Some suspects seem to have more rights than others

In December 2023, the police in the Directorate for Priority Crime Investigation (Hawks) obtained, from the court, warrants of arrest against Mark Douglas Smith, Alexander Roditis, Vanessa Chungu, Raymond Crozier, Guy Phillip le Roux, and Ronald James Hoy.

The investigating officer of the case, Colonel Dlamini, called upon the suspects to present themselves for arrest and processing for court appearance purposes. The suspects had been told that they would not be detained and that their bail applications would not be opposed.

Their attorney, Ian Small-Smith, approached the public prosecutor, Jacob Tloubatla, and requested that the suspects not be arrested but be afforded an opportunity to present warning statements to the investigating officer on or before February 29 this year. Tloubatla declined the request and insisted that Small-Smith take the suspects (his clients) to the police for arrest and processing for first court appearances.

At the time, neither the suspects nor their attorney had received the contents of the docket or been informed of the allegations against them.

The suspects’ attorney then approached the Director of National Prosecutions in South Gauteng, Andrew Chauke, with the same request made to Tloubatla.

Chauke, allegedly without consulting Tloubatla, instructed senior public prosecutor Advocate Johannes Wolfaardt to instruct the investigating officer not to arrest the suspects.

Chauke and/or Wolfaardt did this without requesting the docket to at least keep abreast of what the allegations against the suspects were. Even though the suspects undertook to provide warning statements on or before February 29, 2024, they failed to do so, and the NPA did nothing about this.

Comparing this case to that of the former speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, the question becomes whether, in the eyes of the NPA all of us are equal before the law.

In Mapisa-Nqakula’s case, there was no warrant of arrest but she equally did not want to be arrested, yet still, she did not want to take an opportunity given to her to present herself, through her attorney, for arrest, processing, and for her to appear in court, notwithstanding the fact that she was not going to be detained and that her release on bail was not going to be opposed.

In the Mapisa-Nqakula case, the NPA took a firm and correct stance that suspects cannot dictate what should happen to them and at what time.

Why, in the case of the NJM directors, did the same NPA decide to overrule their own (Tloubatla) as well as the police?

In the judgment in the application by the former speaker, for the court to interdict the NDPP, the NPA, and the minister of police from arresting her, the court held that “it is most certainly not within the powers of this court to instruct the minister of police and its officials to summons the applicant versus to arrest her.”

What powers did Chauke and/or Wolfaardt have to instruct Lt Col Dlamini not to arrest the suspects? Even though the court in the Mapisa-Nqakula judgment upheld the argument by the NPA and the NDPP that for the suspects to be afforded an opportunity to present themselves through their attorneys, “is a courtesy and an exception ordinary citizens are afforded”.

The directors of NJM were afforded even better and special treatment. At the time, the suspects, through their attorney speculated that the case against them was weak. It is interesting to note that regarding this, the court in Mapisa-Nqakula’s case said that “there is not a single fact set out as to why the future arrest would be unlawful, seemingly because there is a weak case made out, yet the applicant does not know what case has been set out, and this is pure speculation. I cannot make any finding on such speculation that there is a weak case”.

 The court in the Mapisa-Nqakula case held that a person’s standing in society, such as being the Speaker of the National Assembly, should not afford them an opportunity to be treated differently from other suspects. Many South Africans are asking themselves a question: if this is the case, what did the directors of NJM do to deserve treatment above that of the Speaker of Parliament? Is it race, standing in society or money?

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