Former National Prosecuting Authority (NPA) head Advocate Shamila Batohi dropped the criminal charges against KwaZulu-Natal (KZN) police boss Major General Johan Booysen and co-accused and left taxpayers with a R2.6-million settlement bill, but now her successor, Advocate Andy Mothibi has abandoned the fight to defend that decision.
The NPA has told the uMkhonto weSizwe Party (MKP) that it will no longer oppose key parts of its court challenge seeking to overturn the withdrawal of the Cato Manor charges and the settlement agreements that followed.
In a letter dated August 19, the State Attorney, acting on instructions from the National Director of Public Prosecutions (NDPP), said, “The NDPP no longer intends opposing the applicant’s relief set out in prayers 1 to 6 and 10 of the Notice of Motion and will abide by the decision of the Court with regard thereto.”
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The decision means Mothibi is no longer defending the chain of events that began when Booysen and his co-accused saw racketeering charges withdrawn in 2019 and ended with settlement payments from the state.
The MK Party’s application asks the Pretoria High Court to review and set aside the July 2019 decision to withdraw racketeering charges against Booysen, Jan Van Tonder and their co-accused.
The application also challenges the September 2019 decision to withdraw related predicate offences and the later decisions by the NPA, Justice Ministry and Police Ministry to conclude settlement agreements with Booysen, Van Tonder and others.
The party wants the settlements declared unlawful and invalid and wants Booysen, Van Tonder and other accused persons to repay money received from the state.
R1.3m and R1.25m settlements
The money at the centre of the dispute is the R1.3-million settlement paid to Booysen and the R1.25-million settlement paid to Van Tonder.
The court papers also ask for the withdrawal decisions to be declared invalid and for the original decision to prosecute, taken by then NDPP Advocate Shaun Abrahams on February 13, 2016, to remain in force.
The NPA has not agreed that the criminal case must automatically return to court.
Instead, Mothibi has accepted an alternative route that sends the decisions back for reconsideration.
“The NDPP is prepared to consent to the alternative relief as set out in paragraph 9 of the Notice of Motion and consents to the remittal of the decisions to withdraw the charges for reconsideration in accordance with the constitution and the law,” the State Attorney said.
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The Cato Manor case was built around allegations that a specialist police unit established to fight organised crime had itself become a criminal enterprise.
Prosecutors alleged that senior officers, including Booysen and members of the so-called Cato Manor “death squad”, were involved in a pattern of racketeering, including the unlawful killing of suspected criminals, the abuse of police resources and the manipulation of the criminal justice system to conceal wrongdoing.
The state’s case alleged that operations carried out in the name of combating crime were used to justify unlawful acts, with officers accused of turning state power, intelligence and policing authority against people they were meant to protect.
Booysen and his co-accused denied the allegations, and the case never went to trial after the charges were withdrawn.
How did Batohi arrive at the decision to withdraw charges?
The MK Party’s high court review application focuses on how Batohi arrived at the decision to withdraw the charges.
The party argues that the decision relied on the De Kock report, which it claims was defective and failed to properly assess the evidence against Booysen and his co-accused.
The party’s papers state that the report “failed to consult with the original prosecution team” and did not properly engage with the evidence supporting the racketeering charges.
The application follows the Nkabinde Inquiry, which examined the circumstances surrounding the withdrawal of the Cato Manor prosecutions.
The inquiry placed the focus on the decisions taken before the charges were abandoned and the settlements concluded.
The MK Party is asking the court to determine whether those decisions can survive scrutiny.
The NPA’s concession changes the legal battle.
Instead of defending the 2019 decisions, the current leadership has agreed that they should be reconsidered by the incumbent NDPP.
“The proposed approach is intended to ensure that the matter is dealt with in a manner that permits the incumbent NDPP to exercise his constitutional and statutory responsibilities in respect of the prosecutorial decisions following a proper reconsideration of the matter,” the State Attorney wrote.
The court will now determine whether the withdrawal of charges and the settlements that followed remain valid or whether the process that ended the Cato Manor prosecution must begin again.
- Former NPA head Advocate Shamila Batohi dropped criminal charges against KZN police boss Major General Johan Booysen and co-accused, resulting in a R2.6-million settlement paid by taxpayers.
- The NPA, under current NDPP Advocate Andy Mothibi, will no longer oppose parts of the uMkhonto weSizwe Party's court challenge to overturn the withdrawal of the Cato Manor charges and related settlements.
- The MK Party is seeking to have the July 2019 decision to withdraw racketeering charges and subsequent settlement agreements declared unlawful, and wants the accused to repay the money received.
- The NPA has consented to sending the withdrawal decisions back for reconsideration by the current NDPP rather than automatically reinstating the criminal case.
- The case centers on allegations that a specialist police unit involved in fighting organised crime became a criminal enterprise engaged in racketeering, unlawful killings, and abuse of police resources, though charges were withdrawn before trial.
