By Simon Nare
Former North West Director of Public Prosecutions, Advocate Sello Maema, has told the Nkabinde Inquiry that former National Director of Public Prosecutions (NDPP), Advocate Shamila Batohi, acted unlawfully when she withdrew charges against members of the Cato Manor Organised Crime Unit.
Maema said Batohi’s decision to review and overturn her predecessor’s ruling, without representations from either the accused or the families of the deceased, was invalid.
“Her decision is invalid. It is void,” he told the inquiry.
Maema was testifying at the inquiry probing South Gauteng Director of Public Prosecutions, Advocate Andrew Chauke’s, fitness to hold office.
He said the evidence presented before the inquiry was sufficient for the current NDPP, Advocate Jan Lekoa Mothibi, to reinstate the charges against members of the unit.
The Cato Manor unit came under intense scrutiny in December 2011 after the Sunday Times published reports alleging that officers were operating as a “hit squad”.
However, the newspaper retracted the stories in 2018 and issued a formal apology, acknowledging the reports were inaccurate and that its journalists had been “manipulated by those with ulterior motives”.
Despite that retraction, Maema maintained that the evidence now before the inquiry justifies the reinstatement of charges.
However, he said the process must begin with the head of prosecutions in KwaZulu-Natal.
“Chairperson, the ball is in the hands of the Director of Public Prosecutions in KZN. She must consider the evidence and reinstate these charges,” he testified.
Maema agreed with inquiry chairperson, retired Constitutional Court Justice Elizabeth Nkabinde, that the murder charges against unit members were linked to the racketeering charges against former unit head General Johan Booysens.
He said if the racketeering charges were reinstated, the murder charges would follow.
Nkabinde asked: “In those circumstances, this predicate offence of murdering Mr (Bongani) Mkhize — if that charge is to be reinstated, who is supposed to reinstate those charges?”
“The national director,” Maema responded.
However, he cautioned that given the uncertainty created by the withdrawal of the charges, Mothibi should approach a court for a declaratory order to remove any doubt.
Maema argued that Batohi did not have automatic review powers to withdraw the charges without representations from the accused or the families of the deceased.
“For her to review the decision of her predecessor is contrary to the law. It amounts to reviewing your own decision. It is an overreach,” he said.
Batohi’s predecessor, Advocate Shaun Abrams, had authorised the racketeering charges after agreeing with the prosecution team before she took office.
Chauke’s legal representative, Advocate Thembeka Ngcukaitobi, questioned why Mothibi should seek a declaratory order when Batohi had not done so.
Maema replied that obtaining such an order would eliminate any lingering legal uncertainty.
Batohi has also testified that the charges against the Cato Manor members remain capable of being reinstated.
Although the charges were withdrawn, fresh evidence presented at the inquiry — first by former KwaZulu-Natal DPP Advocate Moipone Noko, and now by Maema, who led the prosecution team that prepared the case — paints a different picture.
Both advocates told the inquiry that the unit systematically targeted taxi operators in KwaMaphumulo, repeatedly claiming self-defence despite what they described as overwhelming evidence that the victims were killed in cold blood.
Maema also agreed with Ngcukaitobi that Mothibi does not require a directive from the inquiry panel, as there is sufficient evidence for him to make a decision independently.
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