedes-Benz GL350 SUV was observed in the garage of the home, and rt is understood this

wtl a/so be seized.
News24 understands that officials expected more vehicles to be at the home.
Officials from the office of the sheriff and SARS at the scene declined to comment
SAAS first obtained a provisional preservation order against the Huangs and Mplsi- Trading on June
12, 2014.
In col.Wt papers SARS ahged that "Mr Huang and/or Mplsl have used and continued to use various
entities effectively controlled by Mr Huang ... as conduits to evade MpiSl"s tax liability and to 'export'
large amounts of money which should have been declared, as taxable income•.
TRAFFIC ALERTS

The papers further reveal:
June 2012- SAAS conducted a search and seizure of the Huang residence and business premises
afMpisl;
April 2013 - SAPS executes a warrant for search and selz11e at the same premises;
During 2013- SARS conducts an analysis of funds flowing in various bank accounts Involving both
Huang and his wife and Mpisi Trading; and
November 2013 - SARS Initiates a tax inquiry.
By early 2018, SARS' assessments showed that Huang, his wife and Mpisl Trading owed taxes
amounting to more than R420m.

Westem C.pe

•

I

TRAFFIC

SARS also discovered four companies referred to as the Razi entities, which owe SARS a further
R540m, Fin24 reported in February 2015.

Robert•on
Road name: R60

08:10 AM

C-i,e Town C80

07:51 AM

Road name: JAZZ FESTIVAL

READ: Zuma man could o- SARS R1 .8-billion

traffic24

More traffic reports

In the run� to the May 2014 elections, Jacques Pauw revealed in his bestseNer, The Presidenrs
Keepers, that SARS had seized a shipment of ANC T-shirts imported by Huang and Mpisi, branded
with a picture of fonner president Jacob Zuma, worth R118m.

21 Jackpot winners In 20
Dally Lotto draws!

Then deputy commissioner Ivan Pillay stood finn and the ANC was forced to pay R41 m import duties
before SARS would release the shipment.

2019-03-29 21:43

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R4150000

JWB-153

ANNEXURE ''JWB16''

JWB-154

KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 4665/2010

In the matter between:

.>

F--JOHAN WESSEL BOOYSEN

Applicant

I'

and

THE ACTING NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS

First Respondent

THE PUBLIC
I
\

PROSECUTOR

Respondent

Second

JWB-155

COLONEL PHARASA DANIEL NCUBE

Third

Respondent

THE NATIONAL COMMISSIONER OF
THE SOUTH AFRICAN POLICE
SERVICE

Fourth Respondent

THE DEPUTY NATIONAL COMMISSIONER
OF THE SOUTH AFRICAN POLICE SERVICE

Fifth

Respondent

THE PROVINCIAL COMMISSIONER OF
THE SOUTH AFRICAN POLICE SERVICE

Respondent

,

..

JUDGMENT

GORVEN J

Sixth

JWB-156

[1] On 18 August 2012 the first respondent issued two written
authorisations to charge the applicant (Mr Booysen) with
contraventions of s 2(1 )(e) and (f) respectively of the Prevention
of Organised Crime Act (POCA).w In terms of s 2(4) of POCA, a
person may only be charged with committing any of the offences
created by s 2(1) if a prosecution is authorised in writing by the
National Director of Public Prosecutions. Pursuant to the
authorisations, Mr Booysen, a Major General in the police at the
time, was arrested on 22 August 2012 and has been served with
an indictment which confronts him with seven counts, the first two
'·'

of which relate to the alleged contraventions of POCA. Although
the first respondent was, at the time, the Acting National Director
of Public Prosecutions, she fulfilled the functions of the National
Director and I will refer to her in this judgment as the NDPP.

[2] Mr Booysen seeks to review and set aside the decision to
issue the authorisations in question (the first impugned decision)
and the decision to prosecute on the counts confronting him (the
second impugned decision). Mr Booysen states pertinently that he
does not rely on the provisions of the Promotion of Administrative
Justice Act (PAJA)W but does not enter the debate as to whether
the first impugned decision might be excluded from the operation
of PAJA.UI He bases the application directly-on the Constitution of
the Republic of South Africa, 1996 (the Constitution) and, in
particular, relies on the principle of legality. Section 172(1) of the
Constitution reads as follows:

JWB-157

'(1)

When deciding a constitutional matter within its power, a

court-

(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent
of its inconsistency; and

(b) may make any order that is just and equitable .... '

The NDPP and the second respondent have opposed the
1'

application. The remaining respondents have not entered the
lists.

[3] The relief sought by Mr Booysen is in the following terms:

'(a) Declaring the decisions taken by the first respondent
purportedly in terms of the provisions of s 2(4)1 read withs 1 and
2 of the Prevention of Organised Crime Act, No 121 of 1998
I

("POCA"), on 17 August 2012 to authorise the applicant's
prosecution on charges of contravening sections 2(1 )(e) and
2(1 )(f) of POCA inconsistent with the Constitution of the Republic
of South Africa, 1996 and invalid;

(b) Reviewing and setting aside the aforesaid decisions taken by
the first respondent on 17 August 2012;

JWB-158

(c) Declaring the decision(s) taken by the first respondent,
alternatively second respondent, alternatively first and second
respondents, to prosecute the applicant on the charges contained
in counts 1 and 2 and 8 to 12 of the indictment served upon the
applicant on 29 October 2012 ("the indictment") inconsistent with
the Constitution of the Republic of
South Africa, 1996 and invalid;

(d) Setting aside the first respondent's, alternatively second
respondent's, alternatively first and second respondents',
decision(s) to prosecute the applicant on the charges contained in
counts 1 and 2 and 8 to 12 of the indictment;

(e) Interdicting the first respondent and her successors from
authorising the prosecution of the applicant on any charge
referred to in s 2(1) of POCA unless and until facts under oath
implicating the applicant in the commission of such offences and
justifying such prosecution are placed before the first respondent
or her successors by an official or officials whose duty it is to
place such facts before the first respondent.

(f) Ordering the first respondent and any other respondent who

opposes this application to pay the applicant's costs of suit, which
costs are to incl.ude the costs consequent upon the employment
of two counsel.'

Prayers (a) & (c) are sought pursuant to s ·172(1 ){a) of the

Constitution and prayers (b) and (d) pursuant to s 172(1)(b). Mr�

JWB-159

Booysen submitted in argument that the interdict sought in prayer
(e) should be granted within the discretion afforded by the
provisions of s 172(1 )(b). I will return to this submission later.

[4] Mr Booysen's heads of argument submit, in summary, that:

(a) The impugned decisions are arbitrary and irrational
and that such irrationality offends the principle of legality
and the rule of law; and

(b) His right to dignity is impaired merely by having to face
a prosecution where there are no facts to support a
rational decision to authorise his prosecution and to indict
him in the first place.

It is clear that a 'ratlonallty enquiry is not grounded or based on
the infringement of fundamental rights under the Constitution. It is
a basic threshold enquiry, roughly to ensure that the means
chosen ... are rationally connected to the ends sought to be
achieved.'MJ. Mr Booysen therefore need not show an impairment
of his rights, such as the right to dignity, in order to succeed on
the first ground. The infringement of his right to dignity was not
pressed in argument and I do not intend to say anything more
about it.

JWB-160

[5] The two counts under POCA allege that Mr Booysen
participated in the conduct of an enterprise through a pattern of
racketeering activityISJ. and managed the operations of such an
enterprise.w This is alleged to have been done whilst he was in
charge of a specialised unit based at the Cato Manor Police
Station. The other five counts allege criminal activity conducted
with certain members of the South African Police Service who
were under his command comprising murder, housebreaking with
intent to commit murder, assault, defeating or obstructing the

..

course of justice and unlawful possession of firearms and
ammunition. Twenty-nine others were arrested although two of
thes� have since died. There are a total of 116 counts which
confront one or more of those presently accused. The· trial has
not yet commenced.

[6] A point in limine raised by the respondents is that, since the
impugned decisions were taken in Pretoria and the respondents
reside there, this court does not have jurisdiction to entertain the
application. Mr Booysen submits that because he has been
charged in this division, this court does have jurisdiction. During
argument the respondents conceded that this division has
jurisdiction, on the basis set out in Estate Agents Board v Lek.ffi
In my view the concession was appropriate. It was submitted,
however, that it is the trial court which should determine an
application such as this and that the application is accordingly
premature and has been brought in the wrong forum.

JWB-161

[7] The Constitutional Court has expressed itself against pre-trial
applications. In an application alleging that evidence had been
obtained in a manner which violated a right in the Bill of Rights of
the Constitution, Langa CJ said the following:

'I nevertheless do agree with the prosecution that this Court
should discourage preliminary litigation that appears to have no
purpose other than to circumvent the application of s 35(5).
Allowing such litigation will often place prosecutors between a
rock and a hard place. They must, on the one hand, resist
preliminary challenges to the investigations and to the institution
of proceedings against accused persons; on. the other hand,
they are simultaneously obliged to ensure the prompt
commencement of trials. Generalfy disallowing such litigation
would ensure that the trial court decides the pertinent issues,
which it is best placed to do, and would ensure that trials start
sooner rather than later. There can be no absolute rule in this
regard, however. The courts' doors should never be completely
closed to litigants .... But in the ordinary course of events, and
where the purpose of the litigation appears merely to be the
avoidance of the application of s 35(5) or the delay of criminal
pro.ceedings, all courts should not entertain it. The trial court
would then step in and considered together the pertinent
interests of all concerned. If that approach is generally followed
the state would be sufficiently constrained from acting
unlawfully by the application of s 35(5) and by the possibility of
civil and criminal liability.'181

JWB-162

[8] The respondents submit that the trial court would be best
suited to deal with the authorisations since the issue whether the
NDPP had information before her justifying rational decisions to
authorise Mr Booysen's prosecution on charges of racketeering
'can only be adjudicated upon' in a trial context. In S v Chao &
othersoo it was held that a challenge to such a decision making

process should be brought by way of a substantive application. In

S v de Vries & others.llfil an attack was launched on
authorisations under s 2(4) of POCA during the trial, after the
\'

accused had pleaded and evidence had been led. The court held
that a special entry would have to be made and that the time to
launch any attack on the authorisations was prior to the accused
pleading. The court could then assess the matter without, in
effect, being asked to review its own proceedings.
[9] I am in respectful agreement that a proliferation of applications
brought prior to a criminal trial must be discouraged. If an
accused person has properly been brought before a trial court,
that court should generally deal with applications which bear on
the outcome of the trial such as admissibility of evidence, the
validity of search warrants and the like. However, this matter is
clearly distinguishable from a situation where the admissibility of
evidence is challenged, as took place in Thint. I am in respectful
agreement with the reasoning in Chao and De Vries which
addresses the nature of a challenge such as that dealt with in this
matter. The issue raised in this matter can and should be dealt
with prior to the commencement of the trial since the question is
whether Mr Booysen can be charged with the two POCA counts.
For this to be competent, the validity of the issuing

...

<2____

JWB-163

of the authorisations must be determined. If they are not valid,
they may be reviewed and set aside, in which case, an
application must make use of Rule 53 as has been done. In
addition, because this application relates to only one of a number
of accused persons, it can most conveniently be dealt with in a
separate application which does not affect the conduct of the trial.
I am of the view that in this narrow instance, this court is the
appropriate forum and that the appropriate procedure has been
adopted. The point in limine must therefore fail.

[1 O] I should mention that there is only evidence as to the date on
which, and the person by whom, the first impugned decision was
made. None of the parties dealt in evidence with these issues in
relation to the second impugned decision. It appears to be
accepted, however, that the fate of the second impugned
decision must follow that of the first one. I shall therefore deal
only with the first impugned decision in analysing the facts. The
factual matrix on which the application must be determined will be

t

analysed in due course. It will be useful to first set out the legal
framework governing an application of this nature.

[11] The position of National Director of Public Prosecutions is
established by s 179 of the Constitution in the following terms:

JWB-164

j(1) There is a single national prosecuting authority in the

Republic, structured in terms of an Act of Parliament, and
consisting of-

(a) a National Director of Public Prosecutions, who ts the
head of the prosecuting authority, and is appointed by the
President, as head of the national executive ....

(2) The prosecuting authority has the power to institute criminal
('

proceedings on behalf of the state, and to carry out any
necessary functions incidental to instituting criminal proceedings.'

[12] The definition of 'administrative action' in PAJA specifically
excludes a decision to prosecute or continue a prosecution. It is
thus not reviewable under PAJA. Without this exclusion, such a
decision would clearly amount to administrative action since the
definition includes a decision by an organ of state when
exercising a power in terms of the Constitution or exercising a
,

'-·

public power or performing a public function in terms of any
legislation.llll The impugned decisions are also not policy
matters but involve the implementation of legislation ·1lll
[13] In National Director of Public Prosecutions v Zuma, Harms DP
held that a decision to prosecute 'is not susceptible to review' .IUJ.
Despite this unequivocal wording, it is clear that the dictum was
limited to a review under PAJA because that was what Harms DP
was dealing with in that paragraph and because he

7

JWB-165

went on to hold that the principle of legality nevertheless applies
to such a decision.UAl This is clearly correct. It has been said that
the 'Constitution constructs and restrains the exercise of public
power in our· democracy' .USl The relationship between the
common-law grounds of review and the Constitution was
considered in Pharmaceutical Manufacturers Association of SA &
another: In re Ex parte President of the Republic of South Africa &
othersll6.l on the basis that the control of public power is always a

constitutional matter. In summing up, Chaskalson P said:
I'

'There is only one system of law. It is shaped by the
Constitution which is the supreme law, and all law, including the
common law, derives its force from the Constitution and is
subject to constitutional control.'U11

After all, one of the foundational values of the Constitution is the
supremacy of the Constitution and the rule of law.ll.81 These
concepts seem to me to have similar, if not identical, content.

[14] The principle of legality is an aspect of the rule of law.U2J. In
Fedsure it was said that the principle of legality expresses the

fundamental idea that 'the exercise of public power is only
legitimate where lawful' .um It is clear that the NDPP exercised a
public power in arriving at the impugned decisions. The impugned

«

decisions are therefore subject to the scrutiny of the court based

JWB-166

on the principle of legality. This begs the question as to the
content of the principle of legality in the context of the impugned
decisions. The detailed content of the principle of legality must be
worked out from the Constitution as a whole. This is an ongoing,
incremental process which has been addressed by the
Constitutional Court in a series of cases involving nonadministrative action. Sachs J, in a minority judgment in Minister

of Health & another v New Clicks South Africa (Pty) Ltd &
others,Illl described the principle of legality as 'an evolving
concept in our jurisprudence, whose full creative potential will be
developed in a context-driven and incremental manner' -IW

[15] In turn, the principle of legality requires that the exercise of
public power 'must be rationally related to the purpose for which
the power was given.'llJI This is the rationality test. It has been
held that rationality is a minimum requirement applicable to the
exercise of all public power.(241 'Decisions must be rationally
related to the purpose for which the power is given, otherwise
they are in effect arbitrary and inconsistent with this
requirement' .I251 A rational connection means that 'objectively
viewed, a link is required between the means adopted by the
[person exercising the power] and the end sought to be
achieved'.Ufil The test is therefore twofold, 'Firstly, the [decision
maker] must act within the law and in a manner consistent with
the Constitution. He or she therefore must not misconstrue the
power conferred. Secondly, the decision must be rationally
related to the purpose for which the power was conferred. If not,

JWB-167

the exercise of the power would, in effect, be arbitrary and at
odds with the rule of law.'Ull

[16] Professor Hoexter comments that the use of the principle of
legality may well give rise to 'a complete parallel universe of
administrative law' alongside PAJA.I2.8.l A timely note of caution
has been sounded in a recent article regarding the need for
courts to respect the separation of powers and to be conscious of
not intruding into the territory of either the executive or the
legislature.i22} The learned author argues that the principle of
legality, and in particular its requirement of rationality has brought
about a 'subversion of the Promotion of Administrative Justice Act
... and its underlying scheme as laid down in s 33 of the
Constitution through trending "parallelism"' .Ufil In addition, she
argues, 'the courts may be perceived to be expanding their
supervisory review jurisdiction in a manner that amounts to an
affront' to the doctrine of the separation of powers.U1J Whether
the latter statement is correct or not, it is important to recognise
that 'the need for Courts to treat declslon-makers with appropriate
deference or respect flows not from judicial courtesy or etiquette
but from the fundamental constitutional principle of the separation
of powers itself.'1.3ll In other words, the courts are themselves
constrained to act within the bounds of the powers accorded to
them by the Constitution.jjjj I prefer to think of it as deference or
respect directed, not at the legislature or executive, but at the
Constitution and the rule of law. Along with the other tests
developed in the jurisprudence of the Constitutional Court, it

JWB-168

seems to me that this understanding provides a valuable
touchstone for when courts are requested to exercise their
judicial review function.

[17] As Professor Hoexter points out,OO the Constitutional Court
has applied the principle of legality in an increasing range of
contexts. First, in Fedsure, where the municipality was held
obliged to exercise its legislative function within the powers
lawfully conferred on it.IJSl Secondly, in President of the Republic
of South Africa v South African Rugby Football Union,IJfil where it

held that 'the [holder of public power] must act in good faith and
must not misconstrue [his or her] powers' .1311 Thirdly, in
Pharmaceutical Manufacturers, where it held 1hat the exercise of

public power ... should not be arbitrary' or irrational.Ufil Fourthly,
and most extensively, in A/butt v Centre for the Study of Violence
and Reconciliation & others,I.J9l where it treated procedural

fairness as a requirement of rationality.

[18] In the present matter, as I indicated earlier, Mr Booysen's
contention is that the NDPP acted arbitrarily and irrationally and
accordingly _offended the principle of legality. It is accordingly the
need for rationality, arising from the third example referred to in
the preceding paragraph, on which Mr Booysen primarily relies.

JWB-169

[19] As regards the first impugned decision, the legislature
introduced two formal requirements. First, the decision must be
taken by the National Director of Public Prosecutions. For the
purpose of s 2(4) of POCA this is defined to include a Director of
Public Prosecutions and a Special Director of Public Prosecutions
referred to in s 1 of the National Prosecuting Authority Act.Mm In
that Act, a definition is given of the word 'Director' as being a
Director of Public Prosecutions appointed under s 13(1 ). This
section refers to the two named officials. It is clear that the
National Director, a Director and Special Director are high-ranking
officials within the National Prosecuting Authority. Accordingly, the
purpose for which the power in s 2(4) of POCA was conferred is to
ensure that the decision making process is limited to a few high
ranking officials within the National Prosecuting Authority. It seeks
to exclude other persons who would be entitled to make such a
decision in respect of other offences. The object is clear. The
decision should be made by a person of higher position,
presumably due to their qualifications and experience.

[20] In the second place, it requires written authorisation as
opposed to any other form of authorisation to prosecute. The
purpose for this provision also seems clear. It is to facilitate an
ability to prove that the requisite, empowered, person has in fact
made the decision in question. The existence of writing is a
jurisdictional fact required to be in place before a prosecution can
proceed. It would be clear from the content of the writing that,
first, a decision has been made and, secondly, the person with

JWB-170

the requisite authority made the decision.gjj In the present
matter the NDPP was the person who took the decision and the
authorisations were issued in writing. This was not disputed or
placed in issue by Mr Booysen.

[21] The first impugned decision therefore qualifies under the
Fedsure approach, namely that the person who made the

decision was authorised to do so by the legislation in question
and did so in the manner .speclned in the legislation. These
I'

criteria satisfy the first aspect of the twofold test referred to by
Moseneke DCJ in Masetla.H2} The respondents argue that the
principle of legality is therefore satisfied and that is an end of the
matter. Mr Booysen goes further, however. He submits that,
notwithstanding the compliance with the formalities of the
legislation, the NDPP must, in addition, have adequately assessed
'the sufficiency and admissibility of evidence to provide
reasonable prospects of a successful prosecution' as is required
by policy directives issued pursuant to the provisions of s 21 of
the National Prosecuting Authority Act.

[22] I do not intend to deal with the specific content of this
submission of Mr Booysen, What is actually at issue is whether
the second part ·of the twofold test, the rationality aspect, was
satisfied. As we have seen in the legal framework explored
earlier, the question is whether the decision of the NDPP, viewed
objectively, was rational. This decision is not a polycentric one14JI

JWB-171

or one involving the formulation or implementation of policyoo so
the rationality test is somewhat less variable.rm In the context of
the first impugned decision, my view is that the information on
which the NDPP · relied to arrive at her decision must be rationally
connected to the decision taken.

[23] Mr Booysen submits that the first impugned decision lacked a
rational basis since, at the time it was made, the material relied
f

on by the NDPP could not, viewed objectively, support a decision
to prosecute him for those offences. He submits that the material
did not include any evidence at all of his having contravened the
relevant provisions of POCA.

[24] The Notice of Motion in this matter is in the form provided for
in Rule 53 and requests a copy of the record and reasons for the
impugned decisions, indicating that Mr Booysen may thereafter
supplement the founding papers. No record was put up or

c

reasons given by the NDPP or the second respondent. As is
evident from their affidavit, they were of the view that because
PAJA excluded a decision to prosecute or to continue a
prosecution from its operation, the impugned decisions were not
reviewable at all. Two requests for any further documents leading
to the impugned decision were made prior to the launch of the
application. These requests were declined. The approach that the
impugned decisions were not subject to judicial review was

echoed in their heads of argument and only during argument dL

JWB-172

they concede that a review based on the principle of legality was
competent.

[25] It is common cause that after the indictment was served on
Mr Booysen, the NDPP was requested to make available all the
documents on which the state intended to rely. In compliance
with that request, 23 dockets were made available. These were
the only documents furnished to him prior to the launch of this
application. Of the 23 dockets, he is mentioned in only two. Of
290 statements in all of the dockets, only three statements even
mention him. Two of these say he arrived on the scene of a
shooting in a helicopter after the event and the third states that
he was noticed on the scene of a shooting after it had taken
place. In response to Mr Booysen's assertion that no statements
in the dockets implicate him, the NDPP says that she relied on
four statements on oath, copies of which she says she annexed
to her answering affidavit. I will return to this response below.
What is clear, however, is that this in no way challenges the
averment of Mr Booysen that none of the documents in the
dockets implicates him in the offences in question.

[26] It is necessary to set out fairly fully what the NDPP says in
her answering affidavit about what she considered in arriving

at

the first impugned decision. Below is what she says in response
to the challenge of Mr Booysen that there was no material before

JWB-173

her at the time she made the first impugned decision linking him
to the offences with which he is now confronted:

'16. After due and careful consideration of the information under
oath and the evidence as contained in the dockets (copies of which
were made available to the Applicant), the Respondents were, and
still are satisfied that there is prima

tecte evidence that an

offence

has been committed and Applicant is implicated in that:
(

16.1 From January 2007 to March 2010, the Applicant was a
Provincial Commander in charge of KwaZulu-Natal Organised
Crime. Subsequent thereto, and in 2010, he was appointed as
the Provincial Head of the newly established Directorate for
Priority Crime Investigations ("DPCI") in KwaZulu-Natal.

16.2 During 2006, the Serious Violent Crime ("SVC") Section
based at Cato Manner was incorporated into the Durban
Organised Crime Unit. The Durban Organised Crime Unit form
part of the KwaZulu-Natal Provincial Organised Crime
structure. The Applicant then conducted it as an enterprise as
defined in the Prevention of Organised Crime Act 121 of 1998
("POCA").

16.3 During 2010, the Organised Crime structures became part
of DPCI and as indicated above, the Applicant was heading
DPCI in KwaZulu-Natal.

JWB-174

16.4 During May 2008 to September 2011, members of the
South African Police Service ("SAPS") under the Applicant's
command killed members of the KwaMaphumulo Taxi
Association who were in conflict with the Stanger Taxi
Association, as well as ordinary civilians and/or criminal gangs
who were suspected of
being involved in ATM bombings.

16.5 The information before me suggested that these
('

members of the SAPS, would in most of the killings place a
fire-arm next to the deceased person to create the impression
that s/he was armed and had attacked the police by shooting
at them or endangering their {police) lives.

16.6 The information under oath which was placed before me
also indicated that the Applicant knew or ought to have known
that his subordinates were killing suspects as aforesaid
instead of arresting them.

'

'

16.7 The information further revealed that the unlawful
activities of killing suspects and/or civilians were, in certain
instances motivated by the Applicant's and members of his
Unit's desire to enrich themselves by means of State monetary
awards and/or certificates for excellent performance. In this
regard, I annex a copy of an example of such a monetary
award claim documented as "NJ1" in which inter alia the
Applicant is recommended for such an award resulting from
the deaths of suspects.

JWB-175

17. Particular reference is made in this regard to the statements
made by Colonel Rajendran Sanjeevi Aiyer, Mr Aris Danikas, and Mr
Ndlondlo from which it is apparent that the Applicant is well aware of
the information that the Respondents have in their possession
relating to the murder of at least 28 people and the monetary and
non-monetary awards claimed by him (the Applicant) for the
instrumental part that he played in these crimes. Additionally, Mr
Danikas has revealed some of the information that he has provided
to the Respondents and to the press and even posted video footage
thereof on YouTube. I annex copies· of the statements as "NJ2";
"NJ3", "NJ4" and "NJ5", respectively ....

21 . These are only some of the instances that are referred to in the
above-mentioned statements, which were considered together with
the other information in the docket before the impugned decisions
were made. In this affidavit, I do not intend to detail all of the
information that was placed before me prior to me making the
decisions in issue. I submit with respect that the aforementioned
information is prima facie proof that the Applicant was involved in
racketeering activities.'
I

'

[27] From this it can be seen that the NDPP says that she relied
on 'information under oath and the evidence as contained in the
dockets' and that the instances relied on by her are 'referred to in
the above-mentioned statements, which were considered
together with the other information in the docket (sic) before the
impugned decisions were made.' Whilst she says that she will not
detail all the information placed before her prior to her making the
first impugned decision, she does not say that any of that

JWB-176

undisclosed information was relied on by her. In argument the
respondents submitted that because correspondence annexed to
the founding affidavit refers to documents which contain
prosecution strategy and information concerning informers or
sources contained in correspondence between the OPP and
NDPP, the inference should be drawn that those documents were
also relied on by the NDPP. The insurmountable difficulty with this
submission is that the NDPP does not say that she had regard to
any such information or documents at the time the impugned
('

decisions were made. She limits herself to the documents dealt
with above. Had she said that she had considered such
documents, even if the precise contents were not disclosed, this
might well have affected the outcome of this application. The
provisions of POCA allow for hearsay and similar fact evidence to
be led in certain circumstances.Iaq Once again, however, the
NDPP does not indicate that any reliance was placed on any such
evidence.

[28] On a factual level, therefore, she states that there were only
two categories of information on which she based the first
impugned decision. First, the contents of the dockets. Secondly,
statements under oath which she says are annexed as NJ2, NJ3,
NJ4 and NJ5.
[29] As regards the contents of the dockets, the respondents
conceded in argument that no statements contained in them
implicate Mr Booysen in any of the offences with which he has

JWB-177

been charged. The dockets could therefore not have provided a
rational basis for arriving at the impugned decisions.

[30] This leaves the four annexures to the answering affidavit
mentioned above. These are the only documents not contained in
the dockets on which the NDPP says she based the impugned
decisions. She says that they are all statements made under
oath. She says, in addition, that they implicate Mr Booysen in one
('

or more of the offences in question.

[31] The submissions of Mr Booysen in his replying affidavit can
be summarised as follows. Two of the annexures are sworn
statements made under the name of one Colonel Aiyer. These are
annexures NJ2 and NJ4 respectively. Mr Booysen describes these
as statements which concern 'office politics' and submits that they
in no way implicate him in any of the offences with which he has
been charged. The second of these, in addition to not implicating

'

him in any of the offences in question, was deposed to on 31
August 2012, some two weeks after the first impugned decision
was taken. The document referred to as a statement by Mr
Danikas, annexure NJ3, is not a sworn statement. It is not even
signed by anyone. It is not dated. Even if it can be attributed to
the named person and even if it was a sworn statement as
claimed by the NDPP, the contents do not cover the period dealt
with in the indictment except for one event which

JWB-178

does not relate to Mr Booysen. As regards annexure NJS, this
does not implicate Mr Booysen in any of the offences in question.

[33] In argument, the respondents did not in any way challenge
the above factual submissions concerning·the nature and content
of the annexures in question. The factual submissions appear to
me to be accurate.

[32] In his replying affidavit, Mr Booysen submits that the NDPP is
'mendacious when she asserts in paragraph 21 of the answering
affidavit that she considered the statements together with the
other information in the "docket" before making the impugned
decisions. She could not have considered the statements referred
to in her answering affidavit. She is invited to explain how she
could have taken into account information on oath that objectively
did not exist at the time of taking the decision'.

[34] Mr Booysen was clearly within his rights to deal in reply with
the inaccurate assertions by the NDPP in her answering affidavit
and to issue the challenge and invitation in question. He had not
seen the statements until they were annexed to the answering
affidavit. · As regards the inaccuracies, the NDPP is, after all, an
officer of the court. She must be taken to know how important it is
to ensure that her affidavit is entirely accurate. If it is shown to

JWB-179

be inaccurate and thus misleading to the court, she must also
know that it is important to explain and, if appropriate, correct any
inaccuracies. Despite this, the invitation of Mr Booysen was not
taken up by the NDPP by way of a request, or application, to
deliver a further affidavit. In response to Mr Booysen's assertion
of mendacity on her part, there is a deafening silence. In such
circumstances, the court is entitled to draw an inference adverse
to the NDPP. The inference in this case need go no further than
that, on her version, the NDPP did not have before her annexure
('

NJ4 at the time. In addition, it is clear that annexure NJ3 is not a
sworn statement. Most significantly, the inference must be drawn
that none of the information on which she says she relied linked
Mr Booysen to the offences in question. This means that the
documents on which she says she relied did not provide a
rational basis for the decisions to issue the authorisations to
charge Mr Booysen for contraventions of s 2(1 )(e) and (f)
respectively.

[35] Although the question has been left open,Hn a decision to
stop a prosecution probably falls within the ambit of PAJA.
Professor Hoexter argues that the legislature distinguished
between decisions to prosecute and decisions not to prosecute
because when a decision is made to stop a prosecution, the
public interest requires a review. In a decision to prosecute,
however, the public interest would be catered for by a trial in due
course . .[4.fil I agree with these observations. An additional
consideration may be that a person who is prosecuted will have
an action in delict if the prosecution was a wrongful one.

JWB-180

Professor Hoexter also argues that 'review in terms of the
principle of legality ... is currently more limited and less searching
than review in terms of the PAJA or s 33, which is what one would
expect of a general constitutional principle' .H21

[36] It is not necessary to attempt to set a threshold for the
rationality test applying. to the decision to issue authorisations to
prosecute under s 2(4) of POCA. Kate O'Regan says that
rationality boils down to the 'rhyme or reason' test. 'As long there
is some rhyme or reason to what the legislature or executive
seeks to do, it will probably pass the rationality test.'rsm Even
accepting the least stringent test for rationality imaginable, the
decision of the NDPP does not pass muster. I can conceive of no
test for rationality, however relaxed, which could be satisfied by
her explanation. The impugned decisions were arbitrary, offend
the principle of legality and, therefore, the rule of law and were
unconstitutional.

t

[37] Having come to this conclusion, s 172(1 )(a) of the
Constitution obliges me to declare the impugned decisions invalid.
Mr Booysen is therefore entitled to relief in terms of prayers (a)
and (c) referred to in paragraph 3 of this judgm·ent. In addition, I
am given a discretion bys 172(1)(b) of the Constitution to make a
decision which is just and equitable. Since I have found that there
was, at the time the first impugned decision was made, no
material which was considered by the NDPP on which to rationally
authorise a prosecution of Mr Booysen, the just and equitable
consequence of making such declarations of invalidity is to

JWB-181

review both of the impugned decisions and set them aside. Mr
Booysen is thus entitled to prayers (b) and (d).

[38] I hasten to emphasise that this outcome is based purely on
the facts of the present case. It does not provide a basis for
opening the floodgates to applications to review and set aside
decisions to issue authorisations to prosecute under s 2(4) of
POCA. If the respondents had properly understood the principle of
legality, it seems to me that their responses to demands for
documents or reasons might have been different. As mentioned,
there is reference to documents in correspondence and the NDPP
states that she will not detail all the information placed before her
prior to her making the first impugned decision. Had she outlined
even in basic terms what these documents and information
comprised, said that she had relied on them and shown that they
had included information linking Mr Booysen to the offences in
question, this applicaUon might not have seen the light of day.
The 'rhyme or reason'. test for rationality might have been
l

satisfied. The level of disclosure of the NDPP for offences of this
nature cannot be such as to prejudice the state in its conduct of a
future trial. In my view it will therefore not require an exacting, still
less an exhaustive, level of disclosure. De Vries found that the
consideration of a request for authorisation 'forwarded to the
NDPP under cover of a letter summarising the form and content of
the charge-sheet, setting out a detailed background to the
charges and summarising the evidence' was sufficient. It is
certainly not necessary to disclose every detail of the state's

JWB-182

case, strategy or evidence where this is not subject to the
criminal discovery process. In the light of the provisions of POCA,
it is also not necessary to have before her sworn statements from
witnesses on which the state intends to rely. I expressly refrain,
however, from making a positive finding as to the level of
disclosure necessary in meeting an application such as the
present one or the detail required. This can only be assessed on
a case to case basis.

[39] It is important to note that the above findings do not amount
to a finding that Mr Booysen is not guilty of the offences set out in
counts one and two and eight to twelve. That can only be decided
by way of a criminal trial. Setting aside the authorisations and
decisions to prosecute also does not mean that fresh
authorisations cannot be issued or fresh decisions taken to
prosecute if there is a rational basis for these decisions.

[40] Prayer (e) in paragraph 3 of this judgment seeks to interdict
the NDPP from issuing fresh authorisations in the absence of the
NDPP having before her facts under oath implicating Mr Booysen.
A final interdict is thus sought. The requisites for a final interdict
are well established. A clear right must be shown, an injury
actually committed or reasonably apprehended and an absence
of an alternative remedy.lSll Mr Booysen has a clear right to a

e

lawful decision making process. He certainly has no right at all to
such a decision being taken only .if affidavits connecting him to

�

JWB-183

offences are in the possession of the NDPP. I have mentioned
above, for example, that hearsay and similar fact evidence is
admissible under certain circumstances in respect of offences
under s 2(1) of POCA. A further difficulty is found in the other two
requirements for an interdict. There is no evidence that Mr
Booysen has a reasonable apprehension of suffering an injury.
Neither can it be said that there is no alternative remedy available
to him. It is clear, therefore, that there is no basis for the interdict
sought by Mr Booysen in paragraph (e), either in the form sought
or in any other form. Outside of the requisites for an interdict and
if indeed I have a general discretion to grant such an order (on
which I make no finding), I am of the firm view that to do so in
these circumstances would amount to an unjustified intrusion into
executive territory and would offend the principle of the
separation of powers. To make such an order would amount to
fettering the dlscretion of the NDPP to make the decisions in
question. This discretion· has been given to the NDPP by the
requisite legislation and there is no attack on the constitutionality
of that legislative provision. No order shall therefore issue in
terms of prayer (e).

[40] In the result, an order is granted in terms of paragraphs (a),
(b), (c), (d) and (f) referred to in paragraph 3 of this judgment.

JWB-184

DATE OF HEARING:

7 February 2014

DATE OF JUDGMENT:

26 February 2014

FOR THE APPLICANT:

A Katz SC with M Collins, instructed by
CARL VAN DER MERWE & ASSOCIATES
INC.

FOR THE RESPONDENTS: LM. Hodes SC with N Man aka, instructed
by THE STATE ATIORNEY.

tu Act 121 of 1998.

w Act 3 of 2000.

m Section

1 (b)(ff) of PAJA provides that administrative action does not

include 'a decision to institute or continue a prosecution'.

w

Ronald Bobroff & Partners Inc v De La Guerre; South African Association

of Personal Injury Lawyers v Minister of Justice and Constitutional
Development [2014] ZACC ,2 (20 February 2014) para 7.
rn Section 2(1 )(e).

w Section 2(1 )(f).
1Z1 1979 (3) SA 1048 (A).

JWB-185

w

Thint (Pty) Ltd v National Director of Public Prosecutions & others; Zuma

& another v National Director of Public Prosecutions & others [2008] ZACC

13.; 2009 (1) SA 1 (CC) para 65.

oo 2009 (1) SACR 479 (C) para 57.
UOJ 2008 (4) SA 441 (C).
Ull Section 1 (a) of PAJA.

un This distinction was drawn in the pre-PAJA era in President of the
Republic of South Africa and others v South African Rugby Football Union

r

& others 2000(1) SA 1 (CC) para 143.
WI [2009] ZASCA 1; 2009 (2) SA 2V (SCA) para 35.
wi Ibid, para 36.
USl Per O'Regan Jin Rail Commuters Action Group

& others v Transnet Ltd

t/a Metrorail & others [2004] ZACC 20; 2005 (2) SA 359 (CC) para 85.
WI [2000] ZACC 1; 2000 (2) SA 674 {CC) paras 33-45. It is of interest to

note that the common law was invoked to successfully review and set
aside a decision to prosecute. See Highstead Entertainment (Pty) Ltd tla

'The Club' v Minister of Law and Order & others 1994 (1) SA 387 (C) at
394C-H where the court applied the grounds of review set out in Shidiack

v Union Government (Minister of the Interior) 1912 AD 642. These grounds
of review were held to be 'consistent with the foundational principle of the
rule of law enshrined in our Constitution' in Pharmaceutical Manufacturers,
para 83. See also Democratic Alliance & others v Acting National Director

of Public Prosecutions & others 2012 (3) SA 486 (SCA) para 30.

JWB-186

U1l Para 44. See also Bato Star Fishing (Pty) Ltd v Minister of

Environmental Affairs & others (2004] ZACC 15; 2004 (4) SA 490 (CC) para

22.

usr Section 1 (c) of the Constitution.
U2l Fedsure Life Assurance Ltd & others v Greater Johannesburg

Transitional Metropolitan Council & others [1998J ZACC 11'.; 1999 (1) SA

ill (CC) para 56.

um Loe cit.
,.

W12006 (2) SA 311 {CC).
!2.21 Para 614. The last phrase echoes that used by O'Regan J in Rail
Commuters Action Group para 85 as to the approach to be adopted by

courts in determining the scope of public power and the duties attached to
it.
WI Affordable Medicines Trust & others v Minister of Health & others

(2005) ZACC 3; 2006 (3) SA 247 (CC) para 75.

oo Pharmaceutical Manufacturers para 90.
l

US! Loe cit.

rw Per Van der Westhuizen Jin Merafong Demarcation Forum & others v
President of the Republic of South Africa & others [2008] ZACC 1 O; 2008

(5) SA 171 (CC) para 62.
nn Per Moseneke DCJ in Masetlha v President of the Republic of South
Africa & another[2007) ZACC 20; 2008 (1) SA 566 (CC) para 81.

oo Cora Hoexter Administrative Law in South Africa 2 ed (2012) at 124.
�

JWB-187

l22I Lauren Kohn The burgeoning constitutional requirement of rationality

and the separation of powers: has rationality review gone too tar? (2013)
130 SALJ 810.
um Op cit at 812 .
.wi Loe cit.
l3ll Per O'Regan J in Bato Star para 46.
WI The constitutional 'job description' of courts has been said to be

'primarily twofold: it requires the courts to uphold zealously the tenets of
our Bill of Rights, and it demands that every exercise of public power be
subjected to constitutional control'. Per Kohn, op cit at 821 citing Kate
O'Regan 'Helen Suzman Memorial Lecture. A forum for reason: Reflections
on the role and work of the Constitutional Court.' (2012) 28 SAJHR 116 at
126.
iw Op cit at 122-3.

13.Sl Fedsure paras 56 and 58.

oo Note

''-

12 supra.

Im Para 148.

ll8l Pharmaceutical Manufacturers paras 85 & 86.
Im 2010 (3) SA 293 (CC).

wu Act 32 of 1998.
Hll In National Director of Public Prosecutions v Moodley & others 2009 (2)

SA 588 (SCA) para 12, the court held that as long as the requisite
authorisations existed at the time of trial, this was sufficient. It left open

JWB-188

the question as to the time that it can be said that the accused have been
charged as that word is used ins 2(4) of POCA.
wi See footnote 27 supra.

wi Such as was the case in Bato Star where O'Regan

J; in dealing with

the meaning of reasonableness (not rationality) under s 6(2)(h) of PAJA,
recognised thats 2 of PAJA only requires decision makers who have to
consider a range of factors to strike a reasonable equilibrium in doing so
(para 49).

oo Ronald Bobroff and Partners Inc para 6.
US! Yacoob J, in AAA Investments (Pty) Ltd v Micro Finance Regulatory

Council & another[2006] ZACC 9; 2007 (1) SA 343(CC) para 29 said, as

regards variability of the test for rationality 'It must ... be borne in mind
that the requirement of legality may be more complex in relation to judicial
decisions and executive action both of which undoubtedly represent the
exercise of public power.'
1ffl Section 2(2) provides that 'The court may hear evidence, including

evidence with regard to hearsay, similar facts or previous convictions,
relating to offences contemplated in subsection (1 ), notwithstanding that
such evidence might otherwise be inadmissible, provided that such
evidence would not render a trial unfair.'

un Democratic Alliance & others v Acting National Director of Public
Prosecutions & others para 27.
Iru Hoexter op cit at 242.

WI Hoexter op cit at 124.

oo Kate O'Regan op cit p127.

JWB-189

isu Setlogelo v Setlogelo 1914 AD 221.

JWB-190

ANNEXURE ''JWB17''

JWB-191

JW Booysen declares under oath in English:
1.
I am a Major General in the SA Police Service.
0826324025.

My contact number is cellular no

2.
In amplification of my affidavit dated 10 June 2016 I herewith submit the following false
statements, misrepresentations and omissions which Advocate Maema ·made in his
This prosecution
prosecution memorandum to NDPP Advocate Abrahams.
memorandum was compiled by Maema to present to the NDPP to charge me for
Racketeering.

3.
I have been trained extensively in the preparation of case dockets for Racketeering.
I am au fait with the processes. It involves inter alia the presentation of a prosecution
memorandum, as well as a PowerPoint Presentation to the NDPP. I know from
experience that the responsible prosecutor, as well as the investigating officer will
collaborate in preparing the presentations for the NDPP.
4.
The penalties for POCA are a one million rand fine or life imprisonment. Because the
legislator has recoqnizedthe potential for abuse in Racketeering cases, it has brought in
Sec 2 of POCA, as a safety net. It's evident that the legislator intended for these
prosecutions to be brought only where and when it is warranted. Sec 2 of POCA exists,
to ensure that the decision taken to prosecute for Racketeering is done with the due
diligence which is required in taking a decision of this gravitas.

5.

In my current review application, the NDPP has filed the record, in terms of Rule 53,
indicating what information he had considered in applying his mind to authorize charges
of Racketeering in terms of Sec 2 (e) & (f). One of the items filed in the record, which the
NDPP considered, when he authorized my prosecution, was a prosecution memorandum
compiled by Maema on 17 /8/215.

6.
The prosecution memorandum contains a number of misrepresentations and blatant lies,
which is designed to mislead the reader, in this instance the NDPP, so as to persuade
the NDPP to prosecute me for-Racketeering. Advocate Maema also omits a number of
important facts that would have been relevant for the NDPP to apply his mind in taking a
rational and thus lawful decision.

Pa� 1 of7

JWB-192

7.
I hereby list these as follow:
Lies. Misrepresentation & Omissions in prosecution memorandum by Maema
1.

In par 4(b} of the memo Maema states that the dockets contained the statements
of Aiyer and Ndlondlo. It also suggests that Danikas' statement was also in the
docket. This is a blatant lie. None of these statements were discovered as part
of the discovery process during October 2012. The court records will prove that
on a number of occasions Maema had told the Presiding Officers, subsequent to
the discovery of evidence to the accused, that Aiyer's statement still had to be
obtained because Aiyer was hospitalized. If my memory serves me correctly, that
was during the High Court remand of February 2013.
During another remand later that year, I think it was in May, Maema told the Judge
that Danikas' statement was being obtained via Mutual Legal Assistance.
Maema's deceit is twofold:
(a)

It is clear from the docket, post the discovery process, that none of the three
statements was in the docket. Having regard to the dates on which these
statements were obtained, it is clear that the prosecution had had it in their
possession before the discovery of evidence in October 2012. The signed
statement being dated the 31st of July and 3rd of August 2012. Maema had
lied to the Magistrate in the Regional court at the time when he stated on
record that all the evidence had been discovered. He had also lied to the
judge in the High Court in 2013 when he stated that they were in the process
of getting Aiyer's statement. Yet the statements signed by Aiyer are dated
before the discovery process, which means Maema was in possession
there-of during the discovery process.
I had reported the conduct of Maema to the erstwhile NDPP, Advocate
Nxasana. I was informed that an investigation into Maema conduct would
be done. However, since Advocate Abrahams had taken over from
Nxasana, I had heard nothing from the NDPP.

(b)

Maema now perpetuates a different lie in the memorandum by stating that
these statements were in the docket. They were not.
Maema had thus misled at least two Presiding Officers in court and now in
his memorandum he misleads the NDPP. In any event the High Court held
in Booysen vs The Acting NDPP, par 31 & 33 read with par 29 that neither
the dockets nor Aiyer or Danikas' statements, or Ndlondlo for that matter,
implicates me in any of the offences in question. Maema disingenuously
states in par 4 (b) that Danikas' statement is to be signed via Mutual Legal
Assistance, in spite of his own letter to Danikas' lawyer Julian Knight, in
which he inter alia states that Danikas will not be used as a witness,
because the incidents Danikas refers to in his unsigned statement refers to
incidents outside the indictment period and rather tellingly - they (the
Page 2 of7

JWB-193

investigators) could not find cases supporting Danikas' allegations.
Maema himself questions the credibility of Danikas, in this letter. Maema's
omission in not placing this in front of Abrahams, which he was duty bound
to do by the NPA Prosecution Policy, derived from an Act of Parliament, in
itself constitutes Fraud.
2.

Maema, par 4(c) falsely imputes that I received monetary awards for the
killing of Taxi Association members (plural). This is not true. It is clear from
Maema disingenuously uses a statement by
the application itself.
Cochrane to show that I was present at one of the scenes. What he fails
to mention, is that Cochrane's statement with regard to me is an exculpatory
statement. Par 4 (d) is also misleading in stating that I defended the actions
of Cato Manor. Par 4 {e) is another misrepresentation by Maema by
stating that Aiyer's statements alludes to my direct involvement in Cato
Manor SVC operations. There is no evidence in Aiyer's convoluted
statements that I partook in any operations with Cato Manor, let alone being
directly involved. Maema deliberately misconstrues my role. I was duty
bound, by virtue of my position, to provide Cato Manor and other units with
resources, which does not conform or equate of having been involved with
them in
'operations'. Par 4 (f) is another blatant lie. The statements
of Brown do not refer to the 'management of any operations' whatsoever,
let alone by me. In par 24.9.2 Maema embroids this lie by stating that Brown
in his statement said that Olivier and I communicated directly with each
other to the exclusion of Aiyer.
Brown does not say this in his statement; it is a fabrication by Maema.
Par 4 (g) combined with par 24.4.13 is the most serious lie in Maema's
memorandum. Maema states that "this witness heard Mostert and Booysen
planning to kill Chonco ... they hired a hitman ... ". Maema accuses me of
conspiring to murder UColonel Chanco. Par 9 & 1 O of now deceased
witness, Simpiwe Cypran Mathonsi, unambiguously states that it was
Zanele Zondi and Bongiswe Mhlongo who conspired to kill Chonco, not
Mostert or myself. It is evident that Maema does not believe his own lie in
his memorandum. If he did, he would've added a charge of Conspiracy to
Murder (Chanco). Neither he nor Abrahams, who had read the dockets,
had included such a charge in the indictment.

3.

Maema contends in the memo that Bongani Mkhize and the two Ndimande
brothers were suspected by the accused (Cato Manor and me) "without
evidence". This is false. In the docket Bhekithemba CAS 113/1 /2009
(Zondi Murder docket) A9 clearly demonstrates the converse, in that Mkhize
and the Ndimande brothers had conspired to kill Zondi at Steers in Durban
·
North. There was also a Warrant of Arrest for Sifiso Ndimande.

Page 3 of 7

JWB-194

4.

Under the heading Modus Operandi, Maema makes the following
presentation, as if supported by the evidence in the dockets; 'Inquests came
about as a result of the tampering of the crime scenes by the accused, by
amongst other things, placing fire-arms next to bodies of the deceased
persons ... '. This is a misrepresentation of what is contained in the
dockets. There is no evidence that fire-arms were 'planted next to bodies'
or that 'scenes were tampered with' by the accused. This is pure
speculation by Maema. The prosecution memorandum should reflect what
the evidence is and not what Maema concludes based on supposition. He
also states that we 'planned operations to hunt down their alleged
suspects ... their intention was not to arrest them ... but to shoot and kill all
the suspects'. Maema constructs something that does not exist. There is
not an iota of evidence in the dockets to substantiate what Maema submits
to Abrahams.

5.

With reference to Aiyer's statement, par 24.1, there are a number of issues,
if not all, that were traversed in my disciplinary hearing. Maema failed to
bring this to the attention of the NDPP. The Cassim enquiry findings is
conspicuously absent in this memorandum; instead Maema, when
discussing the credibility of Aiyer, he states that the only challenge would
be Aiyer's perceived jealousy of my achievements. Maema is duty bound
to have brought the well-publicized findings of Advocate Cassim SC
regarding the credibility of Aiyer to the attention of the NDPP. He also fails
to refer, with regards to Aiyer's evidence, to the findings of a High Court
judge (Gorven, par 31 & 33 Booysen vs Acting NDPP) that Aiyer does not
implicate me in any of the offences in question.

6.

With reference to the statement of Bhekinkosi Ndlondlo Mthiyane, Maema
indicates that he would lay a foundation to admit Mthiyane's statement as
hearsay evidence. What Maema fails to mention is that this statement is
hearsay twice removed, ie the deceased will testify what he had heard from
someone else. If this evidence is to be led, it would mean that the person
who obtained the statement will have to testify what the deceased had told
him, what he had heard from someone else. In this case one Zondi and one
Mhlongo.
Maema conceals the fact that Zondi and Mhlongo through their attorney
Moloi had written a letter to Maema disavowing what Mthiyane alleges. By
concealing this vital information from the NDPP, Maema not only commits
an act of Fraud, but unlawfully persuades the NDPP to authorize our
prosecution, thus Defeating the course of Justice.
Maema is well aware of this letter, since it had been sent to him by Attorney
Moloi and had also formed part of my previous litigation in this regard. Why
Maema relies on triple hearsay, when at least one of the actual witnesses
is still available, is inconceivable, in fact it suggests impropriety.

JWB-195

7.

Under the heading Evidence Analysis, Maema states that the following will
testify about my role ... he then lists a number of witnesses, one being
Bongani Mandia Mkhize. Mkhize does not refer to me in his statement at
all. This is a further misrepresentation by Maema.

8.

Par 2.5.3 Maema imputes that I played a role in an operation, hence me
being rewarded. This is misleading. It is clear from the document on which
he relies that I had not partaken in the operation, but had merely passed on
information to the investigators.

9.

Par 24.6.1 Maema states that I was flown by Andrew Cochrane (the pilot)
to where Magojela was killed. This is untrue. The pilot was Captain
Rafilwe Ledwaba; see Cochrane's statement. In any event, Maema
misconstrues what Cochrane, who was the air crew, says in his statement.
His statement is an exculpatory statement that Maema, with no evidence
whatsoever, interprets that the helicopter was on standby to 'carry Booysen
pending the notification by his foot soldiers, that the execution of Magojela
has been fulfilled'.

10.

With regards to the reference by Maema to the interdict obtained by
Bongani Mkhize, he falsely states in par 24.7.7 that I allowed my members
to confront Mkhize without contacting his attorney and they subsequently
killed him in contravention of a court order. This is a lie. The final court
order does not order that Mkhize should be approached via his attorney.
This point had been discharged subsequent to the rule nisi. Furthermore
the court ordered that Mkhize may not be killed unlawfully. Maema
conveniently conceals the fact the Minister of Police, in civil proceedings,
stated that the members had acted lawfully and reasonably when Mkhize
was killed.

11.

Under the heading Analysis of Modus Operandl, Maema states that the
accused tracked or traced suspects ... 'even where there exists not even
shreds of evidence linking them to any offence' (sic). This is patently false.
This lie of Maema in the memorandum is exposed in the dockets where the
deceased were sought for. There is direct evidence against twenty five
(25) of the twenty eighty (28) deceased, which was available to Maema and
which is still available. This include eye witness statements, statements
from co-accused, fingerprint evidence, CCTV footage evidence, cellphone
records, cellphone mapping, Section 204 statements and the recovery of
exhibits, ie explosives and firearms. Furthermore there were Warrants of
Arrest for five (5) of the deceased: Ntuli, Mkhize, S Ndimande, J Msimango
& L Mhlongo.

JWB-196

12.

Maema dishonestly does not alert the NDPP in his memorandum that
approximately ten ( 10) of the deceased tested positive for primer residue,
indicating they had fired a gun or at the very least that this possibility could
not be excluded. He also does not mention that one of the deceased had
possibly fired from inside the house. This was concluded by his own
ballistic expert, Kobus Steyl- Mandini CAS 76/2/2008.

13.

It is patently clear and evident that Advocate Maema has deliberately
couched the prosecution memorandum to the NDPP in such a way, so as
to convince him that myself and other Cato Manor members be prosecuted
for Racketeering. In doing so, he has misrepresented the truth, which has
caused real prejudice to me and the administration of justice. Maema
cannot claim ignorance to the facts mentioned above. All the information
referred to above were discovered by the prosecuting authority to the
accused in this matter. Furthermore the rest of the information was
gleaned from dockets, which he had, on his own version, considered.

14.

Advocate Maema, as an officer of the court, is enjoined by the Constitution
of Republic of South Africa, as well as the Policy Guidelines of the National
Prosecuting Authority (NPA), which is derived from an Act of Parliament, to
present the truth and not to omit relevant information that could have dire
consequences for accused citizens. It is indeed fraud to misrepresent
facts, which could hold real or potential prejudice for others. This also
includes omissions, where a person was duty bound to have disclosed such
information. The NPA Policy Guidelines deals specifically with the approach
prosecutors should adopt regarding witnesses. Advocate Maema was
duty bound to have disclosed the truth and all relevant and applicable
information, so that the NDPP can take a rational and thus lawful decision.
All he has done in this instance was to regurgitate the same information,
which had already been settled in the Gorven judgment. For Maema to
have applied for my prosecution, knowing that the evidence or rather the
lack there-of, as per the Gorven judgment would not pass muster,
demonstrates that he defeated the course of justice.

8.
I request that a case of Fraud and /or Defeating the course of Justice be investigated
against Advocate Maema for the number of misrepresentations he had made in the
prosecution memorandum to the NDPP. I further request that a case of Perjury be
investigated against Advocate Maema for lying in his affidavit in support of Advocate Jiba.
This statement is filed in the docket in which Advocate Jiba was prosecuted and charges
later withdrawn by the NDPP. Maema lied in a statement under oath by stating that a
witness, Mthiyane, was killed, whereas he in fact died of natural causes, whilst in their
protective custody.
Page 6 of 7

_7

/

JWB-197

I reserve my right to add to my statement.
This is all I wish to declare.
I know and understand the contents of this declaration.
I have no objection to taking the prescribed oath.
I consider the prescribed oath to be binding on my conscience.
So help me god.

______ MAJOR GENERAL
JWBOOYSEN
I certify that the above statement was taken by me and that the ·deponent acknowledged
that he knows and understands the contents of the declaration.
The deponent's signature was .olaced there-on and the statement sworn to in my
, 2016 at
_
presence on June

COMMISSIONER OF OATHS

JWB-198

(

JWB-199

Page 1 of 4

/
JW Booysen declares under oath in English:
1.
I am a Major General in the SA Police Service, in KwaZulu-Natal.

My contact number is 0826324025.

2.
I am currently a litigant in a review application in the High Court of KwaZulu-Natal. The review
application is to have the authorization in terms of Sec 2 of the Prevention of Organized Crime Act, Act
121/1998 (POCA), to prosecute me for Racketeering set aside.

3.
In terms of the said Act, prosecution for Racketeering can only proceed once the National Director of
Public Prosecutions (NDPP) has authorized such a prosecution in writing.

4.
I have been trained extensively in the preparation of case dockets for Racketeering. I am au fait with
the processes. It involves inter alia the presentation of a prosecution memorandum, as well as a
PowerPoint Presentation to the NDPP. I know from experience that the responsible prosecutor, as well
as the investigating ,efficer will collaborate in preparing the presentations for the NDPP.

5.
The penalties for POCA are a one million rand fine or life imprisonment. Because the legislator has
recognized the potential for abuse in Racketeering cases, it has brought in Sec 2 of POCA, as a safety
net. It's evident that the legislator intended for these prosecutions to be brought only where and when
it is warranted. Sec 2 of POCA exists, to ensure that the decision taken to prosecute for Racketeering
is done with the due diligence which is required in taking a decision of this gravity.

6.
In my current review application referred to in para 2 supra, the NDPP has filed the record, in terms of
Rule 53, indicating what information he had considered in applying his mind to authorize charges of
Racketeering in terms of Sec 2 (e) & (f). One of the items filed in the record, which the NDPP
considered, when he authorized my prosecution, is a PowerPoint Presentation by Advocate Noko, the
OPP in KwaZulu-Natal dated the 9th of July 2015.

7.
The PowerPoint Presentation contains a number of misrepresentations and untruths, which is designed
to mislead the reader, in this instance the NDPP, so as to persuade the NDPP to prosecute me for
Racketeering. Advocate Noko also omits a number of important facts that would have been relevant
for the NDPP to apply his mind in taking a rational and thus lawful decision.

8.
I hereby list these as follow:
A. Misrepresentations
1. Advocate Noko misrepresents as to what the final interdict in Durban Central CAS
185/2/2009 contains. The final interdict states that 'the deceased may not be
unlawfully'. In the civil matter relating to the same incident The Minister of P
Mthetwa has pleaded that the members had acted lawfully and reasonably.

JWB-200

Page 2 of 4

2.

3.

4.

5.

6.

7.

Noko also fails to mentions that the investigating officer in the murder of lnkosi Zondi, Lt
Zungu, filed an affidavit stating that Bongani Mkhize was a suspect in Zondi's murder. She
also does not mention that Mkhize tested positive for primer residue and that ballistic expert,
Captain Mangena, had conceded under oath that the possibility of Mkhize having fired,
cannot be excluded.
She purports that a firearm was planted on the scene by the accused (Cato Manor) without
any direct evidence to substantiate the claim. Page 519 -520 of record
In Kwa Mashu CAS 629/4/2009 Noko imputes that the ballistic expert, Steyl, concluded as
follows 'it dispels the notion that the accused was under attack". This is couched in a way to
create the impression that it forms part of Steyl's finding. Steyl did not say so in his report.
Page 520 in record
In Phoenix CAS 377/8/2009 Noko introduces 'evidence' suggesting that the deceased was
lying 'defenseless'. The word defenseless is not used by the ballistic expert. She
disingenuously excludes the fact that the deceased tested positive for primer residue and
that cartridges found on the scene were linked to the deceased's firearm. Page 522 of record
In Kwa Mashu CAS 698/11/2009 Noko's conduct is so disingenuous and blatantly biased
that her conduct suggests serious impropriety. In her endeavor to convince the NDPP to
authorize our prosecutions, she relies on the statement of one Hurley (A 12). She
conspicuously does not mention that the same witness (A 12) had made another statement in
the same case docket (A30). Not only does she exclude the A30 statement, but incredibly
fails to mentions the discrepancies between A 12 and A30. Page 533 of record
In Durban North CAS 67, 69 & 71/7/2011 Noko once again fail to disclose that the deceased
tested positive for primer residue and that firearms found with the deceased were linked to
cartridges recovered on the scene. She conspicuously excludes the evidence of ballistic
expert, W/0 Lalbahado, as well as CCTV footage, which is very relevant to this matter.
Page 533 of record
In her discussion of the so-called witnesses, she makes the following misrepresentationswith regards to the statement of Brown (A 100); she adds words as if they were stated by
Brown. She adds the words 'had to oversee operations because of Aiyer's inexperience'.
Brown did not say this. It is a fraudulent attempt to demonstrate to the reader that I partook
in operations at Cato Manor.
With regards to the statement of Mathonsi (A 101) Noko conveniently remains silent of the
fact that at least one of the actual witnesses is available.
This omission is a
misrepresentation designed to create the impression that the actual witnesses are
unavailable. She also fails to state that Mathonsi's statement is dated 2013, which is prior to
the date Advocate Jiba had made her replying affidavit, where this statement' IS
conspicuously absent. She does not mention that Mathonsi's statement is in fact hearsay
twice removed and neither does she· reveal that the incidents mentioned in his statement in
so far as I am concerned, is outside the indictment period. Most, if not all, with regards to
Mathonsi is applicable to witness Bekhinkosi Ndlondlo (Mthiyane) A90.
Astonishingly Advocate Noko still purports that one Danikas is a witness in this matter. This
in spite of the fact that it was concluded that Danikas 'statement' does not subscribe to the
requirements of an affidavit. See Booysen v Acting NDPP. Actually Noko should have
realized, given the Gorven judgment, that the bulk of evidence that Jiba had previously relied
upon, ie Ndlondlo, Danikas, the Monetary Awards, etc. had been thoroughly ventilated in
litigation. Lead prosecutor, Advocate Maerna, indicated in a letter to attorney Juli�IJ Knight,
prior to Noko's application, that Danikas will not be a witness.

JWB-201

Page 3 of 4

8. In all the cases Noko imputes that Cato Manor had placed (planted) firearms on the scenes to
create the impression that their lives were in danger. There is no evidence in any of the
discovered dockets that firearms were planted. It is mere conjecture and supposition.
B. Untruths
1. Advocate Noko says that there was no evidence linking Bongani Mkhize to the killing of
lnkosi Zondi; Bhekithemba CAS 113/1/2009, the murder of lnkosi Zondi, A9 clearly shows
that Bongani Mkhize, Ska Ndimande and Sifiso Ndimande conspired to murder lnkosi Zondi.
It rubbishes her claim that Kito (sic) did not link anyone to Zondi's killing. Page 499 of record
2. Advocate Noko intimates that I (Booysen) and accused 9 (Olivier) tampered with evidence in
Howick CAS 106/9/2008. She intimates that we placed an AK 47 on the scene. This is an
absolute fabrication. There is not an iota of evidence that an AK 47 was placed on the scene
by me or Olivier, or anyone else for that matter. Page 504 of record
3. Under the heading Monetary Awards Noko states that I 'traced' Ndimande and Tembe.
There is no evidence that I traced them. I merely conveyed a message received from an
informer, as to their where-abouts. Noko uses the word traced as a verb to overstate my
involvement in the location of the suspects. She also uses the word 'waylay' which is
incongruent with the evidence in the docket.
C. Omissions

1. Advocate Noko failed to disclose that the deceased in Mandini CAS 76/2/2008 tested
positive for primer residue. She also fails to disclose that Steyl, the ballistic expert
concluded that a shot had been fire from the inside, where the deceased were. The
contextual bias by omitting this important information could not have caused the NDPP to
take a rational decision. Page 506 of record
2. Noko conveniently does not consider or alert the NDPP as to the character of Colonel Aiyer.
He had already been discredited in the Regional court in Durban, where-in the Magistrate
had made adverse findings regarding Aiyer's credibility. She also conveniently disregards
the well published findings of Advocate Nassir Cassim SC, regarding the credibility of Aiyer.

9.
It is blatantly clear and evident that Advocate Noko has deliberately couched the PowerPoint
Presentation to the NDPP in such a way, so as to convince him that myself and other Cato Manor
members be prosecuted for Racketeering. In doing so, she has misrepresented the truth, which has
caused real prejudice to me and the administration of justice. Noko cannot claim ignorance to the facts
mentioned above. All the information referred to above were discovered by the prosecuting authority to
the accused in this matter. Furthermore the rest of the information was gleaned from dockets, which
she had, on her own version, considered.
10.
Advocate Noko is enjoined by the Constitution of Republic of South Africa, as well as the Policy
Guidelines of the National Prosecuting Authority (NPA), which is derived from an Act of Parliament to
present the truth and not to omit relevant information that could have dire consequences for accused
citizens. It is indeed fraud to misrepresent facts, which could hold real or potential preju�ers.

�

JWB-202

Page4of 4

This also includes omissions, where a person was duty bound to have disclosed such information. The
NPA Policy Guidelines deals particularly with the approach prosecutors should have regarding
witnesses. Advocate Noko was thus duty bound to have disclosed the truth and all relevant and
applicable information, so that the NDPP can take a rational and thus lawful decision. All she has done
in this instance was to regurgitate the same information, which had already been settled in the Gorven
judgment. For Noko to have applied for my prosecution, knowing that the evidence or rather the lack
there-of, as per the Gorven judgment would pass muster, demonstrates that she defeated the course of
justice.

11.
I request that a case of Fraud and /or Defeating the course of Justice be investigated against Advocate
Noko. I reserve the right to add to this statement.
This is all I wish to declare.
I know and understand the contents of this declaration.
I have no objection to taking the prescribed oath.
I consider the prescribed oath to be binding on my conscience.
So help me god.

MAJOR GENERAL
JWBOOYSEN
I certify that the above statement was taken by me and that the deponent acknowledged that he knows
and understands the contents of the declaration. The deponent's signature was placed there-on and
the statement sworn to in my presence on June 19, 2016 at Pietermaritzburg.

COMMISSIONER OF OATHS

JWB-203

ANNEXURE ''JWB18''

JWB-204

PROSECUTION MEMORANDUM

A

1

INTRODUCTION

At all relevant times accused number 1, Johan \J\/essel Booysen was the Provincial
Commander of KwaZulu-Natal Organised Crime Unit and he subsequently became a
Provincial Commander of the Directorate for Priority Crime Investigations (OPCI).
Organised crime units became subcomponent of DPCI at various regions in the
province namely viz - Durban, Port Shepstone and Richards Bay.
The Durban Organised Crime Unit had sections such as SVC section based at Cato
Manor, drugs section, vehicle unit. etc.

2

The prosecution in this case is based on the activities of SVC section based at Cato
Manor. The court judgment was based on wrong concessions made by the counsel
for the then ANDPP, that the contents of the dockets were not implicating Booysens
at all, see Paragraph 29 Page 19 of the judgment:
2.1

That the ANDPP did not have statements of certain individuals on the 17
August 2012 when the authorisation was made. such as that of Colonel Aiyer
dated 31 August 2012 and 13 May 2013, Nkosinathi Shozi dated 15 March
2013 and Simphiwe Mathonzi dated 15 March 2013.

2.2

If the ANDPP did not have the statements before her when issuing the
certificates the statements could therefore not have been a rational basis for
the issuing of the racketeering certificates

and

was thus irrational. See

paragraph 34 page 20 of the judgment.

10

-

JWB-205

B.

MANAGEMENT OF THE ENTERPRISE

Accused 1, 6 (now deceased). 9. 15 and 16 managed the activities of the SVC
section of the Durban Organised Crime based at Cato Manor. Accused 1, who was
the Provincial Commander Organised Crime and later the Provincial Head: OPCI and
as such was overall responsible for the activities of this SVC section. The Unit
Commanders of all Organised Crime units, including the Durban Organised Crime
unit, reported to him. During this period, Accused 1 dealt directly with members of the
SVC section thereby bypassing the Unit Commander of Durban Organised Crime by
directly communicating with the section members and providing them with resources.
He also participated in their operations and further held regular (weekly) meetings
with the section members.
Accused 9 was the SVC section commander who was obliged to report to the Unit
Commander but instead overlooked the Unit Commander and communicated directly
with Booysen.
Accused 6, 15 and 16 were group commanders within the SVC section.
The remainder of the accused executed the unlawful activities in furtherance of the
aims and objectives of the enterprise.
C.

PARTICIPATION

IN

THE ACTIVITIES

OF THE

ENTERPRISE

BY

ACCUSED 2; 3 4; 5; 7; 8; 9; 10; 11; 13; 14; 15; 16; 17; 25; 26 ANO 27

3

These accused participated in the unlawful activities of the enterprise which began to
manifest themselves from May 2008 to September 2Q.11. They killed members of
KwaMaphumulo Taxi Association which was at all relevant times embroiled in a
conflict with a rival taxi association, the Stanger Taxi Association in various activities
as outlined in the various dates mentioned in the indictment. They also killed ordinary
civilians, and people suspected of having committed violent crimes. In total twenty
eight (28) people were killed.

4

In the taxi violence related matters, the accused were eliminating members of ival
taxi organisations for payment from rival taxi association.
11

The facts of tha-ofher

JWB-206

lt_\killings were reported as excellent police work when in fact alleged criminals were
being eliminated unlawfully. They were rewarded by state monetary awards and/ er
certificates for excellent performance and financial benefits from communities.

0.

5

SUMMARY OF THE CASE

The State has grouped the preferred predicate offences by association and/ or
method of operation as killings relating to taxi violence. ordinary civilians or suspects
and ATM bombing suspects as described below.

6

The taxi violence killings began immediately after Superintendent Zethembe
Mzwakhe Chanco and lnkosi Wellington Zondi were killed. Superintendent Chanco
was a co-ordinator dealing with Taxi Violence killings between KwaMaphumulo Taxi
Association and Stanger Taxi Association. He was killed whilst transporting prisoners
to court on 27 August 2008. Certain members of KwaMaphumulo Taxi Association
were suspected of his murder and were subsequently killed from 3 September 2008
to 18 October 2008 as mentioned in the schedule below·

Date

Docket Reference Number

Names of Deceased

1.

03 September 2008

KwaDukuza CAS 39(09/2008

Lindelani Buthelezi

2.

16 September 2008

Howick CAS 106/09/2008

Magojela Timson Ndimande
Sibusiso Thokozani Tembe

3. 18 September 2008

Mandini CAS 76/09/2008

Mzameni Johannes Ntuli
Nkosinathi Wilson Mthembu

4.

7

18 October 2008

Umkomaas CAS 235/10/2008

Mduduzi Mkhize

lnkosi Wellington Zondi was a former police officer and was an associate of the: Cato
Manor SVC section. He was suspected of having leaked information to the Cato
Manor SVC section about the whereabouts of Magojela Thomson Ndimande who
was subsequently killed by the accused on 16 September 2008.
12

JWB-207

8

lnkosi V\/ellington Zondi was suspected of having leaked information to the Accused
about the whereabouts of Magojela Timson Ndimande who was subsequently killed
by the accused

g

on 16 September 2008

lnkosi V\/e!lington Zondi was subsequently killed on 22 January 2009 and Bongani
Mkhize, the Chairperson of KwaMaphumulo Taxi Association and Magojela Timson
Ndimande's brothers were suspected by the Accused without evidence for having
orchestrated the killing of lnkosi Zondi. Bongani Mkhize and the Ndimande brothers
were subsequently killed as mentioned in the schedule below:
Docket Reference Number

Names of Deceased

03 February 2009

Durban Central CAS 185/0212009

Bongani Mkhizs

2.

23 May 2009

Pinetown CAS 1000/05/2009

Sibongiseni Badumile Ndimade

3.

20 September 2009

Rusten burg CAS 1098/09/2009

Sifiso Ndimande

Date

1O

The Accused also killed a number of civilians and/or suspects. They did not have
tangible evidence and warrants of arrests against the suspects. The Accused killed
the civilians and/or suspects mentioned in the schedule below, when there was
ample opportunities to effect an arrest.

Date

Docket Reference Number

4.

24 May 2008

Berea CAS 288/05/2008

5.

23 November 2008

Melmoth CAS 142/11/2008

•

t,

Names of Deceased

••

Thabo Sunshine Msimango
Bongani Velaphi Biyela
Khanyisani Biyela

6.

27 April 2009

KwaMashu CAS 629/04/2009

7.

10 August 2009

Phoenix CAS 377/08/2009

8.

26 November 2009

KwaMashu CAS 698/11/2009

13

Gladwell Thokozani Njapha

Prince Thabethe

JWB-208

9.

0'1 Apnl 2010

to. 10 May 2010

Es1k:;awini

cxs 03i04/2C-: C

Bhekithemba CAS 44/05i201 O

Kwazl Wiseboy Ndlovu

Musawenkosi Aubrey l'Jgcobo

Xolisani Allen Ngcobo
Sirr.phiwe Sydney Shczi

11

11. 04 Jl.ly 2011

Durban North CAS 67/07/2011

Jabulani Camson Bhengu

12. 04 July 2011

Durban North CAS 69/07/2011

Oumisani Blessing Mgobhozi

13. 04 July 2011

Durban North CAS 71/07/2011

Boysie Sibusiso Mbonambi

14. 04 September 2011

Esikhawini CAS 50/09/2011

Qinisani Philangenkosi Gwata

The Accused further killed individuals who were suspected of being part of a
syndicate involved in ATM bombings as mentioned in the schedule below, without
warrants of arrest and sufficient evidence:
Date
1.

31 July 2008

2. 06 August 2008

12

Docket Reference Number Names of Deceased
KwaMashu CAS 116/08/2008

Mfanafuthi Amstrong Zwane

Escourt CAS 34/08/2008

Muzi Sanele Majola

3.

12 November 2008

KwaMashu CAS 314/11 /2008

Nhlanhla Nkuthu Masondo

4.

18 March 2009

Tongaat CAS 356/03/2009

Dan Chester Phiri

5.

06 March 2010

KwaDukuza CAS 115/03/2010

Nhlanhla Lucky Mhlongo

The Accused killed a total of 28 (twenty eight) personsand committed other crimes in
the process.

13

The accused would in most of the killings place a firearm next to the deceased
person to create an impression that the deceased was armed and/ or attacked them
and/ or posed danger to their lives thus tempering with the scenes of crime. The
tempering with the crime scenes precipitated the opening of inquest dockets in
of the matters

14

JWB-209

'i 4

The Accused would break and enter the premises of the deceased. steal
possessions of the deceased and family members, damage their property and
assault family members who were on the premises.

E.

MODUS OPERANDI

15

Some of these cases ended up as informal inquests that were held in the
Magistrate's courts. These inquests came about as a result of the tampering with the
crime scenes by the accused, by among other things, placing firearms next to the
bodies of the deceased persons, thus creating an impression that their lives were in
danger when effecting arrest and that the killings were justifiable.

16

These acts of tampering with the crime scenes were cover-ups of their unlawful
activities.

17

The accused persons planned operations to hunt down their alleged suspects
utilising all available police resources including vehicles, firearms, informers and
support services such as the National Intervention Unit (NIU). The operations were
carried out mostly at night. Their intention was not to arrest and bring them properly
before a court of law for their guilt to be established beyond reasonable doubt, but to
shoot and kill ail the suspects.

18

The crimes that they were allegedly investigating were the murder of Supt. Chonco,
lnkosi Zondi and other violent crimes.

19

After killing their victims they would temper with the crime scene to give the
.

'

.

impression that they acted justifiably by planting firearms .!"ext to their bodies of the
victims.

F.

20

IDENTIFICATION OF THE ACCUSED
Accused 1: BOOYSEN, JOHAN WESSEL
A fifty five (55) year old male person residing at 14 Thompson Road, Amanzimtoti. �
all the relevant times he was the Provincial Commander: Organised Crime and the
15

JWB-210

Regional Head: Directorate for Priority Crime Investigations (OPCI) for the Province
of KwaZulu-Natal. He held the rank of a Director and Major General respectively

Accused 2: PADAYACHEE, GONASAGREN

a forty four (44) year old male person of 61 Statesman Drive, Havenside, Chatsworth.
He is a Warrant Officer stationed at the Organised Crime Unit. 446 Bellair Road Cato
Manor.

Accused 3: STOLTZ, ADRIAAN JAKOBUS FICK

a forty five (45) year old male person of 10 Stonehill Complex, 28 Serissa Avenue,
Roodekrans, Roodepoort. He is a Warrant Officer stationed at the Organised Crime
Unit, 446 Belliar Road

Accused 4: MOSTERT, PAUL JONATHAN
a fifty one (51) year old male person of 06 Keeling Place, Queensburgh
He is a Warrant Officer stationed at the Organised Crime Unit, 446 Belliar Road

Accused 5: NEL, ERIC ALFRED
a forty one (41) year old male person of 37 lllovo Glen, Berrio Avenue, Amanzimtoti.
He is a Warrant Officer stationed at the Organised Crime Unit, 446 Belliar Road

Accused 7: GHANESS, ADJITHSINGH
a forty one (41) year old male person of 44 Old Castle Place, .Newlands West.
Durban. He is a Warrant Officer stationed at the Organised Crime Unit, 446. Belliar
Road
Accused 8: MAKHANYA, PHUMELELA
a forty five (45) year old male person of 90 Morewood Road, Sydenham, Durban. H
is a Warrant Officer stationed at the Organised Crime Unit, 446 Belliar Road

16

JWB-211

Accused 9: OLIVIER, WILLEM CORNELIUS
a five nine (59) year old male person of 16 Walnut Grove Complex, 03 Entombeni
Road, Amanzimtoti. He is a Colonel stationed at the Organised Crime Unit, 446
Belliar Road

Accused 10: MKHWANAZI, THEMBIKNOSI MBHEKISENI
a forty seven (47) year old male person of Room D 008, Umlazi Police Barracks,
Umlazi. He is a Warrant Officer stationed at the Organised Crime Unit, 446 Belliar
Road

Accused 11: MDLALOSE, TH ATHAYIPHI ENOCK
a forty eight (48) year old male person of 21 Bennie Geldenhuis, Austerville, Durban.
He is a Warrant Officer stationed at the Organised Crime Unit, 4468elliar Road

Accused 13: NAIDOO, RUBENDREN
a thirty three (33) year old male person of 57 Evergreen Circle, Phoenix, Durban. He
is a Constable Officer stationed at the Organised Crime Unit, 446 Belliar Road

Accused 14: LEE, RAYMOND CHRISTOPHER

'·

·.

a thirty one (31) year old male person of 4F Queens Terrace, 100 Dipdale Road,
Queensburgh, Durban. He is a Warrant Officer stationed at the Organised Crime
Unit, 446 Belliar Road

Accused 15: LOCKEM, ANTON
a forty four (44) year old male person of 201 Moss Road, Bluff,
Captain stationed at the Organised Crime Unit, 446 Belliar Road
17

JWB-212

Accused 16: VAN TONDER, JAN JOHANNES EUGENE
a fifty six (56) year old male person. He resides at 244 Grosvener Road, Carrington
Heights, Durban. He is a retired member of the South African Police Services who was
stationed at the Organised Crime Unit, 446 Bellair Road Cato Manor. He heid the rank
of a Captain.

Accused 17: DLAMUKA FELOKWAKHE THOMAS
An adult male person of T120, Umlazi Police Barracks, Durban, KwaZulu Natal. He is
stationed at Mariaan Hill base attached to the National lntervevtion Unit of the South
African Police services

Accused 25: SMITH, CHARLES JOHN
a fourty (40) year old male person. His residential address is 34 Frederrick Avenue
Bluff, Durban. He is a member of the South African Police Services who is stationed at
the Organised Crime Unit, 446 Bellair Road Cato Manor. He held the rank of a
Warrant Officer.

Accused 26: MARTEM, JEREMY
a thirty nine (39) year old male person. His residential address is 12 Goodricke Road
Morningside, Durban. He is a member of the South African Police Services who is
stationed at the Organised Crime Unit, 446 Bellair, Road Cato Manor. He held the
rank of a Warrant Officer.
·

Accused 27: MC INNES, BRUCE DAVID
a forty three (43) year old male person. His residential address is 87 St Winniefreds
Whitefiefd Drive, Warner Beach, Durban. He is a member of the South African Police
Services who is stationed at the Organised Crime Unit, 446 Bellair Road Cato Mano�
�
He held the rank of a Warrant Officer.
18

.:

JWB-213

:l I
G.

THE ENTERPRISE • THE SERIOUS AND VlOLENT CRIME (SVC) SECTJON OF

THE DURBAN ORGANISED CRIME UNIT BASED AT CA TO MANOR

21

The enterprise is defined to include "any individual, partnership, corporation,
association, or other juristic person or legal entity, and union or group of individuals
associated in fact, although not a juristic person or legal entity".

22

The Serious and Violent Crime Section (SVC) of the Durban Organised Crime Unit
based at Cato Manor is a structure within the South African Police Service which is
a legal entity and therefor an enterprise within the meaning of section (1) of the
Prevention of Organised Crime Act, Act 121 of 1998 ("POCA

23

A pattern of racketeering activity refers to the numerous planned, ongoing;
continuous and repeated incidents of killing that the accused were involved in
murder incidents which are offences referred to in Schedule 1 and includes at least
two (2) offences referred to in Schedule 1, of which one of the offences occurred
after the commencement of this Act 1 January 1999 and the last offence occurred
within ten (10) years after the commission of such prior offence. The pattern of
racketeering activities are the different murder incidents linked from paraqraph 7 9. Different members of the enterprise were involved in the various racketeering
activities.

H.

EVIDENCE ANALYSIS

24

The State has evidence that Booysen was directly involved in the management of
SVC Section of Durban Organised Crime based .at Cato Manor. This section of

,·

Organised Crime was involved in various criminal activities whilst Booysen was
managing it at local and provincial levels.
The following witnesses will testify about the roles of Booysen in the management
of the SVC Section based at Cato Manor and that he had more close links section
more than any other section in the Organised Crime.

19

JWB-214

24.1

Colone! Aiyer's statements dated 3 Auqust 2012, 31 August 2012 and ·i3
March 2013.
24.1.1

Colonel Aiyer will testify that during the period of 2008 to 2011 he
was the commander of Durban Organised Crime Unit. By protocol
SVC Section based at Cato Manor fell under his management.

24.1.2

This section was commanded by Lieutenant Colonel Olivier who
was Aiyer's subordinate. However the commander of this section
developed communication directly with Booysen who was the
Provincial Commander of the Organised Crime Unit and later
Commander of DPCI.

24.1. 3

Their communication led to the role of the Unit Commander
rendered redundant.

24.1.4

Colonel Aiyer will testify that Booysen was holding management
meetings with this SVC section without his knowledge as the Unit
Commander.

24.1 5

He will align the

budget of the unit at provisional level in order to

resource the SVC section without communicating with the unit
Commander.
24 1.6

He will further testify that Booysen was involved in the operations of
the SVC sections that made him aware of what was happening
within the SVC section and he would at times issue media
statements about the operations of the SVC section.

24 1. 7

Booysen ignored the instructions from the Provincial Commander
that he must not interfere with the operations of the unit without
communicating with the Unit Commander.

24 1 8

He overruled the Unit Commander's decision to close the SV�
section offices in Cato Manor and move it to the unit in the Viet )ric:i� ( ,
r-----=t

embankment.
20

JWB-215

24 1 9

This decision by Unit Commander was based on a recommendaticn
of Director Ntshinga of the National Office

24 1 10 This

section

continued

to

operate

at

Cato

Manor

and

communicating directly with Booysen.

The statements of Colonel Aiyer are attached as -Annexures A 1; A2 and A3

24.2

Statement of Bhekinkosi Dlondlo Mthiyane dated 31 July 2012
24.2.1

Mthiyane is now deceased. However the state will use the provisions
of section 3 of Act 45 of 1988 to get his statement admitted as
evidence.

24.2.2

Mthiyane

gave

a

statement

that

during

the

killings

of the

KwaMaphumulo Taxi members by the Cato Manor SVC section he
was the executive member of the Stanger Taxi Association.
24.2.3

The other members of the executive of the Stanger Association were
Bongizwe Mhlongo; Sanele Zondi, Mr Ngcobo and Mr Khanyile.

24.2.4

During

this

period

their

association

was

1n

conflict

with

KwaMaphumulo Taxi Association and the KwaMaphumulo Taxi
Association was suspected of killing Senior Superintendent Chanco.
24.2.5

The Stanger Taxi Association gave information to Cato Manor SVC
Section about the KwaMaphumulo Taxi Association members in order
for them to be killed by the Cato Manor SVC Section through the

7

lnkosi Zondi who was a brother to Sanele Zondi and an ex policerne
working for Cato Manor.

21

JWB-216

24.2.6

lnkosi Zondi arranged with Cato Manor SVC section and Booysen to
target

KwaMaphumulo

Taxi

Association

members

who

were

suspected to have killed Senior Superintendent Chanco.
24.2. 7

The Cato Manor SVC Section began killing members of the
KwaMaphumulo Taxi Association and the first person to be killed was
lindelani Buthelezi, the second people to be killed were Kopolota Ntuli
and Nathi Mthembu and the third person to be killed was Mdu Mkhize
and the fourth person was Magojela and the last person was Bongani
Mkhize.

24.2.8

In most instances when members of KwaMaphumulo Taxi Association
were killed, the Cato Manor SVC Section members would take
pictures of the deceased and send them to the members of Stanger
Taxi Association to commence with the process of payment.

24.2.9

Stanger Taxi Association executive collected money to be given to the
Cato Manor SVC Section for the payment of each and every member
of the KwaMaphumu!o Taxi Association they have killed.

24.2.10 The most expensive heads were for Ndimande and Mkhize for
R750 000.00 and R 1 000 000.00 respectively.
24.2.11 Their money was given to Sanele Zondi and Bongizwe Mhlongo to
-.

give it to the Boss (Booysen).
24.2.12 This witness heard that certain money was handed at Tongaat toll
plaza.
The statement of Bhekinkosi Dlondlo Mthiyane is attached as - Annexure B ·
24 3

Statement of Bongani Mandia Mkhize dated 1 July 2012
24.3.1

Bongani Mandia Mkhize will testify that he was a body guard working
for Stanger Taxi Association.

24.3.2

He was guarding Bongi'zwe Mhlongo
22

JWB-217

24 3 3

During the period of his service the Stanger Taxi Association was in
conflict with KwaMaphumulo Taxi Association. It happened that one
police official was killed and the information was that he was killed by
the KwaMaphumulo Taxi Association.

24.3.4

The owners of Stanger Taxi Association supplied names of people
they hated to the Cato Manor SVC Section as the people who killed
Chanco.

24. 3.5

Some of the people who were on the list were Kopo!ota and Mthembu

24.3.6

Cato Manor SVC section had an opportunity to kill Kopofota and
Mthembu.

24.3.7

Bongizwe Mhlongo received photos of the deceased from Mostert who
is a member of the Cato Manor SVC section by sms and Bongizwe
Mhlongo was happy that the two were dead.

24.3.8

Mkhize and Bongizwe went to meet the members of Cato Manor SVC
section at Toll Plaza where they met Mr Mostert and another white
man.
Bongizwe had a plastic of money with him and went to the BMW
driven by Mostert and when he came back he said those police
officers are sharp and they have killed someone.
, .

Statement of Bongani Mandia Mkhize is attached �s - Annexure C
24.4

Statement of Simphiwe Cypran Mathonsi dated 15 March 2013
24.4.1

Mathonsi was a body guard at Stanger Taxi Association.

24.4.2 He was a trusted member by the executive.

23

JWB-218

24.4.3 They will discuss anything in his presence even when they wiil hire a
person to kill someone.
24.4.4 Sanele Zondi and Bongizwe Mhlongo were close to Cato Manor SVC
section members.
24 4.5 In 2007 he accompanied Sanele Zondi and Bongizwe Mhlongo to
meet Mostert and Booysen at the Shell garage.
24.4.6 Sanele and Bongizwe went to Mostert and Booysen requesting them
to cover up in the event the police were to arrest members of Stanger
Taxi Association. Members of Stanger Taxi Association had to pay
for this favour.
24.4.7 After a week he (Mathonsi) was called to accompany Sanele and
Bongizwe to meet Mostert and Booysen at McDonald at the Gateway
shopping mall and they had money contained in an envelope.
24 4.8 At the .Gateway Shopping Mall, Booysen was accompanied by
Mostert, who was driving.
24.4.9 Bongizwe and Sanele got into the BMW and spent about 45 minutes
to an hour therein.
24.4.10 During this period there was a conflict between Stanger Taxi
Association and the KwaMaphumulo Taxi Association.
24.4.11

And there was a police officer ca(le?, Chanco, who was not ta.king
sides. He would arrest without telling Cato Manor and they were
uncomfortable with it.

24.4.12

And the two planned to report Chonco to Mostert and Booysen.

24.4.13

This witness heard Mostert and Booysen planning to kill Clionco
but they did not want to do it themselves, they hired a hit man, so
that it will appear as if Kwal'vlaphumulo Taxi Association has killed
Chonco.

24

JWB-219

24.4.14

The hit men were Mthembu, Kopolota, Ntuli and Swayo Mkhize
and the Cato Manor SVC section was part of the plan.

24.4 15

Chonco was killed and after that all the hit men were killed by the
Cato Manor SVC section.

24.4 16

This witness heard Sanele saying he had the list of all people who
were going to be killed by Cato Manor.

24.4.17

In the list it was Bongani Mkhize who was the last person to be
killed as he reported the matter to the authorities.

24.4.18

Cato Manor SVC section was paid for killing Bongani Mkhize.

24.4.19

It was not easy to find Bongani Mkhize that is why the Cato Manor
SVC section will phone when they have missed Bongani Mkhize

The statements of Mthiyane, Mkhize and Mathonsi clearly indicate that certain members of
KwaMaphumulo Taxi Association were lured into the trap of killing Chanco by Stanger Taxi
Association with a view to create a reason for Cato Manor SVC section to target
KwaMaphumulo Taxi Association members who were in conflict with Stanger Taxi
Association, this plan was hatched by the Cato Manor SVC section together with Stanger
Taxi Association because Stanger Taxi Association was not happy about the manner
Chonco was operating.
This is evident by the subsequent payments made by Stanger Taxi Association each and
every time that a member of KwaMaphumulo Taxi Association.is killed.
The Cato Manor SVC section was rewarded by eliminating the rivals of the Stanger Taxi
Association while operating under the veil of South African Police Services.
Statement of Simphiwe Cypron Mathonsi is attached as - Annexure D

24.5

Documents relating to the monetary awards
25

JWB-220

24.5.1 The South African Police Services verily believed that the SVC Cato
Manor Section was honest in combating the taxi violence in the
province and rewarded all officers who were involved in the taxi
violence task team including Johan Wessel Booysen.
24.5.2 The reward was in the form of cash and certificates
24.5.3 The motivation for the reward states the role of Johan Wessels
Booysen in the operations hence he was rewarded.
24.5.4 He further motivated for payment of sources who were leading them
to the hide out of the KwaMaphumulo Taxi Association members.
Mr Booysen as the Provincial Commander of Organised Crime
had intimate knowledge of the operations of the SVC section
when it was eliminating the KwaMaphumulo Taxi Association
members instead of arresting them for any alleged offences.
As a manager he did nothing to stop this killing spree because it
was fulfilling his arrangement with Stanger Taxi Association as
stated in Mathonsi's statement

Documents relating to the monetary awards are attached as Annexure E.

24 6

Statement of Andrew Carsen Cochraine dated 16 May 2013
24.6.1

Andrew will state that he is a pilot. 1«_h.o flew Booysen to the scene
where Magojela the KwaMaphumulo Taxiboss was killed.
It is the prosecution team's view that this helicopter was on standby
to carry Booysen pending the notification by his foot soldiers that
the execution of Magojela has been fulfilled.

Statement of Andrew Carsen Cochraine is attached as Annexure F
24.7

High Court application where Booysen is a Respondent
26
��

JWB-221

24 7 1 The applicant, Bongani Mkhize (deceased in count 24 and chairman
of the KwaMaphumulo Taxi Association) applied for a High Court
order seeking to restrain the Provisional Commander, General
Booysen and all police officials serving under their commander from
killing, injuring, threatening, harassing or in any way intimidating him.

24 7.2 He outlined in his affidavit the conflict that existed between the
Stanger Taxi association and the KwaMaphumulo Taxi association,
the killing of Superintendent Chanco and the existence of the list of
names the KwaMaphumulo Taxi Association members who were
allegedly suspected of being involved in the killing of Chanco and
offended should they be required by police they are willing to hand
themselves over in the presence of their legal representatives.
24 7.3 Bongani Mkhize further refers to the interrogation of Moses Dlamini
by South African Police Services members who kept referring to his
name during the interrogation and also bragged that they were going
to kill him and the other people who were on the list.
24. 7.4 His life was in danger as he was next in line. He offered to hand
himself over to SAPS to be interrogated in the presence of his
lawyers as there were rumours in the papers that he is suspected of
killing Superintendent Chanco. He outlined in his affidavit the killings
of members of his KwaMaphumulo Taxi Association, Magojela
Ndimande,

Lindelani Buthelezi,

Kopolota Ntuli and Nkosinathi

Mthembu and also the fact that he was next in line.
24.7.5 Booysen deposed to an affidavit on behalf of South African Police
Services where he clarified that there was no warrant issued for the
arrest of Mkhize and Mkhize had no reason to fear for his life or his
arrest. If circumstances had to arise making it necessary to arrest or
to question Mkhize such will be carried out in terms of the law.
24.7.6 The court granted the application restraining the police fro: killis;2?
injuring, threatening, harassing or in any way intimidating Mkhize.
27

JWB-222

24.7.7 Despite this court order Booysen ailowed his members to confront
Mkhize

without first making

contact with

his

attorneys

and

subsequently killed him in contravention of the court order.
High Court application where Booysen is a Respondent is attached as - Annexure G
Statement of Nkosinathi Shozi

24.8

24.8.1

He is an attorney who represented the KwaMaphumulo Taxi Association in
legal matters since 2003. In 2007 to 2008 he was approached by Bongani
Mkhize (Chairman) and Bhengu (Treasurer) to assist KwaMaphumulo Taxi
Association to communicate with the SA Police Service (SAPS) with a view
to prevent the ongoing killings after the death of Lindelani Buthelezi on 3
September 2008. His instructions were to tell the police that if there was
any member of the association being sought for any criminal matter,
including the investigation of Chanco they were prepared to hand the
member over so that the law could take its course.

24.8.2

In addition to writing letters to SAPS management, he arranged a meeting
with the then MEC Bheki and officials of the KwaMaphumulo Taxi
Association, to prevent further killings and these. attempts were fruitless.
He was never told by the police or Booysen when his clients being
members of KwaMaphumulo Taxi Association were sought.

The statement of Nkosinathi Shozi is attached as Annexure H.

24.9

Statement of Commissioner Brown
24.9.1 He was the Provincial Head of Detectives in the province and had
General Detectives, Organised Crime, Serious Violent Crime and
Commercial Crime under his command. General Booysen as
Provincial Head of Organised Crime reported to him directly. In 201c
when SVC were disbanded some members went to ordinary
28

/

I

JWB-223

31

detectives but SVC section based at Cato Manor fell under the
Durban Organised Crime Unit, headed by Colonel Aiyer.
24 9.2 There was a poor working relationship between SVC members and

Aiyer based on his management style and perceived lack of
knowledge of investigation of violent crimes. The relationship
between Booysen and Lt Colonel Olivier, the section commander at
SVC based at Cato Manor was that of complete trust and they
communicated directly with the exclusion of the Durban Organised
Crime head, Aiyer. Booysen would visit Cato Manor weekly in order
to attend Operation Greed meetings. During the daily crime reports at
the province when Crime Intelligence would present crime reports,
Booysen would confirm the contents of the shooting incident reports
and provide additional information.

The statements of Commissioner Brown are attached hereto as Annexure J1 and J2.
The prosecution team considers the above involvement of Booysen as a local and
provincial manager of the SVC section based at Cato Manor sufficient to justify the
decision that Booysen managed and participated in the activities of the enterprise.
25.

The State has evidence linking the entire members of the enterprise including
accused 1,2,3,4,5,7,8,9,10,11,13,14,15,16,25,26 and 27. The said accused as
members of Durban Organised Crimes SVC section under the command and
management of Major General Booysen participated in more than one incidents, as
indicated in the indictment when executing the illegal, activities of the enterprise.

THE ENTERPRISE -

25.1

The enterprise is defined to include "any individual, partnership, corporation,
association, or other juristic person or legal entity, and union or group of
individuals associated in fact, although not a Juristic person or legal entity''.

29

3

JWB-224

25.2

The KwaZulu-Natal Provincial Organised Crime Unit and Directorate for
Priority Crime Investigations (DPCI) of the South African Police Services is
an enterprise within the meaning of section (1) of the Prevention of
Organised Crime Act, Act 121 of 1998 ("POCA), being a legal entity
associated in fact.

25.3

This legal entity provided the accused with the continuity of structure under
which to conduct their unlawful activities.

25.4

Accused 1 was the Commander of the Provincial Organised Crime. Accused
9 was the section Commander of the Durban Organised Crime Unit based in
Cato Manor. Accused 6 was the subsection Commander of the Durban
Organised Crime Unit based in Cato Manor. Accused 1: 6 and 9 managed
the enterprise. Accused 1,2,3,4,5,6,7,8,9,10,11,13,14,15,16, 25, 26 and 27
were participants in the racketeering activities ..

25.5

Accused 12,17.18,19, 20, 21, 22, 23, 24, 28, 29 and 30 in the proposed
indictment are not charged with racketeering activities. They did not commit
more than one offence in the predicate offences.

I.

COUNT 1

LIST OF PROPOSED CHARGES AND ACCUSED INVOLVED IN THEM

CONTRAVENING SECTION 2(1)(t) READ WITH
SECTIONS 1 ,2(2), 2(3), 2(4) AND 3 OF THE
PREVENTION OF ORGANISED CRIME ACT, ACT 121
OF 1998- MANAGING AN.''ENTERPRISE;
(Accused 1, 6 and 9)

COUNT 2

CONTRAVENING
SECTION 2(1)(e) READ WITH
.
.
SECTIONS 1, 2(2), 2(3), 2(4) ANO 3 OF . THE
PREVENTION OF ORGANISED CRIME ACT, ACT 121
OF 1998 - PARTICIPATING IN THE CONDUCT OF AN
ENTERPRISE
THROUGH
A
PATTERN
RACKETEER! NG ACTIVITY,
30

JWB-225

(Accused 1, 2,
26 and 27)

s, 4,

5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 25,

PREDICATE OFFENCES

COUNT 3

HOUSEBREAKING

WITH

TO

INTENT

COMMIT

MURDER AND MURDER, READ WITH SECTION 51(i)
OF ACT 105 OF 1997 AND SECTION 155(i) OF ACT
51 OF 1977;
(Accused 4, 6, 8, 13 and 22)
COUNT 4

ASSAULT WITH INTENT TO DO GRIEVOUS BODILY
HARM
(Accused 4, 6, 8, 13 and 22)

COUNTS

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 4, 6, 8, 13 and 22)

COUNT 6

CONTRAVENTION

OF

SECTION

3

READ WITH

SECTIONS 1,103,117,120(1)(a) AND 121 READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60
OF 2000 AND FURTHER 0READ WITH SECTION -250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF A FIREARM
{Accused 4, 6, 81 13 and 22)

COUNT7

CONTRAVENTION OF SECTION 90, READ WITH
SECTION 1,103,117,120(1)(a) AND 121 READ WIT,

/

SCHEDULE 4 OF THE FIREARMS CONTROL ACT, 60�J

31

�-

�

I

JWB-226

OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION

(Accused 4, 6, 8, 13 and 22)

COUNT 8

MURDER, READ WITH SECTION 51(1) OF ACT 105
OF 1997 AND SECTION 155(1) OF ACT 51 OF 1977

(Accused 1, 4, 5, 6, 8, 91 15 and 16)

COUNT 9

MURDER, READ WITH SECTION 51(1) OF ACT 105
OF 1997 AND SECTION 155(1) OF ACT 51 OF 1977
(Accused 1, 4, 5, 6, 8, 91 15 and 16)

COUNT10

CONTRAVENTION

OF

SECTlON

3

READ

WITH

SECTIONS 1,103,117,120(1)(a) AND 121 READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF FIREARM
(Accused 1, 4, 5, 6, 8, 9, 15 and 16)

COUNT 11

CONTRAVENTION OF SECTION 90, READ WITH
SECTION 1,103,117,120'(r')(�) AND 121- READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT, 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITlON

(Accused 1, 4, 5, 6, 8, 9, 15 and 16)

32

JWB-227

3S
COUNT12

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 1, 4, 5, 6, 8, 9, 15 and 16)

COUNT13

HOUSEBREAKING

WITH

INTENT

TO

COMMIT

MURDER AND MURDER, READ \NITH SECTION 51(1)
OF ACT 105 OF 1997 AND SECTION 155(1) OF ACT
51 OF 1977
(Accused 3, 4, 6, 8, 10, 11, 12, 13 and 15)

COUNT14

MURDER, READ WITH SECTION 51(1) OF ACT 105
OF 1997 AND SECTION 155(1) OF ACT 51 OF 1977
(Accused 3, 4, 6, 8, 10, 11, 12, 13 and 15)

COUNT15

CONTRAVENTION

OF

SECTION

3 READ WITH

SECTIONS 1,103,117,120(1)(a) AND 121 READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF FIREARM
(Accused 3, 4, 6, 8, 10, 11, 12, 13 and 15)

COUNT16

CONTRAVENTION

OF

SECTION

3 READ WITH

SECTIONS 1,103,117,120(1)(a) AND 121 READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1
UNLAWFUL POSSESSION OF FIREARM
33

JWB-228

(Accused 3, 4, 6, 8, 10, 11, 12, 13 and 15)

COUNT17

CONTRAVENTION OF SECTION 90,

READ WITH

SECTION 1,103,117,120(1)(a) AND 121 READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT, 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION
(Accused 3, 4, 6, 8, 10, 11, 12, 13 and 15)

COUNT18

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 3, 4, 6, 8, 10, 11, 12, 13 and 15)

COUNT19

MURDER, READ WITH SECTION 51(1) OF ACT 105
OF 1997 AND SECTION 155(1) OF ACT 51 OF 1977
(Accused 17 and 18)

COUNT 20

MURDER, READ WITH SECTION 51(1) OF ACT 105
OF 1997 AND SECTION 155(1) OF ACT 51 OF 1977

(Accused 2, 3, 14, 19,

COUNT 21

CONTRAVENTION

20; and 21)

OF

SECTION

3

READ

WITH

SECTIONS 1,103,117,120(1)(a) AND 121.READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 19 7 UNLAWFUL POSSESSION OF FIREARM
34

7

JWB-229

(Accused 2, 3, 14, 19, 20, and 21)

COUNT 22

CONTRAVENTION OF SECTION 90,

READ V\/ITH

SECTION 1,103,117,120(1)(a) AND 121 READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT, 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION

(Accused 2, 3, 14, 19, 20, and 21)

COUNT 23

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE

(Accused 2, 3, 14, 19, 20, and 21)

COUNT 24

THEFT

(Accused 2, 3, 14, 19, 201 and 21)

COUNT 25

HOUSEBREAKING

WITH

INTENT

TO

COMMIT

MURDER AND MURDER, READ WITH SECTION 51(1)
OF ACT 105 OF 1997

ANO

SECTION 155(1) OF ACT

51 OF 1977;
(Accused 2, 3, 9, 13 and 16)

COUNT 26

CONTRAVENTION OF SECTION 120(6) OF AC
OF 2000 - POINTING \NITH A FIREARM;

(Accused 2, 3, 9, 13 and 16)
35

JWB-230

COUNT 27

CONTRAVENTION

OF

SECTION

3

READ

VVITH

SECTIONS 1,103,117,120(1)(a) AND 121 READ VVITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF FIREARM
(Accused 2, 3, 9, 13 and 16)

COUNT 28

CONTRAVENTION OF SECTION 90,

READ WITH

SECTION 1,103,117,120(1)(a) AND 121 READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT. 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION
(Accused 2, 3, 9, 13 and 16)

COUNT 29

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 2, 3, 9, 13 and 16)

COUNT 30

THEFT
(Accused 2, 3, 9, 13 and 16)

COUNT 31

HOUSEBREAKING

WITH

INTENT

TO

COMMIT

MURDER AND MURDER, READ WITH SECTION 51(1)
OF ACT 105 OF 1997 AND SECTION 155(1) OF AC7
51 OF 1977;
(Accused 2, 4 and 6)
36

JWB-231

COUNT 32

CONTRAVENTION

OF

3

SECTION

READ VVITH

SECTIONS 1,103,117,120(1)(a) AND 121 READ vVITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60
OF 2000 AND FURTHER READ VVITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF FIREARM;

(Accused 2, 4 and 6)

COUNT33

CONTRAVENTION OF SECTION 90, READ WITH
SECTION 1,103,117,120(1)(a) AND 121 READ WITH
SCHEDULE 4 OF THE FIREARMS CONTROL ACT, 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION

(Accused 2, 4 and 6)

COUNT34

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE

(Accused 2, 4 and 6)

COUNT 35

HOUSEBREAKING

WITH:

INTENT

TO

COMMIT

MURDER AND MURDER, READ WITH SECTION 51 (1)
OF ACT 105 OF 1997; AND READ WITH SECTION
155(1) OF ACT 51 OF 1977;

(Accused 4, 5, 6, 7, 8, 11 and 13)
COUNT 36

CONTRAVENTION

OF

SECTION

3,

SECTIONS 1, 103, 117, 120, (1)(a), SECTIO
READ WITH SCHEDULE 4 AND SECTION 15
37

127

READ WITH

JWB-232

THE FIREARMS CONTROL ACT, 60 OF 2000 UNLAWFUL POSSESSION OF FIREARM;

(Accused 4, 5, 6, 7, 8, 11 and 13)

COUNT 37

CONTRAVENTION OF SECTION

90 READ WITH

SECTIONS 1, 103, 120(1)(a). SECTION 121 READ
VVITH SECTION 4 AND SECTION 151 OF FIREARMS
CONTROL

ACT

60

OF

2000

-

UNLAWFUL

POSSESION OF AMMUNITION;

(Accused 4, 5, 6, 7, 8, 11 and 13)

COUNT 38

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE

(Accused 4, 5, 6, 7, 8, 11 and 13)

COUNT 39

MURDER, READ WITH SECTION 51(1) OF ACT 105
OF 1997; AND READ WITH SECTION 155(1) OF ACT
51 OF 1977

(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 40

HOUSEBREAKING

WITH

INTENT

TO

COMMIT

MURDER AND MURDER, READ WITH SECTION 51(1)
OF ACT 105 OF 199·(· AND READ WITH SECTION

155(1) OF ACT 51 OF 1977

(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 41

ASSAULT WITH INTENT TO DO GRIEVOUS BODILY

JWB-233

COUNT 42

CONTRAVENTION OF SECTION 120(6) OF ACT 60
OF 2000 - POINTING WlTH A FIREARM
(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 43

ASSAULT WITH INTENT TO DO GRIVOUS BODILY
HARM;
(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 44

CONTRAVENTION OF SECTION 120(6) OF ACT 60
OF 2000 - POINTING WITH A FIREARM;
(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 45

MALICIOUS DAMAGE TO PROPERTY;
(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 46

CONTRAVENTION

OF

SECTION

3,

READ WITH

SECTIONS 1, 103, 117, 120(1)(a), SECTION 121 READ
WITH SCHEDULE 4 AND SECTION 151 OF THE
FIREARMS CONTROL ACT, 60 OF 2000 - UNLAWFUL
POSSESSION OF FIREARM;

(Accused 2, 4, 5, 7, 13�· 14)·1�, 25, 27, 28 and 30)

COUNT 47

CONTRAVENTION

OF

SECTION 90 READ WITH

SECTIONS 1, 103, 120(1)(a), SECTION 121 READ
WITH SECTION 4 AND SECTION 151 OF FIREARMS
CONTROL

ACT,

60

OF

2000

-

UNLAWFUL

POSSESSION OF AMMUNITION;

(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and
39

JWB-234

COUNT 48

CONTRAVENTION

OF

SECTION

3,

READ VVITH

SECTION 1, 103, 117,120(1)(A), SECTION 121 READ
WITH SCHEDULE 4 AND SECTION 151 OF THE
FIREARMS CONTROL ACT, 60 OF 2000 - UNLAVVFUL
POSSESSION OF FIREARM;
(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 49

CONTRAVENTION OF SECTION 90

READ WITH

SECTIONS 1, 103, 120(1)(a), SECTION 121 READ
WITH SECTION 4 AND SECTION 151 OF FIREARMS
CONTROL

ACT,

60

OF

2000

-

UNLAWFUL

POSSESSION OF AMMUNITION;
(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 50

THEFT
(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 51

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE

(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 52

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 2, 4, 5, 7, 13, 14, 19, 25, 27, 28 and 30)

COUNT 53

MURDER

READ

WITH

THE

PROVISIONS

SECTION 51(1) OF ACT 105 OF 1997; AND R
WITH SECTION 155(1) OF ACT 51 OF 1977

(Accused 2, 4, 5 and 6)
40

OF

JWB-235

COUNT 54

CONTRAVENTION

OF

SECTION

3

READ

WlTH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE

4 OF THE FIREARMS

CONTROL ACT 60 OF 2000 ANO SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF A FIREARM;

(Accused 2, 4, 5 and 6)

COUNT 55

CONTRAVENTlON OF SECTION

90 READ WITH

SECTIONS 1, 103, 117, 120(1)(a)ANO 121 FURTHER
READ WITH

SCHEDULE

4 OF THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION

(Accused 2, 4, 5 and 6)

COUNT 56

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE

(Accused 2, 4, 5 and 6)

COUNT 57

THEFT

(Accused 2, 4, 5 and 6)

COUNT 58

MURDER, READ WITH SECTION 51 OF ACT 105 OF
1997; AND READ WITH SECTION 155(1) OF ACT 51
OF 1977
( Accused 4, 13 and 15)

41

JWB-236

COUNT 59

CONTRAVENTION

OF

SECTION

3,

READ WITH

SECTIONS 1, 103, 117, 120(1)(a), SECTION 121 READ
WITH SCHEDULE 4 AND SECTION 151 OF THE
FIREARMS

CONTROL

60

ACT,

OF

2000

-

UNLAWFULLY POSSESSION OF A FIREARM;
(Accused 4, 13 and 15)

COUNT 60

CONTRAVENTION OF

SECTION 90 READ WITH

SECTJONS 1, 103, 120(1)(a), SECTION 121 READ
WITH SECTION 4 AND SECTION 151 OF FIREARMS
CONTROL

ACT

60

OF

2000

-

UNLAWFUL

POSSESSION OF AMMUNITION,
(Accused 4, 13 and 15)
COUNT 61

DEF EA TING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 4, 13 and 15)

COUNT 62

HOUSEBREAKING WITH
MURDER

AND

INTENTION TO COMMIT

MURDER

READ

WITH

THE

PROVISIONS OF SECTION 51(1) OF ACT 105 OF
1997; AND READ WITH SECTION 155(1) OF ACT 51
OF 1977;
(Accused 2, 3 and 4)

COUNT 63

CONTRAVENTION

:

OF

SECTION : 3

READ WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4 OF THE: FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977
UNLAWFUL POSSESSION OF A FIREARM;
(Accused 2, 3 and 4)
42

�
\

JWB-237

COUNT 64

CONTRAVENTION

OF SECTION

90 READ WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4

OF THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION

(Accused 2, 3 and 4}

COUNT 65

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE

(Accused 2, 3 and 4)

COUNT 66

HOUSEBREAKING WITH INTENTION TO COMMIT
MURDER AND

MURDER

READ

WITH

THE

PROVISIONS OF SECTION 51 (1) OF ACT 105 OF
1997; AND READ WITH SECTION 155(1) OF ACT 51
OF 1977;

(Accused 2, 4, 7, 8, 9, 11, 16, 23 and 24)

COUNT 67

CONTRAVENTION

OF ·. SECTION

3

READ

WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4

OF THE. FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF A FIREARM;

(Accused 2, 4, 7, 8, 9, 11, 16, 23 and 24)

43

JWB-238

l/b
COUNT 68

CONTRAVENTlON OF SECTlON

90 READ \JVITH

SECTIONS 1, 103, 117, 120(1 )(a) AND 121 FURTHER
READ WITH

SCHEDULE ·4

FJREARMS

OF THE

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION;
(Accused 2, 4, 7, 8, 9, 11, 16, 23 and 24)

COUNT 69

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 2, 4, 7, 8, 9, 11, 16, 23 and 24}

COUNT 70

HOUSEBREAKING WITH INTENTION TO COMMIT
MURDER ANO

MURDER;

READ

WITH

THE

PROVISIONS OF SECTION 51 (1) OF ACT 105 OF
1997; AND READ WITH SECTION 155(1) OF ACT 51
OF 1977
(Accused 6, 7 and 13)

COUNT 71

READ

MURDER;

WiT�f

THE

PROVISIONS

OF

SECTIQN 51(1) OF ACT 105 OF 19.97; AND READ
WITH SECTION 155(1) OF ACT 51 OF 1977;
(Accused 6, 7 and 13)

COUNT 72

READ

MURDER;

WITH

THE

PROVISIONS

OF

SECTION 51(1) OF ACT 105 OF 1997; AND REA
WITH SECTION 155(1) OF ACT 51 OF 1977,:/
r

44

JWB-239

41-

(Accused 6, 7 and 13)

COUNT 73

CONTRAVENTION
SECTIONS

1,

OF

103,

SECTION
117,

3

READ

WITH

121

AND

120(1 )(a),

SCHEDULE 4 OF ACT 60 OF 2000 AND FURTHER
READ WITH SECTION 250 OF ACT 31 OF 1977 UNLAWFUL POSSESSION OF FIREARM;
(Accused 6, 7 and 13)

COUNT74

CONTRAVENTION OF SECTION 90 READ WITH
SECTIONS 1, 103, 117, 120(1)(a) AND SCHEDULE 4
OF ACT 60 OF 2000 AND FURTHER READ WITH
SECTION 250 OF ACT 51 OF 1977 - UNLAWFUL
POSSESSION OF AMMUNITION;
(Accused 6, 7 and 13)

COUNT 75

CONTRAVENTION
SECTIONS

1,

OF

103,

SECTION
117,

3

READ WITH

120(1)(a),

121

AND

SCHEDULE 4 OF ACT 60 OF 2000 AND FURTHER
READ WITH SECTION· 2�0 OF ACT 31 OF 1977 UNLAWFUL POSSESSION OF FIREARM;
(Accused 6, 7 and 13)

COUNT 76

CONTRAVENTION OF SECTION 90 READ WITH
SECTIONS 1, 103, 117, 120(1)(a) AND SCHEDUL�
OF ACT 60 OF 2000 AND FURTHER READ V IT'7t""
45

.:

JWB-240

SECTION 250 OF ACT 51 OF 1977 - UNLAWFUL
POSSESSION OF AMMUNITION;

{Accused 6, 7 and 13)

COUNT 77

CONTRAVENTION
SECTIONS

1,

SECTION

OF

103,

117,

3 READ WITH

120(1)(a),

121

AND

SCHEDULE 4 OF ACT 60 OF 2000 AND FURTHER
READ WITH SECTION 250 OF ACT 31 OF 1977 UNLAWFUL POSSESSION OF FIREARM;

-...

(Accused 6, 7 and 13)

COUNT 78

CONTRAVENTION OF SECTION 90 READ WITH
SECTIONS 1, 103, 117, 120(1)(a) AND SCHEDULE 4
OF ACT 60 OF 2000 AND FURTHER READ WITH
SECTION 250 OF ACT 51 OF 1977 - UNLAWFUL
POSSESSION OF AMMUNITION;

(Accused 6, 7 and 13)

COUNT 79

DEFEATING OR OBSTRUCTfNG THE COURSE OF
JUSTICE;

(Accused 6, 7 and 13)
'

COUNT 80

MURDER

READ

WITH

.
THE

PROVISIONS

OF

SECTION 51(1) OF ACT 105 OF 1997.; AND. READ
WITH SECTION 155(1) OF ACT 51 OF 1977;

(Accused 4, 7, 1314, 15 and 26)

COUNT 81

JWB-241

(Accused 4, 7, 13 14, 15 and 26)

COUNT 82

READ

MURDER;

WITH

THE

PROVISIONS

OF

SECT10N 51(1) OF ACT 105 OF 1997; AND READ
WITH SECTION 155(1) OF ACT 51 OF 1977;
(Accused 4, 7, 1314, 15 and 26)

COUNT 83

ATIEMPTED MURDER READ WITH SECTION 51(2)
OF ACT 105 OF 1997; AND READ WITH SECTION

155(1) OF ACT 51 OF 1977;
(Accused 4, 7, 13 14, 15 and 26)

COUNT 84

CONTRAVENTION

OF

SECTION

3,

READ WITH

SECTIONS 1, 103, 117, 120 (1 )(a), SECTION 121
READ WITH SCHEDULE 4 AND SECTION 151 OF
THE FIREARM CONTROL ACT, 60 OF 2000: AND
FURTHER

READ

CRIMINAL

PROCEDURE

WITH

SECTION

250

51

OF

ACT

OF

THE

1977

-

UNLAWFUL POSSESSION OF A FIREARM:
(Accused 4, 7, 13 14, 15 and 26)

COUNT 85

CONTRAVENTION OF SECTION 90, READ WITH
SECTIONS 1, 103, 117, 120 (1}(a), AND �ECTl,9N 121
READ WITH

SCHEDULE 4 OF. THE FIREARMS

CONTROL ACT, 60 OF 2000 AND FURTHER READ
WITH SECTION 250 OF THE CRIMINAL PROCEDURE
ACT 51 OF 1977 - UNLAWFUL POSSESSION
AMMUNITION;
(Accused 4, 7, 13 14, 15 and 26)
47

so

JWB-242

COUNT 86

CONTRAVENTION

OF

SECTION

3.

READ WITH

SECTIONS 1, 103, 117, 120 (1)(A), SECTION AND
SECTION

121

READ

WITH

SCHEDULE 4 AND

SECTION 151 OF THE FIREARM CONTROL ACT, 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF A FIREARM;
(Accused 4, 7, 13 14, 15 and 26)

--�.

COUNT 87

CONTRAVENTION OF SECTION 90, READ WITH
SECTIONS 1, 103, 117, 120 (1)(A), SECTION AND
SECTION

121

READ

WITH

SCHEDULE 4 AND

SECTION 151 OF THE FIREARM CONTROL ACT, 60
OF 2000 AND FURTHER READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION;
(Accused 4, 7, 1314, 15 and 26)

COUNT 88

CONTRAVENTION

OF

SECTION

3,

READ WITH

SECTIONS 1, 103, 117, 120 (1)(A), SECTION AND
SECTION

121

READ

WITH

SCHEDULE 4 AND

SECTION 151 OF THE FIREARM CONTROL ACT, 60
OF 2000 AND FURTHE,R READ WITH SECTION 250
OF THE CRIMINAL PROCEDURE ACT 51 .OF 1977 UNLAWFUL POSSESSION OF A FIREARM;
(Accused 4, 7, 13 14, 15 and 26)

COUNT 89

CONTRAVENTION OF SECTION 90, READ WITH
SECTIONS 1, 103, 117, 120 (1)(A), SECT!
SECTION

121
48

AND(

JWB-243

S/

SECTJON ·151 OF THE FIREARM CONTROL ACT, 60
OF 2000 AND FURTHER READ \JVITH SECTION 250

OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION;

(Accused 4, 7, 13 14, 15 and 26)

COUNT 90

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE

(Accused 4, 7, 13 14, 15 and 26)

COUNT 91

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE;
(Accused 4, 7, 13 14, 15 and 26)

COUNT 92

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE;
(Accused 4, 7, 13 14, 15 and 26)

COUNT 93

THEFT

(Accused 4, 7, 13 14, 1� _and 26)
'

COUNT 94

READ

MURDER

WITH

THE

PROVISIONS

OF

SECTION 51(1) OF ACT 105 OF 1997; AND READ
WITH SECTION 155(1) OF ACT 51 OF 1977;

(Accused4, 8, 11, 16, 25 and 26)

49

JWB-244

COUNT 95

CONTRAVENTION

SECTION

OF

3

READ

V\/ITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

OF

SCHEDULE 4

THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLA\/'JFUL POSSESSION OF A FIREARM;
(Accused4, 8, 11, 16, 25 and 26)

COUNT 96

CONTRAVENTION OF SECTION

90 READ WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4

OF THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION;
(Accused4, 8, 11, 16, 25 and 26)

COUNT 97

DEFEATING OR OBSTRUCTINGTHE COURSE OF
JUSTICE
(Accused 4, 8, 11, 16, 25 and 26)

COUNT 98

READ

MURDER

WITH
. ' .
.

'

.

THE

PROVISIONS

OF

SECTION 51(1) OF Acr .105 OF 1997 AND READ
WITH SECTION 155(1) OF ACT 51 OF 1977
(Accused 4, 8, 10, 11 and 15)

COUNT 99

CONTRAVENTION

OF

SECTION

3

READ WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURT.
READ WITH

so

SCHEDULE 4 OF THE

JWB-245

53
CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF A FIREARM;

(Accused 4, 8, 10, 11 and 15)

COUNT 100

CONTRAVENTION OF SECTION 90 READ WITH
SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4

OF THE

FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION;
(Accused 4, 8, 10, 11 and 1 S)

COUNT 101

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 4, 8, 10, 11 and 15)

COUNT 102

MURDER

READ

WITH

THE

PROVISIONS

OF

SECTION 51(1) OF ACT 105 OF 1997; AND READ
WITH SECTION 155(1) OF ACT 51 OF 1977
(Accused 4, 5, 13 and 30)
.

'

••I

COUNT 103

.

'

DEFEATING OR OBSTRUCTRING THE
COURSE OF JUSTICE
(Accused 4, 5, 13 and 30)

51

JWB-246

COUNT 104

MURDER

READ

WITH

THE

PROVISIONS

OF

SECTION 51(1) OF ACT 105 OF 1997 AND READ
WITH SECTION 155(1) OF 1977
(Accused 5, 6 and 27)

COUNT 105

CONTRAVENTION

OF

SECTION

3

READ

WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4

OF THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF A FIREARM;
(Accused 5, 6 and 27)

COUNT 106

CONTRAVENTION

OF SECTION 90 READ WITH

SECTIONS 1, 103, 117, 120(1)(a)AND 121 FURTHER
READ WITH SCHEDULE 4

OF THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION;
(Accused 5, 6 and 27)

..
COUNT 107

'

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 5, 6 and 27)

COUNT 108

THEFT
(Accused 5, 6 and 27)

52

JWB-247

55
COUNT 109

MURDER

READ

WITH

THE

PROVISIONS

OF

SECTION 51(1) OF ACT 105 OF 1997 AND READ
V\/ITH SECTION 155(1) OF ACT 51 OF 1977,

(Accused 5, 15 and 25)

COUNT 110

CONTRAVENTION

OF

SECTION

3 READ WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH SCHEDULE

4

OF THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF A FIREARM;

{Accused 5, 15 and 25)

COUNT 111

CONTRAVENTION OF SECTION

90 READ WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4

OF THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1·977 UNLAWFUL POSSESSION OF AMMUNITION;

(Accused 5, 15 and 25)

COUNT 112

DEF EATING OR OBSTRUCTING THE OF JUSTICE
(Accused 5, 15 and 25)

COUNT 113

MURDER

READ

WITH

THE

PROVISIONS

OF

SECTION 51(1) OF ACT 105 OF 1997 AND READ
WITH SECTION 155(1) OF ACT 51 OF 1977

(Accused 13 and 15)

53

JWB-248

51:,
COUNT 114

CONTRAVENTION

OF

SECTION

3

READ

WITH

SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4

OF

THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF A FIREARM;
(Accused 13 and 15)

COUNT 115

CONTRAVENTION OF SECTION 90 READ WITH
SECTIONS 1, 103, 117, 120(1)(a) AND 121 FURTHER
READ WITH

SCHEDULE 4

OF THE FIREARMS

CONTROL ACT 60 OF 2000 AND SECTION 250 OF
THE CRIMINAL PROCEDURE ACT 51 OF 1977 UNLAWFUL POSSESSION OF AMMUNITION;
(Accused 13 and 15)

COUNT 116

DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
(Accused 13 and 15)

J: ANALYSIS OF THE MODUS OPERANDI
The modus operandi outlined above, where the accused would track or trace suspects on
the basis of questioning them even where there exists not even shreds of evidence linking
them to any offence. It includes instances where the accused wouid interfere with the
scene by placing a firearm on the scene after the shooting has been completed to create
the impression that the deceased had that planted firearm in his hand and was. in the
process of pointing or firing at the police with a view to make the police shooting justifia=b--.
within section 49(1) of the Criminal Procedure Act 51 of 1977. The following inci
illustrations of this point:
54

JWB-249

Sf
1

Kwa-Mashu CAS 698/11 /2009

Prince Thabede (Mtako)

On 26 November 2009 at 4187 Kwa-Mashu the deceased was found lying on the bed
with a revolver .. 38SPL Taurus revolwer with obliterated serial numbers next to his
left elbow. The transfer bar of this revolver was broken and therefor incapable to fire
{discharge ammunition). Adriaan Stoltz ( Accused 3) said in his warning statement
that the suspect drew a firearm and fired shots. Padayachee ( Accused 2) says the
suspect produced a firearm and pointed at them, that is when he decided to fire at
the suspect.
Nqaba Mdluli (A21) and Nkanyiso Ntenza (A22) saw Mostert returning to the
Quantum kombi in which they were travelling to fetch the "mbombayi". Sergeant
Behari (A7) of the ballistic unit of the Forensic Science laboratory found that the
revolver was defective. Jacobus Steyl (A26), a ballistic reconstructionist, states that
the deceased was in a lying position with his head on the pillow when he was shot at.
2

Durban Central CAS 185/02/2009 Bongani Mkhize
On 3 February 2009, the deceased was found lying in the driver's seat of his black
Lexus car. A firearm was found on the front passenger side of the car. Sergeant
Tilakharee, the ballistic expert states 'that all shots were fired from outside to the
inside of the vehicle. The accused, Dlamuka, Mfene, Padayachee, Rakesh Maharaj
and Stoltz state that the deceased fired shots to their direction and they returned fire
wounding the deceased. Sergeant Tilakharee's ballistic ·finding that all cartridge
cases collected from the scene, including the two found inside the vehicle of the
deceased were not linked to the firearm found in the vehicle of the deceased.
It is thus clear that this firearm depicted on photos 14-:at::Jd 15 of Captain Mangena's
statement (A94) was placed in the vehicle after the shooting to create the impression
that Mkhize used it and tried to place the police 's life in danger.

3

Esikhawini CAS 3/4/2010

Kwazi Ndlovu 16 years old boy Count 66-69

55

JWB-250

On 1 April 2010 at about 02h00 the deceased, a 16 year old student, who had likely
fallen asleep whist watching television was shot at whilst in a lying position on a
couch was shot with an R5 Rifle, a 9mm Norinco Star pistol was placed under his left
arm. All cartridges on the scene are 5.56mm compatible with an R5 assault rifle that
was used by Padayachee (Accused 2). The 9mm Norinco Star pistol cannot be
linked with any cartridges found on the scene.

Captain Mangena (A31) reconstructed the scene and confirmed after studying the
post mortem report, damages on the wall, the coach on which the deceased was
lying and the wounds sustained that the deceased was lying when shot at and posed
no danger to the police. This firearm was clearly placed on the scene after the
shooting. The police were looking for a prison escapee and were taken to this house
by an informer.
4

Mandini CAS 76/09/2009

Nzameni Ntuli (Kopolota) and Nkosinathi Mthembu

On 18 September 2008 the deceased were found lying in a house at Mandini after
being shot at by the accused. The ballistic reconstruction indicates that they were
shot whilst lying down, the firearms that were found placed next to their bodies could
not match the cartridges on the scene.

K. ANITICIPATED CHALLENGES
1.

Statements of Bhekinkosi Mthiyani (Olondlo)'s and Cyprian Mathonsi
The witnesses have since died. The state will lay a proper foundation for the
(cf;f Ac�
admission of hearsay in terms of section 3(1)
45 of 1988.

2. Admissibility of Inquest affidavits
The statements made by the police officers during the inquest proceedings are -. official
records, which are admissible in terms of Section 234, the police officials in question w
�
on duty executing their official functions as police officials.
�

3. Defence delaying tactics, by bringing interlocutory applications one after another
56

./

JWB-251

The defence is employing a tactic of delaying the commencement of the trial by informing
us that there are countless applications that will be bringing such as better and further
particulars even before we supply further particulars.
CREDIBILITY OF COL AIYER

The credibility of Col Aiyer, the Durban Organised Crime Unit Head will be challenged
because of his differences with Gen Booysen, which led to numerous interventions by
provincial management some of which were investigated by the Ministry, the accused may
argue that he was jealous of the successes of Cato Manor which happened without his
involvement or was jealous of Booysen's achievement in bringing down crime in the
province.

L.

26

STATEMENT OF THE LAW

The Prevention of Organised Crime Act, Act No 121 of 1998(hereinafter referred to
as The Act) defines in section 2 thereof various criminal offences in respect of
racketeering.

27

Section 1 (1) of The Act states that an "Enterprise" includes "any indivkiue',

partnership, corporation, essocietion, or otherjuristic person or legal entity, and union
or group of individuals associated in fact, although not a juristic person or legal entity"
· ." '· ·.

28

Section 1 ( 1) of The Act states further that "a pattern

o't r,acketeering activity" means

the "planned, ongoing, continuous or repeated participation or involveme�t in any
offence referred to in schedule 1 and includes at least two offences referred to in
Schedule 1, of which one of the offences occurred after the commencement of this
Act and the last offence occutreci within 10 years (excluding ·any per:Jod of
imprisonment) after the commission of such prior offence referred to in Schedule 1"
29

Section 2(1 )(f) provides that:

57

JWB-252

Any person who - "manages the operation or activities of an enterprise and who

knows or ought reasonably to have known that any person, whilst employed by or
associated with that enterprise, conducts or participates in the conduct, directly or
indirectly, of such enterprise's affairs through a pattern of racketeering activity" shall
be guilty of an offence.

30

Section 2(1 )(e) of POCA provides that:
Any person who - "whilst managing or employed by or associated with any

enterprise, conducts or participates in the conduct, directly or indirectly, of such
enterprise's affairs through a pattern of racketeering activity" shall be guilty of an
offence.
31

An enterprise is established by proving that it has:
(a) A common or shared purpose
(b) A formal or informal structure
(c) A system of authority
(d) Continuity

M.

32

POCA RACKETEERING POLICY

It will be impossible to charge the accused individually with all the offences they have
committed. Charging the accused together outside the ambit of POCA will result in
misjoinders. A POCA prosecution will allow the joining of different participating
accused which is otherwise not permissible.
: I

33

:

A POCA prosecution will enable the State to charge the accused with all offences
committed through a pattern of racketeering activity, distinctly and separately:

34

Section 2(2) of POCA allows the court to hear evidence with regard to hearsay,
similar facts or previous convictions, relating to offences contemplated against the
accused.

35

The placing of the firearms on the crime scene is similar fact evidence.
58

JWB-253

b t.
N.

36

ANTICIPATED DEFENCES

The accused will argue self-defence and rely on section 49(2) of the Criminal
Procedure Act.

37

They were not participants in some of the crimes scenes, essentially relying on
'disassociation'.

3-8

The accused would raise a defence of bare denial on charges of theft, assault.
possession of unlicenced firearms and ammunitions and malicious damage to
property .

......,

39

The State will counter these defences with:
direct evidence
circumstantial evidence
expert evidence
real evidence
documentary evidence.
some of the deceased were not their suspects.
some of the deceased were shot in a supine position.
They acted maliciously in a quest for personal benefits.
The list is not exhaustive.

0.

ASSET FORFEITURE UNIT

40

The investigation team has referred the matter to KZN Asset Forfeiture Unit The
prosecution team has to date not received the financial investigation report from the
AFU and has decided to abandon pursuing money laundering charges.

59

JWB-254

JWB-255

I

TO:

ADV S K ABRAHAMS
NATIONAL DIRECTOR OF PUBLIC PROSECUTONS
NATIONAL PROSECUTJNG AUTHORITY

ADV. M NOKO

FROM:

DIRECTOR OF PUBLIC PROSECUTIONS
-KWAZULU NATAL

18 AUGUST 2015

DATE:

SU.3JECT:

APPLICATION FOR AUTHORISATION IN TERMS OF SECTJON 2 (4) OF
POCA ACT 121 OF 1998
THE STATE VERSUS BOOYSEN, JOHAN WESSEL AND OTHERS

1

This is an application for fresh authorisation of racketeering charges against

•

accused 1, Johan Booysen in respect of whom the case has in the meantime
been withdrawn on the basis of Gorven J's judgment and

•

accused 2 Gonasagren Padayachee;
accused 3 Adriaan Stoltz;
accused 4 Paul Mostert
accused 5 Eric Nel
accused 7 Adjithsigh Ghaness
accused 8 Phumelela Makhanya
accused 9 Willem Olivier
accused 10 Thembinkosi Mkhwanazi
accused 11 Thathayiphi Mdlalose
accused 13 Rubendran Naidoo
1

JWB-256

accused 14 Raymcnd Lee
accused 15 Anton Lockem
accused 16 Eugene van Tonder
accused 19 Feiokwakhe Thomas Dlamuka
accused 25 Charles John Smith
accused 26 Jeremy Martem
accused 27 Bruce David Mcinnes

who are presently bringing a motion application challenging the racketeering authorisations
issued by Adv Jiba on 17 August 2012.

The following documents are enclosed herewith in support of the application:

Application for authority in terms of section 2(4) of the Prevention of

1.1

Organised Crime Act, 121 of 1998 for your consideration and approval,

1.2

The fresh prosecution memorandum,

1.3

The proposed indictment,
.

1.4

2

. �.

The draft authorisations for section (2)(1)(e) and·:2�1)(f) respectively.
'

The High Court Judgment in the matter of Booysen vs ANDPP, set aside the
previous authorisations which were issued by the then ANDPP on 17 August 2012
and, further stated that the NPA is entitled to consider re-issuing a new certificate
afresh, it is on that basis that I apply for the re-issue of the certificate. I refer to page
23 Paragraph 39 of 'the judgment, a copy of which is also enclosed for easy
reference.

2

JWB-257

The court stated:
"[39] It is important to note that the above findings do not amount to a finding that
Mr Booysen is not guilty of the offences set out in counts one ( 1) to two (2) and
eight (8) to (12). That can only be decided by way of a crirninat trial. Setting aside
the authorisations and decisions to prosecute also does not mean that fresh
authorisations cannot be issued or fresh decisions taken to prosecute if there is a
rational basis for these decisions."
3

I have perused the documents and recommend the fresh issue of racketeering
authorisations; I am of the view that the prosecutors have made a good case for the
re-issue of the racketeering authorisations in terms of section 2(4) of the Prevention
of Organised Crime Act, 121 of 1998.

4

I have received full briefings from the prosecution team and resolved that the
concessions made by counsel on behalf of the ANDPP during the hearing of
Booysen's application, were incorrect.

a. In fact the content of the dockets do implicate Booysen in the commission of
racketeering offences.
b. Furthermore the dockets did contain statements of Colonel Aiyer which were
dated 3 August 2012 and Mr Ndlondlo dated 31 July 2012, which implicates
Mr Booysen in the offences when the authorisation was granted on the 1th
August 2012. There was also a draft unsigned .. statement of �r Danikas
which was alluding to the role of Mr Booysen in the SVC- Cato Manor
operation. (The process of having the statement signed through the Mutual
Legal Assistance route, is already underway.)
c. The docket contained monetary awards where Mr Booysen was also a
beneficiary who was rewarded for the killing of KwaMaphumulo

3

JWB-258

'-t

Association members and his presence in one of the scenes is suppcrted b1
the statement of Andrew Carsen Cochrane dated 16 May 2012.

d. The docket also contained affidavits in a High Court application made by Mr
Booysen defending the actions of the SVC Cato Manor Unit in the killing of
the KwaMaphumulo Taxi Association members. Mr Shozi, the attorney of
KwaMaphumulo Taxi Association members states that he had engaged
police management and the then MEC (Bheki Cele) in vain to prevent the
killings that Mr Booysen is defending in the High Court application, in his
statements dated 3 August 2012 and 15 March 2013.
e. Subsequent to the issuing of authorisation of the certificate there were further
statements from Colonel Aiyer dated 31 August 2012 and 13 March 2013
alluding to the direct involvement of Mr Booysen in the operations of SVC
Cato Manor Unit.
f.

The dockets now have the statements of Commissioner Brown, who was the
direct supervisor of Mr Booysen dated 8 and 9 May 2013 wherein he
explains the circumstances under which Mr Booysen managed the
operations of Cato Manor SVC Unit.

g. The dockets also contain a statement of Mr Simphiwe Cyprian Mathonsi who
was a bodyguard of members of Stanger Taxi Association dated 15 May
2013 wherein he explains the collusion of Stanger Taxi Association with
Messrs Booysen and Mostert to protect their association against the
KwaMaphumulo Taxi Association and payment made to these two police
officials.
This statement circumstantially support a statement of _Bongani Mandia
Mkhize dated 1 August 2012, and statement of Bhekinkosi Mthiyane
Ndlondlo dated 1 July 2012. These statements explain that there was an
exchange of money between Stanger Executive and Cato Manor SCV
section whenever the members of KwaMaphumulo Taxi Association were
killed by Cato Manor SVC members.

4

CZ

JWB-259

5

The other accused except Accused 6 (Eva) and Accused 22 (Auerbach) who have in
the meantme died, will be appearing in the Durban High Court on the 9th October
2015. The prosecuting team envisages re-arraigning Mr Booysen before the 9th
October 2015 so that on the 9th October 2015, he will officially join others should the
racketeering charges be authorised.

6

l attach copies of the following affidavits/ documents which are relevant to Booysen,
Johan \Nessel in so far as racketeering charges (1 - 2) and predicate charges (8 10) are concerned:

6 1

High Court application where Booysen is a respondent

6.2

Documents relating to the monetary awards

6.3

Statements of Colonel Aiyer dated 3 August 2012, 31 August 2012 and 13
March 2013

6.4

Statement of Bhekinkosi Mthiyane Ndlondlo dated 31 July 201.2

6.5

Statement of Andrew Carsen Cochrane dated 16 May 2012

6.6

Statements of Commissioner Brown dated 8 and 9 May 2013

6.7

Statements of Nkosinathi Hopewell Shozi dated 3 August 2012 and 15 March

2013

7

6.8

Statement of Simphiwe Cypran Mathonsi dated. 15 .March 2013 and

6.9

Statement of Bongani Mandia Mkhize dated 1 August 2012.

In respect of the other accused who are also challenging the racketeering
authorisations, we submit that there is sufficient evidence linking ihem to
racketeering and predicate offences as will be shown in the Fresh
Memo enclosed herewith.
5

JWB-260
8 Kindly indicate when you are available for a full briefing with the entire prosecution
team.

�-

C'\J-�_/'-_)
ADV. M NOKO

'°"-"'-

DP�: KWAil!LU NATAL
«» &""'�'-s

• r; ••

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JWB-261

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ANNEXURE ''JWB19''

JWB-291

CRIMINAL PROCEEDINGS

between
In the matter
•

THE STATE

HUMBUlANI INNOCENT KHUBA

DEFEATING THE ENDS OF JUSTICE AND FRAUD: PRETORIA CENTRAL CAS 2454/05/2015

1.

On Wednesday of 24/02/2016 at 18h45 I was at home when three males arrived and
introduced themselves as members of the DPCI based in Pretoria. They introduced

themselves as Brigadier N Xaba, Lt Col H W Maluleke and Captain Sewele. Brigadier
N Xaba who was the main speaker of the group; Informed me that the purpose of

their visit was to obtain a warning statement In connection with a case of defeating
the ends of justice and fraud opened against me. Accordfng to him, these charges
arise from the two recommendation reports made in rendition case which I

understood to be Diepsloot Cas 390/07/2012. I was provided with the case number
for defeating the ends of justice and fraud case which is Pretoria Central Cas

2454/05/2015.

JWB-292

remembered that It was the same case which Brigadier Rammela and

2

Col

Mahfangu of the OPO showed me on 3 October 2015 when they requested me to
make a witness statement implicating Mr McBride and Mr Sesoko in order to be

reinstated after my dismissal without a hearing on the same matter. The same case
had a charge of perjury and was cited in my founding affidavit to the Labour Court
(case No J2031/15), page 18 and paragraph 71. This Is confirmed by telephonic call

made to me by Col Mahlangu which was recorded and transcribed in which he
encouraged me to mak� a statement against above mentioned indMduals in order
to be reinstated.
3

Brigadier Xaba gave me two pages document with 25 questions which he requested
that I should respond to in my warning statement. The fast question (question 25)
requires me to give additional information In justification of my action. I hereby start

with question 25 which provide with an opportunity to give background and
challenges encountered during the investigation of Olepsloot Cas 390/07/2012.

4.

Background

4.1

On 23 October 2012, Sesoko, the Acting Head of ·Investigations, handed a
letter of appointment arid a docket to me to Investigate the illegal renditions

of five Zimbabwean nationals. The letter was from the acting Executive
Director Ms K Mbekl. However the Investigation of Rendition case against the
OPCI was requested by Minister Mthethwa in 2011 and shortly after the

request, the Police Secretary, Ms Jenny lrls-Qhobosheane gave Instruction to
the then Executive Director Mr Beukman (In a meeting which J also attended)
to hold-off the Investigation until further communication from the Minister.
At that time I was Informed that I would be a lead investigator hence the
request that I be part of the meetl!'lg between Ms Qhobosheane and the
former Executive Director Mr Beukman.

#I

JWB-293

4.2

Mr Sesoko Informed me that the reason for my appointment was that

General Sibiya complained about the conduct of the North West. Task team
which was initially assembled to investigate cases of alleged assault against

him, including Dlepsloot Cas 390/07/2012. At that time I was dealing with
high profile cases In the department which included Cator Manor "DEATH

SQUARCY' In Durban.
4.3

I was instructed to assemble my own team to assist me in the investigation,
which I did. The team was comprised of the following Individuals, Mr Kenneth
RatshitaJJ, Mr L Maphetho, Mr N Mufaudzi and Mr. T Mashaphu who are all
Investigators from Limpopo IPIO office. The docket contained 13 statements
from members of the Crime Intelligence Department, friends and relatives of
those deported to Zimbabwe. It ·was clear from the commissioned
statements that the Investigation was conducted by Col Maukangwe and
Captain Koza of Crime Intelligence (CIG).

s.

Challenges In the Investigation of Dlepsloot Cas 390/1.2/20U
5.1

When I began with my Investigations, Ms. KoekJe Mbekl , the then Acting
Executive Director of IPID, Instructed me to collaborate with a member of
Crime Intelligence, Colonel Moukangwe ("Moukangwe'1 In the investigation.

Ms Mbekl also instructed me to keep Moukangwe Involvement in the matter
secret.

5.2

I found Ms Mbekl's Instruction not In keeping with the Departmental
practices and processes. The instruction was unusual and problematlc
because members of the Crime Intelligence were themselves Involved In the
arrest of the Zimbabwean Nationafs. Nonetheless I compfied with Ms Mbekl's

instructions.
5.3

Upon meeting with Moukangwe, he told me to work with-two members
from the National Prosecuting Authority ("NPA'1, namely, Adv. Anthony
Mosing {nMosing") and Billy Moeletsl ("Moe/etsl"). He advised that the pair
had been guiding the investigation since Its Inception.

fl

I

JWB-294

5.4

Shortly after I began my investigation; I briefed Mbeld on the case and
informed her that f would consult with Mr Sesoko In the course of
investigation. This was common practice. As the National Head of
Investigations at IPIO, Sesoko was consulted and briefed on all national
investigations. To my surprise Ms Mbekl categorically instructed me not to
work with or discuss the case with Mr Sesoko. She stated that the person I
could collaborate with was Mr Moukangwe of C1G. This was the first and the
last time I received Instruction to exclude the National Head of investigation

on national project investigation In my almost 16 years of service with the
department.

5.5

l then complied with the instructlon of the Acting Executive Director and
informed Mr Sesoko about it. I Investigated the case, sometimes

accompanied by Mr Moukangwe. However every time I gathered crucial
evidence In his absence, I would tefephonically informed him of the type of
evidence obtained. He would always request me to fax or email him a copy. I
enqutred from the acting Executive

Director whether I should share the

copies of the docket with him. She informed me that he is a member of the
Investigation team and has a right to the content of the docket. She
reiterated that the only thing required of me was to keep his Involvement
secret.
5.6

My worst fear about the arrangement was confirmed when Sunday Times
started to publish certain evidence as they appears in the docket. Mr

Moukangwe always wanted me to send copies of the documentary evidence
and witness statements to an email whfch is f unel6@gmail.com even though
I had his private email which fs botsotsomoukangwe@gmaU.com. He

preferred that I email from Southern Sun hotel on Church Street in Pretoria

rather than using the Department's email -, The Sunday limes of 13.QC!:ober
2013 had just published the details of Madllonga's statement and how It
Implicated Dramat.

I was very concerned about the safety of Madilonga

whom I regarded as key witness. I phoned Adv. Mosing the same Sunday and
he also expressed his disappointment. I then requested Ms Mbekl In a lette

/I I

JWB-295

dated 31/10/2013 that everybody involved In the investigation especially my
team be polygraphed. The acting Executive Director told me that she would
look Into my request but nothing was done. Adv. Moslng expressed his
Interest In undergoing polygraph test with the rest of the investigative team.
However, Col Moukangwe asked why I was worried about leaking of
Information whereas the Minister and my boss were not. He said they would
never ask me about It, and reafly did not.
5. 7

On the other hand, General Nhlemeza, the then Deputy Provlnclal
Commissioner In Limpopo requested a meeting with me few months after
obtaining Lt Col Madilonga's statement In 2013, I met with General
Nhlemeza. We met at Wimpy, Cycad Centre in Polokwane. He said he had
valuable information that could assist me In the investigation of rendition

case. General Nhlemeza and I were close from working relation between IPID
and SAPS In the province.
5.8

The General was with an officer from Eastern Cape claiming that when he
attended a course in cape-Town, Lt Cot Maluleke confessed to him that he
arrested Moyo in Zimbabwe by posing as a South African doctor who wanted
to treat Moyo in South Africa. I interviewed him in the presence of General
Nhlemeza and took notes by writing on my phone notepad.

Advocate

Moslng also took interest in the case regarding Moye when I informed him of
what General Nhlemeza has brought through Eastern Cape officer and also
what was in Maluleke's laptop. He did his own Investigation and emailed me
a statement which was about the arrest of Moyo, which he indicated that he
got It from the

person who prosecuted Moyo. He also instructed me to

obtain Moyo's statement from prison and check his hospital record at Muslna
hospital of which I did. However I could not confirm the allegation that Lt Col

Maluleke posed as a doctor or he was in Zimbabwe ·when-Moyo was arrested.
Moyo story was not part of the March 2014

report but part· of January 2014

report. This is also part of why t am being charged for not Including ft in
March 2014 report despite its irrelevance to the case.

fl I

JWB-296

5.9

During the meeting, General Nhlemeza informed me that he had transferred

Lt Col Madilonga to Burgersfort and if I need him for anything I should
contact him. I informed him that I am worried about Col Madllonga safety
since he Is a key witness. He assured me that Madilonga Is his man and he is
taking care of him. He then requested my wife's number as he suspected that
my own number might have been Intercepted. As a result, I started to have
concerns about the credibility of Madilonga's statement. The main red flag
was a recordal In Madilonga's second statement, which suggests that he had
been put under pressure to give manufactured evidence in November 2011. I
then took his statement for analysis by expert as confirmed by email dated
04/10/2013. The expert confirmed my suspicion.
5.10

In September 2013, General Nhlemeza called me using my wife's number and

requested me to come to his house. When I arrived he asked me about the
progress In the case. I informed him that there are still outstanding
statements including the warnings statements of the suspects which I would
be able to obtain before the end of the month. He told me that he regret to
Inform me that his political principals want him to head the hawks and not
IPIO. I said to him that I am disappointed because I was expecting him to join
us as he earlier said. He promises to keep contact and assist In any
Investigation that I would be tasked to do.
5.11

Again in October 2013, my wife called me while I was watching TV and
Informed me that "Mhlekazi" (referring to General Nhlemeza) was at the
gate. She then handed me her phone and he requested me to order the
security to open for him as he had valuable information to· tell me. When he
was inside, he said that he has urgent Information to tell. He said on Friday
he was at the Airport and he met with Mdlull who requested him to tell me
that I must not be afraid when dealing with rendition case because there
were people who were looking after me. He said he

was asked by Mdh.dl to

deploy people for my safety and that If I see any suspicious car behind me I
should call hf m. I was surprised because f never met or spoke with Mdlu
During my entire investigation with Col Moukangwe, he never mentlone

fl

I

JWB-297

Mdluli' s name. However, I did not enquire anything on what he said but told
General Nhlemeza that if I see anything suspicious, 1 would call him. General

Nhlemeza asked, when would I submit my report to NPA I Informed him that
even though I had requested warning statement from Dramat, I was battling
to get hold of General Lebeya who signed one of the success reports. He then

called someone immediately who save him General Lebeya's number. He
said my report was the one holding everything regarding his move to the
Hawks. I then called General Lebeya in his presence and put him on an open
speaker. I requested him to provide me with a statement regarding rendition

and he said I should come to his office in Pretoria. After refreshments,
General Nhlemeza left. What General Nhlemeza said got me worried. I spoke
to my wife saying that by accepting the request to Investigate rendition case,

J do not know what I got myself into.

5.12

The article of 13 October 2013 coupled with what General Nhlemeza said

gave me a flnaf thought to request the acting Executive Director to remove
me from rendition. investigation. I did not tell her about what General
Nhlemeza said but I only told her that I was not happy with the leaking of

information. She said I had to continue with the investigation of the case
because there was no one who could do it

and that the Minister would not

be happy with that.

5.13

I only Informed one of IPIO employees whom I trusted about what happened
when General Nhlemeza visited me. When I sent a report to Adv. Mosing,
General Nhlemeza stopped asking me about the report. The fast time I met
with General Nhlemeza was on 06/12/2014 at Wimpy Cycad Centre. He had
Just called me to tell me the good news. I arrived at approximately 15h00
with my wife but she remained in the car. I found him seated Inside. He said

that his time to move to the Hawks had arrived and that there was going to
be a hit on Dramat. He encouraged me to watch the news on TV In the next
coming weeks. What he told me happened exactly as he said. His last
communication with my wife was 31/01/2015 where he sent her a messag//
at isnos.

/../ I

�

.s:

JWB-298
5.14

During January 2014, I met with Mosing and delivered the investigation
report to him. The report did not have the outstanding evidence with regard

to the warning statement of Sibiya and the cell phone records providing the
street location of the relevant Individuals maklng and/or receiving calls. Adv.

Moslng, Moef etsi and Moukangwe had previous met on several occasions
with me and they gave their Input on the analysis of evidence contained In
the report. I was adamant that the report had to be approved by the IPID
Head as It was a natJonal Investigation. At that time the acting Executive
Director was no longer coming to the office. When I enquired from Tshiamo
Mahiblla, the Secretary to the Acting Executive Director, she said that Ms
Mbekl only signs financial documents of the IPID and not Investigation
related matters. Advocate Moslng told me that nevertheless I should sign the
report and send it to him. There are numerous emails exchanged between
me and Adv. Mosing on this Issue Including the one where I requested him to
give me time.
5.15

I must state that the cell phone data analysis report that was In the docket
did not give an Indication of the location of the relevant persons making or
receiving calls. However, Moslng was Impatient and pressured me into
submitting a report on the Investigation even though he earlier requested me
to Instruct the Expert to cover such points.

5.16

February 2014, Slbiya responded to the questions previously sent to him.
However few days before receiving Siblya's statement, l also received the cell
phone data analysls report from the expert In the manner and form required

by Mosing.

5.17

On 27 February 2015, I submitted Slblya's response to Moslng by email. On
28 February 2015, Moslng responded via email as follows, "Dear Mr Khuba� In
fight of the fact that the matter has been referred to the DPP of South
Gauteng for decision, you ore requested to file these evidence in the docket

which Is presently with the DPP SG and in future forward any additional
evidence or other matter directly with him. Kind Regards."·

fl/

JWB-299
5.14

During January 2014, I met with Mosing and delivered the investigation
report to him. The report did not have the outstanding evidence with regard
to the warning statement of Sibiya and the cell phone records providing the
street location of the relevant Individuals making and/or receiving calls. Adv.
Mosing, Moeletsi and Moukangwe had previous met on several occasions
with me and they gave their Input on the analysis of evidence contained in
the report.

I was adamant that the report had to be approved by the IPID

Head as it was a national investigation. At that time the acting Executive
Of rector was no longer coming to the office. When I enquired from Tshiamo
Mahiblla, the Secretary to the Acting Executive Director, she said that Ms
Mbeki only signs financial documents of the IPID and not investigation
related matters. Advocate Mosing told me that nevertheless I should sign the
report and send it to him. There are numerous emails exchanged between
me and Adv. Moslng on this Issue Including the one where I requested him to
give me time.
5.15

I must state that the cell phone data analysis report that was in the docket
did not give an Indication of the location of the relevant persons making or
receiving calls. However, Mosing was impatient and pressured me into
submitting a report on the investigation even though he earlier requested me
to instruct the Expert to cover such points.

5.16

February 2014, Sibiya responded to the questions previously sent to him.
However few days before receiving Siblya's statement, I also received the cell
phone data analysis report from the expert in the manner and form required

by Mosing.
5.17

On 27 February 2015, I submitted Sibiya's response to Mosing by email. On
28 February 2015, Moslng responded via email as follows,

"Dea;· Mr Khubd, in

fight of the fact that the matter has been referred to the DPP of South

Gauteng for decision, you are requested to file these evidence In the docket
which Is presently with the DPP SG and in future forward any additional
evidence or other matter directly w;th him. Kind Regards."

ff I

JWB-300

5.18

On 3 March 2015, Robert McBride ("McBride; commenced employment as
the Executive Head of IPID.

6.

The Hawks members have been in my house four times now regarding the same
case. I shiver to the core of my spine with fear because I Just realised that I
investigated a case which was so politically charged to an extent that certain
outcome were needed. I was fired without a hearing and even that seems not to be
enough. These charges of defeating the ends of justice and fraud are as baffling as
my departmental case itself. It Is my first time to hear that a recommendation which

is Just the view of the investigator about the case can give birth to a criminal charge.

6.1

In 2013 f was given appointment letter to investigate Boksburg CAS
322/04/2011, 21/04/2011 and 486/03/2011 involving General Slbiya. The
case was already investigated by Mr De Jager, an assistant Director In
Gauteng office. He had made recommendation report in which he
recommended that General Slbiya should not be charged alminally. I review
the already signed report and gathered additional evidence.

On 13

November 2013 I made a report In which I recommended that General Sibfya
be criminally charged. However, the DPP Gauteng informed me that despite
my recommendation they are still of the view that there Is no enough
evidence to sustain a prima facle case. The question is where did they get the
view that there Is no evidence because my report clearly recommended
criminal charges against him? It is clear that NPA is not bound by the view of
the Investigator on any case but guided by the evidence in the docket. They
decided not to prosecute him in this case even though I recommended
prosecution.
6.2

Mr Beukman tasked me to investigate a case of Mzi/lkazi wa Afrlka In August
2011 wherein he was arrested in Gauteng by the Hawks and transported to
Nelspruft for detention. The case was reported by a Member of Parliament
and already investigated by Poopedi who was a Monitor in Gauteng office. He
submitted a report in which he recommended disciplinary steps aga�
members of the Hawks. The report was approved by Adv. Moleshe who�

fl I

/-a I
,

JWB-301

the Provincial Head at the time. I reviewed his report and gathered additional
evidence and consulted Criminal Procedure Act as weU as SAPS Standing
orders. On 06 September 2011 I gave a report with a recommendation that

no member of the Hawks be criminally or departmentally charged. The
findings in my report were then communicated to the Member of Parliament
concerned. No one brought criminal or departmental charges against me on
these cases.

7.

Every time when I think of what I got myself into by accepting the task, it gives me
nightmares. I fear for my personal safety because members of the Hawks had
already made-advances, asking me to make a statement that implicates McBride and
Sesoko in order to be re-Instated Into my position. It seems as I am viewed as the
only gate to deal with McBride and It kills me with fear. Who knows what Is next
with me, I am really afraid. These are the most powerful people In the country and it
seems as my life Is at their mercy. I spend sleepless nights thinking of the worst. I just
pray that all ends in opening cases against me without any physical harm. I wHI be
able to defend myself In court. All the evidence that I have regarding what happened
during the investigation, I am ready to produce In court.

8.

When I concluded an agreement with the employer on 23/09/2015, ft was because I
feared the worst and took my family Interest at heart. I grew without a father and
took myself to the University sleeping under bridges In order to attend evening
classes. I never wanted my children to go through what I went through. It is clear
that sometimes no matter how hard one try to choose a path, some paths chooses

us.
9.

--

I would like to respond to the remaining 24 questions

I
9.1 Question 1:
See 4.1 above.
9.2 Question 2:

;,,; I

as follows;

JWB-302

See 4.2 and 5.1 above.

9.3 Question 3
See 5.3 above.

9.4 Question 4

See 5.1 above.
9.5 Question s:
The investigation was not finished but nevertheless Advocate Mosing wanted the
report and the docket. See 5.14 above.

9.6 Question 6:

Yes
9.7 Question 7:
Handed to Adv. Mosing.

9.8 Question a
Advocate Mosing and Billy Moeletst

9.9 Question 9:
I recommended criminal charges against General Slblya, General Oramat, Lt Col
Maluleke, captain Nkosi, Warrant Officer Makoe and Constable Radebe.

9.10Question 10:

9.11Quest1on 11.
New evidence, Mosing email and McBride gave me permission to go to OPP.

9.12Questlon 12

fl J

JWB-303

Attach new evidence, update the docket and to do final report In terms of IPIO
regulations and IPID SOP.

9.13Questlon 13
Attached new evidence In Sesoko's office and compiled final report.

9.14Questfon 14
New evidence and review of existing evidence.

9.1sauestfon 15
It was with Mosing because I personally handed to him. And when I collected the
docket, there was no report.

9.16Questlon 16
MrSesoko
9.17Question 17
New evidence and review of existing evidence.

9.189uestion 18
I

was

reminded that according to the

IPIO Act the Directorate

makes

recommendation to NPA and not with NPA.

9.19Question 19
Yes

9.200uestfon 20
I signed as an Investigator, Mr Sesoko. as····-·-·
Supervisor and Head of Investigation and
McBride as an approving authority.

9.21Questlon 21

I handed It to Mr Sesoko whom I believed that he gave it to Mr McBride.

JWB-304

9.22Question 22

No
9.23Question 23

We arrived at different recommendation after new evidence and review of existing
evidence.

9.24Question Z4
Yes

COMPILED ANO SIGNED AT POLOKWANE ON THE 3Ro DAY OF MARCH 2016

Innocent Humbulanl Khuba

JWB-305

ANNEXURE ''JWB20''

JWB-306

Ronelle Vermaak
States under Oath in English:

1
I am a Brigadier in the South African Police Service (SAPS) with Persal number
0409673-8. I am currently stationed at Management Intervention, Opera Plaza, South
African Police Service Head Office, Pretorius Street Pretoria.

2
I joined the SAPS on 1984-06-30. After I had completed my .training at the Police
Training College in Pretoria West, I was posted to several stations and units
throughout South Africa until I eventually returned to Pretoria in 1998. On my return I
was posted to Senior Management Appointments, Personnel Management at SAPS
Head Office. I held the rank of Lieutenant Colonel at the time. In 2001 I moved to the
Detective Service Division, Head Office and in 2004 became the Section Head:
Human Resource Management (HRM).

3
I applied for the position of Section Head: Support Services in the Directorate for
Priority Crime Investigation (DPCI), also known as the Hawks in 2009. I was
successful and started in February 2010. I tnet with Lieutenant General Dramat
(hereinafter referred to as 'Dramat') and my personnel for the first time on 2010-0104, which was basically a welcoming session before we started our duties at Support
Services. I was very positive and excited at the time as I had been promoted to the
rank of Director. We were to embark on a project to set up a new Support unit within
the DPCJ. This would enable me, along with my team to create my own working
environment and put processes in place that were correct from the outset. I would not
be required to first rectify old challenges before implementing my own.

4
After approximately six months into my new job, two of my Section Commanders who
held the ranks of Colonel, had been arrested for corruption. I was upset because I had
expected this unit, the DPCI, to be squeaky clean and its personnel were supposed to
be beyond reproach. The one had been the Head of Finances and the other the Head
of Supply Chain Management (SCM}.

5
The period after my promotion and appointment was tough due to growing pains of
the unit itself and there.were several challenges to have processes implemented. After
the two Colonels had been arrested there was no one to take their place. At this stage
the structure of the DPCI had still not been approved and the reporting lines were
blurred. Lieutenant General _Lebeya (hereinafter referred to as 'Lebeya') had been
appointed as the Deputy National Head of the DPCI. Brigadier Voskuil (hereinafter
referred to as 'Voskuil') was brought to DPCI, Head Office Pretoria by Dramat. As a
standard practise. some of my support personnel, including the previously referr
suspended Colonels, would engage directly with Lebeya and Dramat. I formed

1AJ

.,,.

JWB-307

view that I was being excluded from several decision making processes that would
negatively impact on my effective management of the Support Component.

6
need to emphasise here that generally people outside the environment cannot
imagine the enormity of the task at setting up the protocols and processes of a totally
new structure such as the DPCI.

7
Voskuil, who was a very close friend and ally of Dramat, but who was based in the
Western Cape, was appointed to the DPCI and sat in the Priority Crime Management
Centre (PCMC) in Cape Town from October 2010. He assisted with the Supply Chain
Management (SCM) matters. This caused some confusion for DPCI employees as
well as external people as to who exactly the Section Head: Support Services was;
me or Voskuil. People were being appointed at SCM where Colonel Marubane had
been in charge, without my knowledge. Colonel Mike Reddy was appointed into the
DPCI in February 2011 as the Section Commander: Finance.

8
Matters continued as usual within the DPCI up until December 2014 when I went on
leave. At this point I was very proud at what we had achieved in the DPCI as we had
built it up from scratch to a professional and competent unit. Although there were
challenges with the legislation and our independence and the interpretation thereof by
others, I was still positive for our future within the DPCI.
9
While on leave during December 2014 and away from Gauteng, I received a call from
the Section Commander of HRM, Colonel Devasahayam (hereinafter referred to as
'Devasahayam') informing me that Dramat had been suspended. I was shocked at the
news.
10
When I arrived back at work in January 2015, I attended a meeting chaired by General
Ntlemeza (hereinafter referred to as 'Ntlemeza'). He introduced himself to me as the
new Acting Head of the DPCI. He appeared to have already introduced himself to the
others attending the meeting as he was only talking to me. He banged the table with
his open palms of his hands appearing to emphasise what he was saying in the
meeting. He told us that he is running the SAPS along with the National Commissioner
and that he was the Head of the DPCI, the second most important person in the SAPS.
At the time General Riah Phiyega was the National Commissioner of the SAPS.
Ntlemeza informed us in no uncertain terms that we were not to contact the suspended
Dramat. Due to the manner of his personality he portrayed, I formed the view that one
could not debate anything with this man.

JWB-308

11
A few weeks later. on a Monday in 2015, Dramat was set to return to the office as the
courts had overturned his suspension. Dramat called me over the weekend and
instructed me to arrange transport for him from OR Tambe International Airport. I did
not arrange this over the weekend as I believed there was enough time·to do so on
the Monday. Drarnats' Personal Assistant, Pumla Mphothulo had also called me and
requested a vehicle to collect Dramat from the airport.

12
On the Monday I attended the Management meeting and while we were standing
outside Ntlemeza's office, Ntlemeza arrived in his vehicle. When Ntlemeza joined the
circle of senior officers, someone made a comment that set off a discussion about
Dramat. Ntlemeza enquired as to who had been in contact with Dramat and he stated
that we all thought that Dramat was coming back. I owned up and said that I spoke to
him over the weekend. He became furious and shouted at me asking why I hadn't
called him at the time. I responded to say that I was going to inform him at the morning
meeting. I felt that, at this point, he had lost his trust in me by forming the opinion that
I was still loyal to Dramat.

13
At one of Ntlemeza's meetings, which turned into the general tone of all meetings, he
stated that he would monitor our calls and conversations, both land line and
cellphones, track our vehicles, said that he knew which schools our children attended
and could find out where we were at any time of the day or night. He further told us
that even if we were in church we should tell the pastor to stop preaching because our
General was calling us, and take the call. Ntlemeza ruled by naked aggression,
intimidation and instilling fear into us. or at least some of us which included me. He
stipulated that the phone should ring no longer than three times and took me to task
on several occasions about not answering his calls timeously.

14
In 2015 therewas a specific incident when posts for secretaries were advertised and
Major Adele Sonnekus (hereinafter referred to as 'Sonnekus') from DPCI KwaZulu
Natal called me. She informed me that a box of applications for promotion had been
stolen from a vehicle. I advised her to inform Major General Booysen (hereinafter
referred to as 'Booysen'), the DPCI KwaZulu Natal Provincial Head at the time. I also
advised her that she should compile an information note informing Ntlemeza and
recommending that the post for KwaZulu Natal (KZN) be withdrawn and re-advertised
later. I was still waiting for the factual report from Sonnekus When someone else
obviously informed Ntlemeza as to what had transpired, but with incorrect facts. I was
then approached by Major General Mnonopi (hereinafter referred to as 'Mnonopi') to
provide her with an affidavit as to why I had not informed Ntlemeza about the incident.
I provided an affidavit but was later approached by the Legal Officer, Major General
Mpomani (hereinafter referred to as 'Mpomani') who wanted me to re-write my affidavit.
with incorrect facts. Essentially he wanted me to implicate Sonnekus in wrongdoing
refused. Sonnek us was in any event suspended later even though she had mere

JWB-309

been the messenger. I informed Ntlemeza sometime later of the actual events, but he
accused me of attempting to cover up for Booysen and insinuated that us whites were
covering up for each other. I was upset by this accusation as it was not true, and I
dared him to polygraph me to establish if I was lying about the incident, or not.
Nlemeza however backed down later.

15
This affected me to such an extent that I no longer took Booysen's calls. Even when
he arrived at our offices in Pretoria while on suspension, I would hide from him and
lock myself in my office so that we would not be seen talking with one another. for fear
of being accused that we were plotting against Ntlemeza.

16
Later in 2015 Mompani accused me of not managing discipline according to the
Discipline Regulations. This was in a Management meeting where all senior managers
were present. He implied that Devasayaham and I did not know the processes and it
was because of this that discipline was not being managed properly.

17
On several occasions I became aware that people had been suspended but we would
not have received documents relating to the suspensions. I would request the
documentation from Ntlemeza's Staff Officer, Colonel Gwayi but none were
forthcoming. As such we could not open files 'and I informed Mompane of this.
18
In May 2015 I was instructed by Ntlemeza to fly to Cape Town .with Reddy and
Lieutenant Colonel Mokgadi (hereinafter referred to as 'Mokgadi') as part of the team
for the post promotions for the entire DPCI. Lieutenant Colonel Daphne MoorghiaPillay (hereinafter referred to as 'Moorghia-Pillay'), who was assisting Mokgadi,
travelled on her own from Pretoria and joined us in Cape Town. Moorghia-Pillay was
the Personal Assistant to the then Head of the Forensic Science Laboratory (FSL),
Lieutenant General Phahlane (hereinafter referred to as 'Phahlane'). The FSL is a
separate Division within the SAPS, as opposed to the DPCI. The reason for MoorghiaPillay being part of the process remains a mystery to this day. The panel members for
adjudicating the applications for the posts also joined us in Cape Town as they had
travelled from different parts of the country. The boxes with the applications had been
transported by car from Pretoria to Cape Town. We all stayed at the Nelson Mandela
Hotel in the Cape Town CBD at great cost to the DPCI. I believe that it would have
been more cost efficient to have undertake.n the entire process at the DPCI Head
Office in Silverton, Pretoria. The tasks allocated to Reddy and myself were to ensure
that everything was well with the panel members, such as their accommodation being
in order and that'they were continuously provided with food and refreshments. Major
General Ngembe (hereinafter referred to as 'Ngembe) of KZN Province sat as the
chairperson for all the advertised posts in the Support environment. Ngembe held the
belief that, as long as we do what Ntlemeza wants. everything will be in order.

JWB-310

19
When it was decided to mark certain vehicles with the Hawks logo and colours, which
is referred to as 'wrapping', Ntlemeza insisted that we use a specific company in
Limpopo. I cannot recall the name of the Company though. We used the company as
they were able to provide the services we required. Ntlemeza, however insisted that
we use the same company to provide promotional material such as flags, banners,
etc. I refused because it was a different commodity and providing promotional material
was not their core function. We used a local company based in Gauteng. Ntlemeza
was furious with me and called me approximately five times that night screaming at
me telling me how useless I was and that I didn't know what I was doing. He would
utter these words then end the call, not allowing me to respond and explain. I made
enquiries with Lieutenant General Kruser (hereinafter referred to as 'Kruser'), who was
the Divisional Commissioner of SCM, and asked for guidance on this matter as I felt
degraded by the uncalled for and malicious actions of Ntlemeza. Kruser's return email to me included Ntlemeza where Kruser informed him to keep away from the
Support Services processes as they were being correctly applied. Ntlemeza again
screamed at me telling me I was useless. I believe he was taken aback for being
wrapped over the knuckles by Kruser.

20
In another instance Ntlemeza called me from a meeting he was attending in Mthatha.
Ntlemeza must have still been in the meeting because I could hear other people in the
background. When he called me, he sarcastically asked if I was the Support Head of
the DPCI and if I had been to Mthatha. I responded by saying that I was the Support
Head and that I had not been to Mthatha. He instructed me to get on a plane
immediately and fly to Mthatha to inspect the broken furniture there. I flew to Mthatha
the next day and found a few broken chairs in the DPCI offices, of which I took photos.
I then flew back to Gauteng. The chairs that Ntlemeza had referred to had already
been noted, before I flew to Mthatha and were to be replaced in the following financial
year.

21
A lady by the name of Innocent, working in Ntlemeza' office, wanted me to approve a
flight for Ntlemeza's wife, who was also in the SAPS but from a different environment.
I refused saying that the environment she was in should approve the ticket. Ntlemeza
and his wife were to attend the Pomulsca function. After I had refused the request,
Ntlemeza called me and again and ranted as to how useless I was for disobeying his
instructions.

22
Corroboration for this continuous lambasting and reprimands can possibly be obtained
from minutes of management meetings held, and which should be filed at DPCI Head

JWB-311

23
I attended a meeting at the SAPS Training Academy in Pretoria West where Ntlemeza
again reiterated, while ranting, that those who were not with him should apply for a
transfer. I later heard that Ntlemeza wanted to replace me with a Colonel from SAPS
Head Office, Personnel Records.
24
It was after this that I decided enough was enough, and applied for a transfer away
from the DPCI. This was near the end of 2015. I had decided that I would rather jump
and land in a place of my own making than be pushed and belittled and not know
where Ntlemeza would place me. I felt that I was being pushed into a corner and that
Ntlemeza could transfer me at anytime to any place and I would have no control over
such. I established that there was a vacant post at Medical Administration, Finance
and Administration, Head Office and I applied for it. Ntlemeza approved the transfer
and on a management meeting he stated that Voskuil and Vermaak are transferred
with immediate effect and that I should write a letter which he would sign the same
.day and then we should go. Ntlemeza stressed again that he wanted the letters on
that same day. I was then totally convinced that Ntlemeza had succeeded -in getting
rid of me and that his continuous ranting and belittlement paid oft.

25
When I left the DPCI, I was relieved that I would be moving away from that extremely
stressful environment, while at the same time feeling emotional that it was me who
had to walk away from the DPCI when it was in fact not my fault or due to any
wrongdoing on my side. We had started this unit from scratch and built it up
administratively into a relatively successful crime fighting entity. Even so, I remained
hopeful that the DPCI would go from strength to strength.
26

When I arrived to take up my post to which I was transferred to. the Divisional
Commissioner: Finance and Administration said he knew nothing of the transfer. I then
demanded to see the Acting National Commissioner, Phahlane as Ntlemeza had
assured me that he had discussed it with the Acting National Commissioner. Instead.
Ntlemeza called me and instructed me to report back to the DPCI. When I arrived the
same day, Ntlemeza informed me that my transfer was not managed correctly in that
he had not consulted with Phahlane. Ntlemeza then apologised to me and then said
that my only responsibility would be that of training and that Brigadier Mhlongo,
(hereinafter referred to as 'Mhlongo') who he had moved into my post, would be
responsible for the rest of the Support Head responsibilities. Before Mhlongo was
promoted, she was a Colonel at Head Office in the Commercial Crime environment
and had no experience in the Support environment. Ntlemeza also removed my
secretary and redeployed her to Major General Khana, who had been appointed as
the Head of Commercial Crime in the DPCI.

a

JWB-312

27
Lieutenant Colonel Dreyer, Captain Botha and I were removed from our posts
because, in my view, we were an obstacle in the chain of command to approve, or not
approve questionable procurement processes.

28
The next three months from October to December 2015, was a terrible· time for me. I
had just Jost my mother and was part of an organisation that no longer wanted me. As
a result I neglected my family, especially my two sons who were writing matric (grade
12) at the time. I felt as if I was a bad wife, a bad mother and a bad worker. This
affected my health terribly, both physically and emotionally to the point that I was
depressed. I couldn't sleep and my blood pressure was out of control. I felt as if I was
about to suffer a total emotional breakdown. When I received calls from Ntlemeza
while at home, I would have a physical alarmed reaction that would cause me to jump
up and leave the room where my family was. It did this so that they could not hear
Ntlemeza shouting at and berating me as this would have upset them too. It upset my
husband to the extent that he wanted to grab the phone out of my hand and tell
Ntlemeza exactly what he thought of him. I didn't dare let him do that for fear of losing
my job. I equated this constant bullying by Ntlemeza as someone suffering from
Battered Wife Syndrome, as that is exactly how I felt at the time.

29
After my recall and placement at Training, Ntlemeza never called or spoke to me
during those three months. On 2015-12-15 Ntlemeza summoned me to his office and
told me that my services were no longer needed and that I must go. I asked whereto
and he responded by saying that someone would call and inform me. He then got up
and left his boardroom without saying another word. I left the office and went on leave.
I attempted to secure an audience with Deputy National Commissioner, Lieutenant
General Mgwenya (hereinafter referred to as 'Mgwenya') but I was not successful. I
then returned to the OPCI offices after I returned from my leave so that I would not be
regarded as being Absent Without Leave (AWOL). I knew that if had done so, it would
have provided an excellent reason to fire me. Eventually Major General Matakata
summoned me to her office and enquired as to why I was still at the DPCI offices. I
told her that I had nowhere to go and asked if she knew where I should report to. She
stated that she was also unaware of where I should go. 0112016-02-081 was informed
by the office of Kruser that I had to attend to a meeting at SCM Head Office in Silverton.
I attended the meeting, which was chaired by Kruser who informed me that I had to
report to the then Inspectorate Division, which is now known as Management
Intervention. I was informed that I will be the Section Head: Support Services, based
at the Opera Plaza building in Pretoria.

30

I only realised fully the extent of the damage this episode had done to me when I
attended a Strategic Planning meeting late in 2018. After Lebeya had been appointed
as the National Head of the DPCI, Mgwenya informed me, in the presence of
Lieutenant General Ntshiea that I could return to the DPCI. I was so shocked a

j))

JWB-313

alarmed at this that I had a sudden uncontrolled emotional outburst and refused
outright, in a raised voice that I would not return. After all I had been chased away
from the unit because I was apparently useless in the eyes of Ntlemeza and all these
other Generals had turned their backs on me. I told them that they could take me to
court if they so wished. That night I could not sleep because my stress had returned
as to what may happen if I did go back to the DPCI. Eventually, and by the grace of
God, nothing came of this and I �m still at Management Intervention to this day.

The following questions were put to me in person by the Commissioner of Oaths and I
entered the answers thereto in my own handwriting:
Do you know and understand the contents of this declaration?

Do you have any objection in taking the prescribed oath?

No

Jd

Do you consider the prescribed oath to be binding on your conscience?

I swear that this statement is the truth, so help me God.

RVERMAAK

I certify that the deponent has acknowledged that she knows and understands the contents

of this declaration which was sworn to before me and the deponent's signature was placed
thereon in my presence at

fZb1 l,.{4f '(
.j

ftl/;,2 I ,·o....

on this the

sz:

day -of

2019 at fLhfl-:-

PIETER SENEKAL
Commissioner of Oaths
Republic of South Africa
South African Police Service
Management Intervention
Complaints Management and Coordination
231 Pretorius Street

PRETORIA

Brigadier: Persal 00878715

JWB-314

ANNEXURE ''JWB21 ''

JWB-315

IN THE HIGH COURT OF SOUTH AFRICA,
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NUMBER 9799/2015
MAJOR GENERAL JOHANN WESSEL BOOYSEN

Applicant

And
NATIONAL HEAD OF THE DIRECTORATE FOR
PRIORITY CRIME INVESTIGATION

First �espondent
Second Respondent

MINISTER OF POLICE

JUDGMENT

VAN ZVL, J:

1.

The applicant, a serving officer in the South African Police Service
holding the rank of Major-General, was appointed as the Provincial Head
of the Directorate for Priority Crime Prevention for KwaZulu-Natal with
effect from 1 March 2010. By notice issued by the first respondent and
dated 14 September 2015 he was suspended from duty with immediate
effect. A copy of the notice is annexed marked "D" to the applicant's

JWB-316
2

founding affidavit and will for convenience hereafter be referred to simply
as the suspension notice.

2.

In terms of the suspension notice it was issued by virtue of the
provisions of Regulation 13(1) of the South African Police Discipline
Regulations, 2006 (the Regulations), as promulgated in terms of section
24(1) of the South African Police Service Act, 1995 (Act 68 of 1995) and
published on 3 July 2006.

Regulation 13 is headed "Precautionary

suspension" and sub-regulation (1) provides as follows-

"The employer may suspend with full remuneration or temporarily transfer
an employee on conditions, if any, determined by the National
Commissioner."

3.

In terms of the definitions contained in Regulation 1 the employer is
defined as the National Commissioner of Police or "any person delegated

by him or her to perfiorm. any function in terms of these Regulations".
During argument counsel advised that the parties are ad idem that the
first respondent was duly vested with the necessary authority to issue a
suspension notice in terms of Regulation 13(1).

4.

The applicant initiated proceedings by way of an urgent application
issued on 17 September 2015 and seeking to set aside the suspension
notice. The first respondent gave notice of intention to oppose. The
second respondent, being the Minister of Police, was merely cited as an

JWB-317
3
interested party and abides the decision of the court. For convenience
the first respondent is herein referred to as the respondent. The matter
came before Sishi J on 21 September 2015 when it was adjourned by
consent to a date to be allocated for opposed argument and directions
were given regarding the exchange of affidavits and heads of argument.
The matter then came before me for argument 27 October 2015.

5.

The application was carefully framed so as to avoid being couched as an
administrative review. On the approach taken by the applicant the
nature of the proceeding is one attacking the validity of the first
respondent's decision on the principle of legality. The applicant contends
that the decision to suspend him was unlawful because it was taken

mala fide, for some ulterior purpose and was not one the respondent
could reasonably have arrived

at

if he had actually considered the

relevant facts, including the representations made by the applicant prior
to his suspension.

6.

By contrast it was submitted on behalf of the respondent in limine that
the nature of the application was one of an administrative review which
could only competently be brought in terms of the provisions of the
Administrative Justice Act 3 of 2000 (PAJA) and then only where the
conduct complained of .was a decision taken by an administrative
functionary and was an administrative act.

JWB-318
4

7.

In developing his argument Mr Mokhari SC, who appeared for the
respondent together with Mr Abraham and Mr Mokhatla, drew attention
to

the

decision

of the

Constitutional

Court

in

Pharmaceutical

Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others 2000 (2) SA 674 (CC)
at paragraphs 44 - 45 and submitted that there was no distinction
between judicial review under the Constitution or in terms of the
common law and that the latter had been subsumed by the enactment of

(

PAJA, which now provides for the review of administrative action.

8.

With reference inter alia to the decision in Chirwa v Transnet Ltd 2008 (4)
SA 367 (CC) counsel submitted that it was trite law that a decision to
suspend or dismiss a State employee did not amount to administrative
action or conduct, was therefore not susceptible to review before this
Court which lacked jurisdiction to hear the matter and by reason thereof
the application stood to be dismissed.

9.

Mr Van Niekerk SC, who appeared with Ms Allen for the applicant,
submitted that the applicant placed no reliance upon PAJA at all. In this
regard counsel emphasized that the application was premised upon the
principle of legality and which fell beyond the scope of administrative
action as contemplated in PAJA. In short, counsel submitted that

JWB-319
5
whereas PAJA required the action to be impugned to be administrative
action as defined in the Act, the principle of legality extends into a
broader constitutional field beyond this requirement.

10.

In Chirwa (supra) and with reference to the dismissal by Transnet of the
applicant, Ngcobo J considered that the act of dismissal amounted to the
exercise of a public power because it was vested in a public functionary,
who was required to exercise such power in the public interest (at para
138).

11.

The courts have recognized their ability and indeed a duty to scrutinize
all aspects of the exercise of public power which must comply with the
prescripts of the Constitution. In Minister of Home Affairs arid Others u
Scalabrini Centre and Others 2013 (6) SA 421 (SCA), Nugent JA remarked

upon this developing approach at para 60 and at para 61 endorsed the
views of Professor Hoexter in her work Administrative Law in South
Africa 2 ed at page 254 where the learned author suggested that in time
constitutional

review

based

upon

the

principle

of legality

and

administrative review were likely to converge.

12.

In this regard counsel for the applicant also drew attention to the
recognition of a process for judicial review under the principle of legality.
In Khumalo and Ano v Member of the Executive Council for Education:

JWB-320
6

KwaZulu-Natal (2014) 35 IW 613 (CC) Skweyiya, J stated at para 28
that;

"The principle of legality is applicable to all exercises of public power
and not only to 'administrative action' as defined in PAJA. It requires
that all exercises of public power are, at a minimum, lawful and
rational. "

13.

With

reference

to the decision in

Pharmaceutical Manufacturers

Association (supra) as relied upon by counsel for the respondent, counsel
for the applicant referred to the remarks at para 17 of that judgment
where the Constitutional Court outlined the different ways in which the
exercise of public power was regulated by the Constitution, with one of
them being constitutional controls flowing from the doctrine of legality. In

Gauteng Gambling Board v MEC for Economic Development, Gauteng 2013
(5) SA 24 (SCA), Navsa JA, relying upon this passage, remarked that
"This is the principle of legality, an incident of the rule of law." (at para 1)

and at para 4 7 said that:

"In present-day jurisprudence acting with an ulterior motive or purpose is
subsumed under the principle of legality. Section 6(2)(e)(ii) of PAJA makes
administrative action taken for an ulterior purpose or motive subject to
review. The classification of an action taken by a member of government is
immaterial. As stated at the commencement of this judgment, the
legislature, the executive and judiciary, in every sphere, are constrained
by the principle that they may exercise no power and perform ·no function
beyond that conferred on them by law."

JWB-321
7

14.

Finally counsel for the applicant handed up a transcript of the very
recent judgment in the matter of The South African Broadcasting

Corporation Soc Ltd and Others v the Democratic Alliance and Others
(393/2015) {2015] ZASCA 156 (8 October 2015) and drew attention to
para 59 where the court of appeal summarized the current approach
with reference inter alia to the decisions in Pharmaceutical Manufacturers
Association (supra) and Scalabrini Centre (supra).

15.

In the light of the above I am persuaded that counsel for the applicant
are indeed correct in their submission that the court is entitled to
consider the present application as one based upon the principle of
legality and the respondent's argument in limine must fail.

16.

It is common cause that on 11 August 2015 the respondent served notice

upon the applicant (annexure A to the founding affidavit) calling upon
him to make written representations as to why the respondent should
not place the applicant on suspension pending (the outcome of) an
investigation into certain allegations against the applicant.

17.

The allegations, according to the notice, attributed the following
misconduct to the applicant, namely that;
(a)

During October 2008 the applicant had recommended himself and
certain members of his then unit for cash rewards of R15 384-62

JWB-322
8

each together with a certificates (of commendation) by the National
Commissioner (of Police);
(b)

Such

recommendation

amounted

to

a

fraudulent

misrepresentation by the applicant, in that the case dockets
referred to in support of the recommendation had no relevance to
the killing of a Superintendent Choncho and by way of example
reference was made to Howick CAS 106/08/2008.
(d]

It was further alleged that as a result of such misrepresentation
the sum of R15 384-62 was paid to the applicant and to other
officers then under his command in circumstances where no
monetary awards should to have been made.

18.

It is likewise common cause that the applicant, by letter dated and
delivered on 17 August 2015 (annexure B) responded to the notification
in considerable detail and that the respondent thereafter in a written

notice dated 14 September 2015 (annexure D) suspended the applicant
from his employment with immediate effect.

19.

The relevant portions of the suspension notice (annexure D) advised the
applicant, as follows:"3.

Serious allegations exist against you which warrant an exhaustive
investigation and possible disciplinary charges being preferred
against you. I have considered your representations and am of the
view that there is basis for placing you on precautionary
suspension pending finalization of the contemplated investigation.

JWB-323
9

4.

20.

This letter now serves as formal notice of your precautionary
suspension with full remuneration of your employment by the
Directorate for Priority Crime Investigation ("DPCr), effective
immediately until completion of the investigation and/ or possible
disciplinary proceedings related to gross misconduct, dishonesty
and misrepresentation with the intention to defraud the DPCI;
alternatively, the South African Police Seroices ("SAPS")."

The approach of the applicant at the outset is premised upon the alleged
unlawfulness of the decision to suspend him. Counsel submitted that
such a suspension could only be justified where firstly the employer had
reason to believe both that the employee had engaged in serious

I

(

misconduct and in addition that there was some objectively justifiable
reason to deny the employee access to the workplace during the
intervening period whilst the investigation was in progress.

21.

The applicant contended that in all the circumstances of the matter the
respondent could not have harbored any bona fide belief that any
misconduct had in fact been committed and even less so that the
applicant himself had committed any misconduct. In this regard it was
submitted that there could have been no facts at the disposal of the
respondent to give rise to any such belief.

22.

In developing his argument counsel for the applicant submitted that in
giving the initial notice (annexure A) the respondent contended that the
information at his disposal revealed that the applicant had made a
fraudulent misrepresentation and in particular had cited case dockets in

JWB-324
10
support of his alleged recommendation for the making of monetary
rewards, inter alia, to himself. In this regard specific reliance was placed
upon Howick docket CAS 106/08/2008.

23.

The applicant had, in response thereto, pointed out that the body of the
submission (annexure C to the applicant's founding affidavit) had been
prepared by then Superintendent W. Olivier, but utilizing a standard
format document which reflected the signatory as the applicant.
However, because the applicant himself was a potential beneficiary, he
had transmitted the draft to his then superior officer Assistant
Commissioner P T Brown, the Provincial Head of Detectives, who
considered the proposals contained therein and made the actual
recommendation for RIO 000-00.

24.

When the recommendation document itself is examined, it is apparent
'

from its heading that enquiries in regard thereto are to be directed to

l

Senior Superintendent Aiyer and/or Superintendent W Olivier. It is
marked on its first page for "ATT: DIR BOOYSEN", suggesting that the
author(s) of the draft intended the Applicant as its recipient. It is also
clear from the list of potential beneficiaries on the first page that the
applicant's name is at the top of the list, so that if he were to have
considered the proposals and to have made any recommendation

JWB-325
11

thereon, he would have found himself in a situation of a conflict of
interests.

25.

The typescript of the document deals with the background and
motivation for awards to be made to the various beneficiaries and
concludes with space for any recommendation to be entered in longhand
under a heading "Comments:", followed by a line where a signature is to
be affixed. Here the name of the applicant appears in print, but had been
deleted and a stamp with the name of "Asst. Comm. P. T. Brown" affixed
in its place together with his apparent signature. In the space provided
for comments the following appear in longhand, namely;

"Recommended that members receive. a certificate of commendation by the
National Commissioner and an incentive of Rl O 000-00."

26.

Beneath the place for signature of the recommendation and in typescript
under the heading "Award Options:" appear two categories, namely

'·--

monetary awards and non-monetary awards. The monetary award
options are listed in order of priority, starting with the highest award
being the S A Police Service Gold Cross for Bravery coupled with a
monetary award of R35 000-00 (plus applicable tax) and ending with the
lowest award to a police official, being a Certificate of· Commendation
from the National Commissioner coupled with a monetary award of RIO
000-00 (plus applicable tax).

JWB-326
12

27.

In context the document suggests that the draft, without any entry under
the heading "Comments', was submitted to Assistant Commissioner
Brown who, having considered its contents, decided firstly upon the
making of a recommendation for a monetary award and secondly at what
level that award should be recommended. Having made a decision he
entered his recommendation in longhand under the "Comments" heading
and signed the document before forwarding it for consideration by the
relevant authorities.

28.

In his written response to the notice of intention to suspend him the
applicant stressed that he had no hand in compiling or making the
recommendation concerned, either in draft or final form. He also
attached

thereto

an

affidavit

by

Lieutenant

Colonel

(previously

Superintendent) Olivier, now retired, wherein the latter confirmed that he
had forwarded the draft recommendation, which had been prepared in
his office, to the applicant for consideration but that the applicant had
declined to do so because he considered it inappropriate. At a later stage
he again had sight of the recommendation which by then had been
signed by Assistant Commissioner PT Brown and who had also "written

a recommendation in his own handwriting."

JWB-327
13

29.

The affidavit of Olivier, in its penultimate paragraph, also referred to the
issue of the case dockets to which reference was made in the letter of
recommendation and explained that both CAS 106 / 8 / 2008 and CAS
107 /8/2008 represented typing errors and that the "8" in each of them
should have been a "9". He pointed out that these two dockets were
opened after "the shooting". With reference to paragraph 3 of the letter of
recommendation it is apparent that these dockets were alleged to have
been opened following a shooting which occurred near the Cedara turnoff on the N3 highway in the Howick area on 16 September 2008 and in
which two alleged suspects were killed. The letter of recommendation, at
the end of paragraph 3 states that "The following cases were opened:

Howick CASl 06/ 8/ 2008: Attempted Murder and possession of unlicensed
.firearms - Howick CAS107/8/2008: Inquest." In his affidavit Olivier said
that the charges in Howick CAS106/9/2008 related to charges opened
against the police members involved in the shooting and that Howick
CAS107 /9/2008 related to the inquest into the deaths of the alleged
suspects.

30.

In his response the applicant also pointed out that the monetary reward
involved was RIO 000-00 and not Rl5384-62 as alleged by the
respondent in the suspension notice. That too is apparent from the scale
of possible awards contained at the conclusion of the letter of
recommendation (annexure C). The applicant further pointed out that

JWB-328
14

Howick "CAS 106/ 08/2008'' did not relate to "a house breaking case" as
alleged to by the respondent in paragraph 5 of the suspension notice, but
in fact to theft of a motor vehicle. He then drew an analogy between these
errors and the typing errors relevant to the Howick dockets and observed
that errors of this nature did not establish that any misrepresentation
was intended.

31.

In his written response the applicant also dealt with the other dockets
referred to in the letter of recommendation, but which were not
specifically referred to by the respondent in the suspension notice. The
allegation of a general nature as contained in the suspension notice was
to the effect that the case dockets referred to therein "have no relevance

whatsoever. to the killing of Supt Choncho:" With regard to KwaDukuza
CAS

150/08/08, as referred to in paragraph 2 of the letter of

recommendation, it is apparent that this related directly to the killing of
Superintendent Choncho on 27 August 2008. With regard to the
remaining docket references the applicant explained that these related to
peripheral investigations.

32.

In his written response to the suspension notice the applicant in addition
dealt at some length with the background and previous steps taken
against him. He did so in order to demonstrate that the suspension
notice was tainted by ulterior motives. In all the applicant asserted that

JWB-329
15

the docket references were relevant to the matters dealt with in the letter
of recommendation and he denied both that any misrepresentation had
occurred and that he had misrepresented any facts. He accordingly also
denied the South African Police Service had been "financially and

reputationally" prejudiced as alleged by the respondent.

33.

Against

this

background

the

respondent

admittedly

issued

the

suspension notice and in paragraph 3 thereof asserted that;

"I have considered your representations and am of the view that there is
{a) basis for placing you on precautionaru suspension pending finalization
of the contemplated investigation."

The nature of the investigation appeared from paragraph 4 of the
suspension notice, as follows;

" .. related to gross misconduct, dishonesty and misrepresentation with
the intention to defraud the DPCI; alternatively, the South African Police
Service ('SAPS')."

34.

In the present application the applicant broadly repeated the facts
foreshadowed in his written response to the notice of intention to
suspend him. He also attached confirmatory affidavits by the former
Superintendent Olivier and Assistant Commissioner Brown, both now
retired. With regard to the latter the applicant alleged that some three
weeks prior to his own approach to Brown, this witness had been

JWB-330
16

approached for a statement by the respondent and had made a
statement which accords with the applicant's version of events.

35.

In his answering affidavit the respondent denies that he personally had
approached Brown for a statement but confirmed that Brown had been
approached on his behalf and had given an "unsigned statement",
presumably to Colonel K M Mabuela, who was in charge of the
investigation, but that the respondent himself had never had sight of this
statement. In his confirmatory affidavit on behalf of the respondent Col
Mabuela confirmed the respondent's averments relating to him.

36.

What is noteworthy is that there is no denial that the draft statement
obtained by Col Mabuela from Brown, in fact accorded with Brown's
version in support of the applicant. Since Brown deposed to his
confirmatory affidavit on 17 September 2015 and the suspension notice
was issued on 14 September 2015, it follows that Col Mabuela was
advised by Brown some weeks earlier that the applicant was not involved
in the reward recommendation (annexure C) but that this was finalized
and signed by Brown himself. What remains unexplained is why the
respondent had not consulted Col Mabuela as to Brown's version of
events prior to making his decision to suspend the applicant. This is all
the more disturbing since an affidavit from Olivier was attached to the
applicant's response to the notice of intention to suspend.

JWB-331
17

37.

Despite the fact that both Olivier and Brown had deposed to confirmatory
affidavits

m

support

of

the

applicant's

version

of

how

the

recommendation (annexure C) came to be prepared, finalized, signed and
forwarded for ultimate approval, the respondent avoided dealing with
their versions and did not comment in answer upon their affidavits.
These therefore remain unchallenged.

38.

There is also no indication that the respondent, after the applicant had
pointed out that the references to the Howick docket numbers CAS
106 / 08 / 2008 and CAS 107 I OB I 2008 were incorrect and that the correct
docket numbers contained "09", signifying September 2008 events, had
in fact followed up or referred to the dockets under their corrected docket

numbers. Instead the respondent merely repeated, in paragraph 27. 9 of
his answering affidavit, that the award was based inter alia upon the
incorrect docket numbers of which CAS 106/08/2008 related to theft of
a motor vehicle and CAS 107 /08/2008 to housebreaking.

39.

In fact, there is no substantive indication that the respondent had read
and considered, or followed up upon, any of the material details
contained in the applicant's response to the notice of intention to
suspend him.

JWB-332
18

40.

With regard to the applicant's averments in his founding affidavit, the
respondent contented himself with broad denials of personal knowledge
of the allegations. This is particularly apparent with reference to
paragraph 12 of the founding affidavit where the applicant set out in
detail the various unsuccessful disciplinary actions and criminal charges
brought against him by various functionaries acting under the auspices
of the South African Police Force. These are relevant because the alleged
motivations date back to the same period and the incidents relevant to
the recommendations contained in annexure C and which allegedly form
the basis for the applicant's present suspension.

41.

Save to admit that the disciplinary hearing presided over by Adv Cassim
SC had exonerated the applicant and recommended his immediate
reinstatement,

the respondent denied personal knowledge of the

remaining averments contained in paragraph 12 of the founding affidavit
and "put the applicant to the proof thereof",

42.

In my view the respondent's claims of personal ignorance do not raise
any real or substantial conflicts of fact regarding the history of
unsuccessful attempts to discipline or charge the applicant.

43.

In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pt.y) Ltd 1984 (3) SA
623 (A}, Corbett JA stated at page 634 H - 635 B;

JWB-333
19

"It is correct that, where in proceedings on notice of motion disputes offact have
arisen on the affidavits, a final order, whether it be an interdict or some other
form of relief, may be granted if those facts averred in the applicant's affidavits
which have been admitted by the respondent, together with the facts alleged by
the respondent, justify such an order. The power of the Court to give such final
relief on the papers before it is, however, not confined to such a situation. In
certain instances the denial by respondent of a fact alleged by the applicant may
not be such as to raise a real, genuine or bona fide dispute offact (see in this
regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions {Pty) Ltd 1949 (3) SA 1155
(T) at 1163 - 5; Da Mata v Otto NO 1972 (3) SA 858(A) at 882D - H). If in such a
case the respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination under Rule 6 (5) (g) of the
Uniform Rules of Court (cf Petersen u Cuthbert & Co Ltd 1945 AD
420 at 428;
Room Hire case supra at 1164) and the Court is satisfied as to the inherent
credibility of the applicant's factual auermeni, it may proceed on the basis of the
correctness thereof and include this fact among those upon which it determines
whether the applicant is entitled to the final relief which he seeks (see eg Rikhoto
u East Rand Administration Board and Another 1983 (4) SA 278 (W) at 283E -

'

HJ."

{

44.

The respondent nevertheless, in answer to the applicant's direct
allegations of male fides for ignoring Brown's version of events,
responded to the applicants avennents in paragraphs 24 and 25 of his
founding affidavit by merely denying that he ever had sight of Brown's
unsigned statement and then expressed the unsupported opinion in
paragraph 29 .2 of his answering affidavit that the applicant;

" ... was clearly the author of the memorandum referred to in paragraph
25 of his affidavit (annexure C) and a careful scrutiny of this document,
reveals this. It was with respect, an afterthought that the applicant could
not sign the document as he was one of the recipients of the incentives. I
have no knowledge of the remainder of the allegations herein. I deny that
my conduct is unlawful and male fide and put the applicant to the proof
thereof"

45.

The respondent also neglected to explain why, in the absence of personal
knowledge, he failed to enquire into the background events relevant to

JWB-334
20

the applicant and the allegations against him before exercising his
decision to suspend him. In his response to the notice of intention to
suspend the applicant had pertinently in paragraph 12 of annexure B
alleged that;

" ... I should point out to you, that after months of investigation by Major
General Mabula and a team of detectives, and Mr Glen Angus from IPID
guided by at least six prosecutors, I was never charged for fraud in this
regard. This also raises another question, as to who 'has recently' brought
the so-called misrepresentation, as stated in your notice, to your attention?
The only explanation I can conceive of is that it comes from Major General
Mahula or some-one from his team. He, as well as his team, has had the
disputed documents in his possession since 2012."

46.

In seeking to justify the suspension the respondent did not deal with any
of the detailed background matters raised by the applicant. Instead he
stated in his answering affidavit that;

"(23,2] The applicant's allegations of ulterior motives and mala fides
have no basis. They are merely conjecture. What the applicant is simply
doing in this instance is to refuse to submit himself to the discipline of his
employer as applicable to all members in the ministry ofpolice.

.

[23.3] All the employer seeks to achieve is to conduct a thorough
investigation into the serious and prima facie allegations of misconduct
against the employee. . ..
[23. 4/ The applicant has appeared in a disciplinary inquiry before and
was exonerated. There is no reason whatsoever for this unfounded
allegations by the applicant. The employer is within its right to suspend
the employee while it investigates the allegations of serious misconduct
against an employee."

'•

47.

These responses are also relevant against the background of the events
to which the applicant referred in his founding affidavit. They represent

JWB-335
21

opinion, unsubstantiated by factual averments in support of the
conclusions to which the respondent claims to have come.

48.

By blandly asserting to be within his rights to suspend the applicant
while he investigates suggests an unfettered and arbitrary discretion, to
be exercised at will as a matter of entitlement; irrespective of whether the
allegations objectively have any merit.

49.

In my view the discretion to suspend must have a rational basis before it
can lawfully be exercised. Suspension, even with full benefits, has a
drastically adverse impact upon the subject of the suspension. Where, as
here, the suspension is effected based upon allegations of fraud,
dishonesty and misrepresentation the inevitable stigma attaching to and
the assault upon the dignity of the subject of the suspension is
exacerbated.

I

50.

Section 22 of the Constitution of the Republic provides that;

'-.

"[22] Every citizen has the right to choose their trade, occupation or
The practice of a trade, occupation or profession
profession freely.
may be regulated by law."

51.

With regard thereto Ngcobo J held in Affordable Medicines Trust and Others v
Minister of Health and Others2006 (3) SA 247 (CC) at paragraph 59 that;

JWB-336
22
."[59} What is at stake is more than one's right to earn a living, important
though that is..... One's work is part of one's identity and is constitutive of
one's dignity. Every individual has a right to take up any activity which he
or she believes himself or herself prepared to undertake as a profession
and to make that activity the very basis of his or her life. And there is a
relationship between work and the human personality as a whole. 'It is a
relationship that shapes and completes the individual over a lifetime of
devoted activity; it is the foundation of a person's existence"'

52.

The interconnection between the right to dignity and the right to work is
well recognized ( Stratford and Others v Investec Bank Ltd and Others
2015 (3) SA 1 (CC), Leeuw AJ at paragraph 35). An unjustified and
arbitrary suspension from employment is thus constitutionally offensive,
despite the fact that the suspension is with full benefits.

53.

In the circumstances of the present matter the respondent sought to
emphasise that the allegations were serious and that the suspension was
a precautionary measure p�nding investigation thereof. But what
remained unanswered were the applicant's assertions that the subject
matter of the allegations were not new, had been the subject of
investigation in the past and against the background of sustained
unsuccessful efforts to suspend or discipline him, amounted to a sinister
attempt again to remove him from office on a pretext, for reasons which
remain unclear.

54.

There is no indication from the answering affidavits when the
investigations of Colonel Mabuela commenced, but merely that the

JWB-337
23

allegations had, according to paragraph 1 of the notice of intention to
suspend dated 9 August 2015, "recently" come to the attention of the
respondent. There is also no indication of how these allegations came to
his attention, nor what steps, if any, the respondent took to verify the
facts contained in the applicant's written response to the notice of
intention to suspend him.

55.

The suspension notice itself merely records in paragraph 3 thereof that
the respondent had considered the applicant's representations, but
without comment upon their validity. It continued that "there is a basis"
for placing the applicant upon a precautionary suspension, but without
elaboration as to what such basis comprised.

56.

In his answering affidavit the respondent referred to alleged inaccuracies
in the written recommendations {annexure C) but without dealing with
the applicant's explanations thereof, or with the impact of such alleged
inaccuracies upon the adjudication process when the awards were made.

57.

In paragraph 19 .11 of his founding affidavit the applicant alleged that
before any reward was paid,

the recommendation therefor was

scrutinized and approved by Awards Committees at provincial and
national levels. The respondent in reply avoided responding thereto. It
thus remains unclear whether the verification process relating to the

JWB-338
24
recommendation bearing the signature of Brown, was in fact misled by
any matter contained in the recommendation. Nor was it demonstrated,
with reference to the "correct" docket numbers as identified by the
applicant in his response, that the content of the recommendation was
materially incorrect or misleading.

Apart from the incorrect Howick

docket numbers the remaining content of the recommendation has also
not been shown to be materially inaccurate, nor has the respondent
demonstrated that it did not comply with the criteria for such
recommendations and awards.

58.

With regard to docket reference numbers it is not in dispute that the
second set of numerals reflects the month of the year in which the docket
is opened. In this instance the events to which the recommendation
(annexure C) refer in paragraph 3 thereof commenced with effect from 15
September 2008 and culminated in the shooting which occurred on 16
September 2008. It was then alleged that as a result Howick docket
numbers CAS 106/08/08 and 107 /08/08 were opened. This is not the
kind of error which is likely to mislead even a junior police official. The
probabilities of the experienced members of the Awards committees being
misled, appear remote.

59.

In the end the nature of the allegations being levelled against the
applicant may be summarized as follows. In the first instance the

JWB-339
25
allegation was made that the applicant had recommended himself for a
monetary award of R15 384,62. It has been conclusively shown that the
award was only RlO 000,00 and that the level of the award was as
determined and written in longhand by Brown at the conclusion of
annexure C. It is thus clear that the respondent's information on the
amount of the award was mistaken, as was his information that it was
the applicant who made the recommendation.

60.

Secondly the incorrect Howick docket numbers have been shown to be
typing errors and there is no suggestion that the correct docket numbers
(CAS 106/09/08 and CAS 107 /09/08), as identified by the applicant in
his response to the respondent, did not in fact relate to the submissions
contained in paragraph 3 of annexure C. Nothing sinister can therefore
be inferred from the inclusion of the incorrect docket numbers in the
recommendation.

61.

Thirdly it was alleged that the general content of the recommendation
was misleading and amounted to a misrepresentation and, impliedly,
that it did mislead the awards committees at provincial and national
levels into making the awards to the various members concerned,
including the applicant. As already discussed, there is an insufficient
factual basis for drawing the conclusion that the recommendation was
misleading. But, even if it were, then there is not a shred of evidence that

JWB-340
26

the applicant was in any way involved in formulating its content and the
respondent's conclusion to the contrary is, at best, entirely speculative.

62.

The claim that as a result of the conduct of the applicant the South
African Police Service has suffered prejudice is not sustained by the facts
before the court. The claim that it suffered reputational damage is
without merit, particularly since there is no suggestion that awards of
this nature are ever published for general information.

63.

The applicant has pointed to the series of actions taken against him as
being indicative of the respondent acting with an ulterior motive. Whilst
denying such a motive, the respondent has not placed in dispute the
previous actions taken against the applicant, or that they were
unsuccessful. A strong suggestion arises that there is an ongoing move,
possibly even a campaign to unseat the applicant. But there is not
sufficient evidence before the court to draw firm conclusions in this
regard and neither party has sought a referral for the hearing of oral
evidence in order to resolve these factual conflicts.

64.

What is however noteworthy is that the respondent had embarked, for
reasons unclear, upon a course of action as against the applicant which
was unsustainable upon the information at his disposal. When the
applicant responded with detailed and motivated submissions to the

JWB-341
27
notice of intention to suspend him, the respondent effectively ignored
these and proceeded with the suspension in any event. When the
applicant instituted the present application to set aside the suspension,
the respondent doggedly opposed the relief sought.

65.

One of the grounds of opposition was that the matter was not urgent.
This ground was persisted in despite the fact that the matter had been
postponed for the exchange of affidavits before being enrolled for opposed
argument. There are, of course, degrees of urgency. But counsel for the
applicant drew the analogy between offending against the right not to be
unlawfully suspended from employment and the right not to be
unlawfully detained. Both are constitutionally offensive. Relying upon the
remarks in Arse v Minister of Home Affairs 2012 (4) SA 544 (SCA) at
paragraph 10 where Malan JA said that "A 'detained person has an

absolute right not to be deprived of his freedom for one second longer than
necessary by an official tuho cannot 'justify his detention", counsel for the
applicant submitted that an unlawful suspension likewise should not be
tolerated for any longer than absolutely necessary and that the matter
was therefore one of sufficient urgency to be heard and determined. I
agree.

66.

Given the circumstances counsel for the applicant submitted that the
proper order would be one granting the alternative relief sought by the

JWB-342
28

applicant and as set out in paragraph 44 of his replying affidavit. This
envisages the setting aside of the suspension of the applicant as
originally sought, but in addition that the suspension would remain
ineffective for the duration of any disciplinary proceedings brought
against the applicant and arising out of the notification issued to the
applicant and advising him of a departmental investigation regarding
"fraud", A copy thereof is attached to the notice of intention to suspend

(annexure A) previously referred to. The fraud allegation is the same
allegation contemplated in the notice of intention to suspend.

67.

The respondent's objection to the alternative relief thus contended for
was based upon the submission that it was· impermissible for the
applicant, in reply�· to seek relief in the alternative which differed from
that which was sought at the outset. The approach to this issue was
authoritatively restated

in Affordable Medici.nes Trust and Others v

Minister of Health and Others 2006 (3) SA 247 (CC) by Ngcobo, J in
paragraph 9, as follows;

"The practical rule that emerges from these cases is that amendments will
always be allowed unless the amendment is mala fide (made in bad faith)
or unless the amendment will cause an injustice to the other side which
cannot be cured by an appropriate order for costs, or 'unless the parties
cannot be put back for the purposes ofjustice in the same position as they
were when the pleading which it is sought to amend was filed' These
principles apply equally to a notice of motion. The question in each case,
therefore, is, what do the interests ofjustice demand?''

JWB-343
29

68.

In the present matter the respondent was aware of the additional relief
which the applicant intended seeking (as foreshadowed in his replying
affidavit) in good time prior to preparing for the hearing. The "fraud' is
the same issue which formed the subject matter of the complaint about
the suspension from the outset and dates back to 2008. There is no
serious suggestion that the documents relevant to such investigation
could be vulnerable to interference by the applicant, whose undisputed
averment was that these have been in the possession of various
investigators for some years. In any event and despite that, as already
indicated, there is not even prima facie evidence that such fraud had
been committed, or if it had, that the applicant is implicated therein.
Against the background of sustained unsuccessful attempts in the past
to remove the applicant from office, it is not unreasonable to suppose
that further attempts in this regard may be made, despite the paucity of
evidence against the applicant. In my judgment relief, in the nature of
the alternative relief now sought by the applicant, is justified in all the
circumstances and no injustice would result from the granting thereof in
the form contained in the order set out below.

69.

With regard to costs it is not in dispute between the parties that the
employment of senior counsel by each side was justified, in each
instance assisted by a junior counsel. The applicant, however, seeks a

JWB-344
30
costs order as against the respondent personally on the scale as between
attorney and client.

70.

In

Gauteng Gambling Board and Another v MEC for Economic

Development, Gauteng 2013 (5) SA 24 (SCA), Navsa JA remarked in
paragraph 52 that;
"Our present constitutional order is such that the state should be a model
of compliance. It and other litigants have a duty not to frustrate the
enforcement by courts of their constitutional rights. "

In the same judgment and in relation to the issue of costs the learned
Judge of appeal in paragraph 54 said that:-

"The special costs order, namely, on the attorney and client scale, sought
by the board and Mafojane is justified. However, it is the taxpayer who
ultimately will meet those costs. It is time for courts to seriously consider
holding officials who behave in the high-handed manner described above,
personally liable for costs incurred. This might have a sobering effect on
truant public office bearers.'

71.

The respondent in the present matter may well give serious consideration
to the caveat thus expressed by the supreme court of appeal. However,
upon the totality of the information before me I am not persuaded that,
for present purposes, an order for costs de boniis propriis against the
respondent personally would be justified. The conduct of the respondent
nevertheless deserves censure and as a mark of the court's disapproval I
consider that costs on the scale as between attorney and client would be
justified.

JWB-345
31

72.

In the result I make the following order, namely.-

The suspension of the applicant from his employment with

a.

the South African Police Service, as communicated to him by
the first respondent on 14 September 2015 by written notice
of that date, is hereby set aside.
Pending the outcome

b.

of any disciplinary

proceedings

instituted by the South African Police Service against the
applicant and arising out of the aforesaid notice of
suspension

and/or

the

Notification

of

Departmental

Investigation dated 11 August 2015, the applicant shall not
be liable to suspension from his employment with the South
African Police Service by reason thereof.

c.

The first respondent is ordered to pay the costs of this
application, including the costs reserved on 21 September
2015 and including the costs of two counsel, on the scale as
between attorney and client.

VAN ZVL, J.

JWB-346
32
JUDGMENT RESERVED:

27/10/2015

JUDGMENT HANDED DOWN:

18/11/2015

COUNSEL FOR APPLICANT:

G O van NIEKERK SC
KALLEN

Instructed by Shepstone & Wylie Durban
Ref: M(}M/KLB/CARL/26298.1

COUNSEL FOR FIRST RESPONDENT:

W MOKHARI S.C

FABRAHAM

TMOKHATLA

Instructed by Hogan Lovells c/ o Chapman Dyer Incorporated,
Durban Ref: V Bhoola/B Naidoo

JWB-347

ANNEXURE ''JWB22''

JWB-348

JOHAN WESSEL BOOYSEN
STATES IN ENGLISH UNDER OATH

1.
I am an adult male aged 59. I can be contacted on 082 632 4025.

2.
I retired from the SAPS DPCI (HAWKS) on 28 February 2017 with the rank of Major General.

3.
Prior to my retirement I was involved in a protracted litigation dispute against the erstwhile national
Head of DPCI Lieutenant General Berning Ntlemeza. The High Court in Kwazulu-Natal had ruled in my
favor after which Ntlemeza applied for leave to appeal - which was rejected. He subsequently
petitioned the Supreme Court of appeal. The matter did not proceed since my retirement had made the
SCA matter moot, and Ntlemeza thus did not prosecute the appeal.

4.
From the onset I want to state that I did not trust Ntlemeza. I will expound on the reasons should it be
required.

5.
Ntlemeza has now been effectively removed from the office by virtue of a High Court order. His
subsequent appeal to the SCA has now been disposed of. I have good reason to believe that he will not
return to office. Hence I want to make the following disclosure to the current acting Head of DPCI
Lieutenant General Matakata, whom I trust.

6.
2014,
after
the
and
retirement
of Lieutenant General Dramat, Ntlemeza was
During
suspension
early
appointed as acting Head of the DPLI.

7.
The vacant post was later advertised. I applied for the position and was shortlisted for an interview in
the minister's office. The interview took place on the 19th August 2014 in Cape Town.

8.
However the following transpired before the interview at Minister Nhleko's office.

9.
On the 16th of August 2015 at about 14:50 I was met by Duduzane Zuma the son of the State President.
(I will detail the circumstances that led to this meeting more fully if so required.)

10.
At the time my son Eben was present and we traveled in his vehicle.

11.
The arrangement was to meet Duduzane Zuma near Sandton Gautrain station. After missing each other

we eventually met near the Gautrain station. I was standing outside Eben's car when I noticed a bl/

JWB-349

Rolls Royce pull up behind us. I noticed the driver was Duduzane Zuma. After telling Eben to follow us, J
got into the Rolls Royce with Duduzane. I was under the impression that it was a courtesy meeting. We
drove off and had a general conversation about run of the mill issues. After driving for about fifteen
minutes we entered an area called Saxon World. We pulled up in front of a heavily guarded gate. After
entering Eben alighted from his car and asked me if we were at the place he thought we were. I responded
in the affirmative. It was evident to me that we were at the Gupta's residents.

12.
We were taken into the house. In the foyer we were asked for our cellphones to be handed over. We
were then taken to what appeared to be a lounge. One of the persons present was introduced as Mr.
Gupta. I did not hear the name, but it appeared to me as Tony Gupta from newspaper photographs I had
seen before.

13.
We spoke about school education and other daily issues whilst having refreshments. At one stage Mr.
Gupta said to Eben if he had any business ventures that he needed to get off the ground that he should
talk to them.

14.
Later on the conversation moved on to the possibility that I may become the new Head of the DPCI. I
was surprised and somewhat shocked that Mr. Gupta was privy to the fact that I had been shortlisted to
become the Head of DPCI. Being alive to the media hype around the Gupta's, I was hesitant to engage
with him. Mr. Gupta jokingly said to me that should I be appointed that we should meet in Durban for
supper. I laughed and said we can. At this juncture I felt uncomfortable and asked Eben to leave to
room.

15.
I was not appointed in the post, but Ntlemeza was. His appointment came as a surprise to me because I
never saw him during the interviews in the Ministers office. He also made a public statement at a
National meeting in Polokwane that he had not applied for the post. Unless of course he had been
interviewed separately which begs the question why he was treated differently?

16:
I want to be clear that he did not make any promises or create any expectations regarding my possible
appointment as DPO Head. I did however find it odd and disconcerting that he knew that I was a
possible candidate for the post and secondly that the meeting had taken place. I certainly never solicited
a meeting with the Gupta's.

17.
I do not know why I was taken to the Gupta's premises. I do however find it odd that I had been lured to
their premises, three days before my interview with Minister Nathi Nhleko and a panel in the minister's
office in Cape Town. The only possible yet speculative reason I can conceive of is that if I would have
been appointed he wanted to create the impression that it was of his doing or input, with the resultant
possible expectation of a quid pro quo in one form or another.

JWB-350

I know and understand the contents of this declaration.
I have no objection to take the prescribed oath.
I consider the oath to be binding on my conscience.

JW Booysen

JWB-351

ANNEXURE "JWB29"
3

JWB-352

NO ANNEXURE
There is no reference to
an Annexure "JWC23"
in the Affidavit

JWB-353

ANNEXURE ''JWB24''

JWB-354

Page 1 of88

FUL vs NDPP, SAPS and
Richard Mdluli: The
judgment
www.politicsweb.co.za
123

mins read

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA (NORTH GAUTENG,
PRETORIA)

c

ASE NO. 26912/12

In the matter between:
Freedom Under Law - Applicant

And
The National Director of Public Prosecutions - First Respondent
The National Commissioner: South African Police Service - Second

Respondent
The Head: Specialised Commercial Crime Unit - Third Respondent
The Inspector-General of Intelligence - Fourth Respondent

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-

JWB-355

Page 2 of 88

Richard Naggie Mdluli - Fifth Respondent
Minister of Safety and Security - Sixth Respondent
JUDGMENT

Murphy]

This application is a matter of public interest and national
importance on account of it raising significant issues of propriety,
1.

accountability and justifiable conduct in the governance of the
Republic. The main issue is whether certain decisions made by the
various respondents to withdraw criminal and disciplinary charges
against the fifth respondent, Lieutenant-General Richard Mdluli
("Mdlulin), the Head of Crime Intelligence within the South African
Police Service ("SAPS"), were unlawful.
The applicant, Freedom under Law ("FUL"), a public interest
organisation, seeks an order directing the National Prosecuting
2.

Authority ("the NPA") to reinstate several withdrawn criminal
charges, (including murder, attempted murder, kidnapping, assault,
fraud and corruption), against Mdluli. It also seeks orders directing
the National Commissioner of SAPS ("the Commissioner") to reinstate
withdrawn disciplinary charges against Mdluli arising from the same
alleged misconduct.
3. FUL is a non-profit company as contemplated in section 10 of the
Companies Act.1 It was established in 2008 and has offices in South
Africa and Switzerland. It is actively involved inter alia in the
promotion of democracy, the advancement of and respect for the rule
of law and the principle of legality as the foundation for
constitutional democracy in Southern Africa. Its board of directors
and international advisory board are made up of respected lawyers,
judges and role players in civil society in various parts of the world.
4. Dr Mamphela Ramphele, the deponent to the founding and
supplementary affidavit, is a member of the international advisory
board of FUL and was previously Vice-President of the World Bank in
Washington and Vice-Chancellor of the University of Cape Town. She
was a universally recognised leader of the Black Consciousness
Movement in the struggle against apartheid and is currently Presid'

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JWB-356

Page 3 of 88

of Agang, a new political formation in South Africa. The deponent to
the replying affidavit is the chairperson of the board of FUL, Justice
Johann Kriegler, a retired judge of the Constitutional Court, who in
1994 served as Chairperson of the Independent Electoral Commission
overseeing the first democratic election in South Africa.
5. Both the Constitutional Court ("the CC") and the Supreme Court of
Appeal ("the SCA") have in the past recognised the right of FUL to act
in the public interest in terms of section 38 of the Constitution in
relation to infringements of the Bill of Rights.2 FUL has on occasion
also been admitted by the courts as amicus curiae in important cases
involving constitutional matters.
6. These review proceedings, brought in terms of Part B of the Notice
of Motion, challenge the decisions of the first, second and third
respondents to withdraw the criminal and disciplinary charges that
were pending against Mdluli who, though currently interdicted by
this court from performing his duties, remains the Head of Crime
Intelligence within SAPS; and, as stated, are aimed at reinstating the
criminal and disciplinary charges forthwith. The present proceedings
were preceded by an urgent application, in terms of Part A of the
Notice of Motion, for an interim order interdicting Mdluli from
carrying out his functions and the Commissioner from assigning any
tasks to him pending the finalisation of the review proceedings. The
interim order was granted by Makgoba J on 6 June 2012.
7. The first respondent is the National Director of Public Prosecutions
("the NDPP"), the head of the NPA. The NDPP is appointed by the
President of the Republic and invested by section 179(2) of the
Constitution and Chapter 4 of the National Prosecuting Authority Actg
("the NPA Act") with the powers, functions and duties to institute
criminal proceedings on behalf of the State and to carry out any
necessary function and duty which is incidental thereto. At the time
these proceedings were launched, the office of the NDPP was vacant
as a consequence of the decisions of the SCA and the CC finding the
appointment of the previous incumbent, Advocate Simelane, to be
unconstitutional on the grounds of his being unfit to hold office.
During the period relevant to these proceedings, the position was
occupied by Advocate Nomgcobo Jiba, who served as the Acting NDPP

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JWB-357

Page 4 of88
until the recent appointment of Mr Nxasana as NDPP by President
Zuma.

8. The second respondent is the Commissioner, who in terms of the
relevant legislation is the head of SAPS. The Commissioner withdrew
the disciplinary charges against Mdluli and reinstated him as Head of
Crime Intelligence in SAPS. Section 207(2) of the Constitution, read
with the relevant provisions of Chapter s of the South African Police
Services Actq ("the SAPS Act") and the Regulations made in terms
thereof, oblige the Commissioner to ensure that members of SAPS
diligently fulfil their duties to prevent, combat and investigate
crimes, maintain public order, protect and secure the inhabitants of
the Republic, and uphold and enforce the law of the land. The
Commissioner and his or her provincial or divisional subordinates
have the duty to institute and prosecute disciplinary action against
any member of SAPS who is accused of and charged with misconduct
and to suspend from office such a member, pending the outcome of
disciplinary proceedings.g
g. When these proceedings commenced, the office of the
Commissioner was occupied by Lieutenant-General Nhlanhla
Mkhwanazi ('the Acting Commissioner"), who was serving in an
acting capacity, following the suspension of the former
Commissioner, General Bheki Cele, on grounds of alleged
impropriety. Subsequent to the commencement of these proceedings
and the ultimate dismissal of General Cele, President Zuma appointed
General Mangwashi Phiyega as Commissioner. The impugned
decisions of the Commissioner withdrawing disciplinary charges and
reinstating Mdluli in his position were taken by Lieutenant-General
Mkhwanazi.
10. The third respondent is Advocate Lawrence Mrwebi, ("Mrwebi"),

a Special Director of Public Prosecutions, and the head of the
Specialised Commercial Crimes Unit ("SSCU") within the NPA. It was
he who took the decision and gave instructions to withdraw charges
of fraud and corruption against Mdluli. Other charges of murder,
attempted murder, kidnapping, intimidation and assault were
withdrawn by Advocate Chauke ("Chauke"), Director of Public

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JWB-358

Page 5 of88

party, it having been deemed sufficient to cite the NDPP as titular
head of the NPA to whom Chauke is accountable.
The fourth respondent is Ambassador Faith Radebe, the Inspector
General of Intelligence ("the IG:I''), appointed in terms of section 7 of
11.

the Intelligence Services Oversight Act.6 She is the only respondent
not to not to oppose the application and has filed a notice to abide.
12.

The fifth respondent, Mdluli, did not actively oppose the relief

sought in Part B of the notice of motion. He filed an answering
affidavit opposing the relief sought in Part A of the notice of motion.
He however did not file further opposing papers and was not
represented at the hearing before me.
13. The sixth respondent, the Minister of Safety and Security, was
joined in the proceedings to give effect to the interim order
interdicting the assignment of tasks to Mdluli pending the finalisation
of the review. He has joined the Commissioner in opposing the
application.
14. In sum, FUL seeks to review and set aside four decisions in
relation to Mdluli: the decision taken by Mrwebi on s December 2011
to withdraw the corruption and related charges; the decision taken by
Chauke on

February 2012, to withdraw the murder and related
charges; the decision taken by the Acting Commissioner, on 29
February 2012, to withdraw the disciplinary proceedings; and the
1

decision, of 27 or 28 March

2012,

to reinstate Mdluli as the Head of

Crime Intelligence within SAPS. It also seeks an order directing that
the criminal and disciplinary charges be immediately re-instated and
prosecuted to finalisation, without delay.
Preliminary evidentiary and procedural issues

15. The background facts giving rise to the review are for the most
part common cause. However, in its founding affidavit FUL conceded
that it was compelled by force of circumstances in bringing the
application to rely on hearsay statements reported in the media and
elsewhere. It accordingly made a general application for any hearsay
evidence to be admitted in the interests of justice in terms of section
3 of the Law of Evidence Amendment Act. 7 It based the application on
five broad considerations: the relevant source documents relating to

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JWB-359

Page 6 of 88

the decisions were inaccessible as they are under the control of the
respondents; some of the statements have been reported in the media
and have not been repudiated by the respondents; the impugned
decisions were taken without any public explanation in violation of
the constitutional obligation of transparency, openness and
accountability; the review deals with subject matter of significant
public interest; and the respondents would suffer no material
prejudice by the admission of the hearsay, with any prejudice being
outweighed by the public interest in proper justification of the
decisions.
16. In motivating the admission of the evidence, FUL did not identify

the specific statements upon which it hoped to rely. Nonetheless, it is
evident that it had in mind a range of statements made in certain
newspaper articles, as well statements and reports made by members
of SAPS and the NPA (in particular Colonel Kobus Roelofse and
Colonel Peter Viljoen of the Directorate Priority Crime Investigations
in Cape Town, the Hawks; and Advocate Glynnis Breytenbach of the
NPA) who investigated the allegations against Mdluli but were
inhibited by institutional constraints and perceived conflicts of
interest from deposing to confirmatory affidavits.
17. In the answering affidavits filed by the NDPP and the Mrwebi, the
hearsay evidence was for the most part dealt with in general terms
without any particular statement being objected to. The
Commissioner largely avoided dealing with the merits of the factual
allegations in relation to the decisions, raised mainly technical
defences and objected to the hearsay in general terms.
18. In reply, FUL reiterated the point that the problem of hearsay in
most respects would have fallen away had the NDPP and the
Commissioner taken the court into their confidence by making full
and frank disclosure regarding the Hawks investigation and by
consenting to their employees testifying in these proceedings.
Instead, it alleged, the deponents, in violation of their constitutional
obligations of transparency and accountability, strained to withhold
vital information in their possession. FUL therefore submitted that it

ij

-

is not open to the respondents to seek to have the evidence disallowed \.:::._ .
on the basis that it is hearsay when they have declined to fulfil their
obligation to provide it.

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19. The dispute between the parties about hearsay, delineated as it is
in such general terms, is frankly much ado about not a great deal and
not especially helpful in deciding any disputes of fact. Because
evidence was sourced from other proceedings in which evidence was
given under oath, most of the relevant factual issues have become less
contentious. And where there are factual disputes they must be
resolved by reference to the principles in Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd.8 For the reasons put forward by FUL, I

will adopt a generous approach. The hearsay nature of any
statements allowed as evidence in the interests of justice, and which
form the basis of averments of either party, will nonetheless
influence the determination of the veracity, probability, reliability
and ultimate cogency of the averments.
20. FUL complained furthermore that the respondents have, through
their conduct, delayed and frustrated the prosecution of the review.
Each of the first to third respondents was called upon, in terms of
Rule 53 of the Uniform Rules of Court, to file a record of decision, and
reasons, justifying his or her decision under attack. Each of them
failed to file a record timeously or on request. FUL was compelled to
serve Rule 30A notices, upon which the first and third respondents
eventually filed incomplete records. FUL 's attorney addressed a letter
to the state attorney on 25 July 2012 requesting a complete record of
decision itemising twelve identified items that had not been
disclosed, including the representations made to the NDPP by Mdluli
requesting the withdrawal of charges, communications with the IGI
and the Auditor General to whom the allegations of misconduct had
been referred for investigation, representations made by Advocate
Breytenbach to Mrwebi recommending that the charges not be
withdrawn and so on. The request was not heeded. FUL also had to
bring an application to compel production of the Commissioner's
record. Even then an incomplete record was delivered. The Acting
Commissioner filed a record comprising only two letters notifying
Mdluli of the withdrawal of the disciplinary charges and the
upliftment of his suspension.
The respondents' failure to comply fully with their obligations to
file complete records of decision undermined FUL's ability to
21.

prosecute the review and has meant that it has had to rely on

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evidence put up by itself, sourced from other proceedings in which
the respondents were involved, in particular those involving the
suspension and discipline of Advocate Breytenbach, a Senior Deputy
DPP of the NPA who doggedly insisted on the prosecution of Mdluli.
On 30 April 2012 the NDPP suspended Breytenbach pending the
outcome of an investigation into a complaint made against her in an
unrelated matter some six months before her suspension.
Breytenbach has contended in the other proceedings that the
complaint was spurious and the real reason for her suspension was
the stance she took in relation to the prosecution of Mdluli. She
challenged her suspension by way of an urgent application to the
Labour Court, which was struck from the roll for want of urgency.
She was ultimately cleared of all charges (additional charges having
been preferred against her after her suspension) in a disciplinary
hearing held under the auspices of an independent chairperson. In the
absence of a complete record of decision, FUL has relied on the
affidavits filed in the Labour Court application and the transcript of
the cross examination of NPA witnesses in the disciplinary hearing to
supplement its evidence.
The failure to file complete records timeously contributed to a
delay in the proceedings. The review in terms of Part B of the Notice
22.

of Motion was heard almost two years after it was first instituted.
Throughout that time, Mdluli remained suspended on full pay.
Despite the incomplete records of decision, FUL filed its
supplementary founding affidavit on 8 October 2012, and a further
supplementary founding affidavit, necessitated by the paucity of the
records filed and by further documents becoming publicly available,
March 2013. It meant that the respondents had to file
answering papers by no later than 02 May 2013. None of the
on

14

respondents filed answering papers in the review by that date.
Ultimately the Deputy Judge President ("the DJP") directed the
respondents to file answering papers by 24 June 2013, to enable the
23.

matter to be heard on

11

and

September 2013. Even then, the second and sixth respondents filed
their answering papers only on 25 June 2013, and the first and third
respondents filed theirs on 4 July 2013 - nine court days late. The
12

NDPP and Mrwebi in addition did not file their heads of argument

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12

August 2013 as directed by the DJP, preferring to do so a month

late on g September 2013, two days before the hearing, much to the
inconvenience of the court and the other parties. The respondents
filed additional affidavits in the afternoon of the day before the
hearing. Despite being ambushed in this way, the applicant did not
object to their admission, no doubt because it preferred not to have
the matter postponed. I indicated to the parties that the
creditworthiness of the averments made in the late filed
supplementary affidavits would have to be assessed in the light of the
applicant not having had a right of reply to them. It was agreed by all
parties to proceed on that basis.

24. The reasons for the various delays, and late filing, are sparse and
mostly unconvincing. However, in the interests of justice I was
persuaded that the matter should proceed without further delay and
condoned the non-compliance with the rules and directives of the DJP.
Suffice it to say that the conduct of the respondents is unbecoming of
persons of such high rank in the public service, and especially
worrying in the case of the NDPP, a senior officer of this court with
weighty responsibilities in the proper administration of justice. The
attitude of the respondents signals a troubling lack of appreciation of
the constitutional ethos and principles underpinning the offices they
hold.
25. FUL submitted that the respondents' conduct in delaying the

proceedings, their lack of transparency and their attitude to
disclosure and the admission of any hearsay evidence gives rise to an
inference that they lack adequate justification for the decisions at
issue. The legitimacy of that submission is borne out by the analysis
which follows.
The facts
26. As stated, the facts giving rise to the application are for the most
part common cause. Mdluli joined SAPS on 27 August 1979. He rose
through the ranks and was finally appointed as the Head of the Crime
Intelligence Division of SAPS on 1 July 2009. The position is one of the
senior leadership positions within SAPS and in the intelligence
community of the state. The incumbent exercises complete control
over all surveillance that any division of SAPS carries out in any

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investigation, and has access to highly sensitive and confidential
information, and to the funds making up the Secret Service Account
("the SSA"). The position calls for an official with an exemplary
record of honesty, discretion and integrity.
On 31 March 2011, Mdluli was arrested and charged with 18
counts, including murder, intimidation, attempted murder,
27.

kidnapping, assault with intent to do grievous bodily harm, and with
defeating the ends of justice. These charges alleged that on 17
February 1999 Mdluli was party to the unlawful and intentional
killing of Mr Tefo Ramogibe, who at the time was married to Ms
Tshidi Buthelezi, a former lover of Mdluli. The charges of attempted
murder, kidnapping etc. make allegations that Mdluli and persons
associated with him brought pressure upon the relatives and friends
of Ramogibe by violence, kidnapping and other threatening means
with the aim of bringing the relationship between Ramogibe and
Buthelezi to an end. Ramogibe was shot dead during a pointing out
while in the company of SAPS officers from Vosloorus Police Station.
The pointing out was held ostensibly for the purpose of gathering
evidence in relation to a case of attempted murder opened by
Ramogibe at the Vosloorus Police Station a few days previously. At
the time Mdluli was Branch Commander of the Detective Branch at
Vosloorus. Although Mdluli was a suspect in the investigation into the
murder and attempted murder of Ramogibe, he was not arrested on
the charges and the matter did not proceed to trial. Much of the
original docket and certain exhibits have since been lost or have
disappeared.
28. Information about the discontinued investigation surfaced shortly
after Mdluli was promoted to Head of Crime Intelligence in late 2009.
In light of the seriousness of the charges and on the weight of the
evidence, the then Commissioner, General Cele, after following due
process, suspended Mdluli from office on 8 May 2011 and instituted
disciplinary proceedings against him. Mdluli is of the opinion that the
allegations have re-surfaced as part of a conspiracy against him by
those opposed to his promotion to high rank. In a letter dated 3
November 2011, addressed to President Zuma, the Minister of Police
and the Acting Commissioner, Mdluli alleged that Commissioner
Bheki Cele, and other senior officers, Generals Petros, Lebeya and

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Dramat were "working together against" him. In the letter he
tactlessly stated;
"In the event that I come back to work, I will assist the President to
succeed next year"
He did not explain how he would assist the President, but it is
reasonable to assume that he had in mind the conference of the
governing party in 2012 at which President Zuma was re-elected as
party leader for a second five year term. His entreaty to the President
implies that Mdluli believed he had it in his gift to use his influence
and the means at his disposal to the advantage of the President. The
Minister later responded by causing the allegations of conspiracy to
be investigated by a special task team which ultimately found them to
be baseless.
29. Mdluli made various appearances in court on the murder and
related charges. The matter was postponed to later dates without
Mdluli being asked to plead to the charges.
In late September 2011 Mdluli was arrested and charged on
further charges of fraud, corruption, theft and money laundering
30.

("the fraud and corruption charges"). The charges relate to the
alleged unlawful utilization of funds from the SSA for the personal
benefit of himself and his spouse. Mdluli was brought before the
Specialized Commercial Crimes Court in Pretoria and granted bail. He
was not asked to plead to the charges. The case was postponed to 14
December 2011.
31. The investigation of these charges was conducted by Colonel
Viljoen of the Hawks who worked in conjunction with Advocate Smith
of the Specialised Commercial Crimes Unit ("the SCCU11). Smith
applied for a warrant for the arrest of Mdluli on 1 August 2011. The
application was authorised by the magistrate on 6 September 2011,
and executed on 20 September 2011.
32. The evidence in relation to the fraud and corruption charges is

derived from an affidavit made by Viljoen in support of the
application for the warrant of arrest of Mdluli and a report from
Colonel Roelofse. Neither officer has deposed to an affidavit in these
proceedings on the grounds of conflict of interest. Strictly speak·

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their evidence is hearsay. However, none of the respondents deny the
averments in relation to the nature of the charges or their
investigation, and they may be accepted to be common cause.
33. The charges allege that Mdluli received an unlawful gratification
in an approximate amount of Rgo ooo when he used the funds of the
SSA to acquire two vehicles supposedly for covert use, but which
were recovered from his wife at their home in Cape Town. As part of
the transaction, he is alleged to have traded in his own vehicle, which
was valued at about Rgo ooo less than the amount Mdluli owed as
outstanding instalments under his credit agreement. The purchase of
the new vehicles, apparently for the use of himself and his wife, was
allegedly done in such a manner that discounts payable to the Secret
Service were applied for Mdluli's personal benefit and extinguished
his obligation to pay Rgo ooo to his credit provider.
34. The charges thus essentially allege that Mdluli abused state
financial resources for private gain for his and his wife's benefit. The
SSA is controlled by the crime intelligence unit over which Mdluli
exercises control. The charges are therefore serious, impacting upon
the proper administration of justice and control of state resources,
and raise the question of Mdluli's fitness for his position.
35. In his answering affidavit filed in the Part A proceedings, Mdluli
dealt mainly with procedural issues related to his suspension, his
constitutional right to be presumed innocent, attacks on his integrity
in the media, the alleged conspiracy against him and the leaking of
classified information. Although expressing doubt about the
sufficiency of the evidence against him, he did not address the
specifics of the allegations made in respect of the various criminal
charges in any detail or disclose his defence in relation to them.
36. The legal representatives of Mdluli addressed, and delivered by
hand, written representations to the NDPP on 26 October 2011. They
were not disclosed by the respondents, as one might have expected,
as part of the Rule 53 process. They are annexed as part of Annexure
GB

10

to the affidavit of Breytenbach filed in the Labour Court

proceedings. The opening paragraph reads:

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"We hereby make representations to you as to why you should review
the preference of charges against our client Lt Gen Mdluli and
possibly withdraw the charges against him, as proceeding against him.J
is less likely to result in a conviction on any of the charges preferred
against him"
The Acting NDPP, Advocate Jiba, made no mention of these
representations in her answering affidavit. Her scant averment on the
issue is to the effect that "the decisions" of the Special DPP and the
DPP who instructed the charges to be withdrawn "have not been
brought to my office for consideration in terms of the regulatory
framework"; the implication of her statement being that she has
made no decision in relation to the representations.g
37. The representations contend for the most part that the charges
arose from a conspiracy against Mdluli by fellow officers and others
who disapproved of his promotion.
38. Written representations in relation to the fraud and corruption
charges, dated 17 November 2011, were delivered by hand to Mrwebi
in his capacity as a Special DPP and the head of the SCCU. They
record that similar representations, presumably in relation to the
murder and related charges, had been made to Chauke, the DPP South
Gauteng. In the representations to the Special DPP, Mdluli's legal
representatives alleged an abuse of the criminal justice system and
stated:
"Our instructions are that Mdluli's arrest is a continuation of the
dirty tricks and manoeuverings relating to the contestation and
jostling for the position of Head of Crime Intelligence."
The representations made to Chauke, although alluded to in his
record of decision filed in terms of Rule 53, do not form part of the
record of this application.
39. Mrwebi in response to the representations made to him requested
a report from Breytenbach and sight of the docket. An initial report
was submitted to Mrwebi under cover of a memorandum from
Breytenbach. Mrwebi was dissatisfied with the report and asked for
more information. A final report prepared by Smith was placed before

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Mrwebi on 2 December 2011. The reports and memorandum argued in
favour of pursuing the case against Mdluli.
40. Mrwebi stated in his answering affidavit that after he considered
the reports and examined the docket, he concluded that there "were
many complications with the matter particularly with regard to the
nature and quality of evidence" and how that evidence had been
obtained. He was of the view that "there was no evidence, other than
suspicion linking the suspects to the alleged crimes". He also had
concerns that the evidence had been acquired improperly because
documents in relation to the SSA are privileged and that the
documents could not be relied on until the IGI waived the privilege.
And, thus, he believed there would be problems with the admissibility
of the incriminating documentation. As will appear presently, this
account is inconsistent with the objective facts as reflected in
contemporaneous correspondence.
41. Mrwebi determined to withdraw the fraud and corruption charges
against Mdluli and prepared a memorandum and a "consultative

note" setting out his reasons dated 4 December 2011. Mrwebi did not
disclose these obviously relevant documents as part of his record of
decision belatedly filed in terms of Rule 53. They came to light
however as annexures to Breytenbach's founding affidavit in her
application to the Labour Court.
42. Mrwebi said that he met with Advocate Mzinyathi, the DPP of
North Gauteng, on s December 2011 to "discuss" the matter. He
claims that the consultative note was incorrectly dated and was in
fact drafted after he met with Mzinyathi. There is some doubt about
this, but because in the final analysis not much turns on the issue I
am prepared to accept that the note was written on s December 2011.
The consultative note is addressed to Mzinyathi and Breytenbach. The
opening paragraph records that Mrwebi had consulted with the DPP
North Gauteng, as required by section 24(3) of the NPA Act.
Mzinyathi in a confirmatory affidavit, filed on the day before the
application was enrolled for hearing, contradicts this. His averments
in that affidavit create the distinct impression that his engagement
with Mrwebi on s December 2011 was in the way of a brief encounter
in which the issues were not fully canvassed. They did however me�-·
again on 9 December 2011 and had a more substantive discussiox:6w

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the consultative note, Mrwebi expressed his essential view in relation
to the prosecution as follows:
"Essentially my views related to the process that was followed in
dealing with the matter particularly in view of the fact that the
matter fell squarely within the mandate of the Inspector- General in
terms of the Intelligence Services Oversight Act, 40 of 1994. I noted
that it is only the Inspector General who, by law, is authorised to
have full access to the Crime Intelligence documents and information
and thus who can give a complete view of the matter as the
investigations can never be complete without access to such
documents and information."
Later in the note, after briefly referring to the investigation, Mrwebi
stated:
"However, because of the view I hold of the matter, I do not propose
to traverse the merits of the case and the other questions any further.
Whether there was evidence in the matter or not, is in my view, not
important for my decision in the matter. The proposition which I
allude to below, should alone and without any further ado, be
dispositive of the matter."
43. The proposition in question, and thus the sole reason for his
decision to instruct the charges to be withdrawn, was his belief that
those charges fell within the exclusive preserve of the IGI in terms of
section 7 of the Intelligence Services Oversight Act.10 It is common
cause that Mrwebi did not consult the SAPS or the IGI prior to
withdrawing the charges and that Mzinyathi and Breytenbach
informed Mrwebi at the meeting with him on g December 2011 that
the IGI was not authorised to conduct criminal investigations.
However, their advice did not prompt him to change his stance.
44. In his answering affidavit, as I mentioned earlier, Mrwebi
attempted to cast a different spin on his reasons for passing the
matter to the IGI. He referred it to the IGI, he said, because he
believed "that the IG would not only help with access to documents
and information" but could also resolve the issue of privilege. He was
merely postponing the matter until the IGI sorted out the evidentiary
problems.

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45. Subsequent events do not bear that out. In particular,
correspondence from the IGI to the Acting Commissioner dated 19
March 2012 indicates that she understood the matter to have been
referred to her to investigate and institute proceedings. This letter
was forwarded to the NDPP and Mrwebi on 23 March 2012, after the
IGI's legal adviser had prevailed unsuccessfully upon Mrwebi to reinstate the charges against Mdluli. In her letter the IGI commented on
Mrwebi's consultative note as follows:
"The IGI derives her mandate from the Constitution of the Republic of
South Africa, 1996 and the Intelligence Services Oversight Act,
1994 ... which provides for the monitoring of the intelligence and
counter-intelligence activities of the Intelligence Services ... Any
investigation conducted by the IGI is for the purposes of intelligence
oversight which must result in a report containing findings and
recommendations ... The mandate of the IGI does not extend to
criminal investigations which are court driven and neither can IGI
assist the police in conducting criminal investigations. The mandate
of criminal investigations rests solely with the Police. As such we are
of the opinion that the reasons advanced by the NPA in support of the
withdrawal of the criminal charges are inaccurate and legally flawed.
We therefore recommend that the matter be referred back to the NPA
for the institution of the criminal charges."
Her perception is patent. She appreciated that Mrwebi had instructed
the charges to be withdrawn and discontinued the criminal
proceedings. Both Breytenbach and Mzinyathi understood the position
likewise. Mrwebi took no apparent steps to heed the advice of the IGI.
46. In his answering affidavit, and in the consultative note, Mrwebi
stated that he consulted with Mzinyathi on s December 2011 in terms
of section 24(3) of the NPA Act before making his decision. The
provision requires that a Special Director may only discontinue
criminal proceedings "in consultation" with the relevant OPP. The
nature and extent of the consultation that occurred is a matter of
dispute. The record of Breytenbach 's disciplinary proceedings
indicates that it may have fallen short of the statutory requirement.
47. What transpired between Mrwebi and Mzinyathi at their meetings
on s December 2011 and 9 December 2011 is of decisive importance. It

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was the subject of extensive and thorough cross examination by
Advocate Trengrove SC, counsel for Breytenbach, during her
disciplinary proceedings. The respondents have not placed the
authenticity, accuracy or reliability of the record in issue. It therefore
may be accepted as a correct and complete account of the testimony
of Mrwebi and Mzinyathi under oath in those proceedings.
Considering that Mrwebi and Mzinyathi are senior officers of the
court, one may assume the evidence was given with due consideration
to the need for propriety and appropriate candour.
48. After lengthy cross examination by Mr. Trengrove, Mrwebi
conceded that when he took the final decision, either on 4 December
2011 or s December 2011, to withdraw the charges and discontinue
the prosecution of Mdluli on the fraud and corruption charges, he did
not know Mzinyathi's view of the matter and did not have his
concurrence in the decision. He admitted that he took the decision
prior to writing the consultative note and did so relying on
representations made to him in confidence by anonymous people,
who he was not prepared to name and whose input he did not share
with Mzinyathi. Mzinyathi's views were conveyed to Mrwebi for the
first time in an email on 8 December

in response to the
consultative note, after Mrwebi had already informed Mdluli's
2011

attorney that the charges would be withdrawn.
49. Mzinyathi acknowledged such to be the case during his evidence
in the disciplinary proceedings. He was referred during cross
examination to the email and affirmed the correctness of its content.
In the email Mzinyathi stated:
"I am concerned that you indicate in your memorandum to me that
you will advise the attorneys of Mr. Mdluli of your instruction that
charges be withdrawn. I hold the view that such advice to the
attorneys would be premature as I do not share your views, nor do I
support your instruction that the charges will be withdrawn."
50. Mzinyathi also confirmed that at the meeting on 9 December 2011
(attended by the two of them and Breytenbach), Mrwebi took the
position that he was Junctus officio because he had already informed
Mdluli's attorneys of the intended withdrawal. Mzinyathi and
Breytenbach, unable to persuade Mrwebi to reverse the decision, the

L..---

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prevailed on him to withdraw the charges provisionally, to which he
agreed. Mzinyathi retreated somewhat from this testimony in his
confirmatory affidavit filed on the day before the application was
enrolled to be heard. His explanation of events in the affidavit differs
from his testimony at the disciplinary hearing with regard to the
degree of concurrence. His exchange with Advocate Trengrove is
therefore important. The most relevant part merits quoting in full:
Trengrove: Now when you, when you then saw him the following day
on the 9th .... he told you that he was junctus officio, do you remember
that?
Mzinyathi: He did indeed.

Trengrove: Because he had already informed the attorneys of his
decision to withdraw the charges.
Mzinyathi: Yes

Trengrove: Do you know that he sent off that letter to the attorneys
withdrawing the charges, at the same time sending you those memos
(including the consultative note)?
Mzinyathi: Oh, I was not aware.

Trengrove: That is what he told us in evidence. So, by the time he
met with you on g December 2011 he said he was functus officio,
correct?
Mzinyathi: Yes

Trengrove: And we all know thatfunctus officio means that I have
taken my decision and I no longer have the power to reopen it,
correct?
Mzinyathi: Yes

Trengrove: So that presented you with afait accompli, the horse had
bolted, the case will have to be withdrawn.
Mzinyathi: Indeed.

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51.

In the supplementary founding affidavit, delivered in March

2013,

six months before the application was heard, FUL dealt
comprehensively with Mzinyathi's involvement, his evidence in the
disciplinary enquiry and the contention that the failure to consult him
rendered the withdrawal of the charges illegal. Mzinyathi, it may be
re-called is the OPP for North Gauteng, the most senior public
prosecutor in Pretoria. The record shows he has been involved in this
dispute from the beginning. His evidence in the Breytenbach
disciplinary hearing was that he disagreed with the decision which
had been presented to him as a fait accompli. This was the factual
basis upon which FUL relied in the founding and supplementary
affidavits, as well as its heads of argument, to submit that the
withdrawal of the charges was illegal.
52. Mrwebi in his answering affidavit did not deal with Mzinyathi's
testimony at the disciplinary enquiry (or for that matter with any of
the averrnents.in the supplementary founding affidavit). His account
of the events between

s December 2011 and 9 December 2011 takes

the form of a general narrative which does not admit or deny the
specific allegations in the supplementary founding affidavit. He
nonetheless maintained that he had consulted Mzinyathi. The
answering affidavit was not accompanied by a confirmatory affidavit
from Mzinyathi, who therefore initially did not confirm Mrwebi's
general account. In his confirmatory affidavit filed at the eleventh
hour, the day before the hearing, without any explanation whatsoever
for it being filed six months after the delivery of the supplementary
founding affidavit, Mzinyathi, differing from his evidence at the
hearing, confirmed the allegations in Mrwebi's affidavit as they relate
to him, thus saying in effect for the first time that he had indeed
concurred in the decision.
53. Mzinyathi elaborated further, in paragraphs 7 to g of the affidavit,
that Mrwebi approached him at his office on s December 2011, told
him that he was dealing with representations regarding Mdluli and
needed to consult him. Mrwebi mentioned to him that he was busy
researching the Intelligence Services Oversight Act and then left his
office. The impression created, as mentioned earlier, is that no
substantive discussions took place that day and hence clearly there
was no concurrence before Mrwebi wrote the consultative note and

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communicated with Mdluli's attorneys. Later Mzinyathi heard from
Smith that Mrwebi had instructed the prosecutor to withdraw the
charges. He then wrote the email of 8 December 2011 to Mrwebi and
met him on 9 December 2011 together with Breytenbach. At the
meeting he was persuaded that the matter was not ripe for trial and
agreed to the provisional withdrawal of the charges. This differs
materially from his original position that he was unable to influence
the decision because it had been finally taken but conceded to the
characterisation of the withdrawal as provisional as a compromise
partially addressing his concerns.
54. Taking account of how it was placed before the court by
Mzinyathi, after FUL's heads of argument were filed, without
explanation for its lateness, and its inconsistency with his testimony
at the disciplinary hearing that he was presented with afait accompli
and was unable to influence the decision because Mrwebi claimed to

befunctus officio, this evidence of the DPP of North Gauteng, to the
effect that he ultimately concurred, must regrettably be rejected as
un-creditworthy. The affidavit is a belated, transparent and
unconvincing attempt to re-write the script to avoid the charge of
unlawfulness. The version in the supplementary founding affidavit,
originally uncontested by Mzinyathi, and corroborated by Mzinyathi's
testimony in the disciplinary hearing, must be preferred and accepted
as the truth.
55. In light of the contemporaneous evidence, Mrwebi's averment in
the answering affidavit that he consulted and reached agreement
with Mzinyathi before taking the decision is equally untenable and
incredible to a degree that it too falls to be rejected.
56. That a decision to withdraw the charges and discontinue the
prosecution had been made without the concurrence of Mzinyathi is
borne out not only by Mzinyathi's email of 8 December

2011

and his

evidence at the disciplinary hearing, but also by Mrwebis own
interpretation of events. In his answering affidavit, Mrwebi described
the purpose of the visit by Breytenbach and Mzinyathi to his office on
g December 2011 as being "to discuss their concerns that they do not
agree with my decision". After discussing the evidentiary issues,
according to Mrwebi, they agreed with his position that the case
against Mdluli was defective, had been enrolled prematurely and

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could be reinstated at any time. Breytenbach, he said, agreed to
pursue the matter and would come back to him with further evidence.
Breytenbach failed to pursue the matter diligently and did not come
back to him. He then considered the matter "closed", as he stated in a
letter to General Dramat of the Hawks, on 30 March

2012.

The court,

on the basis of this account, is asked to accept that the reason the
prosecution has not been re-instated is that Breytenbach failed in her
duty to obtain additional evidence and report back, as she had
promised at the meeting of 9 December 2011.
57. Breytenbach, as mentioned, was suspended from her position as
Regional Director of the SCCU in late April 2012, on numerous
unrelated charges of which she was later acquitted at the disciplinary
hearing.
58. Mrwebi's reference to "my decision" in his answering affidavit
implies that he believed the decision to withdraw the charges against
Mdluli was his decision and one made prior to the meeting of 9
December 2011 without the concurrence of Mzinyathi. His use of the
term "closed" in the letter to Dramat, albeit a few months later,
supports Mzinyathi's evidence that Mrwebi viewed himself asfunctus
officio, was unwilling to re-instate the charges and that the decision
was presented to him as afait accompli. The subsequent agreement to
categorise the charges as "provisional" was a concession to his
concerns, which did not alter Mrwebi's prior unilateral decision and
instruction that the charges should be withdrawn. Mrwebi's own
evidence thus supports a finding that the decision to withdraw the
fraud and corruption charges was taken by him alone before the
meeting of s December 2001, and prior to his writing of the
consultative note, without the concurrence of Mzinyathi.
59. Had Mrwebi genuinely been willing to pursue the charges after 9
December 2011, one would have expected him to have acted more
effectively. He justified his supine stance on the basis that
Breytenbach had not come back to him with additional evidence to
cure the defects in the case. He implied that had she done her job, the
charges would have been re-instated.
60. FUL was justifiably sceptical in its reply to these allegations.
Paragraph

106

and

107

of the reply read:

�

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Page 22JWB-375

"106.

Advocate Mrwebi's version as set out in this paragraph is, I

submit, palpably implausible and in conflict with his ipsissime verba.
In its ordinary meaning 'closed" is unequivocal. As it is used in
Advocate Mrwebi's letter to General Dramat, seen in the context,
there can in my submission be no doubt that Advocate Mrwebi was
implacably opposed to any prosecution against General Mdluli.
107.

Indeed, I submit that the very attempt to adhere to the untenable

casts serious doubt on the veracity of the deponent and moreover
casts a shadow over the propriety of his decision to block the
prosecution of General Mdluli."
61. The attempt to blame Breytenbach is frankly disingenuous and
unconvincing, as is Mrwebi's subsequent claim that investigations
into the charges are continuing. Three experienced commercial
prosecutors and two senior police investigators were satisfied in
early December 2011 that there was sufficient evidence to prosecute
Mdluli on these charges immediately. Breytenbach, who is an
experienced prosecutor with more than two decades of experience in
the criminal courts, accused Mrwebi, in her founding affidavit in the
Labour Court application, of "blind and irrational adherence to his
instruction that the charges be withdrawn" and of frustrating her
efforts to prosecute to the extent of having her suspended on spurious
charges. The assertion that Breytenbach agreed that the case against
Mdluli was defective is irreconcilable with the contemporaneous
evidence, particularly a threat made by her in a memo to the NDPP to
seek legal relief to compel the NPA to pursue the charges, and is
accordingly wholly improbable.
62. In a 24 page memo to the Acting NDPP dated

13

April

2012,

annexed to her affidavit in the Labour Court application, Breytenbach
made a forceful argument in favour of proceeding against Mdluli on
, the corruption charges and stated her view that the instruction to
withdraw the case against Mdluli and his co-accused, Colonel
Barnard, was "bad in law and in fact illegal". She asked the NDPP for
an internal review of Mrwebi's decision not to institute criminal
proceedings and to review the lawfulness of the decision.
63. The memo is a credible indication that the decisions were indeed
brought to the attention of the Acting NDPP for consideration. The

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NDPP in her answering affidavit, though not dealing directly with the
memo, maintained that the decisions to withdraw charges had not
come to her office for consideration "in terms of the regulatory
framework". Be that as it may, the memo leaves no doubt that
Breytenbach did not consider the case against Mdluli to be
"defective". She was confident that there was a good primafacie case
and reasonable and probable cause for a prosecution, so much so that
she wanted a review by the NDPP of the Special DPP's decision and
requested permission to re-enrol the charges and to pursue additional
charges in relation to Mdluli's misuse of the funds of the SSA. Her
firm conviction that there was a good case against Mdluli was the
reason she wrote the memo. Breytenbach concluded:
0ur professional ethics dictate that we pursue the matter to its
logical conclusion, which may include, of necessity, taking further
steps if there is no agreement between us"
11

64. Breytenbach's attempts to have the charges re-instated were not
successful. She was suspended about two weeks later on 30 April
2012.

65. Mrwebi offered no detail at all in his answering affidavit of any
continuing investigation into the fraud and corruption charges by
SAPS or the NPA, nor did he name any person supposedly seized with
them. He also did not comment on the recommendation of the IGI that
criminal proceedings should be instituted against Mdluli. His
averments in the answering affidavit regarding continuing
investigations, on the face of them, are unsubstantiated and hence
unconvincing. He sought belatedly to supplement his deficient
evidence in these respects in his supplementary answering affidavit
filed on

10

September 2013.

66. Motivated in part, as he said, by a need to respond to what he
considers to be a withering attack by Justice Kriegler on his integrity,
credibility, and the propriety of his decisions, and hence by
implication his suitability to hold his office, Mrwebi delivered the
supplementary answering affidavit (making averments going beyond
the challenge to his integrity) on the day before the matter was
enrolled for hearing, two months after the replying affidavit was filed

c

and one month after the applicant filed its heads of argument. H�

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reasons for taking so long are not compelling and pay little heed to
the fact that his timing ambushed the applicant and denied it the
opportunity to deal with the allegations made in the affidavit.
67. For the most part, the affidavit does not take the matter further
and basically repeats his assertion that the decision was not
unilateral and that investigations are continuing. Mrwebi referred for
the first time in this affidavit to five written reports from members of
the prosecuting authority who are investigating the matter, the
contents of which he was disinclined to share with the court for
strategic and tactical reasons on the grounds that disclosure will
hamper and prejudice the investigation. He was however prepared to
share with the court the fact that the NPA has experienced
"challenges" in relation to the declassification of documents.
Moreover, on 25 June 2013, three months before the hearing of the
application, it was established by investigating prosecutors that the
evidence of the main witness (who is not identified by name) will
have to be ignored in its entirety because it is apparently a
fabrication not reflecting the true version of events. The exact nature
of that evidence and the basis for its refutation is not disclosed.
68. For reasons that should be self-evident, it is not possible to attach
much weight to this evidence. The applicant has been denied the
opportunity to respond to it, and by its nature it is vague and
unsubstantiated. Mrwebi, by his own account, and for reasons he does
not explain, sat on this information for three months before
disclosing it to the court on the day before the hearing. The
averments accordingly can carry little weight on the grounds of
unreliability. The conduct of the Special DPP, again, I regret, as
evidenced by this behaviour, falls troublingly below the standard
expected from a senior officer of this court.
69. Accordingly, in the final result, I am compelled to find that
Mrwebi took the decision to withdraw the charges against Mdluli
without the concurrence of Mzinyathi and decided to discontinue the
prosecution.
70. The fraud and corruption charges were formally and
"provisionally" withdrawn in the Specialised Commercial Crimes
Court on 14 December 2011. FUL submits that a provisional

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withdrawal which has endured for two years may be considered to be
a permanent withdrawal. The characterisation of the withdrawal as
provisional, as I explain later, would not normally deflect from any
proven illegality or irrationality of the decision.
71. The charges of murder and related offences were withdrawn on 14
February 2011 by Chauke, the DPP for South Gauteng, based in
Johannesburg, the area of jurisdiction in which the alleged offences
were committed. Chauke determined to withdraw the charges on 1
February 2012. In
his reasons for decision and in his supporting answering affidavit,
February

2012

and publicly announced the fact on

2

Chauke explained that given the seriousness of the charges and the
lack of direct evidence to sustain the charge of murder, he decided to
withdraw the charges provisionally and for an inquest to be held to
determine the cause of death of Ramogibe. Chauke withdrew the 17
other charges of intimidation, assault, attempted murder and
kidnapping because he wanted to avoid fragmented trials.
72. An inquest is an investigatory process held in terms of the
Inquests Act11 which is directed primarily at establishing a cause of
death where the person is suspected to have died of other than
natural causes. Section 16(2) of the Inquests Act requires a magistrate
conducting an inquest to investigate and record his findings as to the
identity of the deceased person, the date and cause (or likely cause)
of his death and whether the death was brought about by any act or
omission that primafacie amounts to an offence on the part of any
person. The presiding officer is not called on to make any
determinative finding as to culpability.
73. In his supporting answering affidavit, Chauke explained that he
took the decision to withdraw the charges and to refer the murder
allegations to an inquest in response to the written representations
made on behalf of Mdluli to the DPP South Gauteng in November
He did not annex a copy of those representations to his
affidavit.
2011.

74. The inquest was held during the course of April and May 2012.
The magistrate handed down his reasons six months later on 20
November 2012. The reasons suffer a measure of incoherence and the
ultimate findings are contradictory. He found first that an inference

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Page 26
of Mdluli's involvement would be consistent with the facts but not the
only inference. He then concluded:
"The death was brought about by an act primafacie amounting to an
offence on the part of unknown persons. There is no evidence on a
balance of probabilities implicating Richard Mdluli ..... "
75. The magistrate found correctly that the inquest had no
jurisdiction to deal with the other charges against Mdluli.
76. In its supplementary founding affidavit delivered in March 2013,
FUL submitted that the evidence put up in the inquest discloses a

primafacie case against Mdluli of murder, kidnapping, assault with
intent to do grievous bodily harm and defeating the end of justice.
77. In relation to the killing of the deceased, given that he was shot
three times by unknown assailants, there is no doubt that an offence
was involved. The only question for the magistrate, in terms of
section 16(2) of the Inquest Act, was whether the death was brought
about by conduct primafacie amounting to an offence on the part of
any person. A prima Jacie case will exist if the allegations, as
supported by statements and real documentary evidence available,
are of such a nature that if proved in a court of law by the
prosecution on the basis of admissible evidence, the court should
convict.12 The magistrate's conclusion that an inference of Mdluli's
involvement would be consistent with the proved facts amounts to a
finding that Mdluli has aprimafacie case to answer. The magistrate in
effect (but perhaps unconsciously) accepted that although a case had
not been established beyond reasonable doubt or on a balance of
probabilities, there was a primafacie case of murder against Mdluli.
It was not the responsibility of the magistrate to establish culpability
either beyond reasonable doubt or on a balance of probabilities.
78. The affidavits before the inquest and the evidence as summarised
by the magistrate in his written reasons do indeed support a
conclusion that there is a primafacie case against Mdluli on the
murder and related charges. The magistrate found the following to be
common cause. Mdluli and Ramogibe, the deceased, were both in a
relationship with the same woman, Buthelezi, from 1997 until the
murder of the deceased in 1999. Ramogibe had secretly married

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Buthelezi during the period in question. Mdluli was upset about the
relationship "and on a number of occasions addressed the issue". On
23 December 1998 Ramogibe was the victim of an attempted murder.
He reported the incident to the Vosloorus SAPS. Ramogibe was
requested to report to the Vosloorus police station to meet with the
investigating officer and to point out the scene of the attempted
murder. On 17 February 1999, Ramogibe was taken to the scene in
Mdluli's official vehicle, a green Volkswagen Golf. Ramogibe was
murdered at the scene on that day while pointing it out to the
investigating officer.
79. In its supplementary founding affidavit, FUL highlighted the
following key attributes of the evidence demonstrating a prims fecie
case against Mdluli, and upon which the magistrate's inference of
Mdluli's involvement is soundly based.
80. The deceased's mother, Ms Maletsatsi Sophia Ramogibe, testified
that during 1998 Mdluli came to her home looking for the deceased,
obviously unhappy with the fact that the deceased was in a
relationship with Buthelezi. A few days later, Mdluli came and fetched
her and took her to the police station. There she found her son
bleeding with his shirt covered in blood. Mdluli insulted her son in his
presence and warned him to keep away from Buthelezi. Her son was
killed a few days later. After his death, Ms Ramogibe's daughter,
Jostinah, was kidnapped and raped (confirmed by her in a
confirmatory affidavit). She later received a call from an unknown
caller who warned her that if she proceeded to press the case of her
son's murder all her daughters would be killed.
81. Ms Alice Manana, an acquaintance of the deceased and Buthelezi,
described how in August 1998 she was allegedly kidnapped,
intimidated and assaulted by Mdluli and two fellow officers of the
Vosloorus SAPS, and forced to disclose the whereabouts of the couple
and to take the police to them at Orange Farm. The deceased and
Buthelezi were then taken to Vosloorus police station where they
were assaulted for 30 minutes before being discharged. On 17 October
1998, Ms Manana was repeatedly shot by an assailant who shot her at
the front door of her home. During the shooting, she saw Mdluli
sitting in the driver's seat of a green Volkswagen Golf, which she
knew belonged to him, parked outside her house.

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82. Buthelezi, now deceased, stated in an affidavit deposed to before
her death that she and the deceased had been kidnapped and
assaulted by Mdluli and his colleagues.
83. Five other witnesses, including the deceased's father, testified
that Mdluli had visited them repeatedly looking for the deceased and
informed them that he would kill Ramogibe if he did not end his
relationship with Buthelezi. Mr Steven Buti Jiyane testified that
Ramogibe had periodically stayed at his family home because Mdluli
was threatening to kill him.
84. Mary Lokaje in her affidavit heard the shooting of Ramogibe
outside her house and saw three uniformed policeman running away
from the scene, and saw the Golf being driven away.
85. Various affidavits by police officers who investigated the murder
were filed confirming that Mdluli was the main suspect in the case
although there was no evidence of his direct involvement in the
murder and dealing with the loss of the dockets and evidence linked
to some of the charges.
86. The magistrate did not reject any of this evidence. He in fact
accepted it. In the conclusion to his reasons, the magistrate stated:
"But be this as it may, their evidence of Mdluli being to such a degree
upset with Oupa's (Ramogibe) relationship with an estranged Tshidi
(Buthelezi) that they deemed it necessary to have reported it and
mentioned it in their affidavits shortly after Oupa's death, runs like a
golden thread through the murky waters of their evidence. Evidence
that he passed threats to kill Oupa, whether made repeatedly or not,
against the background of the strong current of Mdluli' s emotions at
the time, is in my opinion overwhelmingly probable" (emphasis
supplied).
He then found that it had been proved on a balance of probabilities
that Mdluli was "highly upset and humiliated" by Ramogibe's
relationship with his former lover, had not come to terms with the
fact that Buthelezi had ended their relationship, had made threats to
kill Ramogibe and that his family would mourn him and had wanted
Ramogibe out of Buthelezi's life in the hope that he could rescue his
relationship with her. He, however, went on to point out that it mig

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be difficult to link the threats, intimidation and alleged kidnapping to
the ultimate fatal shooting of Ramogibe. The inability to call
Buthelezi, now deceased, was in his opinion a complicating factor.
These weaknesses (and others) in the evidence led the magistrate to
conclude that an inference of Mdluli's involvement was permissible
but not conclusive. His ultimate conclusion that there was no
evidence on a balance of probabilities "implicating" Mdluli is wrong
and inconsistent with his otherwise correct assessment and
evaluation of the evidence.
87. Neither the Acting NDPP nor Chauke dealt meaningfully in their
answering affidavits with the incriminating evidence against Mdluli,
FUL's submissions regarding the evidence, or the finding of the
magistrate that an inference of Mdluli's involvement was consistent
with the facts.
88. The Acting NDPP, after setting out the legal and policy
framework, confined herself to the following averments in
paragraphs 19-24 of her answering affidavit:
"19. When Advocate Chauke decided to withdraw the criminal charges
of murder and related charges against the Fifth Respondent (Mdluli),
he was authorised to do so by the Act, the Policy and the Policy
Directives.
20.

I am aware that Advocate Chauke referred the matter to an

inquest by a magistrate and that the magistrate found that there was
no evidence on a balance of probabilities implicating the Fifth
Respondent and his co-accused in the death of Mr Ramogibe.
21.

The decisions of the Third Respondent and Advocate Chauke on

this matter have not been brought to my office for consideration in
terms of the regulatory framework.
In the light of the above I did not take any decision referred to in
the Applicant's founding affidavit. In terms of section 22(2)(b) of the
22.

NPA Act, I may intervene in any prosecution process when policy
directives are not complied with. I may also in terms of section 22(2)
Cc) of the NPA Act review a decision to prosecute or not to prosecute,
after consulting the relevant Director and after taking
representations of the accused person, within the time period

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specified by me, the complainant or any party whom I consider to be
relevant.
23. At this stage there was no policy contravention and/or
representations received by me to warrant my intervention as set out
above.
24. This therefore makes the application to review the withdrawal of
charges by this honourable court premature."
The Acting NDPP fails to mention the representations made to her by
Breytenbach, or that Mdluli's written representations of 26 October
2011

were in fact addressed to her. Nor does she refer to the

magistrate's finding that an inference of Mdluli's involvement was
consistent with the proven facts.
89. Chauke in his answering affidavit similarly ignored some of the
inquest findings, saying simply that the magistrate had found there
was no evidence implicating Mdluli. Clearly there is evidence
implicating Mdluli. The magistrate's conclusion is anyhow not
decisive. Guilt or innocence is a matter for the trial court tasked with
the responsibility of determining culpability. Section 16(2) of the
Inquests Act only requires a magistrate conducting an inquest to
determine whether the death was brought about by any act or
omission that amounts prima facie to an offence on the part of any
person and, insofar as this is possible, a finding as to whom the
responsible offenders might be.13 The OPP is besides not bound by
the findings of the inquest.
go. Chauke added that resources should not be wasted pursuing
inappropriate cases where there is no prospect of success. On that
basis he concluded that it would be "presumptuous and foolhardy" to
proceed with the prosecution. He, in other words, is of the opinion
that the charges provisionally withdrawn should now be finally
withdrawn. He also contended that an inappropriate or "wrong"
decision to prosecute would undermine the community's confidence
in the prosecution system. FUL's predictable rejoinder is that his
withdrawal of the charges has already done so.
91. It is difficult to fathom why the OPP of South Gauteng has not
proceeded with the

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17 charges of attempted murder, assault, kidnapping etc. after the

inquest. His reason for provisionally withdrawing them in his reasons
for decision was that he wanted to avoid fragmented trials. The
inquest resolved that problem. If he did not want to pursue the
murder charge on the basis of the inquest finding, he had a duty to
continue with the balance of the charges and has given no reason for
not proceeding. The evidence given in relation to them during the
inquest, on the limited information available, looks reasonably cogent
and compelling.
In terms of the prosecution policy and directives issued in terms
of the NPA Act, there is a duty to pursue a prosecution where there is
92.

a reasonable prospect of success, and regard should always be had to
the nature and seriousness of the offence and the interests of the
broader community. Despite the obvious anomalies in the inquest
findings, the evidence as a whole, read particularly with the witness
statements, establishes a primafacie case and points to more than a
reasonable prospect that a prosecution on the murder and related
charges may meet with success on at least some of the counts.
93. Two weeks after the criminal charges against Mdluli were
withdrawn, on 29 February 2012, the Acting Commissioner withdrew
the disciplinary charges against him and disciplinary proceedings
were terminated. Mdluli was therefore re-instated and resumed office
from 31 March 2012. During April 2012, his role was extended to
include responsibility for the unit which provides VIP protection to
members of the National Executive, including President Zuma.
94. However, shortly afterwards, as a result of the serious allegations
of conspiracy that he had levelled against other senior members of
the SAPS, the Minister announced, on g May 2012, that Mdluli would
be re-deployed from his post as Head of Crime Intelligence whilst
those allegations were investigated by a ministerial task team. It will
be re-called also that on 19 March 2012 the IGI recommended that
Mdluli be prosecuted on the fraud and corruption charges.
95. The applicant launched these proceedings on 15 May 2013. On the
same day the Acting Commissioner re-initiated disciplinary
proceedings and brought charges against Mdluli, the nature and
extent of which remain unknown. Mdluli was suspended for a second

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time on

May 2012 pending the outcome of that new process. As
mentioned earlier, this court on 6 June 2012 granted the relief sought
25

in Part A of the notice of motion and interdicted Mdluli from
discharging any function or duty as a member and senior officer of
the SAPS pending the outcome of this review; and further interdicted
the Commissioner and the Minister from assigning any function or
duty to him.
96. In a press statement issued by SAPS on s July 2012 it was
announced that the ministerial task team, headed by Chief State Law
Adviser, Mr Enver Daniels, had found that there was no evidence of a
conspiracy against Mdluli and that the officials and his colleagues
who had accused him of criminal conduct had acted professionally, in
good faith and with a proper sensitivity to the issues at hand.
97. No steps have been taken to re-instate the murder or related

charges against Mdluli since that date - even though, to repeat, the
evidence put up in the inquest proceedings discloses at least prime

facie cases of murder, kidnapping, attempted murder, assault to do
grievous bodily harm and defeating the ends of justice against Mdluli.
Chauke has given no indication of whether the murder investigation
is being continued or not.
The structure of the prosecuting authority and the power to
withdraw charges against an accused person
98. Before considering the grounds of review, it will be useful to
examine the legislative provisions governing the structure and
functioning of the prosecuting authority.
99. Section 179(1) of the Constitution establishes a single national

prosecuting authority in the Republic, which is required to be
structured in terms of an Act of Parliament. The relevant statute is
the National Prosecuting Authority Act 14 ("the NPA Act"), which was
enacted shortly after the Constitution was adopted. The NPA Act must
be read together with Chapter 1 of the Criminal Procedure Actis ("the
CP Act") titled "Prosecuting Authority", which has been amended to
reflect the post- constitutional arrangements established by the NPA �
Act.
�
�

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100. In terms of section 179(1) of the Constitution the prosecuting
authority consists of the NDPP, who is the head of the prosecuting
authority, and is appointed by the President; and DPPs and
prosecutors as determined by the NPA Act.16 The single prosecuting
authority consists of the Office of the NDPP and the Offices of the
prosecuting authority at the High Courts.17 The Office of the NDPP
consists of the NDPP, Deputy NDPPs, Investigating Directors and
Special Directors and other members of the prosecuting authority
appointed at or assigned to the Office.t S
101. The powers of a Special Director are relevant to this case. A
Special Director is defined in section 1 of the NPA Act to mean a OPP
appointed under section 13(1)(c), which provides that the President,
after consultation with the Minister and the NDPP, may appoint one
or more DPP as a Special Director to exercise certain powers, carry
out certain duties and perform certain functions conferred or
imposed on or assigned to him or her by the President by
proclamation in the Gazette.
102. Section 6 of the NPA Act establishes an Office for the prosecuting
authority at the seat of each High Court in the Republic. Each Office
established by this section consists of the head of the Office, who is
required to be a OPP or a Deputy DPP, and other Deputy DPPs and
prosecutors appointed in terms of section 16(1) of the NPA Act.
Prosecutors are appointed on the recommendation of the NDPP or a
member of the prosecuting authority designated for that purpose by
the NDPP. They can be appointed to the Office of the NDPP, the
Offices at the seat of a High Court, to the lower Courts or to an
Investigating Directorate established by the President in terms of
section 7.
103. Section 179(2) of the Constitution provides that the prosecuting
authority has the power to institute criminal proceedings on behalf of
the state, and to carry out any necessary functions incidental to
instituting criminal proceedings. Section 179(4) importantly provides
that national legislation must ensure that the prosecuting authority
exercises its functions without fear, favour or prejudice.

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The power to institute and conduct criminal proceedings as
contemplated in section 179 (2) of the Constitution is given legislative
104.

expression in section 20(1) of the NPA Act, which reads:
"The power, as contemplated in section 179(2) and all other relevant
sections of the Constitution, to(a) institute and conduct criminal proceedings on behalf of the State;
(b) carry out any necessary functions incidental to instituting and
conducting such criminal proceedings; and
(c) discontinue criminal proceedings,
vests in the prosecuting authority and shall, for all purposes be
exercised on behalf of the Republic."
All DPPs and Deputy DPPs in Offices at the seat of a High Court,
as well as DPPs who are Special Directors in the Offices of the NDPP,
105.

are entitled to exercise the powers in section 20(1) in respect of the
area of jurisdiction for which he or she has been appointed.19 There
is an important qualification though in respect of Special Directors
which has obvious relevance to this case. Section 24(3) of the NPA
Act provides:
"A Special Director shall exercise the powers, carry out the duties and
perform the functions conferred or imposed on or assigned to him or
her by the President, subject to the directions of the National
Director: Provided that if such powers, duties and functions include
any of the powers referred to in section 20(1), they shall be exercised,
carried out and performed in consultation with the Director of the
area jurisdiction concerned."
The intended effect of the proviso to section 24(3) is that whenever a
Special Director based in the office of the NDPP wishes to institute,
conduct or discontinue criminal proceedings he or she is obliged to
act "in consultation with" the DPP of the High Court in the area of
jurisdiction concerned.
106. Prosecutors are competent to exercise the power in section 20(1)

to the extent that they have been authorised by the NDPP or a person

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designated by the NDPP. The powers of DPPs, Deputy DPPs and
Special Directors to carry out the duties and functions contemplated
in section 20(1), are to be exercised subject to the control and

directions of the NDPP.20
107. Section 22 of the NPA Act defines the scope of the powers, duties
and functions of the NDPP. Section 22(1) provides that the NDPP as
head of the prosecuting authority shall have the authority over the
exercising of all the powers, and the performance of all the duties and
functions conferred or imposed on or assigned to any member of the
prosecuting authority. Section 22(2) gives verbatim effect to section
179(5) of the Constitution. Section 179(5) reads:
"The National Director of Public Prosecutions (a) must determine, with the concurrence of the Cabinet member
responsible for the administration of justice, and after consulting the
Directors of Public Prosecutions, prosecution policy, which must be
observed in the prosecution process;
(b) must issue policy directives which must be observed in the
prosecution process;
(c) may intervene in the prosecution process when policy directives
are not complied with; and
(d) may review a decision to prosecute or not to prosecute, after
consulting the relevant Director of Public Prosecutions, from the
following:
(i) The accused person.

(ii) The complainant.
(iii) Any other person or party whom the National Director considers

to be relevant."
108. The power of the NDPP to issue policy directives contemplated in
section 179(5)(a) and (b) must be exercised with the concurrence of
the Minister and after consulting the DPPs.21
109. Section 22(4) bestows additional powers, duties and functions on
the NDPP. They include a duty to maintain close liaison with DPPs

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inter alia to foster common policies and practices and to promote cooperation in relation to the handling of complaints in respect of the
prosecuting authority.zz as well as a duty to assist OPPs and
prosecutors in achieving the effective and fair administration of
criminal justice.23
110. The powers, duties and functions of OPPs are set out in section
24 of the NPA Act. They include the power to institute and conduct
criminal proceedings. Although section 24(1) makes no express
reference to the power to discontinue proceedings, such power vests
in a OPP by virtue of section 20(3) which confers on OPPs the
authority to exercise the powers in section 20(1), including the power
to discontinue proceedings in terms of section 20(1)(c). Section 24(1)
(d) is a general provision which empowers DPPs to "exercise all
powers conferred or imposed on or assigned to him or her under any
law which is in accordance with the provisions of this Act". As I will
discuss presently, section 6 of the CP Act confers the power to
withdraw charges or to stop a prosecution upon DPPs and
prosecutors. There can accordingly be no doubt that OPPs have the
power to discontinue criminal proceedings. However, as I have
explained, the power of a Special Director, who is by definition a OPP,
is qualified by the proviso to section 24(3). Similarly, only a OPP who
is not a Special Directorza may give written directions to a
prosecutor within his or her area of jurisdiction who institutes or
carries on prosecutionszg.
111. Section 6 of the CP Act provides:

"Power to withdraw charge or stop prosecution.- An attorneygeneral or any person conducting a prosecution at the instance of the
State or any body or person conducting a prosecution under section 8,
may(a) before an accused pleads to a charge, withdraw that charge, in
which event the accused shall not be entitled to a verdict of acquittal
in respect of that charge;
(b) at any time after an accused has pleaded, but before conviction,
stop the prosecution in respect of that charge, in which event the
court trying the accused shall acquit the accused in respect of that

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charge: Provided that where a prosecution is conducted by a person
other than an attorney-general or a body or person referred to in
section 8, the prosecution shall not be stopped unless the attorneygeneral or any person authorized thereto by the attorney-general,
whether .in general or in any particular case, has consented thereto."
The withdrawal of charges and the stopping of a prosecution after
plea have different consequences. If the charge is withdrawn before
plea, an accused is not entitled to an acquittal and the charges can be
re-instated at some future date. The stopping of a prosecution, as
envisaged in section 6(b), involves a conscious act to terminate the
proceedings after a plea has been entered, in which event an accused
will be entitled to an acquittal and to raise the plea of eutrefois acquit
(double jeopardy) if the prosecuting authority should attempt to reinstitute criminal proceedings on the same or substantially similar
charges. A stopping of a prosecution may occur only at the instance of
a DPP26 or with his consent. A prosecutor, however, may withdraw
charges. At issue in this case is whether a Special Director may
withdraw charges or instruct a prosecutor to withdraw charges
without the consent of a DPP, a matter to which I will return when
discussing the grounds of review.
The NDPP, acting in terms of section 21 of the NPA Act, has
issued a Policy Manual containing a Prosecution Policy and Policy
Directives. They set out relevant policy considerations which
112.

normally should inform any decision to review a prosecution or to
discontinue proceedings by withdrawing charges or stopping a
prosecution. The NDPP has stated in her answering affidavit that the
review of a case is a continuing process taking account of changing
circumstances and fresh facts which may come to light after an initial
decision to prosecute has been made. This may occur, and I imagine
often does occur, after the prosecuting authority has heard and
considered the version of the accused and representations made on
his or her behalf.
113. Paragraph 4(c) of the Prosecution Policy provides that once a
prosecutor is satisfied that there is sufficient evidence to provide
reasonable prospects of a conviction a prosecution should normally
follow, unless "public interest demands otherwise". It continues:

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"There is no rule of law which states that all provable cases brought
to the attention of the Prosecuting Authority must be prosecuted. On
the contrary, any such rule would be too harsh and impose an
impossible burden on the prosecutor and on a society interested in
the fair administration of justice."
The policy further provides that when considering whether or not it
will be in the public interest to prosecute, prosecutors should
consider all relevant factors, including the nature and seriousness of
the offence, the interests of the victim and the broader community
and the circumstances of the offender.
114. Part

s of the Policy Directives deals with the withdrawal and

stopping of cases. The guidelines draw a clear distinction between
withdrawing charges and the stopping of a prosecution. Paragraphs
(8) and (g) of Parts note that the stopping of a prosecution in terms
of section 6(b) of the CPAct effectively means that the prosecuting
authority is abandoning the case and accordingly, as a rule, criminal
proceedings should only be stopped when it becomes clear during the
course of the trial that it would be impossible to obtain a conviction
or where the continuation thereof has become undesirable due to
exceptional circumstances.
115. Likewise, in relation to the withdrawal of charges, paragraph (1)
of Part s states that once enrolled, cases may only be withdrawn on
compelling grounds "e.g, if it appears after thorough police
investigation that there is no longer any reasonable prospect of a
successful prosecution". Paragraph (5) provides that no prosecutor
may withdraw any charges without the prior authorisation of the
NDPP or the OPP where the prosecution has been ordered by either
the NDPP or OPP; while paragraph (6)(a) stipulates that the advice of
the NDPP or DPP should be sought where the case is of a sensitive or
contentious nature or has a high profile.
116. Part 6 of the Policy Directives governs the question of
representations. It generally provides that representations should be
given earnest attention. Paragraphs (5) and (6) have assumed
importance in this case. They read:

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. Where a decision of a lower court prosecutor to prosecute or not to
prosecute is the subject matter, representations should be directed to
the Senior or Control Prosecutor, and thereafter to the DPP, before
the final appeal is made to the NDPP. Potential representors should,
where possible, be advised accordingly.
As a matter of law and policy, the NDPP requires that the remedy of
recourse to the DPP be exhausted before representors approach the
NDPP."

The reviewability of prosecutorial decisions
117. The NDPP in paragraph 47.7 of her written submissions argued
that section 179(5)(d) of the Constitution, allowing her to review
decisions to prosecute or not to prosecute, excludes the power of the
courts to review non-prosecution. Mr Hodes SC, on behalf of the
NDPP, initially persisted in argument with the contention that the
Constitution vests exclusive power in the NDPP to review
prosecutorial decisions. The courts, he submitted, have no power to
review any prosecutorial decision, only the NDPP may do so and her
decision will be final and not reviewable. That can never be; if only
because the SCA has already pronounced that prosecutorial decisions
are subject to rule of law review. It is inconceivable in our
constitutional order that the NPA would be immune from judicial
supervision to the extent that it may act illegally and irrationally
without complainants having access to the courts. Considering the
implications, one can only marvel at the fact that senior lawyers are
prepared to make such a submission. The mere existence of a
permissive extra- judicial measure allowing the NDPP to review
decisions to prosecute or not to prosecute taken by subordinates on
policy, evidentiary and public interest grounds, does not deny an
aggrieved party access to court. Section 179(5)(d) of the Constitution
does not aim to oust the constitutional and statutory jurisdiction of
the courts to review on grounds of legality, rationality and
administrative reasonableness.
118. During the course of argument counsel's line of reasoning
evolved and transformed, as it had to, into two principal assertions:
first, granted that judicial review of prosecutorial decisions is
constitutionally ordained, it is restricted to extremely limited

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grounds; and second, resort to the courts is excluded until the process
envisaged in section 179(5)(d) of the Constitution has been
exhausted. I deal in this part only with the nature and extent of the
power to review prosecutorial decisions. I will consider counsel's
contention that the section 179(5)(d) process must be exhausted
before resort to the courts is permitted at a later stage in this
judgment.
119. At times it would be narve of the courts to pretend to be oblivious
to the political context _and consequences of disputes before thern.zv
In politically contentious matters, the courts should expect to be
called upon to explicate the source, nature and extent of their powers.
There has been much public commentary in the media in relation to
this case which has sought to represent the issue of contestation to be
about the extent of judicial power in relation to the executive. There
is an important and legitimate element of truth in that. A danger
exists though in the arising of a false perception that the courts when
exercising judicial review of prosecutorial decisions may trespass
illegitimately into the executive domain.
120.

It accordingly seems to me imperative, in the light of counsel's

submissions, to deal comprehensively with the power of the courts in
relation to executive decisions of this kind. I do so in the hope of
dispelling the myth that the courts are untowardly assuming powers
of review, and to illustrate that the powers of the courts to review
prosecutorial decisions are clearly defined and are consistently
exercised within the parameters set by the Constitution and
Parliament.
121. The discretion of the prosecuting authority to prosecute, not to
prosecute or to discontinue criminal proceedings is a wide one.
Nonetheless, as is reflected in the Prosecution Policy Directives, the
prosecuting authority has a duty to prosecute, or to continue a
prosecution, if there is a primafacie case and if there is no compelling
reason for non-prosecution.
122. Courts all over the world are reluctant to interfere with a
prosecuting authority's bonafideexercise of the discretion to
prosecute. In R (On the Application of Corner House Research and

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Others) v Director of the Serious Fraud Office28 the House of Lords
(per Lord Bingham) expressed the need for deference and caution,
stating that courts should disturb the decisions of an independent
prosecutor only in "highly exceptional cases". Courts recognise that at
times it will be within neither their constitutional function nor
practical competence to assess the merits of decisions where the
polycentric character of official decision-making, including policy and
public interest considerations, mean they are not susceptible or easily
amenable to judicial review.29 The constitutional requirement that
the prosecuting authority be independent, and should exercise its
functions without fear, favour or prejudice, justifies judicial restraint.
123. However, judicial restraint can never mean total abdication. The
discretions conferred on the prosecuting authority are not unfettered.
In the United Kingdom, for instance, prosecutors must exercise their
powers in good faith and so as to promote the statutory purpose for
which they are given, direct themselves correctly in law, act lawfully,
exercise an objective judgment on the relevant material available to
them,
and be uninfluenced by any ulterior motive, predilection or
prejudice.jo Hence, although following a deferential approach in the
UK, review of all prosecutorial decisions is permissible on legality
and rationality grounds.
124. Our law is not significantly different. Courts will interfere with
decisions to prosecute where the discretion is improperly exercised
(illegal and irrational),31 malafides,32 or deployed for ulterior
purposes.gg They will do so on the ground that such conduct is in
breach of the principle of legality. The constitutional principle of
legality requires that a decision-maker exercises the powers
conferred on him lawfully, rationally and in good faith.34 The
standard applies irrespective of whether or not the exercise of power
constitutes administrative action in terms of the Promotion of
Administrative Action Act35 ("PAJA"), our legislative code of
administrative law which gives effect to the constitutional right to
administrative action which is lawful, reasonable and procedurally
fair,36 and which to a considerable extent shapes the separation of
powers between the judiciary and the executive. PAJA provides a /

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broader range of review grounds than the principle of legality.
Section t(ff) of PAJA, however, excludes decisions to institute or

continue a prosecution from the definition of administrative action.
125.

The law in relation to decisions not to prosecute or to discontinue

a prosecution is in some respects different. The CC has recognized in
an obiter dictum that different policy considerations may apply to a
decision to prosecute and a decision not to prosecute.jv The SCA has
also referred to the policy considerations underpinning the exclusion
of decisions to prosecute from administrative review.gS In National

Director of Public Prosecutions v Zuma39Harms DP acknowledged in
an obiter dictumthe possibility of a judicial review of a decision not to
prosecute and held that such review had not been excluded by PAJA.
In Democratic Alliance and Others v Acting National of Public
Prosecutions and othersqo Navsa JA, without
referring to the view of Harms DP in Zuma, seemed to intimate, also
in an obiter dictum, that a decision to discontinue a prosecution might
not be reviewable under PAJA, but held that a decision to discontinue
a prosecution was in any event subject to a rule of law review. The
learned judge of appeal said:
"While there appears to be some justification for the contention that
a decision to discontinue a prosecution is of the same genus as a
decision to institute or continue a prosecution, which is excluded
from the definition of 'administrative action' in terms of section 1(ff)
of PAJA, it is not necessary for us to finally decide that question.
Before us it was conceded ... that a decision to discontinue a
prosecution was subject to a rule of law review. That concession in
my view was rightly made ... [I]n Democratic Alliance v President of

the Republic of South Africa and otnerszotz (1) SA 417 (SCA) this
court noted that the office of the NDPP was integral to the rule of law
and to our success as a democracy. In that case this court stated
emphatically that the exercise of public power... must comply with the
Constitution."
So whether or not PAJA applies, decisions not to prosecute or to
discontinue a prosecution are subject to legality and rationality

126.

review. Legality review, if I may state the obvious, is concerned with
.,..
�
the lawfulness of exercises of public power. Decisions must be

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authorised by law and any statutory requirements or preconditions
that attach to the exercise of the power must be complied with.
Rationality review is concerned with the relationship between means
and ends and asks whether the means employed are rationally related
to the purpose for which the
power was conferred. The process followed in reaching a decision
must also be rational.ar As pointed out by the CC in Democratic

Alliance v President of the Republic of South Africa and Otiierqz: a
rationality standard prescribes a low threshold of scrutiny, and hence
validity, for executive or administrative action. It is the minimum
threshold requirement applicable to the exercise of all public power
by members of the executive and other functionaries.
127.

Rationality review also comprises a procedural element. A

refusal to include relevant and interested stakeholders in a process,
or a decision to receive representations only from some to the
exclusion of others, may render a decision irrational. In Albutt v

Centre for the Study of Violence and Reconciliation and Others43 the
CC held that the exclusion of victims from participation in a special
pardon dispensation was irrational because it disregarded the
objective of nation building and reconciliation in the legislative
scheme.
128.

Decisions coloured by material errors of law, based on irrelevant

considerations or ignoring relevant considerations could arguably be
considered to be illegal or irrational. Traditionally these grounds are
acknowledged as distinct review grounds, like the ground of
unreasonableness, which permits review of decisions that no
reasonable person could have so decided. These grounds are available
in our law under PAJA in respect of decisions that fall within the
definition of "administrative action". As some of the challenges made
by the applicant to the decisions of the respondents in this case are
predicated upon such grounds, it is necessary to consider if they are
available. This requires me to make a finding whether or not a
decision to discontinue a prosecution (or to withdraw charges) is
administrative action within the meaning of that term as defined in
section 1 of Pi\)A.

/7

"-L___,

/.

J,
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129. Section 1(ff) of PAJA, as mentioned, explicitly excludes decisions

to institute or continue a prosecution from the definition of
administrative action, and hence such are patently not reviewable
under PAJA. The legal position with regard to decisions not to
prosecute or to discontinue a prosecution is less clear. The CC has not
pronounced finally on whether the decision not to prosecute
constitutes administrative action; and the SCA, as mentioned, has
expressed two different prims fecie opinions on the matter.
130. In general, a decision will constitute administrative action if it is
made under an empowering provision and taken by an organ of state
exercising a power in terms of the Constitution, or exercising a public
power or performing a public function in terms of legislation, which
adversely affects the rights of any person and which has a direct,
external legal effect.aa The SCA and the CC have interpreted the
definition to include a decision which has the capacity to affect legal
rights and where it impacts directly and immediately on
individuals.ag
131. The NDPP and the DPPs, making up the prosecuting authority in
terms of the Constitution and the NPA Act, are unquestionably organs
of state. In addition, the power of non-prosecution is a corollary to
the power to institute and carry out criminal prosecutions.q.S The
power derives from s 179(2) of the Constitution which provides that
the prosecuting authority has the power to institute criminal
proceedings on behalf of the state, and to carry out any necessary
functions incidental to instituting criminal proceedings. It follows
that a decision by the prosecuting authority to withdraw charges or to
stop a prosecution constitutes the exercise of a power in terms of the
Constitution. It involves exercising a public power in terms of
legislation, namely the NPA Act; and has a direct, external legal
effect. It results in a prosecution being stopped or avoided. And,
lastly, it adversely affects the rights of the public, and at least the
complainants, who are entitled to be protected against crime through,
amongst other measures, the effective prosecution thereof. A decision
to withdraw criminal charges or to discontinue a prosecution
accordingly meets each of the definitional requirements of
administrative action.

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132.

A purely textual interpretation of the definition of administrative

action thus confirms that prosecutorial decisions in general do indeed
constitute administrative action and are subject to review under
PAJA. This is affirmed further by the fact that section l(ff) excludes
from the definition of administrative action specific instances of
prosecutorial discretion, namely the institution and continuance of a
prosecution, thus implying ex contreriis that other prosecutorial
decisions, most especially the decision not to institute or to
discontinue a prosecution, are not so excluded.av That choice by the
legislature appears to have been deliberate, and is based on sound
policy considerations. Professor Cora Hoexter in her seminal work,

Administrative Law in South Africa, comments on the exclusionary
clause as followsqS:
"The intention behind this provision, as reflected by the draft
Administrative Justice Bill appended to the South African Law
Commission's 1999 report, was to confine reviews under PAJA to
decisions not to prosecute. There is less need to review decisions to
prosecute or to continue a prosecution as types of administrative
action, since such decisions will ordinarily result in a trial in a court
of law."
I would accordingly respectfully disagree with the obiter dictum of
Navsa JA, in Democratic Alliance and Others v Acting National of
Public Prosecutions and Others,49 that a decision to discontinue a
prosecution is of the same genus as a decision to prosecute. For the
reasons stated by Professor Hoexter, a decision of non-prosecution is
of a different genus to one to institute a prosecution. It is final in
effect in a way that a decision to prosecute is not.

133. In addition to the language of the definition of administrative
action incorporating prosecutorial decisions within its ambit, as well
as the implication of the text of the exclusionary clause, (that but for
its terms a decision to prosecute would have fallen within the
definition and would have constituted administrative action), the
original historical intent, as evidenced in the context and the travaux

preparatoire mentioned by Professor Hoexter, fortifies the
proposition that the intention of the legislature was to limit the
extent of the exclusion and bestow a more extensive power of revie�
over decisions not to prosecute or to discontinue a prosecution. Added

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to that, as already intimated, there are legitimate structural and
prudential arguments justifying the distinction. There is no need to
review decisions to prosecute because the lawfulness and rationality
of the decision can be challenged in the subsequent criminal trial; but
there is perhaps a need for wider review of a decision not to
prosecute because without it there will be inadequate supervision.
134. Consequently, the preponderance of the modalities of
interpretation, the text, historical intent, the ethos of our culture of
justification, prudential and structural considerations, and doctrine,
all point inexorably to the conclusion that it was the intention of
Parliament, pursuant to its obligation in section 33(3) of the
Constitution to enact PAJA, that decisions not to prosecute or to
discontinue prosecutions would be subject to judicial review in terms
of PAJA.
135. Such a finding, I trust, will not be viewed as a case of the courts
assuming the power of review on the basis of casuistic practice or
doctrine, or worse still, a judicial whim, as the media and social
commentators appear sometimes mistakenly to believe. It is not the
judiciary which has mandated judicial review of decisions not to
prosecute or to discontinue prosecution. It is Parliament that has
done so. In fulfilment of its obligation to define the parameters of the
doctrine of the separation of powers, Parliament enacted PAJA.
136. I make the point, and most likely labour it, because the bald
submission was made in argument, repeatedly, and at times
vociferously, that a court exercising a power to review a decision of
the prosecuting authority to discontinue prosecution ipso facto will
trespass on the executive domain. The constitutional ethos and the
governing legislative provisions, textually and contextually,
demonstrate that proposition to be false. Arguments of this order are
predicated on an incorrect understanding of the principle of the
separation of powers. They misstate the proper legal position and
carry the danger of demeaning the courts in the eyes of the public by
misrepresenting the nature and legitimacy of the judicial function.
137. In conclusion, therefore, the law enacted by Parliament, in
compliance with the obligation entrusted to it by the founders of our
Constitution, imposes a duty on judges to review certain prosecutorial

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decisions. Far from trespassing into the executive domain, any judge
in the South African constitutional order who declines deferentially to
review a decision not to prosecute, in the mistaken belief that he or
she is mandated by the doctrine of the separation of powers to do so,
will ironically be acting in violation of the doctrine of the separation
of powers. PAJA has separated the powers. And the power to review a
decision not to prosecute has been constitutionally and legislatively
separated to the judiciary.
138. A similarly misplaced argument calling for deference was
advanced in the CC inDemocratic Alliance v President of the Republic
of South Africa and othersso in an attempt to persuade the court to
adopt restraint in a rationality review of a decision of the President
on the ground that review would violate the separation of powers.
The argument was rejected as follows:
"It is therefore difficult to conceive how the separation of powers can

be said to be undermined by the rationality enquiry. The only possible
connection might be that rationality has a different meaning and
content if separation of powers is involved than otherwise. In other
words, the question whether the means adopted are rationally related
to the ends in executive decision-making cases somehow involves a
lower threshold than in relation to precisely the same decision
involving the same process in the administrative context. This is
wrong. Rationality does not conceive of.differing thresholds. It cannot
be suggested that a decision that would be irrational in an
administrative law setting might mutate into a rational decision if the
decision being evaluated was an executive one. The separation of
powers has nothing to do with whether a decision is rational. In these
circumstances, the principle of separation of powers is not of
particular import in this case. Either the decision is rational or it is
not"
139. By the same token, the submission, made on behalf of the NDPP
in this case, that the court should not exercise a review power over
prosecutorial decisions or, if it does so, should decline from ordering
a prosecution because that would offend against the principle of the
�
separation of powers, is, as I have said, equally unsustainable. Either
the decision is administrative action or it is not. If it is, it may be
reviewed on the grounds enunciated in section 6 of PAJA and one of

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the remedies provided for in section 8 of PAJA must be appointed. Our
law, unlike that of other countries, rests upon a fundamental right to
administrative justice and a legislative code unambiguously
bestowing a power to review decisions not to prosecute or to
discontinue a prosecution on the courts.
140.

There is in any event no logical reason to confine review of non-

prosecution to grounds of illegality and irrationality, while excluding
grounds such as reliance on irrelevant considerations, ignoring
relevant considerations or even unreasonableness. These standards
are judicially determinable and just as capable of application as the
standards of legality and rationality. It seems to me, therefore,
inherently wrong to allow laxity to prosecutors, by permitting them
to act unreasonably or unfairly, when there is no compelling policy or
moral reason for doing so, especially in an era where throughout the
world corruption and malfeasance are on the rise. Our Parliament in
permitting review of non-prosecution on these grounds is patently of
similar persuasion.
The withdrawal of the fraud and corruption charges
141.

The first impugned decision is the one of s December

2011

taken

by Mrwebi to withdraw the fraud and corruption charges preferred
against Mdluli on 20 December 2011. The charges essentially allege
that Mdluli abused the State's financial resources for private gain for
his and his wife's benefit. The SSA, as I have mentioned, is controlled
by the crime intelligence unit over which Mdluli exercises control.
FUL contends that that decision by Mrwebi to withdraw the
fraud and corruption charges is liable to review on the five
142.

alternative grounds. First, in terms of the Constitution, only the NDPP
is entitled to discontinue a prosecution. The decision was therefore
ultra vires. Second, the decision was unlawful because it was taken by

Mrwebi alone, when he could only take such decision in consultation
with the OPP of North Gauteng. Third, the decision was irrational
because it was taken without properly consulting the prosecutors and
investigators directly involved in the case. Fourth, the decision was
arbitrary because it was taken in the face of overwhelming evidence
Mrwebi'�
in support of prosecution. Fifth, the decision was based on

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incorrect belief that the fraud and corruption charges could only be
investigated by the IGI and was thus based on a material error of law.
143. The first ground rests on an interpretation of section 179(5)(d)
of the Constitution, which empowers the NDPP to review a decision to
prosecute or not to prosecute, after consulting with the relevant DPP,
the accused, the complainant and any other relevant person. In

NationalDirector of Public Prosecutions v Zuma 51 the SCA held that
the power of review conferred on the NDPP by section 179(5)(d) of
the Constitution "can only be an 'apex' function, in other words, a
function of the head of the NPA qua head", which according to FUL
suggests that no other functionary within the NPA may exercise the
power of review.
144. Section 179(3)(b) of the Constitution provides that national
legislation must ensure that DPPs are responsible for prosecutions in
specific jurisdictions, but specifically adds that the provision is
subject to subsection (5). The cross reference to subsection Cs)
implies that the DPPs are answerable to the NDPP who in terms of the
various paragraphs of the subsection has the power to determine
prosecution policy and the right to intervene in the prosecution
process to ensure compliance with policy directives, as well as the
right of review conferred in paragraph (d). The rationale for such
arrangement, according to FUL, would appear to be that once
commenced a prosecution should continue to conclusion unless there
are weighty considerations justifying cessation. In order to avoid
inappropriate influence in that regard, the Constitution consciously
assigned the function of review to a more impartial official at the
apex, removed from the jurisdiction in which the prosecution was
commenced. FUL accordingly submits that only the NDPP is entitled
to re-visit a decision to prosecute made by a member of the NPA and
to withdraw the charges; and then only after proper consultation as
contemplated by section 179(5)(d). If correct, it would follow that
Mrwebi had no power to withdraw the fraud and corruption charges
at all. It was incumbent on him to refer the matter to the NDPP. He
did not do that. His decision would accordingly be ultra vires, and
could be set aside on that basis alone.
145. I am not persuaded that this submission is correct. I doubt its
merit from a pragmatic and policy perspective. It would be onerous

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indeed if every decision to discontinue a prosecution taken by
prosecutors throughout the country had to pass across the desk of the
NDPP. The argument also takes insufficient account of the context
and legislative scheme enacted by the NPA Act, section 6 of the CP Act
and the Prosecution Policy which, as the Acting NDPP has pointed out
in her answering affidavit, allow DPPs to discontinue a prosecution
and more junior prosecutors to withdraw charges and stop
prosecutions.
146. As head of the SCCU, Mrwebi was a Special OPP, appointed in
terms of section 13(1)(c) of the NPA Act. A Special Director is entitled
to exercise the powers and perform the functions assigned to him
pursuant to his appointment. In terms of section 24 of the NPA Act, a
OPP may institute and conduct criminal proceedings and carry out
functions incidental thereto as contemplated in section 20(3). They
include the powers in section 20(1) to institute and conduct criminal
proceedings on behalf of the State; carry out any necessary functions
incidental to instituting and conducting such criminal proceedings;
and to discontinue criminal proceedings. Both a OPP and a Special
OPP may therefore discontinue a prosecution.gz
147. Moreover, a OPP, or a more junior prosecutor, is empowered by
section 6 of the CP Act to withdraw charges or stop a prosecution in
circumscribed circumstances with the only limitation being that the
prosecution shall not be stopped in terms of section 6(b) unless the
OPP or any person authorized thereto by the DPP, whether in general
or in any particular case, has consented thereto. Likewise, a
prosecutor may withdraw a charge in terms of section 6(a), but
where the NDPP or the OPP has ordered the prosecution he or she will
need prior authorisation. Where the case is of a sensitive or
contentious nature or has high profile, then in terms of the Policy
Directives the prosecutor is only required to seek the advice (not even
the permission) of the NDPP or DPP.
148. It is therefore evident from section 20(1)(c) of the NPA Act,
section 6 of the CP Act and various provisions of the Policy Directives
that legislation and prevailing practice permit prosecutors in many
cases to withdraw charges without referring the question to the NDPP
for permission or review. The Acting NDPP is accordingly correct in .'
her submission that in terms of the NPA Act and the Policy Directivi

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Mrwebi did not need to refer the decision to withdraw the fraud and
corruption charges to the NDPP.
149. In my opinion, section 179(5)(d) of the Constitution does not
reserve an exclusive power to the NDPP to discontinue a prosecution.
It merely empowers the NDPP to review a decision of her
subordinates to prosecute or not to prosecute, and specifies the
procedure he or she should follow. The use of the verb "may" in
section 179(5)(d) is indicative of a permissive discretion rather than a
mandatory pre- condition. The NDPP may review decisions to
prosecute or not to prosecute, at his or her own instance or on
application from affected and interested persons. The intention of the
drafters of the constitutional provision was not that all withdrawals
of charges have to be approved by the NDPP.
150. Be that as it may, and whatever the case, there is no need to
pronounce finally on this ground because the decision to withdraw
the charges was in fact illegal for other non-constitutional reasons.
151. Mrwebi, as I have said, is a Special DPP appointed by President
Zuma as such on 1 November 2011 under proclamation 63 of 2011
published in Government Gazette no. 34767 of 25 November 2011 and
in terms of section 13(1)(c) of the NPA Act. The section allows the
President after consulting the NDPP and the Minister to appoint
"special" DPPs. These are not ordinary DPPs or prosecutors. They
have special duties and functions. In terms of the subsection they are
"to exercise certain powers, carry out certain duties and to perform
certain functions conferred or imposed or assigned to him or her by
the President by proclamation in the Gazette." In terms of the proviso
to section 24(3) of the NPA Act a Special OPP may only exercise the
powers referred to ins 20(1) of the NPA Act, including the power to
discontinue criminal proceedings, in consultation with the Director of
the area of jurisdiction concerned.sg The rationale for this
arrangement is that certain key decisions of a Special Director should
be subject to the supervision of the most senior ordinary prosecutor
in the area of jurisdiction. In this case, the relevant Director was the
OPP of North Gauteng, Mzinyathi.
152. The requirement in section 24(3) of the NPA Act that the Special
Director exercise any power to discontinue proceedings "in

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consultation with" the DPP meant that he could only do so with the
concurrence or agreement of the DPP.54 In MacDonald v Minister of
Minerals and Energy55 the principle was explained as follows:

"Likewise, where the law requires a functionary to act 'in
consultation with' another functionary, this too means that there
must be concurrence between the functionaries, unlike the situation
where a statute requires a functionary to act 'after consultation with'
another functionary, where this requires no more than that the
ultimate decision must be taken in good faith, after consulting with
and giving serious consideration to the views of the other
functionary."
153. The NPA Act in various provisions reflects that distinction, by
requiring certain powers to be exercised "after consultation with" a
specified functionary, while others can only be taken "in consultation
with" the functionary.gfi Parliament in enacting legislation is
presumed to have known of the rulings of the courts on the
interpretation of terms enacted in the legislation, and thus to have
consciously adopted and used them in the same sense.gy. By using the
term "in consultation with" in the proviso to section 24(3) of the NPA
Act, Parliament consciously and deliberately introduced a
requirement that a Special OPP may only discontinue a prosecution
with the concurrence of the OPP in the area of jurisdiction.
154. The evidence, extensively analysed above, shows that Mrwebi did
not consult with Mzinyathi before taking the decision to withdraw the
charges, let alone obtain his concurrence. By the time he met
Mzinyathi he had formed a fixed, pre- determined view and was not
open to persuasion never mind willing to submit to disagreement.
Both he and Mzinyathi confirmed under oath in the Breytenbach
disciplinary proceedings that the decision to withdraw was afait

accompli by the time Mrwebi raised it with Mzinyathi. Under cross
examination by counsel for Breytenbach, Mrwebi conceded that he
had taken the decision to withdraw the charges before he wrote the
consultative note. It is evident from both Mzinyathi's email of 8
December 2011 and his testimony that Mrwebi did not seek
Mzinyathi's concurrence because he believed he wasfunctus officio.

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155. Mrwebi did not claim in his answering affidavit that Mzinyathi
assented to the withdrawal of the charges at the

s December 2011

meeting. He hardly could because Mzinyathi repeatedly confirmed
that he did not support the withdrawal of the fraud and corruption
charges against Mdluli. It is clear from the contemporaneous
correspondence and his evidence in the disciplinary proceedings that
Mzinyathi wished the case to continue. Mzinyathi's changed version
of the position he took in the meeting of g December 2011, set out in
his belatedly filed confirmatory affidavit, for the reasons stated, is
not credible or reliable.
156. Hence, Mrwebi's claim in paragraphs 27-29 of his answering
affidavit that Mzinyathi and Breytenbach agreed on g December 2011
that the case against Mdluli was defective and should only proceed
with the assistance of IGI and the Auditor General is both irrelevant
and improbable. It is irrelevant because Mrwebi by that time on his
own admission had already taken the decision to. withdraw the
charges, without obtaining the consent of the DPP, North Gauteng. It
is improbable for the same reasons, and also because it is in conflict
with the contemporaneous and subsequent documents prepared by
Breytenbach and Mzinyathi, with their conduct and with their
testimony on the course of events. On the basis of that evidence it is
clear that Mrwebi took the decision to withdraw the fraud and
corruption charges without first securing the DPP's consent, which is
a jurisdictional prerequisite under the NPA Act. His decision was
unlawful for want of jurisdiction and must be set aside for that
reason alone in accordance with the principle of legality.
157. There was some debate in argument about whether Mrwebi's
decision and his consequent instruction to Breytenbach and Smith to
withdraw the charges constituted a discontinuance of criminal
proceedings as contemplated in section 20(1)(c) of the NPA Act. If it
did not, there was no requirement for Mrwebi to have obtained the
concurrence of the OPP.
158. The applicable legislation uses three expressions with regard to
the powers involved in a cessation of enrolled criminal proceedings.
Section 6 of the CP Act speaks of the power to withdraw a charge and
the power to stop a prosecution. The NPA Act refers to the power to
discontinue criminal proceedings. The question arising is whether th

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powers in section 6 of the CP Act are specific instances of the more
general power to discontinue a prosecution. Logically and
linguistically it would seem they are. The Oxford English Dictionary
gives as the first meaning of the word "discontinuance":
"the action of discontinuing or breaking off; interruption (temporary
or permanent) of continuance; cessation"
"Cessation" in turn means:
"ceasing, discontinuance, stoppage, either permanent or temporary".
This meaning was accepted as the definitive meaning of the word in
Cape Town Municipality v Frerich Holdings.58 In Mazibuko v City of

Johannesburg, 59 however, it was held that the cessation was
required to be of a more permanent nature to amount to
discontinuance. The meaning of the term naturally will depend on its
context.
159. The withdrawal of charges in terms of section 6 of the CP Act has
as its immediate consequence the interruption or stoppage,
permanent or temporary, of a prosecution. The stopping of a
prosecution, because of the resultant availability of the plea of
eutrefois acquit, will always be permanent. The possibility of a
permanent cessation in both instances justifies the conclusion that
they are species of the same genus, namely discontinuance.
Accordingly, a decision by a DPP to withdraw charges under section 6
(a) of the CP Act constitutes an exercise of the discretion to
discontinue criminal proceedings in section 20(1)(c) of the NP Act. To
repeat: in terms of section 24(3) of the NPA, a Special OPP like
Mrwebi may only exercise that discretion with the concurrence of the
OPP. On the facts he did not have it.
160. It has always been a principle of our common law that where a
statute confers power on a public functionary subject to certain
preconditions or jurisdictional facts, a failure to comply with the
preconditions will render the exercise of the power illegal. Such
jurisdictional facts are a necessary pre-requisite to the exercise of the
statutory power.So If the jurisdictional fact does not exist, the power
may not be exercised and any purported exercise of the power will be

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illegal and invalid. It is trite that all exercises of public power are
reviewable on the same grounds for non-compliance
with the constitutional requirements of the rule of law.Gi The
decision of Mrwebi and his instruction to withdraw the fraud and
corruption charges consequently falls to be set aside irrespective of
its categorisation as administrative action or not. If we accept that
the decision did constitute administrative action as defined, it is
reviewable in terms of section 6(2)(b) and section 6(2)(i) of PAJA
which provide that a court has power to review administrative action
if a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with, or if the action is
otherwise unconstitutional or unlawful.
161. The decision and instruction are similarly vulnerable to review
on other grounds. In deciding to withdraw the corruption and fraud
charges against Mdluli, Mrwebi considered representations from
Mdluli's lawyers, and from further unnamed operatives. He did not,
however, call for or consider representations from the investigators
in the case, the Hawks, the IGI or the Acting Commissioner of Police.
Nor did he consult the prosecutors directly involved in the case on his
decision to refer the matter to the IGI. He contends that he was not
required to do so. FUL has argued he was obliged to consult with
these stakeholders in terms of section 179(5)(d) of the Constitution,
which compels the NDPP to consult with the accused, the complainant
and any relevant party whenever she reviews a decision to prosecute.
That duty, according to FUL, applies equally to subordinate
functionaries performing the same role in terms of legislation.
Section 20(3) of the NPA Act provides that the powers in section 20
(1) of a DPP to discontinue a prosecution are subject to the
Constitution.
162. The provisions of section 20(1)(c) of the NPA Act and section 6 of
the CP Act are silent on the question of consultation. It may be that an
argument could be advanced that these provisions read with the
Policy Directives violate section 179(5)(d) of the Constitution, which
infringement might be cured by reading the procedural requirements
of section 179(5)(d) into these sections. That argument was not made
before me. The less adventurous submission made by Mr Maleka SC
on behalf of FUL, if I understand it correctly, is that section 20(1)(c)

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of the NPA Act must be read in conformity with the constitutional
provision.
163. While it is correct that the Constitution requires legislation to be
interpreted, where possible, in ways which give effect to its
fundamental values and in conformity with it, reading words into a
statutory provision should only follow upon a pronouncement of
constitutional invalidity under s 172(1)(a) of the Constitution. A court,
however, should still prefer an interpretation of legislation that falls
within constitutional bounds over one that does not, provided it can
be reasonably ascribed to the provision. Legislation, which is open to
a meaning which would be unconstitutional but is reasonably capable
of being read and applied in conformity with the scheme envisaged by
the Constitution, should be so read, but the interpretation and
application of it may not be unduly strained.fiz
164. I hesitate to pronounce definitively on whether the requirements
of the Constitution should be read directly into the legislation solely
on the basis that the powers in section 20(1) of the NPA Act are stated
to be subject to the Constitution. There is no need to do so. The
decision, as I have found, is illegal for not complying with the duty to
consult the OPP and it is unnecessary to resort to the Constitution to
introduce, as a concrete requirement, jurisdictional facts which the
legislation has not expressly enacted. More compelling though, in my
possibly pedantic view, and in the end of equal consequence, is FUL's
argument that the failure properly to consult was fatal to the validity
of Mrwebi's decision in this case because it did not meet the
requirements of rationality. An interpretation that the powers
conferred by the legislation should be exercised rationally in
conformity with the Constitution will not be unduly strained and will
give sufficient effect to the fundamental values.
165. The constitutional principle of legality requires that a decisionmaker exercises the powers conferred on him lawfully, rationally and
in good faith.Sg The standard applies irrespective of whether or not
the exercise of power constitutes administrative action in terms of
PAJA. Rationality review, as explained earlier, is concerned with the
relationship between means and ends and asks whether the means
employed are rationally related to the purpose for which the power
was conferred. The process followed in reaching a decision must be

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rational.Sa A refusal to include relevant and interested stakeholders

in a process, or a decision to receive representations only from some
to the exclusion of others, may render a decision irrational.Sg
166. Given the purpose and objectives of the power to discontinue a
prosecution, to ensure justice in the prosecutorial process, once
Mrwebi decided to consider representations from any relevant
person, the standard of rationality required him to deal with all
stakeholders even-handedly and to consider representations both
from those in favour of withdrawal and those against.66 The process
by which he reached his decision was arbitrary, and the consequent
decision irrational, because the means were not rationally linked to
the purpose. He could not do justice without hearing all relevant
stakeholders. At the very least, he had to observe the Policy
Directives, which he also failed to do. The Prosecution Policy requires
the advice of the NDPP to be sought where a sensitive, or contentious,
or high profile case is to be withdrawn.Sy My understanding of the
position of the NDPP is that Mrwebi' s decision was not referred to
her.
167. For those reasons also, the decision to withdraw the fraud and
corruption charges was irrational and consequently illegal.
168. FUL has lastly argued that Mrwebi's decision was coloured by
material errors of law, based on irrelevant considerations and,
though it does not say so in so many words, intimated that the
decision was so unreasonable that no reasonable person could have so
decided. Strictly speaking, because of my findings that the decision
was illegal and irrational in violation of the principle of legality, I do
not need to deal with these submissions. However, in view of the
possibility of an appeal, it seems appropriate to make a finding on the
merit or otherwise of these review grounds as well.
169. To recap briefly: a decision to discontinue prosecution is
administrative action within the meaning of that term as defined in
section

1

of PAJA. Mrwebi's decision to withdraw the fraud and

corruption charges and to discontinue the prosecution is accordingly
susceptible to review on PAJA grounds other than illegality and
irrationality.

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The charges of fraud, corruption and money-laundering were
initiated against Mdluli as a result of a comprehensive investigation
170.

by Colonel Viljoen that uncovered the evidence in support of his
prosecution. The prosecutors, the DPP, and the IGI all opposed the
withdrawal of those charges. Breytenbach, the regional head of the
SCCU, wrote a detailed memorandum to the NDPP cogently
motivating why the charges should not be withdrawn. The
Prosecution Policy requires that cases should only be withdrawn on
compelling grounds.
Mrwebi, however, advanced only two reasons for his decision to
withdraw the charges, which were recorded in his consultative note
171.

of 4 December 2011, and which were far from compelling. First, he
was concerned that the charges initiated against Mdluli may have
been pursued with an ulterior motive. Second, he found that the
offences with which Mdluli had been charged fell within the mandate
of the IGI and could only be investigated by her offices. Mr Maleka
submitted that each of these findings was unfounded, and was based
on irrelevant considerations and material errors of law and fact.
The factual claim of a conspiracy against Mdluli by his colleagues
was investigated and rejected by an inter-ministerial task team
172.

established for that purpose. The evidentiary basis for that decision is
not before me and I am unable to assess its probative value. But, in
any event, an improper motive would not render an otherwise lawful
prosecution unlawful68 and would not excuse a prosecutor from
engaging with the merits of the case. Mrwebi at the outset stated
openly in his consultative note of 4 December 2011 that he saw no
need to engage with the merits
of the case against Mdluli. In accordance with his incorrect
understanding that it was a matter for the IGI he considered it
unnecessary to traverse the merits or to evaluate the evidence. He
believed the referral to the IGI was "dispositive of the matter". He
took the decision without regard to the merits of a prosecution in the
interests of justice and thus ignored mandatory relevant
considerations.
The purported referral to the IGI was equally misdirected. The
IGI's oversight role over the intelligence and counter-intelligence
173.

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services is restricted to monitoring their compliance with the
Constitution and other laws, and to receive complaints of
misconduct.So As mentioned by the IGI in her letter of 19 March 2012
to the Acting Commissioner, the IGI's mandate does not extend to
criminal investigations. Mrwebi's decision to withdraw the fraud and
corruption charges because he apparently believed them to fall within
the exclusive purview of the IGI was accordingly based on a material
error of law. Yet, despite being aware of the IGI's view, as appears
from his reasons for decision dated 12 July 2012, he irrationally
adhered to his position.
174. These were the only reasons advanced by Mrwebi at the time he

decided to withdraw the charges. His decision was thus evidently
based on errors of law and fact. He took account of irrelevant
considerations and ignored relevant considerations. The decision is
therefore liable to review in terms of sections 6(2)(b), and 6(2)(e)
(iii) of PAJA. In so far as the decision was attended by factual errors,

and in view of Mrwebi's stance overall, the decision was not
rationally connected to the information before him and the purpose of
the NPA Act, and is thus reviewable also under section 6(2)(f)(ii)(bb)
and (cc) of PAJA.
175. As discussed earlier, in his reasons filed pursuant to Rule 53 and
in his answering papers, Mrwebi took a different tack. He there
claimed that there was insufficient evidence to support a successful
prosecution against Mdluli and that he referred the matter to the IGI
so that she could investigate or facilitate access to the privileged
documentation required. The withdrawal of the charges, he said, was
merely provisional, to allow for further investigation to take place.
This version is at odds with the contemporaneous reasons Mrwebi
gave for his decision, and the evidence of Breytenbach and Mzinyathi
in the disciplinary proceedings. Even if the charges were supposedly
provisionally withdrawn in court, Mrwebi's pronouncements at the
time evinced an unequivocal intention to stop proceedings altogether.
He considered the referral to the IGI as "dispositive'': and in his letter
of
30 March 2012 to General Dramat he referred to the matter as
"closed". In the circumstances, his new version is implausible and
probably invented after the fact, in what FUL submits was "a last-

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ditch attempt to explain his otherwise indefensible approach". But
even if the decision was in fact "provisional", its qualification as such
does not save it from illegality, irrationality and unreasonableness. A
provisional decision which languishes for two years without any
noticeable action to alter its status may be inferred to have acquired a
more permanent character.
176. For all of the many reasons discussed, the decision and
instruction by Mrwebi to withdraw the fraud and corruption charges
must be set aside. It was illegal, irrational, based on irrelevant
considerations and material errors of law, and ultimately so
unreasonable that no reasonable prosecutor could have taken it.
The withdrawal of the murder and related charges

177. The second decision challenged by FUL is the decision of Chauke,
the OPP of South Gauteng, to withdraw the murder charge and refer
the issue of Ramogibe's death to an inquest and to withdraw all the
other charges against Mdluli, to avoid "fragmented trials" in order to
allow Mdluli to stand one trial where he could answer all of the
charges against him. FUL challenges the decision on three grounds: it
was taken by the OPP, South Gauteng when only the NDPP is entitled
to review a decision by another official of the NPA to discontinue a
prosecution; it was taken without proper consultation; and was
unfounded and irrational.
178. I have already addressed FUL's contention that the NDPP has
exclusive power to review and withdraw a decision to prosecute. The
power conferred on the NDPP to review the decision of a subordinate
to prosecute or not to prosecute by section 179(5)(d) of the
Constitution and section 22 of the NPA Act, in my estimation, does not
directly exclude or limit the power conferred upon a DPP by section
20(1)(c) of the NPA Act to discontinue criminal proceedings and by
section 6 of the CP Act to withdraw charges or to stop a prosecution.
It was never intended in enacting the constitutional provisions that
the NDPP would be the sole repository of the power to discontinue a
prosecution.
179. However, as I explained in the analysis of the first impugned
decision, any decision by an official of the prosecuting authority to

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discontinue a prosecution will need to be properly informed by
relevant considerations if it is to be upheld as rational. The failure to
consult with affected and interested parties often, if not invariably,
will have the consequence that vital relevant information is ignored
and the decision will be coloured by irrationality because there is no
rational connection between the information available to the official,
the purpose of the empowering provision, the decision and the
reasons for it.
180. Accordingly, I accept FUL's submission that the rule of law and
the requirement of rationality constrained Chauke to consider
representations from the complainants and victims of the alleged
crimes. Chauke did not deny the averments made in the founding
affidavit and the supplementary founding affidavit that he did not
seek input from the victims and other role players. He referred only
to representations from the legal representatives of Mdluli. Moreover,
the Policy Directives also obliged him to seek the advice of the Acting
NDPP before withdrawing the murder and related charges. Both the
Acting NDPP and Chauke confirm in their affidavits that he did not
refer the matter to her. The decision to withdraw those charges was
accordingly taken without the legal and rational prerequisites to the
exercise of the power being met. The process leading to the decision
being taken was irrational because it lacked input from crucial
stakeholders in the process. It also appears to have given no weight at
all to the evidence of the victims of the other crimes as alleged in the
non-murder charges, from which it may be inferred
symptomatically that Chauke failed to apply his mind to all the
17

relevant considerations mandated by the Constitution, and in the
ultimate analysis acted capriciously; meaning that his decision was
reviewable in terms of section 6(2)(e)(vi) of PAJA.
The details of the investigation that led to the murder and related
charges being preferred against Mdluli are painstakingly set out in a
181.

report by the investigating officer, Colonel Roelofse, which strictly
speaking is hearsay, but with the content of which none of the
respondents has taken issue. The evidence against Mdluli also
appears from the affidavits filed in the inquest proceedings, which, as
discussed, include affidavits from different witnesses claiming that
they were personally intimidated, assaulted and/or kidnapped by

£.

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Mdluli; and affidavits from seven witnesses who personally witnessed
Mdluli threatening to kill Ramogibe, or threatening and assaulting
other people. This evidence presents a compelling prima fade case
against Mdluli.
182. In terms of the Prosecution Policy Directives, Chauke may only

withdraw charges in the face of such formidable evidence if there are
compelling reasons to do so. Yet, he has advanced none. Instead, he
has stated puzzlingly that he is disinclined to prosecute because there
is no direct evidence linking Mdluli to the murder of Ramogibe. He
has offered no evaluation of the cogency of the circumstantial
evidence against Mdluli. And although circumstantial evidence
involves an additional tier of inferential reasoning, it is incorrect to
assume such evidence in the end will prove less cogent than direct
evidence. All involved in the administration of criminal justice,
including I imagine Chauke, the most senior public prosecutor in
Johannesburg, know that circumstantial evidence at times can be
more persuasive than direct evidence. In any event, there is in fact
direct evidence in relation to the charges of attempted murder,
kidnapping and assault, which were withdrawn as a corollary to the
decision to avoid prosecuting Mdluli on a piecemeal basis.
183. Chauke's reliance on the inquest finding for his decision not to

proceed is patently irrational. An inquest, as I explained when
discussing the facts, is an investigatory process directed primarily at
establishing a cause of death where the person is suspected to have
died of other than natural causes. It is not aimed at establishing
anyone's guilt and, indeed, could not competently do so.zo The
presiding officer is not called on to make any finding as to culpability.
An inquest is no substitute for a criminal prosecution because it
cannot determine guilt. In fact, once criminal charges have been
brought in relation to a particular death, an inquest will generally be
precluded, since the two processes should not run concurrently.
184. Chauke's motive for referring the matter to an inquest is

therefore dubious. The identity of the deceased was known, as was
the cause of his death. The only outstanding issue is the culpability of
Mdluli. Chauke could never have hoped to establish Mdluli 's
culpability, and to resolve the criminal prosecution, by referring the
matter to an inquest. The inquest findings are not binding on the

I

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prosecuting authority. Chauke's statement in his affidavit that in the
light of the inquest finding "it would be presumptuous and foolhardy"
to prosecute is accordingly wrong in law and symptomatic of the
irrationality of his decision, evincing as it does a lack of rational
connection between the purpose of his decision, the various
empowering provisions, the evidence before him and the reasons he
gave for his action.
185. In any event, to state the blatantly obvious, and as the magistrate
himself was at pains to point out, the inquest could only deal with the
murder charges. It could not, and did not, address the remaining 17
charges of kidnapping, assault, intimidation and defeating the ends of
justice that were preferred against Mdluli. It follows that a referral to
inquest proceedings could never have provided a sufficient basis to
withdraw those remaining charges. The justification of avoiding
fragmented trials fell away on 2 November 2012, almost a year ago,
when the magistrate handed down his reasons. Chauke has failed to
address these other charges (and the purported basis for their
withdrawal) in his answering affidavit at all. As Mr Maleka correctly
submitted, that must be because he has not properly applied his mind
to those charges, and the correctness of their withdrawal; or, more
troublingly, perhaps because he is acting capriciously and with an
ulterior purpose.
186. Accordingly, the decision to withdraw the murder and related
charges was taken in the face of compelling evidence for no proper
purpose, is irrational and therefore reviewable on legality and
rationality grounds, as well as in terms of section 6(2)(e) and (f) of
PAJA and falls to be set aside.
The NDPPs arguments on reviewability and the duty to exhaust
internal remedies

187. In both his written submissions and in argument, counsel for the
NPA gave little attention to the review grounds raised by FUL in
relation to the two impugned decisions, and concentrated instead
upon the contention that the court had no power to review the
decisions of a DPP or Special Director. As he put it in paragraph 12 of
his heads of argument:

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"The most significant aspect that this Honourable Court will be
required to decide is whether it does in fact have the right (sic) to
review these two decisions."
The submission was developed in paragraphs 42-43 of the heads as
follows:
"These statutory provisions have been the subject matter of
numerous judicial decisions. Nevertheless, despite commentary and
statements to the contrary, it has never been judicially pronounced
that there is in fact a right to review a decision by a Director of Public
Prosecutions or the National Director of Public Prosecutions to
provisionally withdraw criminal charges against an accused person.
Put somewhat differently, the Applicant's legal representatives are
challenged to identify any matter in which such an application for
review has succeeded and resulted in a decision by the First
Respondent or any of its subordinates to withdraw charges being set
aside and the First Respondent being compelled to forthwith reinstate
criminal charges and prosecute them without delay, which is the
relief sought herein against the First and Third Respondents. 11
188. After analysing the judgment of Harms DP in National Director of

Public Prosecutions v Zuma71 in some detail, counsel submitted that
the decision was authority for various propositions, only three of
which are relevant for present purposes (the others have been
disposed of in the preceding analysis). In paragraph 47 of the heads
he submitted: firstly, a prosecutorial review is not an administrative
decision that is subject to review in the normal course or in terms of
PAJA; secondly, a decision to withdraw charges pending the receipt of
further evidence and to
prosecute or not to prosecute is not necessarily final; and thirdly a
decision to prosecute or not to prosecute is not subject to judicial
review.
189. As to the first proposition, if by a "prosecutorial review" is

meant an exercise by the NDPP of her discretion under section 179(5)
(d) of the Constitution, then the contention is not sustainable. As I
have said, and it bears repeating, it is inconceivable that the
Constitution intended to exclude judicial review of such decisions

b"

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entirely. Whether the decision would be administrative action or not
is possibly debatable, but the authorities already discussed leave no
doubt that any action in terms of that provision will still be subject to
a rule of law review on grounds of legality and rationality. However,
it is important to note, we are not here concerned with a review
under section 179(5)(d). Although Mdluli's initial representations
were addressed to the NDPP, it does not seem that she acted on them.
Mrwebi and Chauke took the impugned decisions. The decisions at
issue are in fact decisions to withdraw charges in terms of section 6
of the CP Act
190. The third proposition, presumably with section 6 of the CP Act in
mind, is plainly wrong. For the reasons spelt out earlier, when
discussing the reviewability of prosecutorial decisions, a decision to
prosecute is subject to rule of law review and a decision not to
prosecute or to discontinue a prosecution is subject to rule of law
review and in addition to review in terms of PAJA. Nor do I accept Mr
Hodes' related submission that the possibility of obtaining a
certificate of nolle prosequi and the right to pursue a private
prosecution in terms of section 7 of the CP Act ousts the review
jurisdiction of the courts. The existence of this procedure cannot be
read to give the NDPP carte blanche to act without regard to the
requirements of legality, rationality and reasonableness. The
suggestion is preposterous and no more need be said.
191. The second proposition does however pose a legitimate
challenge. It forms the basis of the argument counsel developed in
court that resort to the court should be denied until internal remedies
are exhausted. All the deponents who filed affidavits on behalf of the
NPA highlighted the alleged "provisional" nature of the decision to
withdraw charges. And, the Acting NDPP consciously pleaded that the
decisions to discontinue the prosecutions "have not been brought to
my office for consideration in terms of the regulatory framework"
and submitted that the application to review the withdrawal of the
charges by the court was accordingly "premature".
192. The regulatory framework to which the NDPP refers is of course
section 179(5)(d) of the Constitution read with section 22(2)(c) of the

7

NPA Act which permit her to review decisions of her subordinates to
prosecute or not to prosecute. It includes also Part 6 of the Policy

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Directives, in particular paragraphs (5) and (6) which provide that
where a decision of a lower court prosecutor to prosecute or not to
prosecute is the subject matter, representations should be directed to
the Senior or Control Prosecutor, and thereafter to the DPP, before
the final appeal is made to the NDPP. It is explicitly stated that as a
matter of law and policy, the NDPP requires that the remedy of
recourse to the DPP be exhausted before representors approach the
NDPP. Unfortunately, these provisions were not referred to in
argument and I do not have the benefit of counsel's submissions
regarding their content or status. They normally would require
compliance, and do indicate an intention to introduce a duty to
exhaust internal remedies by representors (which FUL is not) where
representations have been made. However, for reasons I will
elucidate presently, non-compliance is not fatal to this review
application.
193. First of all, the categorisation of the withdrawal of charges as
"provisional" is inconsequential. All withdrawals which do not
amount to the stopping of a prosecution in terms of section 6(b) of
the CP Act are provisional in the sense that it always remains possible
to re-institute charges withdrawn under section 6(a) of the CP Act.
The withdrawal of charges under section 6(a) of the CP Act, as
explained, and as I suspect is the case in the majority of withdrawals,
can easily become permanent. The mere characterisation of an illegal,
irrational or unreasonable decision as provisional would not
automatically save it from review. Provisional or not, an illegal
decision will normally be set aside.
194. The fact of the matter, and the more relevant truth, is that the
NDPP can review any decision "not to prosecute" in terms of section
179(5)(d) of the Constitution and section 22(2)(c) of the NPA Act; and
the real inquiry therefore is whether the decisions of Mrwebi and
Chauke to discontinue the prosecution of Mdluli on the respective
charges could only be reviewed in court once the applicant had
exhausted the remedy of a review before the NDPP under those
provisions.
195. FUL's response to the contention that the application is
premature is somewhat cryptic. In paragraph 78 of the replying
affidavit it first rejects the proposition that only the NDPP may

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review the decisions of DPPs and Special DPPs to discontinue a
prosecution and then in paragraph 79 states:
"In any event, it is plain that the first respondent has long since been
aware of the relevant decisions and at the very least tacitly confirmed
them."
The Acting NDPP did not make any replicating averment in answer to
this plea. In the belatedly filed supplementary answering affidavit,
Mrwebi merely re-asserted that the court has no power at all to
review prosecutorial decisions, which is patently wrong, and, as
Justice Kriegler rightly says, a little worrying to hear from a senior
prosecutor. In fairness though, Mrwebi did add that the application
was in any event "premature". However, Mrwebi did not take issue
with the allegation that the NDPP had tacitly confirmed the decisions
to withdraw. She clearly has done exactly that.
196. The dispute that forms the subject matter of this application has
been on-going for more than 18 months since February 2012. Given
its high profile nature and the outcry about it in the media and other
quarters, there can be no doubt that the NDPP was aware of it, and its
implications, from the time the charges were withdrawn. Mdluli's
representations were sent to her and she referred them down the
line; probably rightly so. But she was nonetheless empowered by
section 179 of the Constitution to intervene in the prosecution process
and to review the prosecutorial decisions mero motu; yet despite the
public outcry she remained supine and would have us accept that her
stance was justified in terms of the Constitution. She has not given
any explanation for her failure to review the decisions at the request
of Breytenbach made in April

2012.

Her conduct is inconsistent with

the duty imposed on all public functionaries by section 195 of the
Constitution to be responsive, accountable and transparent.
197. Besides not availing herself of the opportunity to review the
decision, she waited more than a year after the application was
launched before raising the point and then did so in terms that can
fairly be described as abstruse. Her "plea" made no reference to the
relevant paragraphs of the Prosecution Policy Directives, the relevant
provisions of PAJA or the principles of the common law. A plea resting
only on an averment that an application is "premature" is meagrel�

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particularised and lacks sufficient allegations to found a complete
defence that there had been non- compliance with a duty to exhaust
internal remedies. Had we to do here with a set of particulars of
claim, they would have been excipiable on the grounds of being vague
and embarrassing.
198. At common law the mere existence of an internal remedy is not
enough by itself to indicate an intention that the remedy must first be
exhausted before bringing a rule of law review.yz As I have said, I
consider the power in section 179(5)(d) of the Constitution to be
permissive. There is nothing in the provision itself, or expressly
stated or necessarily implied in the legislative scheme as a whole,
which overtly requires a person aggrieved by a decision to
discontinue a prosecution to first take the matter on review to the
NDPP.
199. Moreover, in Maluleke v MECfor Health and Welfare, Northern
Province, 73 Southwood J remarked, correctly in my respectful
opinion, that the duty to exhaust internal remedies, if one exists, will
seldom be enforced where the complaint is one of illegality, or, I
would add, one of irrationality, or in cases where the remedy would
be illusory. It is reasonable to infer from the Acting NDPP's supine
attitude that any referral to her would be a foregone conclusion and
the remedy accordingly of little practical value or consequence in this
case. Her stance evinces an attitude of approval of the decisions. Had
she genuinely been open to persuasion in relation to the merits of the
two illegal, irrational and unreasonable decisions, she would have
acted before now to assess them, explain her perception, and, if so
inclined, to correct them.
Section 7(2)(c) of PAJA is more stringent than the common law
and permits exemption from the duty to exhaust internal remedies

200.

only in exceptional circumstances on application. I am satisfied that
there are exceptional circumstances in this case, being those pleaded
by FUL. Admittedly, there is no formal application for exemption,
primarily I imagine because the special plea, if that, was so abstrusely
pleaded; which is sufficient basis to grant condonation. In Koyabe v
Minister of Home Affairs74 the Constitutional Court stated that these
requirements should not be rigidly enforced and should not be used/'

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by officials to frustrate the efforts of an aggrieved person or to shield
the decision-making process from judicial scrutiny. Furthermore,
and most importantly in this case, the remedy in question must be
available, effective and adequate in order to count as an existing
internal remedy. For the reasons I have stated, a referral to the NDPP
in this case would be illusory. Had the NDPP truly wanted to hold the
remedy available, instead of simply asserting that the application to
court was premature, as a senior officer of the court she would (and
should) have assisted the court by reviewing the decisions and
disclosing her substantive position in relation to them and their
alleged illegality and irrationality. She has not pronounced at all on
the decisions or for that matter the evidence implicating Mdluli. Her
stance is technical, formalistic and aimed solely at shielding the
illegal and irrational decisions from judicial scrutiny.
201. In any event, if I am wrong in this, the more stringent PAJA
standard does not apply to a rule of law review, and the duty to
exhaust internal remedies before resorting to such a review may be
dispensed with on the grounds and for the reasons to which I have
already alluded.
202. In the result, the failure of FUL to resort to a review in terms of
section 179(5)(d) of the Constitution is no bar to this application or
the jurisdiction of the court.
The withdrawal of the disciplinary proceedings and the
reinstatement of Mdluli
203. FUL challenges the decision to withdraw the disciplinary charges
against Mdluli, made by the Acting Commissioner, Lieutenant-General
Mkhwanazi, on 29 February 2012, as well as the related decision of 27
March 2012 to lift his suspension and to re-instate him to his
position, on two grounds: firstly, it contends that the Acting
Commissioner took those decisions acting on the dictates of another,
and therefore failed to discharge his duties under s 207(2) of the
Constitution; and in taking those decisions, the Acting Commissioner
failed to protect the integrity of the SAPS, and to give effect to the
SAPS Act and Regulations.

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204. The Commissioner has raised defences that FUL has no standing
to challenge the decisions, and the court no jurisdiction to hear them,
because they are disciplinary labour matters within the prerogative of
the Commissioner and any dispute in that regard within the exclusive
jurisdiction of the Labour Court. She contended further that the
review of the disciplinary proceedings have become moot since new
disciplinary proceedings were initiated on 15 May 2012 and Mdluli
was re- suspended on 25 May 2012.
205.

Section

207(2)

of the Constitution provides:

"The National Commissioner must exercise control over and manage
the police service in accordance with the national policing policy and
the directions of the Cabinet member responsible for policing."
As the official responsible for managing and controlling the
SAPS, it fell to the Acting Commissioner to take disciplinary decisions
206.

concerning high-level officials. He had to exercise the discretion
conferred on him himself, and could not abdicate his decision-making
power to another, nor act on the instructions of a functionary not
vested with those powers. 75
In paragraph 45 of the founding affidavit FUL, alleged that the
Acting Commissioner publicly stated in Parliament that he took the
207.

decisions to withdraw the disciplinary charges on instruction from
authorities "beyond" him. It added that by acting on the instructions
of authorities beyond him, the Acting Commissioner failed to act
independently in the discharge of his functions, and accordingly acted
inconsistently with section 207 of the Constitution. Mkhwanazi in his
answering affidavit filed in the proceedings related to Part A of the
notice of motion, did not deny making the statement or the inference
drawn. In paragraph 4 of his affidavit he admitted that he had read
FUL's founding affidavit and the annexures thereto but went on only
to deal with points in limine, without admitting or denying any of the
averments in the founding affidavit.
A respondent in motion proceedings is required in the answering
affidavit to set out which of the applicant's allegations he admits and
208.

which he denies and to set out his version of the relevant facts. A
failure to deal with an allegation by the applicant amounts to an

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admission. An admission, including a failure to deny, will be binding
on the party and prohibits any further dispute of the admitted fact by
the party making it, as well as any evidence to disprove or contradict
it. 76 Mkhwanazi must accordingly be taken to have admitted that he
acted under dictation, without independence and inconsistently with
his constitutional duties.
209.

In paragraph 47 of her answering affidavit, the Commissioner

(who was appointed subsequent to the events at issue in these
proceedings) in response to the averments in paragraph 45 of the
founding affidavit stated:
"General Mkhwanazi was quoted out of context. As I understood and
this is what he later clarified was that his response was in relation to
the issue of the withdrawal of charges, which falls within the domain
of the NPA, which invariably in his view affected the purpose of the
continued suspension and disciplinary charges then. General
Mkhwanazi never obtained instructions from above. His confirmatory
affidavit will be obtained in this regard. Should time permit, I will
ensure that the copy of Hansard being the minutes or the
transcription of the parliamentary portfolio committee meetings is
obtained and filed as a copy which will clarify the issue."
210.

No confirmatory affidavit was filed on behalf of Mkhwanazi,

despite the issue being raised repeatedly and it being evident that the
court would be called upon to assess the probative value of the
statement and to make a factual finding about whether he had acted
under dictation or not.
211.

In paragraph 14 of his judgment in the Part A proceedings,

Mokgoba J expressed concern about the allegations of political
interference in the disciplinary process and noted that Mkhwanazi
had not disputed them in his answering affidavit. The learned judge
subtly pointed to the need for the allegations to be addressed.
212.

As the issue was not adequately dealt with in the answering

affidavits, FUL, in paragraph 64 of the replying affidavit, contested
the explanation by the Commissioner, noted that the confirmatory
affidavit and objective evidence had not been delivered, and
intimated that it would argue that the appropriate factual finding

�

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should be made. It did so again more fully in paragraph 83 of its
heads of argument. Despite all of these calls to the Commissioner to
file an affidavit from Mkhwanazi explaining the statement, the
Commissioner did not oblige.
213.

When the matter was raised in argument before me, Mr Mokhari

SC, counsel for the Commissioner, asserted implausibly that the nonfiling of a confirmatory affidavit by Mkhwanazi was merely an
oversight. He undertook to file an affidavit by the close of
proceedings. It was made clear to him that absent a confirmatory
affidavit, the hearsay averment of the Commissioner could not be
accepted as a tenable and creditworthy denial and that the averment
of FUL was likely to be preferred. After all, Mkhwanazi is available as
a witness and the Commissioner in her answering affidavit gave an
undertaking to file a confirmatory affidavit. After an adjournment, Mr
Mokhari informed the court that his instructions were that no
affidavit from Mkhwanazi would be filed. Nor has any objective
evidence of his alleged statements been provided, notwithstanding
the Commissioner's tender in this regard. Mr Maleka predictably
submitted that the most credible explanation for the non-filing is that
neither Mkhwanazi nor Hansard supports the Commissioner's
interpretation. The allegation has always been that Mkhwanazi acted
under the unauthorised and unwarranted dictates of persons who had
no constitutional or legal authority over or interest in the decision.
Despite having had ample opportunity, he has not refuted that
allegation.
In the premises, the Commissioner's explanation is untenable
and must be rejected. The explanation is irreconcilable with the

214.

Acting Commissioner's clear statement. The statement that he was
instructed by authorities "beyond" him is unambiguous and cannot
bear the meaning that the Commissioner contends for. Mkhwanazi
was not subject to the authority of or any instruction by the NPA.
That Mkhwanazi dropped the disciplinary charges on orders from
above, is furthermore borne out by the Rule 53 record filed on his

215.

behalf. The record he supplied comprises nothing more than two
letters addressed to Mdluli, one notifying him of the withdrawal of
the disciplinary charges against him and the other advising him of hi
re-instatement. There is no charge sheet or correspondence deali

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Page 73JWB-426

with the allegations or the process to be followed. From this it may be
reasonably inferred that Mkhwanazi did not apply his mind to the
facts at all, because he was inclined on the basis of instructions from
beyond to stop the process irrespective of the merit or otherwise of
that action.
216. The inescapable finding is that the decisions of the Acting
Commissioner to withdraw the disciplinary charges and to re-instate
Mdluli as head of Crime Intelligence were taken in an attitude of
subservience pursuant to an unlawful dictation from a person
unknown, who was "beyond" the Acting Commissioner. They were
therefore unlawful and invalid. An abdication of power violates the
principle that the responsibility for a discretionary power rest with
the authorised body and no one else.
217. The second prong of FUL's attack on these decisions is that the
Acting Commissioner failed to protect the integrity of SAPS and to
abide by its legislative framework. Every organ of state is required to
exercise the powers conferred upon it accountably, responsively and
openly, and to protect the integrity of the institution by ensuring the
proper exercises of powers by its functionaries. 77 Congruent with
that, the Commissioner is required to maintain an impartial,
accountable, transparent and efficient police service. 78 The SAPS, in
turn, is tasked with preventing, combating and investigating crime,
and with upholding and enforcing the law.79
218. To ensure the proper functioning of the SAPS, the Commissioner,
in discharging his obligations under section 11 of the SAPS Act, must
protect and give effect to SAPS Discipline Regulations.So These
provide that serious misconduct must be referred to disciplinary
proceedings81 and that, where there is strong evidence to suggest
that the member will be dismissed, the member must be
suspended.Bz A suspension is a precautionary measure.
219. By withdrawing the disciplinary proceedings against Mdluli and
allowing him to resume his senior position in the SAPS when there
were serious and unresolved allegations of misconduct against him,
which called into question his integrity, the Acting Commissioner
frustrated the proper functioning of the SAPS Act and the Discipline�
Regulations. He also undermined the integrity of the SAPS and failed

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to ensure that it operated transparently and accountably. His conduct
could only serve to damage public confidence in the SAPS, particularly
where no reasons were advanced for that decision and in the face of
public disquiet about possible political interference.
The decisions to withdraw the disciplinary charges and to reinstate Mdluli were accordingly taken in dereliction of the Acting
220.

Commissioner's constitutional and statutory duties to control and
manage the SAPS in any open, transparent, accountable, impartial
and efficient manner, and fall also to be set aside on that basis.
On both legs, the review sought by FUL is a rule of law review
and it is unnecessary to locate the review grounds within the
221.

provisions of PAJA, or to determine whether the action constituted
administrative action for that purpose.Sj The decisions are illegal for
both the reasons advanced.
Standing, jurisdiction and mootness in relation to the decision to
withdraw the disciplinary charges
222.

Rather than engaging with the substance of the claims of

illegality, the Commissioner confined herself to formal defences. As
mentioned, she contended that FUL lacks locus standi to bring this
review, that this court has no jurisdiction over it, and that the review
of the decisions is, in any event, moot or academic.
Neither the Commissioner nor the NDPP questioned FUL's public
interest standing to review the withdrawal of criminal charges
223.

against Mdluli. But the Commissioner contended that FUL has no
standing to challenge the decision to withdraw disciplinary charges
against Mdluli and to re-instate him to his post on the grounds that
those decisions are labour decisions that are only liable to challenge
by a party to the employment contract at issue. This is not correct. As
discussed, the Commissioner is required, under s 207(2) of the
Constitution, to manage the SAPS and to maintain the discipline and
integrity of the force. The disciplinary powers are public powers and
the fitness of Mdluli to hold a high ranking position in the SAPS is a
matter of public concern. As Mr Maleka submitted, the issues have
implications for public order and legitimacy of SAPS as a lawenforcement body. For as long as the disciplinary allegations a

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Mdluli remain unresolved, his presence in the senior echelons of the
SAPS will diminish public confidence. The disciplinary decisions are
therefore public in nature, and liable to review on the grounds of
illegality, at the instance of FUL acting in the public interest.
224. The Commissioner's claim that this court has no jurisdiction in

terms of section 157(1) and (2) of the Labour Relations Act84 ("the
LRA") to review the disciplinary decisions is similarly unfounded.
These provisions read:
(1) Subject to the Constitution and section 173, and except where this

Act provides otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of this Act or in terms
of any other law are to be determined by the Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court

in respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from (a) employment and from labour relations;
(b) any dispute over the constitutionality of any executive or
administrative act or conduct, or any threatened executive or
administrative act or conduct, by the State in its capacity as an
employer; and
(c) the application of any law for the administration of which the
Minister is responsible."
225. The Commissioner argued that the relief sought by FUL is in

effect a suspension from employment. The order obtained in Part A
proceedings interdicted Mdluli from discharging any function or duty
as an employee of SAPS. Consequently, Mdluli has been suspended
from his employment. It was argued that the suspension of Mdluli can
only be done in compliance with the SAPS Discipline Regulations read
with section 186(2) of the LRA. Since the Labour Court has exclusive
jurisdiction in terms of section 157(1) to deal inter alia with unfair
labour practices, it was submitted that the High Court may not
adjudicate such matters. The argument went further, asserting·
addition that the High Court can only assume jurisdiction ov

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labour matter if it involves a Bill of Rights violation as contemplated
by section 157(2) of the LRA.
226. Section 157(1) of the LRA confirms that the Labour Court has

exclusive jurisdiction over any matter which the LRA prescribes
should be determined by it, which includes the power to review
unfair labour practice determinations by bargaining councils or the
Commission for Conciliation Mediation and Arbitration ("the CCMA").
In terms of section 191 of the LRA, disputes about unfair labour
practices must be referred either to the CCMA or a bargaining council
with jurisdiction, and the award of such body is reviewable by the
Labour Court. The labour forums, it is correct, do indeed have
exclusive power to enforce LRA rights to the exclusion of the High
Courts. However, the High Courts and the Labour Courts have
concurrent jurisdiction to enforce common-law contractual rights and
fundamental rights entrenched in the Bill of Rights insofar as their
infringement arises from employment.Bg
227. The argument that the jurisdiction of the High Court is excluded

on account of the dispute being one regarding an unfair labour
practice is fundamentally misconceived and wrong, being based upon
a misunderstanding of the relevant statutory provisions. It is also
predicated on the false supposition that the present case involves an
unfair labour practice. It most certainly does not. The relevant part of
the definition of an unfair labour practice in section 186(2) of the LRA
reads:
"Unfair labour practice" means any unfair act or omission that arises
between an employer and an employee involving-Cb) the unfair
suspension of an employee"
It must be read with section 191(1) of the LRA which provides:
"(1) (a) If there is a dispute about the fairness of a dismissal, or a

dispute about an unfair labour 'practice, the dismissed employee or
the employee alleging the unfair labour practice may refer the dispute
in writing to(i) a council.. .... ; or
(ii) the commission, if no council has jurisdiction"

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It is thus clear from the definition that an unfair labour practice can

only "arise between an employer and an employee" and from the
procedural provision that only an employee can refer an unfair labour
practice dispute to the CCMA or a bargaining council.
228. Notwithstanding section 157(1) of the LRA, other existing
common law and statutory causes of action remain available to
litigants, even in cases that arise factually out of an employment
relationship between an organ of state and an individual. In Gcaba v

Minister of Safety and Security and Others86 the CC explained the
position thus:
"Furthermore, the LRA does not intend to destroy causes of action or
remedies and section 157 should not be interpreted to do so. Where a
remedy lies to the High Court, section 157(2) cannot be read to mean
that it no longer lies there and should not be meant to mean as much.
Where the judgment of Ngcobo J in Chirwa speaks of a court for
labour and employment disputes, it refers to labour-and employmentrelated disputes for which the LRA creates specific remedies. It does
not mean that all other remedies which might lie in other courts, like
the High Court and Equality Court, can no longer be adjudicated by
those courts. If only the Labour Court could deal with disputes arising
out of all employment relations, remedies would be wiped out,
because the Labour Court (being a creature of statute with only
selected remedies and powers) does not have the power to deal with
the common-law or other statutory remedies"
229.

The only jurisdiction removed from the High Court by section

157 of the LRA, therefore, is that in respect of those causes of action
which the LRA prescribes should be dealt with by the Labour Court,
and for the most part that is confined to the review of unfair
dismissal and unfair labour practice awards, and the adjudication of
operational requirement dismissals and unfair employment
discrimination. The High Court retains its jurisdiction over all other
causes of action. In fact, section 157(2) of the LRA takes nothing away
from the High Court's jurisdiction. It merely confers a concurrent
human rights jurisdiction on the Labour Court in respect of Bill of
Rights violations in the employment context, which it otherwise
would not have enjoyed. It does not restrict the jurisdiction of th
High Court, as the Commissioner incorrectly assumes. The purpose of

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the provision is to give jurisdiction to the Labour Court not to remove
it from the High Court. There is accordingly no merit at all in the
submission that the High Court must establish a Bill of Rights
violation before it may "assume jurisdiction" over a labour matter.
The Commissioner's argument misconstrues the wording and import
of the subsection; she has it the wrong way round.
Likewise, FUL's challenge to the Acting Commissioner's
disciplinary decisions does not involve an unfair act or omission that

230.

arises between an employer and an employee involving the unfair
suspension of an employee. The mere fact that the remedy appointed
by the court may be akin to a suspension is not sufficient for the
dispute to be categorised as an unfair labour practice. A dispute in
order to be an unfair labour practice, as I have said, must be between
an employee and his or her employer and must arise in the
employment relationship. The dispute between FUL and the
Commissioner is not one which falls within the employer-employee
nexus, but one which raises issues concerning the legality (and,
consequently, the constitutionality) of the Acting Commissioner's
decisions, and his application and interpretation of the SAPS Act and
the Regulations. It is also a matter that affects the complainants' and
the public's constitutional rights to the protection of the rule of law.
The effects of the decisions on Mdluli, which may well be the subject
of an employment dispute, are not the subject of this application.
The review of the Acting Commissioner's disciplinary decisions
accordingly falls within the jurisdiction of this court.

231.

232.

The Commissioner's contention that the review of the Acting

Commissioner's disciplinary decisions has become academic cannot
be sustained either. She says the issue is now moot because
disciplinary proceedings have been "instituted" against Mdluli and he
is currently under suspension. The original disciplinary charges
against Mdluli were dropped and he was re-instated in March 2012. It
is common cause that Mdluli was re-suspended on 25 May 2012,
shortly after this application was launched. Although it has been
stated that the intention was to discipline Mdluli it is not clear on
what disciplinary charges. Neither the charges in the original
disciplinary proceedings nor the new disciplinary charges have
disclosed in the Rule 53 record on behalf of the Commissioner, or in

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any of the answering affidavits. There is no evidentiary basis to
assume that the disciplinary charges and reasons underlying the most
recent suspension are the same as the previous occasion; indeed, to
the contrary, there are indications that his suspension may relate to
other charges related to the defrauding of the SSA. The relief sought
by FUL is for Mdluli to be arraigned on all of the original charges.
233. But even if we accept that the charges are the same, the court
has not received any assurance from the Commissioner that she will
not allow them to be dropped again. Indeed, but for the order of
MakgobaJ, Mdluli would have been within his rights to return to
work in late July 2012. In terms of the Discipline Regulations, if an
employee is suspended with full remuneration, the employer must
hold a disciplinary hearing within sixty calendar days from the
commencement of the suspension. Upon the expiry of the sixty days,
the chairperson of the hearing must take a decision on whether the
suspension should continue or be terminated.By It follows that a
failure to convene disciplinary proceedings will result in the
suspension automatically lapsing. Mr Mokhari was unable to give the
court an assurance that a hearing had been convened at which the
chairperson had taken a decision on whether the suspension should
continue or be terminated. The suspension in terms of the regulations
has accordingly probably lapsed. That fact alone disposes of the claim
of mootness.
Moreover, there is no evidence of any serious intent to proceed
with the disciplinary process or to finalise the matter, despite Mdluli
234.

having been suspended again more than a year ago. Yet the
Commissioner in these proceedings seeks to discharge the interdict
granted by Makgoba J on the spur�ous jurisdictional grounds just
discussed, without conceding that the disciplinary proceedings should
not have been withdrawn and without furnishing any undertakings
that they will be pursued to finality. The Commissioner wants the
interdict discharged and is happy for the disciplinary process to lapse.
She apparently sees no need to place any obstacle in the way of
Mdluli's return to work, despite her constitutional duty to investigat
the allegations against him and the unfeasibility of his holding a
position of trust at the highest level in SAPS until the truth is
established in a credible process. For as long as there are serious

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JWB-433
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unresolved questions concerning Mdluli' s integrity, he cannot
lawfully act as a member and senior officer of the SAPS, or exercise
the powers and duties associated with high office in the SAPS.88
235. The review of the Acting Commissioner's decisions is for those
reason by no means academic. There remains a live dispute between
the parties, and any relief granted will have practical effect.Bs

Remedies
236. The automatic consequence of my findings in relation to the
withdrawal of the criminal charges is that the charges will revive.
FUL however seeks in addition an order directing that the fraud and
corruption charges be re-enrolled and prosecuted without any further
delay. Such is permissible in terms of section 172(1)(b) of the
Constitution and section 8 of PAJA which empower the court on
review to grant an order that is just an equitable. Given the
respondents' equivocal stance and their dilatory and obstructive
approach to these proceedings, it is necessary to expedite the
prosecution not only in the public interest but also in the interests of
Mdluli who cannot resume his duties while the charges are pending.
237. Counsel for the NDPP has argued in relation to the criminal
charges that they should be referred back to the NDPP for a fresh
decision instead of the court ordering a prosecution. There may be
polycentric issues around the prosecution in relation to the evidence
and possible defences, so he contended, which will make the
prosecution difficult. I would venture the old adage: "where there is a
will there is a way". In the hands of skilled prosecutors, defence
counsel and an experienced trial judge, I am confident that justice
will be done on the evidence available, leading as the case may be to
convictions or acquittals on the various charges in accordance with
the law and justice. But more than ever, justice must be seen to be
done in this case. The NDPP and the DPPs have not demonstrated
exemplary devotion to the independence of their offices, or the
expected capacity to pursue this matter without fear or favour.
Remittal back to the NDPP, I expect, on the basis of what has gone
before, will be a foregone conclusion, and further delay will cause
unjustifiable prejudice to the complainants and will not be in the
public interest. The sooner the job is done, the better for all

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concerned. Further prevarication will lead only to public disquiet and
suspicion that those entrusted with the constitutional duty to
prosecute are not equal to the task.
238. The same can be said with regard to those responsible for the
disciplinary process.
239. Accordingly, the orders sought by FUL are appropriate, just and
equitable.
240. With regard to the question of costs, Mr Maleka, assisted by Ms
Yacoob and Ms Goodman, together with their instructing attorneys,
acted on behalf of FUL pro bono and in the public interest. A costs
order must accordingly be restricted to the recovery of
disbursements.
Orders
241. The following orders are made:
(a} The decision made on or abouts or 6 December 2011, as the case
may be, by the third respondent in terms whereof the criminal
charges of fraud, corruption and money laundering instituted against
the fifth respondent under case number CAS 155/07/2011 were
withdrawn, is hereby reviewed and set aside
(b) The decision made on

2

February

2012

by or on behalf of the first

respondent in terms whereof the criminal charges of murder,
kidnapping, intimidation and assault with intent to cause grievous
bodily harm and defeating the ends of justice under case number CAS
340/02/99 were withdrawn, is hereby reviewed and set aside.
(c) The decision made on 29 February 2012 by or on behalf of the
second respondent in terms whereof the disciplinary proceedings
instituted by the second respondent against the fifth respondent were
withdrawn, is hereby reviewed and set aside.
(d) The decision made on 31 March 2013 by or on behalf of the second
respondent in terms whereof the fifth respondent was reinstated as
Head of Criminal Intelligence in the South African Police Services
with effect from 31 March

2012,

is hereby reviewed and set aside.

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(e) The first and third respondents are ordered to reinstate forthwith
the criminal charges which were instated against the fifth respondent
under case number CAS 155/07/2011 and case number 340/02/99 and
to take such steps as are necessary to ensure that criminal
proceedings for the prosecution of the criminal charges under the
aforesaid cases are re-enrolled and prosecuted diligently and without
delay.
(f) The second respondent is ordered to reinstate disciplinary charges

which had been instituted against the fifth respondent but were
subsequently withdrawn on 29 February 2012, and to take such steps
as are necessary to institute or reinstate disciplinary proceedings that
are necessary for the prosecution and finalisation of the aforesaid
disciplinary charges, diligently and without delay.
(g) The first, second, third and sixth respondents are ordered to pay
the costs of this application jointly and severally, the one paying the
others to be absolved on the basis that the applicant's attorneys and
counsel appear pro bono.
(h) The Taxing Master is directed that the applicant's costs
nevertheless should include all the disbursements and expenses of the
applicant's attorneys of record.
JR MURPHY
JUDGE OF THE HIGH COURT

Counsel for the applicant: Adv V Maleka SC assisted by Adv S Yacoob
and Adv I Goodman; instructed by Cliffe Dekker Hofmeyr Inc.
Counsel for the first and third respondents: Adv L Hodes SC
assisted by Adv N Manaka and Adv E Fasser; instructed by the State
Attorney.

Counsel for the second and sixth respondents: Adv WR Mokhari SC
assisted by Adv M Zulu; instructed by the State Attorney
Date heard:

11

and

12

September 2013

Date of judgment: 23 September 2013
Footnotes:

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1 Act 71 of 2008
2

Freedom under Law v Acting Chairperson: Judicial Services

Commission and Others 2011 (3) SA 549 (SCA)

3 Act 32 of 1998
4 Act 68 of 1995
5 Regulations 12 and 13 of the Discipline Regulations published under

the SAPS Act in GNR. 643 GG 28985 on 3 July 2006.
6 Act 40 of 1994.
7 Act 45 of 1988
8 1984 (3) SA 623 (A) at 634-635

9 Para 21 of the confirmatory affidavit of the first respondent at page
1758 of the record.
10 Act 40 of 1994
11

Act 58 of 1959.

12 Du Toit, Commentary on the Criminal Procedure ActJuta at 1-4T-7
13 Marais-NO v Tiley 1990 (2) SA 899 (A) at 901E-H.
14 Act 32 of 1998
15 Act 51 of 1977
16 Section 4 of the NPA Act 17 Section 3 of the NPA Act 18 Sections of

the NPAAct
19 Section 20(3) and (4) of the NPA Act
20 Section 20(3) and (4). of the NPA Act
21 Section 21 of the NPA Act
22 Section 22(4)(b) of the NPA Act
23 Section 22(4)(d) of the NPA Act

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24 i.e. one appointed in terms of section 13(1)(a)
25 Section 24(4)(c)(ii)(bb) of the NPA Act
26 A DPP is the equivalent of an Attorney-General under the old
legislation.
27 National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) at para 8.
28 [2008] UKHL 60 at paras 30-32
29 Matalulu v Director of Public Prosecutions [2003] 4 LRC 712 at 735736.
30 R (On the Application of Corner House Research and Others) v

Director of the Serious Fraud Office [2008] UKHL 60 at para 32
31 Highstead Entertainment (Pty) Ltd t/a "The Club" v Minister of Law
and Order 1994 (1) SA 387 (C)

32 Mitchell v Attorney-General Natal 1992 (2) SACR 68 (N).
33 National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) para 38.
34 Affordable Medicines Trust and Others v Minister of Health and

Others 2006 (3) SA 247 (CC) at paras 48-49; Masetlha v the President
of the Republic of South Africa and Another 2008 (1) SA 566 (CC) at
paras 78-81.
35 Act 3 of 2000
36 In section 33 of the Constitution.
37 Kaunda and Others v President of the Republic of South Africa and

Others 2005 (4) SA 235 (CC) at para 84
38 National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) at para 35.
39 2009 (2) SA 277 (SCA) para 36 fn 33.
40 2012 (3) SA 486 (SCA) at para 27

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41 Democratic Alliance v President of the Republic of South Africa and

Others 2013 (1) SA 248 (CC).
42 2013 (1) SA 248 (CC) at para 42
43 2010 (3) SA 293 (CC) at paras 65-68.
44 Section 1 of PAJA.
45 Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public

Works and Others 2005 (6) SA 313 (SCA) at para 23; and Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others2013 (3)
BCLR 251 (CC) at para 30
46 National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) at para 64.
47 Madrassa Anjuman Islamia v Johannesburg Municipality1917 AD
718 at 712
48 zed (Iuta & Co, Cape Town, 2012) at 241-242, citing the South
African Law Commission (Project
115) "Report on Administrative Justice" (August 1999)
49 2012 (3) SA 486 (SCA) at para 27
50 2013 (1) SA 248 (CC)
51 2009 (2) SA 277 (SCA) at para 55 et seq.
52 Provided when a Special DPP does so, he or she acts in
consultation with the relevant OPP proviso to section 24(3) of NPA
Act.
53 The proviso to section 24(3) of the NPA Act.
54 President of the RSA v SARFU 1999 (4) SA 147 (CC) at para 63.
55 2007 Cs) SA 642 (C) at para 18.
56 See, for example sections 13(1)(c), 16(3), 22(6)(a) and 43A(g)(b)
of the NPA Act.

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57 De Villiers v Sports Pools (Pty) Ltd 1975 (2) SA 253 (RA) at 261
58 1981 (3) SA 1200 (AD)
59 2010 (4) SA 1 (CC) at para 120
60 South African Defence and Aid Fund v Minister ofJustice 1967 (1)
SA 31 (C) at 34G-H
61 Democratic Alliance and Others v Acting National Director of Public

Prosecutions and otherszovz
(3) SA 486 (SCA) at para 27.

62 Minister of Safety and Security v Sekhoto and Another[2011] 2 All
SA 157 (SCA)
63 Affordable Medicines Trust and Others v Minister of Health and

Others 2006 (3) SA 247 (CC) at paras 48-49; Masetlha v the President
of the Republic of South Africa and Another 2008 (1) SA 566 (CC) at
paras 78-81.
64 Democratic Alliance v President of the Republic of South Africa and

Others 2013

(1) SA 248

(CC).

65 Albutt v Centre for the Study of Violence and Reconciliation and

Others Albutt v Centre for the Study of Violence and Reconciliation and
Others 2010 (3) SA 293 (CC) at paras 65-68.
66 That obligation flows from the rule of law and para 3 of Part 5 of

the Prosecution Policy.
67 Prosecution Policy para 6(a).
68 National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) at para 37.
69 Section 7(7) of the Intelligence Services Control Act 40 of 1994.

70 De'ath (substituted by Tiley)v Additional Magistrate, Cape Town
1988 (4) SA 769 (C) at 775G.
71 2009 (2) SA 277 (SCA)

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72. See generally Hoexter Administrative Law in South Africa at 538 et
seq
73 1999 (4) SA 367 (T) at 372G-H
74 2010 (4) SA 327 (CC) para 38
75 President of the Republic of South Africa and Others v SARFU 2000
(1) SA 1 (CC) at paras 38- 41
76 Water Renovation (Pty) Ltd v Gold Fields of SA Ltd 1994 (2) SA 588
(A) 605H.

77 Section 195(1) of the Constitution; see also Democratic Alliance v

President of the Republic of South Africa and Others 2012 (1) SA 417
(SCA) at para 66
78 Section 11(1) of the SAPS Act. See also section 195(1)(e)(f) and (g)
of the Constitution.
79 Section 205(3) of the Constitution.
80 GNR 643 GG 28985 3 July 2006.
81 Regulation 12(1) provides:
II

Subject to regulation 6 (2), a supervisor who is satisfied that the

alleged misconduct is of a serious nature and justifies the holding of a
disciplinary hearing, must ensure that the investigation into the
alleged misconduct is completed as soon as reasonably possible and
refer the documentation to the employer representative to initiate a
disciplinary enquiry."
82 Regulation 13.
83 The decisions to suspend Mdluli and to institute disciplinary

proceedings against him were made pursuant to the powers conferred
by the SAPS Discipline Regulations. The revocation of those decisions
was in terms of the same public power. A decision by an organ of
state to abandon disciplinary proceedings against a high-ranking
police official and to re-instate him to his post while matters
concerning his honesty and respect for the law remain unresolved is
public in nature. It affects the security and the stability of South

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Africa, and goes to the accountability of its officials. The decisions
have direct external legal effect, and affect the public's right to have
the alleged misconduct against a high-level police official assessed
and finally determined. For those reasons, FUL submits, not
unconvincingly, that the decisions constitute administrative action
liable to review under PAJA.
84 Act 66 of 1995
85 Makhanya v University of Zululand 2010 (1) SA 62 (SCA) at para
18, and section 157(2) of the LRA

86 2010 (1) SA 238 (CC) at para 73

87 Regulation 13(4).
88 Democratic Alliance v President of the Republic of South Africa and

Others 2013 (1) SA 248(CC).
89 President, Ordinary Court Martial and Others v Freedom of

Expression Institute and Others1999
(4) SA 682 (CC) at para 16

Source: www.freedomunderlaw.org
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JWB-442

ANNEXURE ''JWB25''

JWB-443

tN THE DISCIPLINARY HEARrNG OF:

THE SOUTH AFRICAN POLICE SERVICE ("SAPS,.)

The Employer

and

MAJOR-GENERAL JW BOOYSEN ("BOOYSEN")

The Employee

FINDINGS

tntroductlon

1.

Major-General Johan Wessel Sooysen ("Booysen·), the Provincial Head
of Priority Crime Investigation in Kwa-Zulu Natal, was placed on

suspension since 30 August 20121 and was charged on 13 February 2014

with misconduct. z

1

Booysen was previously suspended in tenn, of Regulation 13(4) of SAPS Dlsciplinary
Regulltlons, I.e. suspension on ful pay as a precautionary measure. The labour Court set
the suspension aside. SUbaequent thereto and on 24 Auguat 2012, Booysen waa charged in
the Dulbah Regional Court on charges rela� to racketeemg. This triggered the
auspension of 30 Augu.t 2012. On 26 Februmy 2014, the Kwa-Zulu Natal Hi9h Court under
Case No: 4665/2010, on review, set aside the decfalon tD pr� Booyaen on the
racketeering charge. In hit findinga, Judge Gorven pointed out that setting aside the
authorfutfons and deask>ns to prosecute Booysen doet not mean that freth authorisations
cannot be ltsued or fresh declslona taken to prosecute if thefe Is a rational basis for these
decision, (paragraph 39).

2

Bundle-page& 1-10

JWB-444
Page 12

2.

The

Deputy National .. Commissioner,

Lieutenant-General

Mbeketa,

appointed me in terms of Regufation 14(1) of the SAPS Disciplinary

Regulations, 2006 to preside as chairperson in respect of the allegations
of misconduct made against Booysen. These findings are intended to

serve before Lt-Gen. MbekeJa In order enable him to deal with the matter

sensibly and judiciously.

3.

Advocate Feroi:e Boda assisted by Advocate Sumayya Tilly represented

the SAPS, namety the employer party, and attorney Carl van der Merwe of

Durban represented Booysen, the employee.

Complaint

4.

The nub of the compJa1nt Is that Booysen conducted himself in a manner,
so it is aneged, that it Is likely to damage the trust relationship of employer
and employee in that Booysen did not conduct himself appropriately in
relation to three separate inddents.3

5.

The three events are detaHed in the charge sheet, and J propose to

reiterate the essence thereof.
3

The charge sheet appears at pages A-J of the employer's bundle 'M'llch I have designated as
"the bunc:ffe•. N. pages 1-21 of the bundle appears me Regufationa for the SAPS
promulgated under Section 24(1) of the South African Police Service Ad, 68 of 1995 ("the
SAPS Act"). Section 20 of lhe Regoration& Identifies conduct which Is tantamount lo
misconduct. SAPS restricted Its compfaint of misconduct on the provisions of Sectjon 20(f)
and (p) which raspectively provides as fotow.:
"(f)
(p)

conduct which is prejudicfal fo the ar:Jmfnlstratfon, discipline or efficiency
deperlment; and
oondud.s himself in an improper, a,sgraceful and unacceptable manner.•

of a

JWB-445

Page J3

The Bongani Mkhize case

6.

The contention is ttiat Booysen attended the scene where Mkhize was

shot and killed by a member or members of the Cato Manor Unit ("the
Unit"). Before Mkhize was killed and on 14 November 2008, Mkhize had
obtained a court interdict against the Unit, including Booysen to the effect
that the Unit should not unlawfully Interfere with Mkhize's person, liberty or

fife. Mkhize was shot and killed by members of the Unit on 3 February

2009.
7.

The contention is t.hat Booysen did not take any dlscipllnary action against
any person arising from the court interdict nor dJd he take steps to ensure
that the court order was complied with.

8.

The employer further contends that subsequent to 3 February 2009, the

objective facts showed that Mkhize was shot in the back and that all the
shots in his vehicle were shot from the outside. The evidential material,
namely ballistic indications, according to the employer, demonstrated that
he (Mkhize) could not have shot at the police. Thus, the employer
contends, Booysen failed to take steps to interrogate an internal report

which and other factors, which were effectively a cover-up to protect those

who kiHed MkhiZe.

JWB-446
Page

9.

14

The further case of the empjoyer rs that those persons who were allegedly
responsible for the killing of �khize fell under Booysen's jurisdiction and

were his subordinates, and that Booysen ought to have taken disciplinary

action against one or more of them.
The case of the 16 year-old boy-Kwazi Ndlovu

10.

Members of the Unit were summoned to assist correctional services
officers to follow a lead that certain escaped prisoners from Westville

Prison were taking refuge in a house located In Esikhawini Township (''the
township").

11. The police were pursuing one of the escapee's, Tsili Mzimela. Upon
entering the house, a shoot-out took place and a sixteen year old youth,
namely Ndfovu, lying on a sofa in the house was shot and killed. The

employer argues that there

was no basis to suggest that the youth posed

a risk to the police. There was no evidence, the employer contends, that

the youth fired

at

the police and his killing was unjustified and hence

unlawful.

12.

The employer's case is that the shooting of the youth was callous and

unnecessary. The reports made by Internal investigators sought to coverup the shooting as being reasonable.

JWB-447
Page

ii

13. On a proper anatysis of the obieetive facts, the employer argues that
Booysen, as head of the Unit, should have taken disciplinary measures

against those individuals in his Unit implicated in this matter.

The Sunday Times article of 11 December 2011

14.

At the time when the Unit was under Booysen's superviso,y jurisdiction as
the Head of Durban Priority Crime Investigation unit ("the DPCI") and on

11 December, the Sunday Times pubftShed a report of and concemfng the
Unit This article ls critical of the conduct of the Unit and placed the SAPS

into disrepute. Booysen, it is aJleged, took no action against any person in
the Unit, further did not Investigate the report and took no steps to

discipline the members of the Unit.

General

15.

Twenty eight (28) persons In the Unit were suspended during or about
11 September 2012 after Head Office investigated the matter.

16.

overall, it Is contended that the Unit was not properly supervised and
controlled by Booysen, was undisciplined and brought the SAPS into

disrepute. Booysen is accused cf mismanaging the Unit and this cast the
SAPS in a poor light.

-:

£.--�

JWB-448
Page f&

17

These three events or incidents identified above are meticulously
described in the charge sheet augmented by the supporting documents in

support of the employer's case. The supporting documents are identified

in the charge sheet and form part of the employer's bundle.

18.

Prior to evaluating the evidential material presented at the hearing. I wish
to make a few general but. I believe, relevant and pertinent observations
concerning the conduct of these proceedings.

General observations

19.

These proceedings were marred by delays occasioned by the employer's
witnesses being unavailable, or instructions not forthcoming. In the main,

it Is the Commissioner of Police, Ms Ria Phiyega, who conducted the
proceedings by being the person in charge of giving instructions.

20.

Both Mr Boda, ably assisted by Ms Tilly, conducted themsefves

professionally and diligently. I am grateful for the manner in which they
presented a difficult and sensitive case and the dignified and excellent

presentation of instructions which they carried out
21. Ordinarily, and in

my

past ten

years

of experience chairing disciplinary

enquiries, it is usually the emptoyee that seeks delays and employs other
technical defences to avoid the merits being ventilated.

JWB-449
Page

22.

17

In this case, Booysen wanted his day in court sooner than later so that he
coutd, from his perspective, return to field duty to do that which he know

best

M

police work - to make our society safer and workable.

tn my

evaluation of the evidence, I wfU consciously scrutinise material facts
uninfluenced by political considerations and motive. I do this deliberately
because these entire proceedings appear

to have been permeated by a

political agen?a.
23.

In short, I propose to evaluate the probabilities by reference to objective
facts to determine whether Booysen misconducted himself or not."

In so

The degree of proof required by the civil standard is easier to express in words than the
criminal standard, because It involves a comparative rather than a quanffl.alfve test. In
the words of Lord Denning, ·, must cany a reasonable degree of probability. but not so
high as 1, requited In a criminal case. If the evidence is SIICh mat tl1e Tribunal r::an say
"ws think It mo19 probable than not• the burden is discharged, but If the probabllltiea '1.te
equal l is not." (see: SA Law of Evidence, HoffinanJ\ & leffertt, 411 ed., pege 526).
Recently, the court mfndful of the cficta of Weaela JA In National Empf•rs' Mutt.I
& General lnsunince Association v Gany 1931 NJ 187 at 199 as dHuted in effect ln
African Eagle Life Assurance Co Ud v Calner 1980 (2) SA 234 ('IV) gave the
following gUidefines in evaluating the evidence In Stenenbo5ch Farmers' Winery
Gn>up Ltd v Martell et Cle 2003 (1) SA 11 (SCA} para {SJ at 14 as foflows:

on•

•0ti .,,. � ,..,,., - • .,,., tha ,.,... ctu,tlly decMtd. -- .,. two �
,nay mw • beflrtng on the
ltUlftber tJ#pedpberal.,... of llitfNl(lt
� So, mo,
prob,,blt1tlea. ff» fechnlffll8 ,enerlllly-,ploy9d O)' CD11r11 in tWOlritlG faeb/111 � ol flt/a
.,.... � c:a.wenlMdy .N .wnmarlNd a We>� Te oo,,,e *> • conduslon on Iha dls,Hbd
laUM. CGefl'tMud 111-.,...,,,,. on ('II the awllbility of the v,rious � :ritJID..j (llJ their
r9IJ,,Mlfr, Ind (q ,,,. prooel,llltla. Aa (Ill, .. court'a l'illGJng Oil Ille etec611"fty ol • �
wllr1"lS wlf cte,»nd on Mlf llnpnalon llf>otd fhe wnclll)r ol tM ..,...... TMt In Mn wllJ dlpend
QII • nrllty ""aaflsldll,y r.cto,s, no( INICNNl'ly"' on,.,. of /lllpol1Mce. ludt .. � the ..,....
the �OIL, "" Iris ,.., ,...,.. .,,,, blafaat. (Ill) 1nlilmfll
canndldol .. llf Illa� (1v) � con61Cfftdane wM twfttd WN pleffed or put on'*
own txtn,cu,w ..._.. or Kf#Ona, (vJ .,,.
fad or d
bth.tf, or w#II
/Jf'ONbll1tJ «- -,,rt,babRlty ol p,,rtlculr � of his IIWSJM; (vlJ flle Qllbt'S .id COflWtCY of
of°'*' .._... � oout ti» ...,. Incident
A.II �
(ll), • wftnta•rellltibillty wll dlpend,..,, fnNIJ ""'ftlem,a MMlioned undw(l)(II),
th ewnt In qu11ffon
� and M abaw. on (0 ""'oppo,tllnlfa he IWd IO
Mid l10 flJe flllll}9, ,,,,.,,,,,, Md hdlp11ldlltee (JI,. IK#l lherMI. Aa lo (cJ, fbla OKealtilfM
.,, ,,,.,.,. Md MlrllUlllJon oltMp,oW111ly or� of wh � WfSloft an 1eh al
a • tlnlll
of(I), (b} Mid (c:). th court
Its
S. dtlpulMI luueL In ,,,.
.... d*lnlne _,....,. fl• ,,.ay burmrted wttft lie onva flt fJ(OOf ,,_ sut:CIMdell ta
� IL n. herd CN9, wltldt wfl � be tne ,... om, occun whM • CCU1'a
awl/blllfT ttHilnp � It In OIMI chc:1ian Md ID Wl/udon of the .,.,,.,., prol,abll#IN t,
,,.,,.,,.,... nr. mww convincing lie lamJw; h lea corwlnclnfl will be fhe ,._. But .,,,.,, .,

""*"

'°

�,. ,.""'.,,..,,,,"'In

� Aa.,

..,./lshad
com,_.,,• ,,_,
"""'of

'*

er

..,_1mce or,,,_,,,..

,....._,nt

,__..,.. �ptDNbllltlapnva/1."

will"*',

JWB-450
Page

ra

doing, I wish to avoid being influenced by extraneous factors which may or
may not have a bearing on the matter.

24.

The material placed before me is overwhelming. The transcript of the

proceedings is some 651 pages. The bundles are voluminous. Booysen
presented facts contained in a host of affidavits which were not

challenged.

25.

The salient features undertying the charges are, however, not problematic
and rather confined. This is a case which compels an adjudicator of facts
to isolate the wood from the trees, and this is what I propose to do. f have
read as much as I can and I have carefully considered the respective
heads of argument. I am grateful for the assistance rendered to me by the
legal representatives.

Evaluation of evidential material

Bongani Mkhlze case

26.

No direct evidence was placed before me. The witnesses who testified on
behalf of SAPS could not directly Implicate Booysen in any wrongdoing.
Much reliance

was placed on an order obtained by the late Mkhize

in the

Durban High Court under Case No: 13759/08 against the police including
Booysen to the effect that 1he police and Booysen are interdicted from

JWB-451
Page fl

"l<Uling, Injuring, threatening and harassing or In any way intimidating
Mkhize".

27. 'Mlatever the merits of the order may or may not be and whether a court
ought to remind people not to ad unlawfully, is not the subject matter of
the investigation before me. I must, however, evaluate the relevance of

the order in the light of the prevailing circumstances under which Mkhize
was kiRed and whether such circumstances implicate Booysen in
wrongdoing and, if so, to obtain an explanation from Booysen.

28.

I do note that In Booysen's ansv;enng affidavit in the High Court

application, Booysen deals with each of the anegations made in Mkhize's
founding affidavit. J have already expressed the view that it is not my
place to comment on the rationale for the consent order which has been

described above.

It may well have been an order by consent out of

expediency on the premise that it concerned future conduct and there was

no harm In an order interdicting and condemning unlawful future conduct.

29.

For purposes of this hearing, SAPS contends that Mkhlze was killed

unjustifiably and hence the lack of any dlscipfinary measures against those
Implicated In the shooting of Mkhize (and all of them fell ultimately under
the command of Booysen) implicates Booysen in conduct unbecoming of

a person in Booysen's position. In this context I point out that the estate of

Mkhlze has sued the Minister of Police for damages arising from the kilffng
of Mkhize by police officers in Case No: 3178/11 in the High Court

7

JWB-452
Page 110

Pietermaritzburg. The Minister has pleaded that its officers acted lawfully
and reasonably in shooting Mkhize in self-defence. 5

30.

It appears that the only objective evidence which SAPS re�es upon to
support its contention that Mkhlze did not fire at the police and therefore

the police's version that they shot Mkhize in self-defence is false is the
ballistic report of Captain Christiaan Mangena. e

This report is dated

12 March 2012 �st Mkhize was killed on 14 November 2008.

The

report ignores the findings7 of Superintendent Maria Dorathea Elizabeth

Stoltz ("Stortz·), a chemist attached to the Forensic Science Laboratory in
Pretoria. Stoltz is the chief forensic analyst at the police laboratory and
concluded that exhibit "CCIRH8 tested positive for primer residue.

The

sample was, as illustrated in the affidavit of Constable Simphiwe Charles
Mkhize, 8 who attended the scene of the crime, a test strip of the right hand
of the deceased, duly containerised and dispatched in terms of poUce

process and procedure for testing In Pretoria at the SAPS forensic

laboratory.

5

Exhibit ·02·

•

Bundle- pages 106-130.

1

Exhibit •03•

I

Exhibit •04•

JWB-453
Page 111

31.

In my view, Captain Mangena, \Nho prepared the ballistics report some
four years later, did not have regard to the objective findings of Stoltz. lt
raises, to my mind at least, an improper purpose in seeking to discredit

Booysen, unless there is a reasonable Innocent explanation.

32.

The late Mkhlze was a notorious gangster.

As appears ln the Police

docket (affidavits and extracls of which were placed before me as

exhibits), Mkhize was a suspect in the murder of Nkosi Zondi. It appears
that Mkhize was under Investigation for a number of serious crimes carried
out in the KwaZulu-Natal Province.

33.

IC is sad to team that Mkhize shot at the officer involved in investigating the
crimes Mkhize stood accused of. Mkhize missed and shot the

investigator's young daughter instead, a child well below the age of 10.

Subsequent thereto, the father of the young girl, the investigator, and the
only witness to the shooting of his daughter, was murdered.

34.

It is not my place

to

be critical of court orders, but t have grave

reservations as to whether the Court interrogated the propriety of the

appMcation and the usefulness of any order which it made.

What I am

convinced of is a Jack of expertise in the State Attorney's office and those
generally briefed to present a case on behalf of the State. The opposition
to the application showed no understanding of the purpose of Mkhize's
application, a tactical manoeuvre to put the Police off-guard.

It seems

to

me. sad to say, that Mkhize's application had the desired effect The main

JWB-454
Page 112

suspected wrong..(loer manipulated the legal system to appear to be the
victim.

35.

I have carefuHy considered the report of senior superintendent J Romer,
concerning the circumstances in which Mkhlze was followed leading

ultimately to a shoot-out between the Police and Mkhize and the death of

Mkhize.

36. There Is no evidential material that there was no shoot-out but only a onesided shooting by the Police. Romer states under oath (Exhibit 05) that

he found a firearm on the passenger side of Mkhize. He "carefully lifted ...
using a single finger through the trigger guard method ... upon sniffing
around the muzzle of the barrel, I distinctly detected the smell of
gunpowder that had recently been burnt with the discharge of a round or

rounds of ammunition.''

Romer is a colonel in the SAPS and received

Intensive musketry training at the SA Police and, other than formal

education, is experienced in the discharge of firearms.

37.

I have difficulty understanding the case against Booysen when there was
a thorough internal Investigation In the Mkhize shooting and no evidence

was found implicating any policeman in any wrong-doing In the incident
invoMng the shooting of Mkhize. Christopher Vorster, employed as an
assistant director In the Independent Police Investigative Directorate
("IPtD'), described that if there was any suspected wrong-<foing on the

part of the police, in an incident such as that of Mkhize, there would be a

JWB-455
Page 113

recommendation to the immediate Commander for an enquiry to be held.
There was no such recommendation in this case.

38. The affidavit of Major General Moodley, described that there was a

meeting every morning chaired by the Provincial Commissioner and
attended by Deputy Provincial Commissioner, Component Heads and
Provincial Commanders where incidents that OCCtJrred during the previous

24 hours are discussed.

This included police shootings in particular

where a senior police officer was of the opinion that a specific shooting
incident warranted further attention or, specifically, a disciplinary enquiry.

39.

The affidavit of Major-General Patrick Thomas Brown ("Brown") (which I

deal with more fully below) was to the effect that at the material time he
was the Provincial Head, Detective Services, and he was accountable to
the Deputy Provincial Commissioner. He further elaborates in his affidavit

that, when the interdict court papers were received at provincial
Headquarters it was Provincial Commissioner Ngidi that gave directions
that Booysen deal with the matter with the assistance of Legal Services.

40.

The nub of the complaint is that Booysen shouci have done more to
ensure that the Court Order was complied with, i.e., that police officers
were not to pursue or unlawfully harm Mkhize. I find no persuasive reason
to Indict Booysen of any wrongdoing in the shoot-out whereby police

officers pursued Mkhize, which resulted in Mkhize being killed. The other
complaint is that Booysen was de facto In control of the unit which was

JWB-456
P • g e 114

involved in the Mkhize shooting and he should have thus taken disciplinary

steps against the police officers involved In the shooting of Mkhize.

41.

I find that there is no basis to justify a complaint of this nature. There is no
evidential material cognisable in law to suggest that any police officer
acted improperly and therefore it is wrong to hold Booysen to account for
anything untoward.

Moreover, at the relevant time the Provincial

Commissioner was Hamilton Ngidi. There were two Deputy Provincial
Commissioners, namely Masernola and Brown. There then followed in
hierarchal order, Booysen as Senior Provincial Commander of Organised
Crime. It is wrong to single out Booysen in these circumstances as being
responsible to conduct any disciplinary enquiry or other investigation those
police officers involved in the shooting of Mkhize.

42. There ls an Independent Police Directorate who are responsible for
investigating wrongdoing on the part of police officers. Additionalfy, the
office of the NDPP will or ought to prosecute police officers who conduct
themselves unlawfully.

43.

The suggestion that the Independent Police Directorate were somehow

undermined by Booysen is not supported by any factual

content The

evidence of Col. Ayer, the direct commander of the Cato Manor Unit. that
Booysen In reality controlled the ncNU" and undermined Col. Ayer, to the
extent that Col. Ayer was rendered ineffective, was unpersuasive having
regard to the content and quality of Col. Ayer's testimony.

JWB-457
Page 115

44.

I found Col. Ayer to be a dismal witness in material respects.

He Is

obsessed by the notion of his own importance and his entire testimony
was permeated by his political acceptability and selUmportance.

I find

him not to be the kind of professional policeman one would expect holding

the rank he holds. His tenor of evidence as I have indicated above,

rs one

in which he emphasises his own importance but lacking in conduct

justifying any usefulness.

I think those in charge of the SAPS ought to

carefully Col. Ayer1s continuous role in the police force. In his quest for

acceptance and self-importance, he was determined to tarnish Booysen•s
reputation and dlgnitas irrespective of the cost to the overall interests of
the Police Force.

If In fact the employer party actually believed that it

could establish a case against the employee based on the evidence of

Col. Ayer, this was a serious error of judgment and, worse still, a strong
indication that the employer sought to create a case where one did not

exist.
45.

Col. Ayer's affidavit and other documentary communications he relies

upon is punctuated by invective and occasionally pure hatred for Booysen.
He Is obsessed by the notion that there is a vendetta to have him killed to the extent that he is paranoid. I find no substance in this speculative
realm of make believe.

Osander, a Greek philosopher, observed ttiat

•envy is the pain of mind of which successful persons cause to their

neighbours•. This, I think, is the case with Col. Ayer.

JWB-458
Page 11&

46.

ln my view, the employer has not discharged the onus to demonstrate that

Booysen misconducted himself in relation to this charge. Booysen by this
conduct or lack of action did not prejudice the administration, discipline or
efficiency of the office with wh.ich he is associated (Regulation 20(f)), nor
did he commit any common law or statutory offence (Regulation 20(z)).
The case of Kwazl Ndfovu

47

SAPS relies upon reports to the effect that members of the Organised

Crime Unit stormed into the house where an alleged fugitive, an escapee

from prison, was apparently taking shelter and that, in shooting the youth,
Ndlovu, the police acted hastily and thereafter disappeared from the

scene.

There was inadequate fonow-up, in particular, there was no

substantiation that the firearm found next to the deceased youth was used

by the youth to shoot at the police.

48.

In cross-examination on behalf of Booysen, the affidavit of the then

Provincial Head, Major-General Pabick Thomas Brown, 9 was introduced in
evidence. Brown was in attendance at one of the hearings before me, but
was not calfed by SAPS 10 testify.

49. As I understand the position, Booysen reported to Brown. In order to
appreciate Booysen's defence on this charge, it is useful to repeat
paragraphs 2, 3 and 4 · of the affidavit of Brown who I point out is

now

JWB-459
Page 117

retired from active service. Brown held the position of Provincial Head,
Detective Services of KwaZulu-Natal from 1 January 2000 .until his
retirement. Paragraphs 2, 3 and 4 of his affidaVit reads as follows:

•2.

The Detectitta Organogram for the Province was as follows:

I, as Provincial HIJad. was directly accountable to the
Deputy Provincial Commissioner, Operations end to
Provincial Commissioner. Specialised detectives in
the Province who fell under General Detectives,
O,ganised Crime, Serious and Violent Crime and

Comm8f'Cisl Crime were under my command.

In

March of 2010 with the establishment of DPCI
(Hawks), Organised Crime now felf under the direct
command of the Deputy Provincial Commissioner

responsible for the Hawks.
3.

The four components each had a Provincial Commander
who reported directly to me. They were accommodated in
the Provincial Headquarters. The Provincial Commanders

managed their Units at different centres within tho Province.
Each of the Units had a Unit Commander with Section
Heads to assist him/her in the management of

the Unit.

General Detectives were commanded by Detective Ama
Heads and Detect;ve Bmnch Commanders.
4.

The lines of communications for reports to and from my

office following this chain of command. This would be from
the station/unit member though his branch or unit
commander to the Detective Area Head or Provincial

Commander to my office. I would forward these onto the

Deputy Provincial Commissioner Operations and him in

JWB-460
Page

I 111

tum to the Provincial Commander. Where necessary there

Component Heads

was also communication to National

and the National Head of Detectives. Reports on daily

serious crime Incidents were reported by the

Unit

Commanders to their respective Provincial Commanders
and they in tum to me. I would then take the necessary
steps to mform the rel6vsnt Provincial and National

authorities.

ThFJse reports were also recorded at the

Provincial nodal point and discussed in depth during the
daily morning Provincial crime meeting."

50. It would appear that this complaint was never raised with Brown nor did It
feature in the daily morning provincial crime meetings Where all relevant
parties were present.

51.

It is thus Booyseo's case that it Is peculiar that this complaint was not
raised with Brown, nor at the daily meeting attended by each of the four

provincial commanders who reported
Provincial

Head

dlrectfy

to Brown in his capacity as

accountable

to

the

Deputy

Provincial

Commissioner.
52.

Booysen's legal representative, in cross.examining the case of the

employer party, referred to exhibit ·015• which, as is pointed out in dause
13.4 thereof, the escapee was armed and accordingly those policemen
pursuing him were required

to

take appropriate action.

Further, that

exhibit ·e·, an affidavit by Sergeant Tilakdharee, an assistant forensic
analyst attached to the Ballistics Unit of the Forensic Science Laboratory,
pointed out that on 14 April 2009, he recovered a platol, a Vektor model

JWB-461
Page 119

apparenUy belonging to the deceased. Ndlovu, with one 9mm calibre fired
bullet

53.

It is unfair, Booysen argues, to raise this matter at his doorstep at this
enquiry which, he argues, is set up to unfairly discredit him. LieutenantColonel Nthembu, who gave evidence on behalf of the employer testified
that it was the responsibility of the immediate commander to take

disciplinary steps.

He, however, agreed that Booysen was not the

immediate commander and that, in terms of the Regulations, the
command structure regarding this incident was led by Captain Lockem,

the group commander.
54.

It was contended on behalf of the employer that it was obvious that the
youth was an innocent bystander and that the incident called out for an
investigation. I do not have enough facts and material before me to make
a judgment call as to the innocence of the youth who was shot during this
follow-up procedure where dangerous fugitives took shelter in the youth's

home and I cannot make any reliable findings in this regard. Booysen's
evidence was that when he heard about the incident, he contacted the
commanding officer in the territorial area of Jurisdiction who had assured

him that the matter was under control.
65.

I cannot be unmindful of the fact that a senior investigator with IPID,
namely Mr B Ncanana testified to the effect that fingerprints were not
taken of the fireann and the scene was contaminated. However, his

JWB-462
Page!20

statement was taken 2 years after the incident and that no-one relied upon

by him could have had the requisite knowledge of the contents of the
incident at the material time. He further conceded that the faffure to have
taken frngerprints by the investigating officer constituted misconduct Which
should have been reported to the commander in charge.

56. According to Ncanana, Booysen was not a commander of the unit involved
in this investigation.

10

This witness also confirmed that monthly meetings

are held between IPID and SAPS to address issues in which IPID was
concerned as to the Improper conduct of a police officer. And further that

the Ndlovu matter was never raised and that IPID did not bring to
Booysen's attention any impropriety or Improper conduct warranting
further investigation.

57

The issue is whether Booysen shoufd have followed up this investigation

or not According to Booysen, he did follow it up by camng the responsible
commander of the area once it came to his knowledge that a shooting had
taken place which had resulted in the death of the deceased, Ndlow. It
should further be taken into account that the NDPP declined to prosecute

any policeman involved in the shooting.

58. In the premises, I am unpersuaded that anything more was required of
Booysen in regard to this incident and that, holistically speaking, It cannot
10

ln paragraph 8 of Captain Ncube's statement, Lt.COionel Ofiver, Is cited as the unit
commander. ln hit affidavit dated 18 AprU 2012, Captain Ncube states that Mr Ncanana
from IPJO arrived at the scene.

JWB-463
Page 121

be suggested that his conduct brought the SAPS into disrepute or that
Booysen misconducted himself in any respect.
Sunday Times artlcle of 11 December 2011

59.

Booysen's argument is that the case of the SAPS is misplaced. Exhibit

"06" (incJusive of ·01· to •cg·) read together with "Dr proved that, at the
instance of Booysen, Lieutenant-Colonel Nyuswa from Port Shepstone
Organised

Crime

investigation

Unit

conducted

an

investigation

surrounding the article published in the Sunday Times newspaper.
60. This resulted in Warrant-Officer Naidoo being cautioned and counselled.
The findings are set out in exhibit ·a(2)" and ancillary supporting

documents form part of exhibit "06·.
61.

Exhibit ·07• is an affidavit by Mr Winkelman, the Provincial Legal Officer,

holding the rank of Brigadier. He was consulted by Booysen on the legal
steps that could be taken against police officers depicted in the article.
Similarly, ·the affidavit of Lieutenant-Colonel Van Rensburg demonstrates

step taken to investigate the circumstances $Urrounding this article. 11 The
further affidavits to be found at •09� and ·010• by Mr Vorster from the

tndependent Police Investigative Directorate and Colonel Hoosen are

further testimony to active measures adopted and implemented by
Booysen against those Implicated in the article.

u Exhibit "08"

JWB-464
PageJ22

62.

12
Finally, the affidavit of Major-General Moodley on this Issue makes the

point that it is the responsibility of the Unit Commander to institute
appropriate disciplinary steps and not the Provincial Commander, unless
there is an issue warranting the Provincial Commander to get involved.
This is a line function and it is argued that it is wrong to simply implicate
Booysen without having established a basis as to why the fine manager

did not carry out functions in the first place and why there were reasons for
Booysen to get involved.
63.

It would be wrong, in my view in the circumstances, to castigate Booysen

for any wrongdoing involving the publication of the Sunday Times artfcie
and the consequences arising therefrom.
Ulterior purpose, polftlcs and the sad reaJity of South Africa

64. After the appointment of Booysen as head of the Hawks In KwaZulu-Natal
during March 2010, an investigation commenced under his direction into
certain procurement irregularities within the SAPS.

65. Initial investigations by the investigating officer (a colonel) revealed

possible corruption Involving senior SAPS officers and a private Individual.

66. Thereafter, the investigation took some interesting turns:

JWB-465
Page 123

66.1.

On 10 May 2010, the Provincial Commissioner of Police, KwaZulu-Natal instructed Booysen to stop the investigation;

66.2.

On 19 May 2010, the Deputy National Commissioner of Police,

lieutenant-General Dramat, informed Booysen that he should
continue with the investigation under the supervision of a

brigadier from Pretoria;
66.3.

On 31 May 2010, a preliminary report into the investigation was

handed to the Provincial Commissioner of Police.
66.4.

On 15 June 2010, Booysen was summoned to the office of the

Provincial Commissioner where he was introduced to one of the
suspects at the time and his legal representatives. The Provincial
Commissioner then instructed Booysen to have the investigating
officer in the investigation investigated.
66.5.

On 28 June 2010, Booysen received a call from the erstwhile

National Commissioner, General Bheki Cele, \Nho instructed
Booysen to continue with the investigation and not to entertain

any Interference. The General further informed Booysen that the
investigators would report

directty

to him and not via the

brigadier from Pretoria.

66.6.

The original investigation ihen continued.

JWB-466
I •

•

Page

66.7

124

On 8 August 2011, Booysen caused a colonel in the SAPS ·(one
of the suspects) to be arrested for attempting to bribe him with a
R2 minion payment to compromise the investigation.

66.8.

On 11 December 2011, an article appearing in the Sunday

Times which described the Cato Manor SVC section as a "death
squad" and which. also accused Booysen of being complicit in

their afteged actions.

66.9.

On 14 December 2011, Booysen was informed by the Deputy

National Commissioner that three major generals had been
appointed to investigate the allegations made in the Sunday

Times. Booysen was visited by one of the generals a day or two
later and offered his fuU co-operation.

66.10.

Other events took place thereafter, but Booysen refrained from
recounting them as he did not wish to "muddy the water". Suffice
to say that it came to Booysen's knowledge that a certain

Individual had predicted that the suspension of the colonel who
had attempted to bribe Booysen would be uplifted and that
Booysen would be suspended.

66.11.

A few days later, Booysen came

colonel's suspension was uplifted.

to learn of the "prediction", the

JWB-467
Page f.25

66.12.

On 12 August 2012, Booysen was served with a notice of
intention to suspend him and on 30 August 2012 he was
suspended from active duty.

Disturbing events and evidence

67

Colonel Vassen Soobramoney

,·soobramoney;, formerly an investigator

at the Durban Commercial Crime Unit of the South African Police

Services, was briefed by Brig. Andre Lategan, the former Provincial Head
of Commercial Crime, KwaZulu-Natal on 3 May 2012 to register an enquiry
known as "Crime Enquiry 05/07/201011

-

this related to procurement

irregularity involving- Capl Aswin Narainpe1'Shad and Col Navin Madhoe

("Madhoej and the director of Gold Coast Trading CC, one T osnan

Panday ("Panday").

Madhoe is the police officer referred to above that

tried to influence Booysen with a R2 million bribe, and the colonel
suspended and whose suspension was uplifted.
68.

Soobramoney gave detailed evidence as to a prima facle case of
corruption Involving Madhoe and Panday. Soobramoney's investigation

had reached an advanced stage when he was unexpectedly visited by two
senior officers from Gauteng, namely Richard MdtuU and one Lawrence.
These

two

officers Informed him that his fffe was in danger and that he

should immediately relocate to Gauteng.

He followed instructions and

relocated to Gauteng, and since then has been isolated from active duty

and, In a nutshell, rendered ineffective. This

was some 1hree years ago.

JWB-468
Pagel26

Soobramoney explained to me how his life has since then been a living
hefl because he is not allocated any work, which has resulted in him being
in a state of depression and that he has more than once attempted to take
his own life. His family lffe has been affected and all that he would like to

do is to render active service, because policing is his passion and his life.
69. Soobramoney's evidence was clear. The Provincial Commissioner of

police in KwaZulu-Natal, Lt. Gen. Ngobeni, as well as Madhoe and

Panday were involved in corrupt practices resulting in large sums of
money of the SAPS being u,accounted for; on his testimony it was clear
to me that Ngobeni caused him to be, literaUy speaking, "orchestrated out
of KwaZulu-Natal".

70. In tNs context. Booysen's evidence was that on more than one occasion
he was summonsed to Ngobeni's offices where he was confronted with
Madhoe, Panday and the ratter's legal counsel to explain why he was
conducting further investigations Into the conduct of Madhoe and Panday.

I found this bizarre - that a National Commissioner will subject her police
officer to be confronted by Panday and his counsel as if Booysen was the
wrongdoer.. In my view this makes a mockery of policing in our country
and brings the police structures Into disrepute.
71. Of course, Booysen's complaint. If not the distress he finds himself in, is

the fact that Madhoe is still in office whilst he is suspended.
Soobramoney's investigations emanating from Panday's bank statements

JWB-469
I

I

�..

Pagej27

reveals prima facie a corrupt relationship between Panday and Madhoe.

Booysen's stlng operation resulting In Madhoe attempting to bribe him was
in conjunction

with the office of the NDPP and it is a sad reflection that

since late 2011, when all this took place, Madhoe is in active duty and

Sooysen is suspended.
72.

In these circumstances, the objective facts demonstrate

an

agenda to get

rid of Booysen because he was perceived (rightly so I may add), as a
determined, professional, competent and tenacious policeman who would

arduously strive to bring the wrongdoers to book.

73.

I would have expected Provincial Commissioner Ngobenl to come and
give evidence before me to deal with these serious and damning
allegations concerning her which not only discredits the South African

Police Services but suggests corruption at the highest level.

74. On the last day of the sitting, almost a month after serious allegations
against the Provincial Commissioner of KwaZufu-Natal were made under
oath with det.aited amplification, and in rebuttal, not the Provincial

Commissioner Ngobenl, but Genl. Phiyega, the National Commissioner
testified

75. l do not want to be critical of Genl. Phiyega, more than is necessary. Her

evidence was, evasive and unsatisfactory in material respects. Short of
telling me that she took the decision to prosecute Booysen because she
was unhappy with his conduct apropos the three events that I have dealt

JWB-470
I ,

Page J28

with above (and forming the basis of the misconduct charges), she had no
insight nor any knowledge of any details of the factual content relating to
these events. She was sadly unable to deal with the state of play of senior
police officers in particular, the Provincial Commissioner Ngobeni and
Madhoe, other than to say that the concerns regarding them will be dealt

with "in due course''.

I find this whoffy unsatisfactory and supports, if not

augments, the contention that the charges against Booysen were
contrived to get rid of him. I YJOUld be failing in my duty not to bring this to

the attention of Ll Gen. Mbekela.
Conclusion
76. The employer has not discharged 1he onus of demonstrating wrong-doing
on the part of the employee, Major-General Johan Wessel Booysen.
77

In my view It would be unjust not to forthwith reinstate Booysen to his
position as Provincial Head of Priority Crime Investigation in KwazuluNatal so that he can do what he is best suited to do, that is to fight crime.

NAZEER CASSIM SC
Chairperson
Sandton, Chambers
16 September 2014

JWB-471

ANNEXURE ''JWB26''

JWB-472
COLONEL B PADAYACHEE

CRIME INTELLIGENCE
PROVINCIAL HEAD OFFICE
DURBAN
KWA-ZULU NATAL

1.
I am a Colonel in the South African Police Service serving under the Provincial
Head, Crime Intelligence, Provincial Head Office Durban. I was appointed in the
South African Police Service in 1982 and have 36 years' service. I am currently
the Section Commander at Intelligence Collection.

2.
During the period of the investigation relating to the Soccer world 201 O corruption
and fraud case involving R 60 million (CAS 781/06/2010), I was the Section
Commander Security Intelligence. I have been working with Crime Intelligence
Project Driven investigations since 2000.

3.
During the course of the investigation large scale corruption was uncovered
involving, inter etie, Senior SMS Police Officials, Police Officers as well as very
influential and prominent Government Officials/individuals. I am aware of the
existence of much evidence that is available to prove this. I am informed that
for purposes of the terms of reference of this Enquiry the details of the evidence
need not be set out.

This evidence will be put before the State Capture

Commission.
4.
One of these individuals who is implicated in this investigation is Mr E �rd
Zuma (hereinafter referred to as "Zuma"), son of the former President Jacob
Zuma.

JWB-473

5.
The investigation revealed that Zuma approached Major General Johan
Booysen (hereinafter referred to as "Booysen") with regard to the Thoshan
Panday (herenafter referred to as "Panday") corruption cases and requested
his assistance, more particularly in retrieving money, that was being withheld

by the State because of the pending cases against Panday, for example,

the R60 million Fraud and Corruption case which emanated from the
2010 Soccer World Cup.

Confirmed factual evidence reflect that Zuma

contacted Panday and that he met with Booysen.

I am personally able to

confirm that this is reflected in the evidence.
6.

Several intercepted calls revealed serious death threats against Booysen.
During one of the intercepted communications between Panday and one
Colonel Rajen Aiyer (hereinafter referred to as "Aiyer''), Panday said the
following to Aiyer: "the only way you can help me is to take Booysen out".
This was a serious threat which was communicated to Booysen to be vigilant
and take proactive steps to safeguard himself and his family. I had personally
heard this from the intercepted call.
The investigation revealed that Aiyer sounded and appeared to be desperate
both financially and emotionally. It was common knowledge that he was a�
going through a difficult divorce.
"-------,

7

It was further established that Aiyer was physically in possession of a
fully automatic RS Assault Rifle.

// �

»-:

This was communicated to Section Head, Commercial Crime, Brigadier Lategan

ff
.
\

Page 2 of8

(,

(

�

JWB-474
(hereinafter referred to as "Lategan") who then took possession of the RS rifle
from Aiyer. It is unknown. why he was in possession of the rifle as this is a nonstandard weapon and is only issued to operational members during specific
operations. For purposes of this Enquiry further elaboration in relation hereto is
not required.

7.
The investigation factually revealed that Panday was desperate to get rid of
Booysen.

I have been privy to that factual information.

8.
The evidence at our disposal indicates that Panday liaised with several
prominent high profile individuals as well as senior
Police officials to assist him in this regard. Large sums of money were also paid
to corrupt officials.

9.

The investigation factually revealed that Panday requested one Mr Deebo
Mzobe (hereinafter referred to as "Mzobe") to assist him in getting rid of
Booysen ("Clipping his wings"). Mzobe is the cousin of former President
Jacob Zuma.
This information about Mzobe being the cousin to President Jacob Zuma is
public knowledge and also reported in the media.
Panday told Mzobe that they need to "clip Booysen's wings" and
suggested to Mzobe that they have a meeting and briefing a;�
.

Page 3 of 8

JWB-475
"how to take care of Booysen because he is obviously now standing in
the way of everything". I have listened to this recording and confirm this.
Mzobe requested some money from Panday, which the latter said he
will "sort out for him".
This evidence is factual and reflected in the transcripts of recordings that are in
the possession of SAPS.

10.
I informed Booysen that the threats against him were serious and that Panday
has sought assistance from very "powerful individuals" to deal with him and the
investigating officers. These threats were communicated to Booysen on
different occasions either telephonically or personally.
The above evidence is factual, received through my investigation and I can
confirm that that is what the evidence reflects ..

11.
The investigation also revealed a conspiracy between Colonel Aiyer, Panday
and Sunday Times journalist, Mr Wa Africa (hereinafter referred to as "Wa
Africa"). Factual evidence is available where Wa Africa requested criminal
dockets from Panday. He even gave Panday the criminal case numbers.
HafajeeO
Panday, in turn, then requested these dockets from one Captain Pipes
�

(hereinafter referred to as "Hafajee").
Wa Afrika was well informed and he knew that Booysen was going to be arrested and

//

suspended, He also told Panday that Booysen flew in a helicopter and blocked�
path of suspects and the Cato Manor members then shot and killed the deceased in
Howick case. He gave Panday the case numbers.

Page 4of8

.

JWB-476
Aiyer gave crime scene photographs to Panday who in turn gave it to Wa Africa.
These photos were published with headline news "Cato Manor Death Squad".
Booysen was thereafter charged with Fraud and Corruption as well as running a
so-called "Hit Squad". Wa Afrika met with Panday at Umhlanga
in February 2012.
The main, single witness in these charges against Booysen and members of
the Cato Manor Organised Crime Unit, ironically, was the same Aiyer, whom
had conspired with Panday earlier. Booysen was thereafter suspended as a
result of these charges.
The investigation revealed that Aiyer was on the payroll of Panday and as a
result of his (Aiyer's) actions and contribution, Panday was successful in having
Booysen removed. I am able to confirm this.

11.
Further facts;
11.1

FORMER ACTING DIRECTOR OF PUBLIC PROSECUTIONS:
KWAZULU-NATAL, ADVOCATE SIMPHIWE MLOTSHWA

The former Acting Director of Public Prosecutions: KwaZulu-Natal, Advocate
Simphiwe Mlotshwa (hereinafter referred to as "Mlotshwa") was removed from
his acting position after he refused to withdraw all Panday related matters. I
drew this inference from my own conclusions as well as articles in the media.
His life was even threatened and he thereafter had bodyguards assigned to
him. I physically saw him with body guards.
After refusing to withdraw the Panday related matters on the grounds that there
were prima facie cases against Panday and others, he was replaced by curre�
Director of Public Prosecutions, Advocate Moipone Noko (hereinafter refe�
to as "Noko"). I base this on my own observations and articles in the media.

Page 5 of 8

'\,

JWB-477
Noko, within a short period of her appointment, withdrew all the cases against
Panday and his associates.
Mlotshwa thereafter resigned and is now practicing as an advocate and a
member of the Society of Advocates: Pietermaritzburg.

11.2

ADVOCATE BHEKI MANYATHI (Senior State Advocate OPP:
KZN)

Advocate Bheki Manyathi (hereinafter referred to as "Manyathi"), Senior State
Advocate at the Director of Public Prosecutions: KwaZulu-Natal was the
prosecutor in the R2 million Corruption case against Panday and co-accused
Colonel Madhoe.
At the time, Manyathi was recommended to be promoted to the position of
Senior Deputy Director of Public Prosecutions as Regional Head of the SCCU,

in KwaZulu-Natal. This is my personal knowledge as I knew him and I interacted
with him.
His refusal to withdraw the case against Panday and Madhoe resulted in the
appointment being withdrawn on the eve of his appointment. This is my own
conclusion and my personal observation. This I say because of the systematic
sequence of events around the Panday and Mad hoe matters.
Manyathi resigned thereafter and is currently in private practice at the Society
of Advocates in Durban.
Panday conspired with a Sunday Times journalist, WaAfrica and published the
Cato Manor Death Squad article to discredit Booysen.
Information and photos were furnished by Panday to the journalists.
The journalists even informed Panday that Booysen was going to be removed

;f

Page 6of8

JWB-478
from the case and will be suspended.
Booysen was indeed removed from office and suspended.
These very same journalists were awarded prize money and awards for the
articles they published.
The journalists and their articles were recently publicly discredited and the
Sunday Times issued a formal apology to Booysen.
All prize money and awards were subsequently returned as well.
Aiyer assisted with and was instrumental in the publication of these false articles
by the journalists. He supplied official SAPS photographs to Panday who in turn
handed those to the journalists.
The interceptions and further investigations revealed that Aiyer was on the
payroll of Pan day.
He has since been dismissed from the SAPS for defeating the ends of
justice.

12.
In 2012 Booysen, after much negative media coverage, was suspended from
office.

----

,_,..--

.

.

'

�/

�-r--1----�����-COLONEL

Page 7 of 8

l�

JWB-479
,-"'

I

,A

I certify that the deponent has acknowledged to me that he knows and understands
the contents of this declaration, that he has no objection to taking the prescribed oath
and considers it to be binding on his conscience.
�rl�Q.V\

Thus signed and sworn to before me at PIETE:RMARITZBURG on this

o�,a_ day of

FEBRUARY 2019.

SOUTH AFRICAN POLICE SERVICE
PROVINCIAL Cfi!ME INTELLIGENCE

2019 -02- 0 4
KWAZULU NATAL

-

Page 8 of 8

JWB-480
COLONEL B PADAYACHEE
CRIME INTELLIGENCE
PROVINCIAL HEAD OFFICE
DURBAN
KWA-ZULU NATAL

1.
I am a Colonel in the South African Police Service serving under the Provincial
Head, Crime Intelligence, Provincial Head Office Durban. I was appointed in the
South African Police Service in 1982 and have 36 years' service. I am currently
the Section Commander at Intelligence Collection.
2.

During the period of the operation in question, I was the Section Commander
Security Intelligence. I have been working with Crime Intelligence Project Driven
investigations since 2000.

3.
During November 2010, I was tasked by the Provincial Head, Crime Intelligence,
to investigate serious death threats against the investigating officers tasked with
the investigation of the 2010 Soccer World Cup Corruption, Durban Central CAS
781/06/2010 - Fraud and Corruption.

4.
Major General Moodley (hereinafter referred to as "Moodley") handed a written
request to me which had been compiled by Brigadier Lategan (hereinafter
referred to as "Lategan"), Section Head: Specialised Commercial Crime. The
request included a statement of Colonel Van Loggerenberg (hereinafter referred
to as "Van Loggerenberg") which clearly set out the threats made against the
officer and his team. The threats were also physically directed at him and his
family

JWB-481

5.

On receiving the investigation, I immediately activated an intelligence network
and initiated an application for monitoring and interception of communication in
terms of Section 18 of Act 70 of 2002 (hereinafter referred to as "the
application").

6.
The authorised interception was directed against the main suspect in the
investigation Mr Thoshan Panday (hereinafter referred to as "Panday") and his
co-accused. The information received from the report of Van Loggerenberg
stated that the main suspect responsible for the death threats was Panday The
investigation confirmed that the death threats were real and the investigators
were informed accordingly.
7.
The application is subject to very strict and stringent protocols and has to be
factual and correct in respect of every aspect.
8.

The application is first perused by the Provincial Office for Monitoring and
Interception. It is thereafter forwarded to the Head Office Monitoring and
Interception Section, where it is further checked and verified.
The application is then taken to the Crime Intelligence Head Office Legal
Section where it is further checked for legal justification and legal principles.

9.
The application is then perused and recommended by the National

<?.vi
�Jr!
Page 2 of 19

\u

JWB-482
Commissioner of Police or his delegate. Currently this authority is delegated
by the National Commissioner to the Divisional Commissioner of Crime
Intelligence.
10.
These applications are thoroughly perused by the Divisional Commissioner
and it is only recommended if he/she is satisfied that the application is bona fide
and legally justified. Recommendations can at times take several weeks.
11.
After the application is recommended, it is taken to the Designated Judge who
Authorises such applications. There is only one Designated Judge for the whole
country.
12.
The Designated Judge also thoroughly peruses the application. There has
been occasions where the applications were not approved or returned for
rectifications or amendments.
13.
The application in question followed the relevant protocols, legal principles and
was approved by the Designated Judge, Judge Khumalo on 2010/11/15 for a
period of 3 months from date of approval.

14.
The approved application was referenced as Direction 235/2010.

The

interception data commenced from the 18 November 2010.
15.

Page 3 of 19

..

JWB-483

'

The original data is stored at Crime Intelligence Head OIC. The OIC makes
copies of the interception data on compact discs ("CDs") and these CDs are
forwarded to the applicant/investigators.

16.
The data/recordings are secured by encryption codes and can only be accessed
with the encryption codex.

17.
Applications for an extension (hereinafter referred to as the "extension
application") of the interception Directive are also subject to the same strict
protocols as the initial application.
18.

The extension application has to be well motivated setting out clearly the reasons
for the extensions.
19.

Full factual reports must also be included in the extension application stating
what was found during the investigation and factual reasons for the extension.

20.
Full factual reports were included in all extension applications to the Designated
Judge.
21.

The factual reports and progress reports in the extension applications were su..,..._,____
that the Judge granted several further extensions.

Page 4 of 19

JWB-484
22.
The application was factual and had sufficient legal grounds. This is also
supported by the fact that after Judge Khumalo retired, Judge Makgoro was
appointed as the Designated Judge in his place.
23.

Judge Makgoro after thoroughly perusing the extension applications approved
several extensions thereafter. These subsequent approvals by the wellrespected Judge Makgoro further endorses the factual and seriousness of the
content of the application.

24.
All interception data was managed by me and was secured in a locked safe after
hours.

25.
The interception data received, are copies of the original data and are regarded
as working data.
26.

Once transcripts are required for specific data, an application is made for the
original data following the chain of evidence protocols.

27.
This chain of evidence protocol is also applied when the data is transcribed.

JWB-485
28.
All interception data is strictly managed and safeguarded within the Minimum
Security Standards of Crime Intelligence Policies and Guidelines.

29.
During the course of the investigation large scale corruption was uncovered
involving, inter alia, Senior SMS Police Officials, Police Officers as well as very
influential and prominent Government Officials/individuals.
30.
One of these individuals included Mr Edward Zuma (hereinafter referred to

as "Zuma"), son of the former President Jacob Zuma.:.
31.

The investigation revealed that Zuma approached Major General Booysen
(hereinafter referred to as "Booysen") with regard to the Panday corruption
cases and requested his assistance. Confirmed factual evidence showed that
Zuma contacted Panday and confirmed that he met with Booysen. His message
was "Booysen is begging to see me" "Lets play him".
32.

The investigation clearly established an enterprise with Panday at the helm
of the syndicate and several police officials actively participating in the
furtherance of the objectives of the corrupt enterprise and benefitting from the
proceeds of the crime.
33.
Panday was desperate to make the case against him "go away" and was
prepared to pay any amount of money to achieve this objective, including
Page 6 of 1

JWB-486
approaching persons to assist in "taking out" investigators. Large sums of
money were indeed paid out.
34.

Several intercepted calls revealed serious death threats against Booysen.
During one of the intercepted communications between Panday and one
Colonel Rajen Aiyer (hereinafter referred to as "Aiyer"), Panday said the
following to Aiyer: "the only way you can help me is to take Booysen out".

This was a serious threat which was communicated to Booysen to be vigilant
and take proactive steps to safeguard himself and his family.
Aiyer sounded and appeared to be desperate both financially and emotionally.
It was further established that Aiyer was physically in possession of a
fully automatic RS Assault Rifle.
This was communicated to Lategan who then took possession of the
R5 rifle from Aiyer. It is unknown why he was in possession of the rifle
as this is a non-standard weapon and is only issued to operational members
during specific operations.
35.
It was factually revealed during the investigation that Panday was
desperate to get rid of Booysen.

36.
Panday liaised with several prominent high profile individuals as well as senior
Police officials to assist him in this regard. Large sums of money were also pai
to corrupt officials.

JWB-487
37.
The investigation factually revealed that Panday requested one Mr Deebo
Mzobe (hereinafter referred to as "Mzobe") to assist him in getting rid of
Booysen ("Clipping his wings"). Mzobe is the cousin of former President

Jacob Zuma.
Panday told Mzobe that they need to "cllp Booysen's wings" and
suggested to Mzobe that they have a meeting and briefing on

"how to take care of Booysen because he is obviously now standing in
the way of everything".
Mzobe requested some money from Panday, which the latter said he
will "sort out for him".

38.
The recordings of the "clipping his wings" conversations are available. The
intercepted recordings are evidence which is included in the transcripts
compiled for the Corruption matter (Durban Central GAS 466/09/2011 ).
39.
This threat was communicated to Booysen during briefing sessions in
respect of the threats against him and the investigators.
40.
Booysen was warned that the threats against him were serious
and that Panday has sought assistance from very "powerful individuals"
to deal with him and the investigating officers.

JWB-488
41.

This included having investigating officers replaced.
42.

Factual evidence is available where force numbers of investigating officers
were requested and given to high profile influential individuals to assist in
having the investigating officers replaced.
43.
The investigation also revealed a conspiracy between Aiyer, Panday and
Sunday Times journalist, Mr WaAfrica (hereinafter referred to as "WaAfrica").
Factual evidence is available where WaAfrica requested criminal dockets from
Panday. He even gave Panday the criminal case numbers. Panday then
requested these dockets from one Capt Pipes Hafajee (hereinafter referred to
as "Hafajee").
Aiyer gave crime scene photographs to Panday who in turn gave it to WaAfrica.
These photos were published with headline news "Cato Manor Death Squad".
Booysen was thereafter charged with Fraud and Corruption as
well as running a so-called "Hit Squad".
The main, single witness in these charges, ironically, was the same Aiyer, whom
had conspired with Panday earlier. Booysen was thereafter suspended as a
result of these charges.
The investigation revealed that Aiyer was on the payroll of Panday and as a
result of his (Aiyer) actions and contribution, Panday was successful in having
Booysen removed.
Due to the sensitive nature of the information revealed during the
abovementioned investigation, I made several attempts to bring the.,,?Page 9 of 19

JWB-489
contents thereof to the personal attention of the National Commissioner and
Divisional Commissioner: Crime Intelligence for urgent intervention and
Guidance, with no response.
44.
During July 2015 I received a letter from the former National Commissioner,
General Phiyega, ordering me to surrender the recordings to her office within
48 hours.

45.
I found this highly irregular and unlawful as I was the legally authorised
applicant authorised by the designated Judge, to intercept and be in
possession of the Interception recordings.

46.
The legal procedure to obtain the recordings/copy thereof or access thereto,
is to bring an application in terms of Section 205 of the Criminal Procedure Act

51 of 1977.
47.
A serious threat was made that if I failed to comply with the instruction I will be
charged departmentally. I was given 48 hours to surrender the recordings or
face disciplinary action.
48.
I thereafter reluctantly complied and handed over the complete recorded
interceptions under duress.

Page 10 of 19

JWB-490
49.
The Acting Divisional Commissioner, General Zulu, was informed that the
handing over of the recordings were unlawful and that there were pending
cases which were still subjudice. In spite of my caution, she instructed me to
hand over the recordings.
50.

The complete recordings were personally handed over by me directly to
General Zulu.

51.

I am the lawful custodian of the intercepted recordings, authorised by the
Designated Judge to be in possession and utilise such recordings as may be
required by law for investigation and court purposes .

52.
Herewith the following relevant cases that were registered against Panday:
Durban Central CAS 781/06/2010 Fraud (R60 million)- 2010 Soccer World Cup
Durban Central GAS 122/03/2012 Fraud
Durban Central GAS 466/09/2011 Corruption (R2 million) - Bribery of Booysen
There are several other outstanding criminal cases which were not registered
due to the lack of will from the NPA/DPP to prosecute Panday and his
associates
54.
All the above cases were withdrawn on a single controversial representation
made by Panday. The representations were neither investigated, nor did the

-:

Page 11 of 19

JWB-491
Director of Public Prosecutions KwaZulu-Natal, Advocate Moipone Noko, apply
her mind to the relevant cases which she declined to prosecute. Her decisions
caused utter shock and discontent amongst the senior prosecutors responsible
for the cases.

55.
Serious concerns were highlighted in Advocate Noko's decisions to decline to
prosecute all the cases involving Panday and his associates. The timing of her
decisions are also relevant as it coincided with the extension of the contract for
the former KwaZulu-Natal Provincial Police Commissioner Lieutenant General
Ngobeni who together with her husband, General Lucas Ngobeni, received
gratifications from Panday. Factual evidence is available to support the corrupt
relationship between Panday, General Ngobeni and her husband General
Lucas Ngobeni.
56.

It has to be emphasised that the investigation has been fraught with
intimidation, threats and interference from the outset to date.
57.

It is very clear that the SAPS and NPA were captured in respect of the criminal
investigations against highly influential criminal suspects.
58.

The evidence is available to support the above statement.

59.
Herewith a time line with chain of events which clearly indicates State
Capture:
Page 12 of 19

JWB-492

59.1

FORMER ACTING DIRECTOR OF PUBLIC PROSECUTIONS:
KWAZULU-NATAL, ADVOCATE SIMPHIWE MLOTSHWA

The former Acting Director of Public Prosecutions: KwaZulu-Natal,
Advocate Mlotshwa was removed from his acting position after he refused to
withdraw all Panday related matters.
His life was even threatened and he thereafter had bodyguards assigned to
him.
After refusing to withdraw the Panday related matters on the grounds that there
were prima facie cases against Panday and others, he was replaced by current

Director of Public Prosecutions, Advocate Noko.
Advocate Noko, within a short period of her appointment, withdrew all the
cases against Panday and his associates.

Advocate Mlotshwa thereafter resigned and is now practicing as an advocate
and a member of the Society of Advocates: Pietermaritzburg.

59.2

ADVOCATE BHEKI MANYATHI (Senior State Advocate DPP:
KZN)

Advocate Manyathi, Senior State Advocate at the Director of Public
Prosecutions: KwaZulu-Natal was the prosecutor in the
R2 million Corruption case against Panday and co-accused Colonel Madhoe.
At the time, Advocate Manyathi was recommended to be promoted to the
position of Senior Deputy Director of Public Prosecutions, Regional Head oft
SCCU, in KwaZulu-Natal.

JWB-493
His refusal to withdraw the case against Panday and Madhoe resulted in the
appointment being withdrawn on the eve of his appointment.
Advocate Manyathi resigned thereafter and is currently in private practice at
the Society of Advocates in Durban.
59.3

ADVOCATE

MOIPONE

NOKO:

DIRECTOR

OF

PUBLIC

PROSECUTIONS KWAZULU ..NATAL
Shortly after the appointment of Advocate Noko as Director of Public
Prosecutions in KwaZulu-Natal, she withdrew all the criminal cases against
Panday.

59.4

COLONEL LEN SHERRIF

Colonel Len Sherrif was the investigating officer in the R2 million Corruption
case, where Panday and Madhoe bribed Booysen.
Colonel L Sheriff was falsely set up in a fraudulent sting operation by
Panday and his associates and was subsequently removed as investigating
officer from the case.
Panday conspired with a Sunday Times journalist, WaAfrica and published the
Cato Manor Death Squad article to discredit Booysen.
Information and photos were furnished by Panday to the journalists.
The journalists even informed Panday that Booysen was going to be removed
from the case and will be suspended.
Booysen was indeed removed from office and suspended.
These very same journalists were awarded prize money and awards for the
articles they published.

7-14of

JWB-494
The journalists and their articles were recently publicly discredited and the
Sunday Times issued a formal apology to Booysen.
All prize money and awards were subsequently returned as well.
Aiyer assisted with and was instrumental in the false articles published by the
journalists. He supplied official SAPS photographs to Panday who in turn
handed those to the journalists.
The interceptions and further investigations revealed that Aiyer was on the
payroll of Panday.
He has since been dismissed from the SAPS for defeating the ends of
justice.

60
In 2012 Booysen, after much negative media coverage, was suspended from
office.

61.
The ongoing capture of the Criminal Justice system ensured that he
did not return to his post or office.

62.
Booysen retired in 2017.
63.
Immediately after the suspension of Booysen, I became a target and w
subjected to threats and intimidation.
1 9
P�o_f__
__

JWB-495
64.

I was served with a 48 hour notice transfer from my office. I immediately
appealed to the then Acting Divisional Commissioner of Crime Intelligence,
General Chris Ngcobo, who intervened and caused my reinstatement.

65.
After much harassment and intimidation, including death threats, I was
suspended in 2014.

66.
I was suspended for almost a year without any charges being brought or any
disciplinary hearing being held.

67.
I approached the courts for intervention and the suspension was declared
unlawful. I was thereafter reinstated.
68.
The threats and intimidation however still continued.

69.
Two weeks after I was suspended, Major General Anwar Dramat, National
Head of DPCI (Hawks) was also suspended (on Christmas eve).

70.
A month later Mr Robert McBride, National Head of IPID was also suspende�
Page 1�

JWB-496
71.
The sequence of the events and suspensions clearly show the Political
influence of Panday in respect of State capture.
72.
It was very clear that Panday was politically well connected as a result of
his close relationship with the former President Zuma and his family.
73.
It is even alleged that the former President Zuma spoke directly to Panday.
The recorded interceptions also revealed Panday boasting about his visits
to Nkandla and contracts that he had been given by the President. One of
these included a contract to build houses.
74.
The interceptions revealed that Panday openly boasted about his
relationship with the President and his family.

75.
Prior to the removal and suspension of Booysen, the initial investigating officer
in the case of Corruption (Durban Central CAS 466/09/2011) was removed after
being set up by Panday in a sting operation.

76.
This operation was successful in removing the investigating officer Colonel
Sheriff as a result of collusion and conspiracy between Panday and two DPCI
investigating officers namely Colonel W S Mhlongo and Colonel C Jones.

JWB-497
77.
Colonel Jones arranged the sting operation and Colonel Sheriff was removed
from the investigation.

78.
There are several other senior officers who also assisted Panday with his
criminal enterprise, these include Detective Branch Commanders who closed
criminal dockets on Panday's instruction and also took the dockets to him
in return for payment.

79
It was factually revealed in the recordings that Panday was the "go to
person" for Police promotions, transfers and sorting out criminal
dockets/cases for suspects/accused

80.
It was clear from the interceptions that the Criminal justice system was indeed
captured. This included the courts (DoJ and Judiciary), Correctional Services
(DCS), SA Police Service and the NPA.
81.
The interceptions also revealed that:
•

Suspects were referred to magistrates and prosecutors at certain courts
where their release on bail would be guaranteed;

Page 18 of 19

JWB-498
•

Arrangements and payments were made to Correctional Service officials
for suspects who had been detained at Correctional Services to be placed
in hospital wards at the facility;

•

Case dockets closed by certain Branch Commanders, on the instructions
of Panday.

82.
This is all I wish to state at this stage.

I know and understand the contents of this affidavit.
I have no objections to taking the prescribed oath.

I consider the prescribed oath to be binding on my conscience.

I certify that the deponent has acknowledged that he knows and understands
the contents of this affidavit which was submitted by him.
This affidavit was sworn to before me and the deponent' signature was
'{JI
at IJ: 30
placed ther on in my presence at Durban o�

zg

TH AFRICAN POLICE SERWCE
PROVINCIAL CRIME INTELLIGENCE

SA POLICE SERVICE

2019 -01- 2 8

DURBAN

KWAZULU NATAL
Page 19 of 19

JWB-499

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JWB-505
·Elaine Regina Latchanah - States under oath in English :1.

I, Elaine Regina Latchanah, with PERSAL number 70017956, an Indian female, employed as

a

Captain in the SAPS : DPCI : Organised Crime Durban : Support Head : Kwazulu Natal, 136
Victoria Embankment:

4th

floor, Room 15, Telephone Number 031 - 333 8009 and Cell phone

071 481 2460.

2.
I was placed as the Support Head : DPCI Organised Crime Durban, Kwazulu Natal on
2017/02/06.

3.
I

was appointed as a Secretary to Major General Booysen in 2010. As a Secretary part of my

duties were to make and receive calls including confirmation of appointments. According to my
recollection a person, who identified himself as Mr Edward Zuma, requested an appointment
with Major General Booysen. Mr Zuma called several times to secure an appointment. A date
which I do not recall was agreed upon after consulting with Major General Booysen. Mr Edward
Zuma did not inform me as to what the meeting was about.

Mr Edward Zuma did arrive on the

day agreed upon and met with Major General Booysen in General Booysen's office. I do not
recall how long the meeting was and after the meeting Mr Zuma left.
4.

I know and understand the contents of this statement.
I have no objection of taking the prescribed oath.

I consider the prescribed oath to be binding on my conscience.
...J_
PLACE : _t>_u_l2-_.2:>A
__

DEPONENTS SIGNATURE:

DATE : l..� NC>\JGW\6l:32- dO\ iTIME :
��

oq \ so

-------

.............................. CAPT
LATCHANAHER

I hereby certify that this statement was taken down by me and that the deponent has
acknowledged that he/she knows and understands the contents of this statement. This
statement was duly sworn to before me and deponent's signature was placed thereon in my
presence AT

OWi)/b..l

ON THIS t1,_., DAY OF

J&v�N 2018AT

o�.:b.

JWB-506
....

..

l

,

FULL NAMES
S.A.P.S: ORGANISED CRIME DURBAN
136 VICTORIA EMBANKMENT
DURBAN

2.

JWB-507

ZONDO COMMISSION OF INQUIRY
20 November 2018

STATEMENT TO ZONDO COMMISSION OF ENQUIRY BY
DUMISANI PATRICK MKHIZE

1.

2.

3.

4.

5.

6.

7.

I am a 62 year old adult male with identity number 560808 5961 089, and a former
policeman of 29 years. I retired from South African Police Service, SAPS on 31 August
2016 with a rank of the Lt Colonel and was Commander of Organised Crime Unit based
at Richardsbay.
At the time of my retirement I was reporting to General Zikhali, who took over from
General Johan Booysen as the KZN, Provincial Head of the Directorate of Priority Crime
Investigations, ("the DPCI" or "the HAWKS"}, when General Booysen was suspended.
During July, 6 2015, while I was on my way to Vryheid on an investigation assignment
driving a state vehicle, I received a call from my deputy at the time, Major Mbatha. Major
Mbatha informed me that General Ntlemeza required an urgent use of the 4x4 Double
Cab which was road worthy, further saying that General Ntlemeza therefore required
the very vehicle I was driving on official assignment business to Melmorth. He
specifically informed that the car was demanded by General Ntlemeza immediately.
I informed Major Mbatha that this was not fair as I was on official trip and not on personal
matters. I then asked Major Mbatha if that meant that I had to turn back and forego the
assignment for which I was enroute to execute, to which he confirmed that indeed it
meant that I should abandon the said official trip. Further, Major Mbatha told me that
the car was required with immediate effect.
I was hurt to having to turn back from doing my work and that I could not go against the
order to return. In the SAPS environment you do not question an instruction from your
seniors, therefore I had to comply with the instruction.
Upon my return I drove straight to Richard's Hotel, as Major Mbatha had informed me
that I had to drop-off the vehicle there to an official whose contact numbers Major
Mbatha had given to me over the phone. When I arrived at Richad's Hotel I found Major
Mbatha already waiting to pick me up after I had delivered the motor vehicle to Col
Cwala. I called the said official, who introduced himself as a Col Cwala. I do recall that
I required to see his appointment card before I handed the car keys. I then handed over
the keys after I had seen the appointment card. This Col Cwala informed me that
General Ntlemeza was busy inside the hotel meeting with the politicians. I did not see
General Ntlemeza or talk to him.
Major Mbatha then drove me back to the office, however before leaving the car I
2

JWB-508

8.

9.

10.

11.

called General Booysen to inform him that I had handed over the car on demand by
General Ntlemeza. I was avoiding liability for any eventuality that could befall the car
whilst it was out of my hands. The car is fitted with Automatic Vehicle Location unit,
which among other things records real-time vehicle location and speed of movement.
On the morning of July, 8 2016 I received a call from Col, Cwala which I had given the
keys. He informed me that I they could no longer drop off the vehicle at the provincial
office as initially planned, and that I had to collect the car at the King Shaka International
Airport public parking lot. The Col Cwala further gave me the name of the female police
constable who was going to hand back the car keys.
Upon arrival the King Shaka Airport I indeed called the number provided to me by the
Colonel and the female office gave me the keys, further showing me were the car was
parked. She advised that the petrol card was inside the car, including the parking ticket.
The car was filthy and entirely covered with mud. Inside the car was the petrol card and
the parking ticket which I had to personally pay as no money was left for parking
payment. I paid approximately R88.00, and also took the car for washing, for which I
also paid from my own pocket.
I know and understand this statement I have no objection in making this statement
I consider the statement binding on my conscience

m

---,--·--·

.-

r�-·

, ..

···:�::-::-,:

-I< SERTIFISEER DAT HIERDIF. C0KUMEi'JT 'N Vd,:,:; A�D"·:-'': 1_.-..rS,,.R,rl
� VAN DIE OORSPRONKU� DOf(l!Mf:t-ff \:.'AT 1-V\t 1·,t;( 1// �, • ,,,,·
WAAANEMING VOORGELE IS. EK SERilFISEER VER1.:ER D.-· '· v: ;-..G ::.1 � i.:
•

!

DAAR NIE 'N \VVSIGING OF VERANDER!NG 8:· i,,:·
AANGESRING IS N!E.
OOKUMENT
OQRSPRONKUKE
'M{ WAAAN£MINGS

I cemtfY 1HAT lHIS OOCUMENT IS A lRUE REPRODUCTION (COPY) OF
GINAL OOCUMENT 'WHICH WAS HANDED TO ME FOR
C TIFY TKi\T. FROM MY OBSi:RVATIONS,
t FUR
'GE
'AS NOT MADE TO ORIGINAL
ANAMENOMENJOR
�

=1lCATI()N.

SOUTH AFRICAN POLICE SERVICE
COMMUNITY SERVICE CENTRE

2 3 NOV 2018
EMPANGENI

KWAZULU·NATAL

Page 2 of 3

JWB-509

ANNEXURE ''JWB28''

JWB-510

News

We got it wrong, and for that we apologise

Sunday Times Editor Bongani Sigoko.
Image: Masi Losi
We have spent the past few weeks reflecting on our reporting of allegations of police killings in Cato Manor in KwaZulu-Natal aod the illegal
deportation of Zimbabweans to face execution in their country - known as renditions. These stories were written by a team of senior journalists and
published in this newspaper in 2011.
As reporters and editors we have an ethical and journalistic duty to interrogate suspicions of abuse of power, accusations of wrongdoing, and any
other incidents that arc in the public interest. We did just that in these stories, basing our decision oo news value, professional judgment and the
public's right to know.
We were in pursuit of nothing but the truth and we were not motivated by political, commercial or personal interests. We stood to gain nothing
from reporting on these issues but merely fulfilled 01Jr consututional obligation to inform you.
But we admit here today that something went wrong in the process of gathering the infonnation and reporting the Cato Manor, Sars and
Zimbabwean renditions stories. This is after we engaged constructively with all key parties involved in the stories.
What is clear is that we committed mistakes and allowed ourselves to be manipulated by those with ulterior motives.
I will first deal with 01Jr mistakes.

Take our headline on the first story about the Cato Manor unit as an example. Tt labelled the unit a death squad. We were not qualified to label it as
such, and in our body of work we certainly presented the stories as allegations. Our headlines overstated the contents of the reports.
We had grounds to believe that the con= raised by human rights activists and other sources that there were suspicious police killings in the area
warranted investigation. Of the 45 deaths that occurred as a result of the actions of the Cato Manor unit, we considered 18 suspicious and we based
our reporting on these.
But at the time of gathering the facts and reporting on these cases we were made aware that the courts had already ruled on at least six of the
killings and found them to be justified. Even though we had this information, we failed to present it in a prominent way that would have resulted in
a balanced and fair piece ofjournalism that reflected both sides. We have reported on the outcome of some of the killings, but the decisions
regarding the rest are still pending.
We also created the impression that Gen Johan Booysen was operationally in charge of the unit and by association was directly and personally
responsible for the killings. The unit was indeed under the ultimate command of Booyscn, and we made this clear in our reports, However, the
tenor of our reports suggested that there were no other commanders between him and the unit. We also never vigorously questioned the role and
responsibility of the section and unit commanders who were operationally responsible for the unit,
Booysen has told us he was not directly involved in the operations of the Cato Manor unit We have no reason not to accept his version. We should
have made it clearer that he accepted responsibility for the unit in the capacity of provincial head.
While we were interrogating, investigating and reporting these stories, there was clearly a parallel political project aimed at undcnnining our
democratic values and destroying state institutions, and removing individuals who were seen as obstacles to this project. We admit that our stories
may have been used for this purpose, It is this project that also tarnished our reports on Sars.
There was ferocious infighting within state institutions, and warring factions were prepared to use state organs to settle scores. In the process,
villains became heroes, and heroes fell as the tectonic loyalty plates shifted violently, as we have seen in the case of former Hawks head Anwa
Drama! and Gen Shadrack Sibiya of the Gauteng Hawks, and Sars officials who became targets of1his political project.
That we allowed our stories to be abused for this purpose, we apologise.
Were we aware of this parallel political project? The answer is no. But we should have joined the dots. We should have paused and asked more
questions. This is our duty as journalists, Were we manipulated by our sources and some of those who were part of this parallel political project?
Perhaps, Were we complicit in ensuring the achievement of their goal? No. But as a conscqucncc, our stories might haw, eiv"'11 thi-.rn pm1mns.
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JWB-511
This does not necessarily mean these forces could have been stopped had we not written these stories. Should we have ignored these stories upon
uncovering a parallel political project? No There was, and is, a middle path that we should have taken. We should have reported on these incidents
but with caution and care, aware of the hidden hand, the manipulation and political machinations at play. We should have been more balanced in
oUT reporting. We should have been fair and reflected all sides. We should have interrogated our sources more intensely.
As journalists we have our own verification tools and we should have used them better· after all,joumalism is nothing more than the discipline of
verification.
Had we been more rigorous in our approach, this could have at least changed the tenor of our articles, added a new dimension, provided us with a
better perspective and helped us uncover this parallel political project. In that regard, again we failed you.
We failed you by inadvertently allowing sinister forces, who were hellbent on destroying our institutions, to abuse our trust and use some of our
stories to cany out their objectives. We uninlentionally tainted our stories by narrowly focusing our reportage on incidents without reflecting a
broader picture of the factional battles and political wrangling behind the scenes, within the ANC, in the government, state institunoes and law
enforcement agencies.
That could have allowed us to report on these incidents while reflecting on the implications and political consequences of our reports. That could
have allowed us to understand that the truth was a casualty between warring factions battling for political power.

As we said two years ago, OUT systems, structure and processes led to our failure and we have no excuse but to acknowledge that and apologise.
Having apologised for such failures, this does not necessarily mean. we will in future not report any stories that are tainted by a parallel political
project. We will continue to carry out our duty to investigate, report the abuse of power and bold the powerful to account Bot we promise extra
vigilance, honesty, caution and exercise of care.
If this means that we must bring in external expertise to look at how, in the face of such powerful manipulators and peddlers of fake news, to
navigate such a terrain in pursuit of the truth, we will.
Our journalists worked very hard on these stories despite their shortcomings. They won awards in professional competitions that were adjudicated
by leaders in the industry. However, on reflection and given the circumstances and the manner in which our reports became entangled in the
parallel political project, I believe it is only just and fitting for us to humbly reconsider our decision to accept such prestigious awards.
We felt a sense of pride when accepting recognition from our peers, but accepting such accolades will be a negation of a higher journalistic ideal.
It is for this reason that we will be returning all the awards and the pnze money.

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JWB-512

ANNEXURE "JWB29"

JWB-513

ST

Centre for
compJex
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Transi11on

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UNIVERSITY
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JOHANNESBURG

Public Affairs
Research Institute

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UNIVERSITY

OEVEL.OPMENT POL.ICY
RESEARCH UNIT

JWB-514

Preface

The State Capacity Research Project is an interdisciplinary, interuniversity research partnership that aims to contribute to the
public debate about 'state capture' in South Africa. This issue has
dominated public debate about the future of democratic governance
in South Africa ever since then Public Protector Thu Ii Madonsela
published her report entitled State of Capture in late 2016.1 The
report officially documented the way in which President Zuma and
senior government officials have colluded with a shadow network of
corrupt brokers.
Calls for Zuma to resign have intensified (including from within
his own party) and the largest protest marches since the advent
of democracy in 1994 have taken place in support of this demand.
However, the academic community has contributed little to this
discussion. To remedy this, the State Capacity Research Project was
initiated to achieve two objectives:
1. Provide a conceptual framework that draws from the literature
on the political economy of development. neopatrimonialism in
Africa and democratic governance that can help to make sense
of what we describe in our first chapter as a 'silent coup'.
2. Collate a vast quantity of published and unpublished empirical
material on the extensive 'repurposing' of state institutions to
redirect rents away from development and into the hands of an
increasingly confident power elite that intentionally operates in
extra-legal and anti-constitutional ways.
We agree with the intentions of the governing party's commitment
to 'radical economic transformation', but in our view this is being
used as an ideological smokescreen to mask the rent-seeking
practices of the Zuma-centred power elite.
One of our aims is to change the popular discourse from a focus
on corruption to a focus on the systemic nature of state capture
as the political project ot a well-organised network that strives
to manage what we call the symbiotic relationship between the
constitutional state and the shadow state. To this end, this is not
only a collaboration between University research institutions.
we also aim to collaborate with various stakeholders. social
movements and organisations engaged in similar work. This is why
we have collaborated with the South African Council of Churches
(SACC), who mounted their own independent process called the
Unburdening Panel. The results of this work by the SACC were
merged with some of our research and presented by the SecretaryGeneral of the SACC at a public meeting at Regina Mundi. Soweto.
on 18 May 2017.2 Although the SACC's Unburdening Panel and the
State Capacity Research Project ISCRP) were totally independent
processes using very different methodologies, the SACC concluded
'·
1

that the individual confidential testimonies they were receiving from
Church members matched and confirmed the arguments developed
by the SCRP using largely publicly available information. This
triangulation of different bodies of evidence is of great significance.
The State Capacity Research Project is an academic research
partnership between leading researchers from four Universities
and their respective research teams: Prof. Haroon Bhorat from the
Development Policy Research Unit, University of Cape Town; Prof.
Ivor Chipkin from the Public Affairs Research Institute. University of
the Witwatersrand; Prof. Mzukisi Qobo. part of the South African
Research Chair Initiative -African Di plomacy and Foreign Policy,
University of Johannesburg; Mr Lumkile Mondi, Department of
Economics, University of the Witwatersrand; Professor Mark
Swilling, Centre for Complex Systems in Transition. Stellenbosch
University.
Our programme, with funding from the Open Society Foundation of
South Africa, is as follows:
1. Produce this. our first report. by May 2017.
2. Release detailed case study reports of the state-owned
enterprises that have been captured by the Zuma-centred power
elite over the past decade.
3. Possibly by early 2018 produce a book manuscript and some
journal articles.
In our view the South African case is just one quite typical example
of a global trend in the growth of increasingly authoritarian.
neopatrimonial regimes where a symbiotic relationship between the
constitutional and shadow states is maintained, but with real power
shifting increasingly into the networks that comprise the shadow
state. Understanding the South African context and challenge,
therefore. is an important contribution to our understanding of this
global phenomenon. It is also our contribution to the broad struggle
to save South African democracy and development practice from a
power elite that pursues its own interests at the expense of South
African society. in particular the poorest people who will suffer first
and most from the consequences of what is in reality a de facto
silent coup.
An advisory panel of international experts will act as a sounding
board to ensure that we achieve a balance between academic
rigour and doing what is required to make an impact on the public
discourse, They will be expected to peruse reports and publications
prior to publication, but not to attend meetings. Their comments
and suggestions will be addressed in the most responsive and
appropriate way.

Public Prolector South Africa. 2016. State of Capture. (Online) Available: http://cdn.24.eo.za/f•esJCms/GeneraVd/4E66/3163a8b78d2b495d88f10ed060997n6.pdl.
h1tpJ[www.enca.com/south-afrlca/catch-it·live-south-africar1-council-ot-churchts-rtleases·corruption·repon

Betrayal of the Promise: How the Nation is Being Sto.len

JWB-515

Politics of Betrayal

•

Securing a Loyal Intelligence and
Security Apparatus

December 2009

President Jacob Zuma appoints
Men2i Simelane as Director of the
South African National Prosecuti'Jg
Autoority INPA).

December 2010

Nomgcobo Jiba, reportedly close to
Zuma is promoted to Deputise the NPA.

April 2011

Head of Crime Intelligence {a unit
wirt1in the SAPS) Richard Mdluli is
arrested and charged on counts of
fraud and corruption, as well as for his
alleged lnYOl�ement in the murder of
his mistress' husband. He has been on
suspension since then.

December 2011

Menzi Simelane is suspended following
a Supreme Court of Appeal decisioo 1hat
his appointment is invalid.

June 2012

Jiba suspends and institutes charges
against Maior General Johan
Booysen. former Head of the Hawks in
KwaZulu-Natal, who was investigating
corruption charges against reported
presrdennal ally, Thoshan Panday. He
is subsequently arrested and charged
with 116 crimes. including racketeering,
murder and attempted murder. The
charges are later withdrawn, followi119 a
court order In his fawur.

President Zuma appoints Nlllhi Nhleko
as Minister of Police and David
Mahlobo as State Security Minister

July 2014

President Zuma commences the process
to remove Nxasana, after convening an
enquiry to determine his fitness to hold
ofice.

October 2014

News of the so-called SARS "rogue
unit" breaks. implicating former Finance
Minister Pravin Gordhan and former
deputy SAAS commissioner Ivan Pillay.
Tom Monyane has been appointed
SARS commissioner the month before.

December 2014

Police Minister Nhleko suspends Hawks
Head f..tlwFI Dramat At the time he
was reportedly about to launch an
investigation into Nkandla.

Shadrack Sibiya, former Head of the
Hawks in Gauteng At the time he was
investigating MdltJi.

March 2015

Police M nister Nhleko suspends
Robert McBride, Executive Director of
the Independent Police Investigative
Directorate UPID}.

May2015

President Zuma "agrees· to let Nxasana
resigl. He is paid R17m - the balance
of h,s ten-year contract. Civil society
groups file a case to review the R17m
golden handshake. In 2017 Nxasana
says in his responding affidavit: ·11 was
never my intention to make a request
to leave the office. nor did I ever make
such a request to the President .•. The
president's version in this regard is
false."

December 2014

In effect. this suggests President
Zuma lied in his affidavit when he said
Nxasana left on his own vol t1on.

2015)

Zuma appoints Advocate Shaun
Abrahams NPA head.

Nhleko appoints lieutenant General
Mthandazo Ntlemeza as Acting Head
of the Hawks {made permanent in Sept

January 2015

Ntlemeza suspends Major General

leave.

March 2017

Hawks head Berning Ntlemeza loses his
appeal and is ordered out of his position
by the High Court based on his lack of
integrity to hold such an office.

March 2017

Fikile Mbalula is appointed police
minister

June 2015

September 2016

J1ba struck off the roll of South African
advocates. She is placed on special

October 2013

Mxolisi Nxasana is appointed as NPA
head. He clashes with Jiba and lays
cnmmal charges of perJury, Hewing from
statements she made under oath in the
course of the Booysen case.

May 2014

David Mahlobo

.... -

Menzi Simelane

Nomgcobo Jiba

Thoshan Panday

Tom Moy1ne

Mthandazo Ntlemeza

Shaun Abrahams

Mxolisi Nxasana

Betrayal of the Promise: How the Nation is Being Stolen

JWB-516

•

Repurposing Governaace

League of provincial barons and networks in parts of the state and
police intelligence agencies.

patronage pressures exerted on President Zuma following an
acrimonious succession from Mbeki. coupled with questionable
rationale behind the creation of some departments"."

Ballooning otthe Senior Management Service Programme
The fragmentation of power across the State and its retreat into
shadowy networks outside the formal architecture of government
has been compounded by the ballooning of the public service
in the Zuma period. Vinothan Naidoo has recently finished a
methodologically innovative study of what he calls the 'machinery
of government'.45 Tracking the number of national government
departments and entities from 1994 he finds, unsurprisingly, that
there is growth and also fluctuation in the number of departments
and entities in the Mandela period as the new administration
experiments with different configurations. In 1999 the number of
departments and entities peaks at 30 and then settles at just below
that figure ..
There was tremendous stability in the number of departments
(below 30) and entities during the Mbeki era. The number of public
entities proliferated growing from less than 100 in 1998 to more
than 250 in 2008. This coincides with the influence of the new
public management thinking on the organisation of the state and
the move to introduce 'business principles' in the structuring of
government to improve efficiency.
In 2009, two years after the Polokwane conference, and the
year that Jacob Zuma is sworn in as President, the number
of government departments and entities spikes sharply. New
departments are established and several are split in two. The
Department of Provincial and Local Government is divided into
two departments - the Department of Cooperative Government
and the Department ofTraditional Affairs. Likewise. two separate
administrations are hived off from the Department of Education the Department of Basic Education and the Department of Higher
Education and Training. The same happens to the Department
of Environment and Tourism. Sometimes new departments are
renamed and sometimes entirely new institutions are created
- the Department of Performance. Monitoring and Evaluation.
the Department of Women and the Economic Development
Department. All in all. there were 15 "big bang organisational
events' with Zumas coming into power, as compared to 14
such events for the entire period since 1994. There has been
a commensurate multiplication of ministers. deputy ministers,
and director generals and the proliferation of government
administrations.
"The rationale for expanding the number of national departments
was officially based on a strategic assessment of policy and
functional demands.' notes Naidoo. He adds that "there is [ ...)
reason to doubt the integrity of this view, based on heightened

In other words. it is far from clear that the ballooning of government
departments was motivated by the desire to improve the
effectiveness of government. Such a large growth of the government
system, with a huge expansion in the Cabinet. has compounded
already severe problems of coordination across government. It
is accompanied. not surprisingly, with the growth of the shadow
state and the move to find more manageable centres of control and
management outside the State in more personalised networks •
what we have called 'kitchen cabinets'.
What is more, the organisation of the state comes to be based
less on functional criteria than on political ones. and has been
accompanied by the politicisation of state administrations. Of
central importance in this regard has been the Senior Management
Service Programme. Established in 2001 to transform the civil
service from a bureaucracy into one organised on the model of
public management. it quickly became the preferred route of
bringing the public service under political control. Never intended
to be more than 3 000 people. by 2005 it employed more than
7 000 and may have swelled to more than 10 ODO people todav"
Work done by the Public Affairs Research Institute indicates that
turbulence and dysfunctionality in government administration is
often related to competition between different ANG. government
and constitutional bodies competing for the right to appoint
officials to key state positions." In other words. the ballooning and
politicisation of the state has come at the great expense of state
functionality.

Investigations and prosecutions
As the Zuma administration radicalised, it became dependent on
managing increasingly complex relations, many of them involving
people engaged in unlawful activities. Zuma moved to establish
control over key state institutions. especially those involved in
criminal investigations and prosecution: SARS, the Hawks and the
National Prosecuting Authority.
In September 2014 Jacob Zuma appointed Tom Moyane as the
new head of SARS. Nene was summarily informed by Zuma that
Moyane would be the next SARS Commissioner. SARS was one
of the major achievements of the ANC government. developing
into a highly efficient revenue service, dramatically increasing tax
compliance after 1998 and frequently delivering 'windfall' taxes
to finance the growing welfare state. SARS had worked both to
simplify tax paying procedures and to improve customer service
while, simultaneously, building the agency's capacity to detect and
pursue delinquent tax payers." By 2014 the agency was beginning

"' Naidoo, V. 2017. Tracking South Africa� expansionary stare. 1994·20/U: ra·tooling th• machinery of govemment. Cape Town: Department of Political Science, University of Cape
Town.
"' Naidoo. V. 2017. Tracking South Africas expansionary stets, 1994·2010: re-tooling the machinery of government. Caps Town: Department of Political Science, University of Cape
Town. Pg:24
''· Chipkin. I. 2016. State. Capture and Revolution. Johannesburg: Public Affairs Research Institute. Pg:13.
•• Phadi, Mosa, Pearson, Joel and Lesffre, Thomas. (forthcoming w120t7). 'The Seeds of Perpetual Instability: The Case of Mogalakwena Local Municipality" in Jourmll of Southern
African Studies(JSAS).
" For a blief overview of the history of SARS, see Hausman, David.12010}. Raworlring the Revenue Service: Tax Collection in South Africa, 1999-2009. Princeton Universi
tions for Successful Societies.

50

I

Betrayal of the Promise: How the Nation is Being Stolen

JWB-517

Repurposing Governance

to run up against politically connected persons involved in a variety
of illicit activities. some of them associates of the president and his
family, as well as businessmen known to be financial contributors
to the AN C. 50
A dossier appeared in October 2014 alleging that senior
investigators at SAAS, located in the Special Projects Unit,
constituted a 'rogue unit'. Among other things, it was sa'o that they
were illegally spying on the president. Poor journalistic standards
at the Sunday Times saw these allegations printed in more than
30 artic es m the newspaper between August 2014 and April 2016.
The Sunday Times has since issued an apology.51 It was also found
guilty by the Press Ombudsman for "inaccurate, misleading and
unfair" reporting.52 "hese reports were, nonetheless. used by the
new SAAS Comm'ssioner to launch an investigation into 'rogue'
activities at SARS and to suspend the former (acting} commissioner
Ivan Pillay, as well as most of the agency's investigative staff led
by Johann Van Loggerenberg. In so doing numerous high-profile
and politically sensitive cases have simply stagnated or never been
closed.
1

Berning Ntlemeza was appointed the Acting Head of the Directorate
of Priority Crime Investigation (the 'Hawks') in 2()14. following the
suspension of his predecessor Anwar Dramat. The circumstances
around his appointment are complicated and need not detain us
here other than to note certain similarities with the events at SAAS.
Likewise. senior Hawks officials, including Genera Booysen m
KwaZulu-Natal and General Sibiya, head of the Hawks in Gauteng,
were suspended following the appearance of 'oossers' implicating
them in wrongdoing. General Booysen was accused of running a 'hit
squad' in Cato Manor - charges that have rout· nely been thrown
out of court. Sib1ya was accused of being implicated .n the 11legal
rendition of Zimbabweans back to their country of origin. Both were
involved in high-profile investigations. together with officials from
SAAS against people with links to the president and his family.
Oramat was suspended on the same grounds as Sibiya. When the
Independent Police Investigative Directorate. under Robert McBride.
cleared Dramat of wrongdoing. McBride himself was illegally
suspended by Police Minister Nathi Nhleko. The decision was later
overturned in a landmark judgement by the Constitutional Court,
which confirmed the independence of the directorate relative to
the police and the police minister.s:i Dramat, in tum. decided to take
early retirement tor which he received A3 million. This eft a vacuum
that was filled by Berning Ntlemeza.
Ntlemeza was an extremely controversial cho'ce. A High Court had

•

already found him to be a liar and an unreliable witness, evidence
that was simply ignored by Minister Nhleko and the president
when they considered him for the position. These facts would
later be the basis of a successful challenge to his appointment by
the Helen Suzman Foundation and by Freedom Under Law. both
civil society organisations focused on defending South Africa's

Constitution."

What stands out rs that Ntlemeza wasted no time in pursuing
criminal charges against the Minister of Finance. Pravin Gordhan
(and the individuals implicated in the so-called SARS 'rogue' unit).
The charges seemed frivolous for a pnontv crime unit to pursue.
namely that as Commiss'oner of SAAS Gordhan committed
fraud by unlawfully approving an early retirement payment to
Ivan Pillay.55 As it turns out the Hawks had either overlooked or
withheld vital evidence that exonerated both the minister and
Pillay. Ultimately the National Prosecuting Authority, despite a very
public announcement to the contrary, declined to go to trial.56 The
prospect of a trial evaporated and, with it. the excuse to remove
Gordhan from the finance portfolio.
In all these proceedings, there is the shadow of South Africa's
intelligence services. In 2014. Jane Duncan described how
"conveniently leaked intelligence reports, or documents that are
claimed to be intelligence reports, have been used to smear those
that are considered threats to the current political establishment" .57
She saw this as part of "the creeping use of security services
to suppress socia and political dssent" 'n what she called a
developing "national security state". 56 Indeed, the first report of
a 'rogue unit' appeared in an article by Jacques Pauw describing
an illegal intelligence unit that had sought to discredit Glynnis
Breytenbach. "According to a recording in the possession of the
City Press." the article noted:

Members of the Special Operations Unit concocted a story that
Breytenbach was a former agent of Israeli intelligence agency
Mossad. They then leaked the information to the media co discredit
her. The information was repeated by her National Prosecuting
Aurhority bosses when motivating why she should be charged with

comotioo»

Curiously, Pauw's piece appeared on the same day that the Sunday
Times ran with its own story of a 'rogue unit' - this time at SAAS.
There is an uncanny similarity between details. raising the prospect
that the original story had been 'spun' to displace attention from

,.. Van Loggerenberg, J. & Lackay, A. 2016. Rogue: The Inside Story of SARS'.s Ehte Cnme-busting Uni� Johannesburg and Cape Town: Jonathan Ball Publishers.
"· Timeslille.co.za 2016 SARS and ths Sunday 1imes· ourr,spor,s,. IOnl1ntJ Avellable· http:/{Www.timeslive co.ze/sundaytimes/opimon/2016/()4/03/SARS-and-the,Sunday-Times-ourresponse1.
u. Tllamm, M. 2015. Press Ombudsman's rulings against Sunday Times vindicate Pt!Jay and van LDggerenberg. [Online) Available: httpsJJwww.da11ymaverick.co.za/article/2015-12· 16·
press-ombtJdsmans ruUngs,aga1nst-sunday,times-vindicate-sars-offic,als/.
a. South Africa ConstJtutJonal Coult. 2016. McBride vMmist,rof Pobce and Anoth,r(CCT255115J. [Online) Available: www.safl11.org/za/casesJZACC/2016/30.html.
�. Mg.co.za. 2017. Court sets aside appointment of Berning Ntlemeza. JOnhnel Available, mg.co.2a/anicle/2017·03· 17-breaking·coun-sets·as1de·appointment of·berning-ntlemeia.
�. Despite the long investigation, it seems tbatthare is stin insufficient evidence on the basis of which to which would support any charges being lollged m rela�on to the 'rogue unit'
allegations.
"· Since 2010 the National Prosecuting Authority hes bean the srte of major contestation regarding its leadership and the cases it has chosen to prosecute or not. Much of this was
releted to Zuma's own criminal charges arising from the notorious arms deal. Some, however, may have been related 10 coses of inegality stemming from procurement violations
and/or 1llegal1tyfrom radical economic transformation.
"· Duncan, Jane. 2014. The Rise of the Securocrats. The Case of South Alrica. Johannesburg: Jacana Media. Pg:3.
,.. Duncan, Jane. 2014. The Rise of the Securocrats. The Case of South Africa. Johannesburg: Jacana Media. Pg:32.
"· Pauw, Jacques. 14 August 2014. 'How Spy Unrt Nailed Mdluh Foes· In City Press. see httpJ,www.pressreadercom/south·afnca/citypress/20t408l0/28163$188364837

Betrayal of the Promise: How the Nation is Being Stolen

JWB-518

•

Repurposing Governance

the State Security Agency.
Pauw's story was especially credible given the context. In 2008.
then Minister of Intelligence, Ronnie Kasrils had commissioned an
investigation into the various services. The concern at the time was
that "politicians and intelligence officers can abuse [their] powers
to infringe rights without good cause. interfere in lawful politrcs and
favour or prejudice a political party or leader. thereby subverting
democracy"." The report by Joe Matthews. former National
Assembly speaker Frene Ginwala and Laurie Nathan found severe
shortcomings in The National Strategic Intelligence Act (1994).
which created opportunities for abuse by defining the notion of
'national security' too broadly.
The report found that there were no rules regulating
counterintelligence work making it easy for "interference n
politics and infringing rights without sufficient cause?" to occur.
In a finding that surely calls into question the rationale of the
Hawk's own 'Crimes Against the State' unit, Mathews. Ginwala
and Nathan noted that "m a democracy it is wholly inappropriate
for an intelligence service to make judgements on whether lawful
activities are threats to the constitutional order". 62
The Minister of Intelligence after Kasrils. Siyabonga Cwele. sought
to suppress this report. Its recommendations were certainly not
implemented. l3y 2014 Piet Coetzer. Stet Terblanche and Garth
Cilliers. writing for the Intelligence Bulletin, were describing the
State Security Agency as in 'disarrav'." This is the context in which
the various intell1gence-Fke dossiers discussed above started to
appear.
The formal link to the State Security Agency is suggested by the
story of Mandisa Mokwena. She had been recruited into the senior
management of SARS from the National Intelligence Agency. Ivan
Pillay subsequently charged her with fraud. though the case has
never come to court. She subsequently returned to the intelligence
fraternity. Mokwena was likely one of the authors of the infamous
'Spiderweb report' alleging a conspiracy by Gordhan. Pitlay and
van Loggerenberg. among others. to marginalise black staff at the
agency. In a further twist. Mandisa Mokwena is married to Barnard
Mokwena. the former human resources manager at Lonmin. who
played a central role in driving a labour dispute at the mine into the
worst massacre of the post-apartheid period. It later emerged that
he too was an intelligence operative.64
The role that the National Prosecuting Authority plays in enforcing
the law (particularly in respect to holding public servants to account
for fraud or corruption) cannot be understated. Snee Shaun
Abraham's appointment as National Director of Public Prosecutions
in June 2015. there are several questionable decisions and actions

that have been made. over and above the frivolous charges laid
against Gordhan. These include the charges laid against Robert
McBride. which were taken to court and then also dropped due to
insufficient evidence and the withdrawing of charges of perjury
against the Deputy National Director of Public Prosecutions
Nomgcobo Jiba who is currently still on 'special leave' after being
struck off the roll of advocates in September 2016.55 The charges of
perjury were laid in relation to statements that Jiba made under oath
about the initiation of criminal charges against General Booysen.
As highlighted in an amaBhungane article:56

Jiba was roundly criticised by judges in three separate cases during
her tenure as acting prosecutions head -all of them politically
sensitive - leading to accusations that she was protecting President
Jacob Zuma or his allies.
In the most recent controversy, Abraham's predecessor. Mxolisi
Nxasana. filed an affidavit 'n response to a case filed by civil
society organisations that related to the review of his R17 million
pay-out on leaving the National Prosecuting Authority. It was
Nxasana who instituted the charges against Jiba. following which
the president initiated an inquiry into Nxasana's fitness to hold
office. In his affidavit, Nxasana directly contradicts the affidavit
previously filed by President Zuma that stated that Nxasana
wanted to leave of his own volition. Nxasana said under oath that
"It was never my intention to make a request to leave the office,
nor did I ever make such a request to the President" and that "The
president's version in this regard is false."61
Taken together. the events at SARS. the Hawks and the National
Prosecuting Authority suggest that as the Zuma adm.nistration
radicalised resorting increasingly to extra-legal means to pursue
radical economic transformation it was driven to 'capture' and
weaken key state institutions. The political project of the Zumacentre power elite has come at a very heavy price for the capability,
integrity and stability of the South African state.
Conclusion
This chapter has traced the emergence of the notion of radical
economic transformation. arguing that it privileges the use of the
state procurement system to advance a form of BEE that is not
dependent on the established and white-owned and -managed
companies. We have seen how these ideas were ncubated in the
Black Management Forum and the DTI.
We have argued that after 2011 this project radicalises and
becomes increasingly sceptical that economic transformation can
be achieved within the framework of the law and Constitution.

r. M111lstenal Rev,ew Commission on Intelligence. 2008. lnte/ligencs HI a consuiUf!Df)a/ democracy. (Online) Ava lable: cdn.mg.co.za/uploadSlfinal·report·sep1ember·2008·615.pdf. Pg:10.
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Betrayal of the Promise: How the Nation is Being Stolen