Why MK Party wants ex-Hawks KZN head Johan Booysen in the dock

John Hlophe loses court battle — MKP deputy president and former Cape Town High Court Judge President Dr John Hlophe says the party wants former KZN Hawks boss Johan Booysen back in the dock for racketeering.

The MK Party has approached the Pretoria High Court seeking to have former NPA boss Adv Shamila Batohi’s decision to withdraw racketeering charges against ex-KZN Hawks head Johan Booysen and his co-accused set aside.

In a founding affidavit filed by MKP’s deputy president Dr John Hlophe, the official opposition argues that the decision to withdraw the charges was irrational and not based on the material facts before Batohi when she took the decision.

De Kock report

“The central contention in this application is that the decision to withdraw the prosecutions was taken on the basis of a report prepared by a panel chaired by Adv de Kock (“the De Kock report”), without any independent assessment of the evidential record, and without consultation with the prosecution team responsible for the matter,” writes Hlophe.

“The De Kock report did not undertake an independent assessment of the evidential record contained in the investigation dockets. Instead, the report proceeded primarily from its interpretation of the judgment of Gorven J in Booysen v Acting National Director of Public Prosecutions (NDPP) and thereafter considered whether the subsequent racketeering authorisations issued by the NDPP, Adv Shaun Abrahams, were supported by new evidence.

“In doing so, the report treated the Gorven J judgment as determinative of the evidential position against Maj Gen Booysen. That approach overlooked that the Gorven judgment was concerned only with the lawfulness of the initial authorisation, was based on limited material placed before the court, and did not constitute a determination of the full evidential record contained in the investigation dockets. Nor did the judgment determine the viability of the prosecution against all members of the alleged enterprise. Gorven J was at pains to explain in his judgment.”

NPA ‘erred’

Hlophe argues that it was foolhardy of the NPA to conclude settlement agreements with Booysen and his co-accused, Johannes van Tonder, for having claimed unlawful arrest and malicious prosecution.

The state paying damages and costs in this claim makes matters worse, Hlophe goes on.

He charges that the De Kock report, on which the withdrawal of the prosecution and settlement agreement was premised, failed to take SA jurisprudence governing racketeering under the Prevention of Organised Crime Act (Poca) into consideration.

No rational basis for settlements

“The impugned decisions are constitutionally indefensible. The NDPP who made the July 2019 decision did not read the dockets, did not consult the prosecution team, did not consult the victims, acted under undisclosed conflicts of interest that violated section 179(4) of the Constitution, and relied exclusively on a materially defective review report. She had no constitutional authority to make the decision in the manner she did,” Hlophe tells the high court.

“The DPP who made the September 2019 decision was similarly tainted by disqualifying conflicts of interest, failed to engage with the docket evidence, and withdrew the predicate offences without any rational foundation – particularly given that the De Kock Report, flawed as it was, did not even address those charges.

“The subsequent settlement of the civil claims – at a total cost of R2.55-million in public funds, plus costs – compounded the constitutional harm by treating the unlawful withdrawals as a foundation for civil liability and rewarding the accused with substantial payments from the public purse. There was no rational basis for those settlements.”

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Mawande AmaShabalala

The MK Party has filed a court application to set aside former NPA boss Adv Shamila Batohi's withdrawal of racketeering charges against ex-KZN Hawks head Johan Booysen and co-accused.
MKP deputy president Dr John Hlophe argues the withdrawal was irrational, relying solely on the De Kock report without independent assessment or consultation with prosecutors.
The De Kock report incorrectly treated a previous court judgment as decisive on evidential matters, ignoring that judgment’s limited scope and failure to assess the full evidential record.
The NPA allegedly acted unlawfully by settling claims for unlawful arrest and malicious prosecution with Booysen and co-accused, paying damages from public funds without proper basis.
Hlophe contends the NDPPs involved had conflicts of interest, failed to review evidence properly, and that the settlements were unjustified, causing constitutional harm and misuse of public money.

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The MK Party has approached the Pretoria High Court seeking to have former NPA boss Adv Shamila Batohi's decision to withdraw racketeering charges against ex-KZN Hawks head Johan Booysen and his co-accused set aside.

In a founding affidavit filed by MKP's deputy president Dr John Hlophe, the official opposition argues that the decision to withdraw the charges was irrational and not based on the material facts before Batohi when she took the decision.

"The central contention in this application is that the decision to withdraw the prosecutions was taken on the basis of a report prepared by a panel chaired by Adv de Kock ("the De Kock report"), without any independent assessment of the evidential record, and without consultation with the prosecution team responsible for the matter," writes Hlophe.

"The De Kock report did not undertake an independent assessment of the evidential record contained in the investigation dockets. Instead, the report proceeded primarily from its interpretation of the judgment of Gorven J in Booysen v Acting National Director of Public Prosecutions (NDPP) and thereafter considered whether the subsequent racketeering authorisations issued by the NDPP, Adv Shaun Abrahams, were supported by new evidence.

"In doing so, the report treated the Gorven J judgment as determinative of the evidential position against Maj Gen Booysen. That approach overlooked that the Gorven judgment was concerned only with the lawfulness of the initial authorisation, was based on limited material placed before the court, and did not constitute a determination of the full evidential record contained in the investigation dockets. Nor did the judgment determine the viability of the prosecution against all members of the alleged enterprise. Gorven J was at pains to explain in his judgment."

Hlophe argues that it was foolhardy of the NPA to conclude settlement agreements with Booysen and his co-accused, Johannes van Tonder, for having claimed unlawful arrest and malicious prosecution.

The state paying damages and costs in this claim makes matters worse, Hlophe goes on.

He charges that the De Kock report, on which the withdrawal of the prosecution and settlement agreement was premised, failed to take SA jurisprudence governing racketeering under the Prevention of Organised Crime Act (Poca) into consideration.

"The impugned decisions are constitutionally indefensible. The NDPP who made the July 2019 decision did not read the dockets, did not consult the prosecution team, did not consult the victims, acted under undisclosed conflicts of interest that violated section 179(4) of the Constitution, and relied exclusively on a materially defective review report. She had no constitutional authority to make the decision in the manner she did," Hlophe tells the high court.

"The DPP who made the September 2019 decision was similarly tainted by disqualifying conflicts of interest, failed to engage with the docket evidence, and withdrew the predicate offences without any rational foundation – particularly given that the De Kock Report, flawed as it was, did not even address those charges.

"The subsequent settlement of the civil claims – at a total cost of R2.55-million in public funds, plus costs – compounded the constitutional harm by treating the unlawful withdrawals as a foundation for civil liability and rewarding the accused with substantial payments from the public purse. There was no rational basis for those settlements."

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