prosecutor

For a warrant to be authorised, an affidavit must be read and agreed to by the authorising authority, confirming there is a case and agreeing with the charges stated in the warrant.

“One of them would have the authorised that warrant, and for one to authorise the warrant, you therefore have to read first this affidavit, and to say, yes, we have a case, I agree with this, and the warrant also states the charges, I agree with the charges. Then the prosecutor authorises that.”

The prosecuting authority must rely on expert post-mortem reports to confirm firearm injuries to avoid mistakes in attributing cause of death.

“Experts have to check, is this wound consistent with an injury that can be caused by a bullet, and then make their report and say this injury is consistent with a bullet wound, and only then can I, as a prosecutor, then certainly say this body, the person was killed with a firearm.”

Despite knowledge that the bail condition was not requested by the State, the prosecutor opposed the bail appeal instead of seeking to have the condition rescinded.

“You knew that this bail condition was not asked for ... you did not do what Ms Johnson says any prosecutor would do ... you actually oppose the appeal on this condition , and you prepare the papers”

According to Mr Padayachee, the prosecution was instructed to request the bail condition but did not do so; the bail condition was part of the prosecution's plan discussed with the ID head, though not asked for formally.

“the prosecutor had been instructed to ask for that condition ... Padayachee said that ... they were supposed to ask for that bail condition , but it was not asked for ... their plan ... was not going to oppose bail , but these are going to be our conditions”

Advocate Johnson admits it is incorrect that Mr Adams' referral landed on his desk in mid-December 2024; he had authorization from the prosecutor by 6 December 2024 and had already engaged on the matter.

“This is incorrect, yes.”

Advocate Johnson states that the referral was received before mid-December 2024 and formed a view to authorize an investigation into 12 people mentioned earlier by 6 December 2024.

“Because you would have by the 6th of December already looked at the application from the prosecutor and formed a view that you are going to authorize investigation into those 12 people that we mentioned earlier.”

By 6 December 2024, Advocate Johnson had already authorized a Section 8(13) application to investigate 12 people mentioned earlier, showing the referral and investigation started before mid-December.

“By the 6th of December, you had had engagement not just with Perumal, but also with the prosecutor... you would have by the 6th of December already looked at the application from the prosecutor and formed a view that you are going to authorize investigation into those 12 people...”

Mr Adams was contacted and prepared to cooperate, and investigators and a prosecutor conducted an interview with him following section 28 procedures.

“In this specific case, Mr Adams was contacted, he was prepared to cooperate, and the investigators and a prosecutor then went ahead to interview him.”

ADV Johnson explained the process requires giving the Section 27 affidavit to the prosecutor for assessment and then lodging a Section 28(13) application if within mandate.

“I took the view at the time that it fell within the mandate of IDAC. But in terms of the prescripts, no investigation can happen if you are unable to comply with an application for an investigation. So we hand it over to the prosecutor, who must look at the 27. She did not have to apply for a 28(13) if she then, after having assessed it, decided it does not fulfill all the requirements. It is consider this matter and if you agree that it falls within the mandate, we are all lawyers to apply our minds, then please lodge a section 28 application. She decided to lodge a section 28(13) application.”

The Section 27 referral document was handled by the prosecutor and project manager, and not provided to Colonel Padayachee, who led a separate investigation without access to it.

“He said to me he did not have the Section 7 referral because that is what was testified to, that Chief Perumal had it and it was not given to me.... Chief Perumal says I did not have that document. That document was with the prosecutor.”

No undue influence is exerted by the Investigating Director on investigators or prosecutors to act outside evidence, law, or prosecutorial policy.

“you say you have not instructed or otherwise influenced any investigator or prosecutor to act other than in accordance with the evidence, the law, the applicable prosecutorial policy”

Chief Perumal stated that the section 27 referral document was with the prosecutor and was not given to ADV JOHNSON or Colonel Padayachee.

“Chief Perumal says I did not have that document. That document was with the prosecutor.”

Colonel Padayachee acknowledges including Ms Mokwele on the charge sheet based on his affidavit and investigation, but he does not draft charge sheets or decide who is charged; that is the prosecutor's role.

“I note you say I included her on the charge sheet. I am at pains at that. It is my affidavit, my investigation, my affidavit... I do not draft the charge sheets and say whom must be charged... that is at the prosecutor's door”

The bail condition prohibiting the accused from entering Crime Intelligence offices was not requested by the State Prosecutor at the time of bail application.

“that bail condition they were appealing was a condition not requested by the State ... the State never requested that they be denied access to all Crime Intelligence offices ... The prosecutor never made such a request”

The bail condition prohibiting Crime Intelligence officers with the Secret Service account from entering the premises was not requested by the Magistrate or the prosecution in open court, but might have been referenced in an affidavit.

“one of the conditions that I requested that the Crime Intelligence officers with the Secret Service account is that they be prohibited from entering those premises ... the main fact of it is that the Magistrate, the prosecutor, did not request for it”

The bail condition identifying Colonel Padayachee personally to assist the accused in collecting any items left at Crime Intelligence premises was imposed by the Magistrate without explicit discussion or request in open court and without the prosecutor's acknowledgment.

“that condition ... was never asked from the Magistrate ... it was never asked from the Magistrate ... the prosecutor did not put it to the Magistrate in open court”

Colonel Padayachee asserts that his name was included in the bail condition likely as part of his affidavit, and the purpose was to regulate access to Crime Intelligence offices, requiring individuals to contact him before visiting so as to control crime scene access.

“I think it was my affidavit or something. My name was mentioned there ... if they want to go to the office, they have to contact me before they go there”

Colonel Padayachee spoke to the prosecutor about the bail condition before leaving court, but the prosecution did not request the bail condition restricting the accused from going to the office during bail deliberations.

“I spoke to the prosecutor before I left ... the prosecutor did not speak anything about not going to the office”

The prosecutor communicated to the Magistrate that the investigation was complete and there was no risk or problem with witnesses being intimidated, and they had not produced a list of witnesses.

“the prosecutor says our investigation is complete, we do not have a problem about witnesses being intimidated ... we have not even produced a list of witnesses”

The investigation in the Mokwele matter was complete according to the prosecutor, and there was no risk of interference.

“On the investigation that has been completed according to the prosecutor, your prosecutor, the investigation has been completed, there is no risk of interference.”

The only reason to wait for the new NDPP to appoint a prosecutor was to get someone from outside the Gauteng province who did not know Advocate Johnson well to assist with the prosecution.

“The only way and the only reason we waited for the new NDPP, is to get us someone that is not in this province, that does not know Advocate Johnson or did not work with her much, to assist us with this prosecution.”

During operationalising, engagement with prosecutors is necessary to keep the focus on the threats and avoid deviation.

“In most cases, you will have to engage with the prosecutor to get the guidance going forward, so that you do not go off and focus somewhere else, so that you keep your gathering focused with regards to the threats that you are dealing with.”

Lt-Col Sebola states that statements included in docket are sometimes as instructed by the prosecutor and that he did not himself compile the docket statements.

“Sometimes at the instruction of the Prosecutor ... The Investigating Officer”

Lieutenant General Shibiri had not been personally offered a bribe in the murder matter, but cited a case of a prosecutor offered a bribe of 100,000 who remains under witness protection and police arrested the people involved.

“No, I was not offered personal. But there is a case which I cited of a prosecutor. Where a police officer is still under witness protection for the past four years. Where he was offered a bribe of 100000. And the prosecutor and those other police were arrested or other people.”