prosecutors

A D V S E R U N Y E confirms prosecutors advise on legal issues and review affidavits, and internally the team looks into the affidavit before it is presented to court.

“The prosecutors are there to do exactly that, to advise on legal issues, to read these affidavits... Internally the team looks into the affidavit. Each member of that team has a copy of the docket. They read the docket, they discuss these things, and the prosecutors are there exactly for that purpose.”

Repeated refusal to disclose internal document reflects either breaking the law or complicity by prosecutors who do not want to disclose it despite knowing it is incorrect to withhold it.

“if she says, no, we are not disclosing that, it is an internal document, and everybody around her knows that what she is saying is not correct, but they comply, then it does not give faith that on any other matter, if she says that we are not disclosing, that her prosecutors will not say, well, if I must lose my job, I am going to lose my job, but my integrity and my responsibility to my profession and to the court is that I make disclosure”

The relationship between prosecutors and investigators was not good, there were conflicts between these investigators and Crime Intelligence, and the cases were rushed to court with mistakes and loopholes, resulting in poorly conducted investigations.

“the relationship between the prosecutors and investigators was not good ... they made a lot of mistakes here ... it appeared they were rushing this case ... there is some conflicts between these investigators and investigators in Crime Intelligence ... The two cases were not supposed to be in court ... The cases were not properly investigated”

There is an ethical obligation for prosecutors to disclose favorable evidence to the accused and act fairly, not merely to secure convictions.

“every prosecutor has an ethical duty when something like that has happened ... your job as a prosecutor is not to get a conviction or to get an incarceration at all costs”

The bail condition given by the Magistrate was not discussed or asked for by the prosecution in open court and was only revealed after the hearing.

“the prosecutor on that day... did not ask for the condition, but then it is given... it was not discussed, at least in court. No, not in my presence in court... that condition was not discussed or asked for by the prosecutors or by anyone.”

Project team members including the DPP, prosecutors, sometimes financial investigators and data capturers are designated and announced in meetings after management decisions.

“you will be called to a meeting where you will be told there is this project, then names of people that will be working on that project will be put on the designation where everybody will know who is going to be working on that group ... you will get who is going to be the DPP on that project. You will also get the name of the prosecutors allocated. Sometimes it will be financial investigators allocated to assist. There will be also data capturers that will be part of that team”

Prosecutors do not get the original docket but only receive scanned copies, and the usual process of docket audit with the investigating officer is bypassed when Perumal's team is involved.

“Even the prosecutors do not get given the original dockets ... We get given scanned copies of the docket ... That process, whenever asked for by Perumal's team, is bypassed”

The process for handling the referral involved copying statements, interrogating affidavits to decide if they fell within ID mandate, drafting certificate of mandate, applying for section 28(13) investigation authorization, and drafting an investigation plan with investigators.

“We were to make copies of the statement, the prosecutor and myself, that she had handed to us and return the original to her office...The prosecutors were to interrogate the affidavit and decide whether it fell within the mandate of ID...Once the certificate of mandate was signed, the prosecutors were to attend to drafting the application of authorisation of a section 28(13) investigation...and once authorisation was signed, we were to consult with the investigators and draft an investigation plan.”

If the investigation finds criminality, a motivation for section 28(1) authorisation must be prepared with a detailed evidential report. If no criminality or prima facie case is found, prosecutors prepare a memorandum explaining why there is no prima facie case.

“Should the investigation yield evidence of criminality, we had to motivate for a section 28(1) authorisation...This motivation had to be accompanied by an evidential report prepared by the prosecutors...Should the investigation show that no criminality could be proven or that there was no prima facie case, the prosecutors would prepare a detailed memorandum setting out a summary of each statement and a detailed submission as to why there was no prima facie case.”

The warrant applications are compiled by investigators who sit with prosecutors and then checked by the prosecutors and their deputy.

“they sit with the prosecutors and they then compile those applications for the warrants. They are checked by the prosecutors and by the deputy in that team.”

The investigations were separated according to different categories of offences to avoid misjoinder and difficulties in the docket process.

“So when the matters were broken up, and I think they were broken up, as their prosecutor explained, in terms of the different categories of offences, if you took them all as one, we would have had a lot of issues from misjoinder to ten peoples standing in the dock ... So they took it in terms of the allegations and grouped them accordingly.”

Prosecutors independently evaluate evidence and make prosecution decisions, but the prosecution decision communicated to the DPP is ultimately Advocate Johnson's decision.

“Prosecutors independently evaluate the evidence and make prosecution decisions... Once they have presented the evidence, Commissioners, more often than not, it is an oral briefing. They will then put together a draft prosecution memo. I then have to go through that memo, see if I agree with what is in there, and therefore endorse the prosecution decision, which then becomes my decision, which is conveyed...”

The section 27 document was handed to one of the prosecutors and then shared with the team but not necessarily all team members had sight of every document.

“the document was handed over to one of the prosecutors so that they can go to the team ... that document does get shared”

Investigators, including Colonel Padayachee, rely entirely on briefings and do not participate in the formulation of charges or have authority over charges, which are prosecution-led decisions.

“I have no authority. That is for the prosecutors to determine. It is their space because they must decide, because it is prosecution-led. They decide to prosecute or not to prosecute.”

Colonel Padayachee acknowledged he did not draw up the charge sheet; prosecutors are responsible for it.

“The prosecutors are responsible for drawing up the charge sheet.”

The facts in paragraphs 12.4 and 12.5 of the charge sheet, including details about the Technical Support Services unit and panel constitution, come from the Investigating Officer Khumalo.

“Where would the prosecutor get the facts that are put in 12.4 and 12.5 of the charge sheet? They come from you.”

Advocate Khumalo explained that although prosecutors draft the charge sheet, they rely on facts provided by the Investigating Officer; they do not create facts themselves.

“You give him the facts, he draws it up. It is like me when I say to my PA, type this for me, and they type. They do not know the facts, they type. Here he draws it up because you gave him this fact. He did not make them up. They do not come from him. They come from you as the IO.”

Colonel Padayachee confirmed that the charge sheet and affidavit are compiled by the investigating officer and given to the prosecutor, who drafts the charge sheet usually in draft form.

“The charge sheet, the affidavit is compiled, it is given to the prosecutors. They compile the charge sheets and most often the charge sheet is in draft format...”

Colonel Padayachee states that prosecutors are the legal experts responsible for compiling the charge sheet and he takes note of Adv Sello SC's comments.

“the prosecutors are the legal experts in compiling the charge sheet”

Adv Baloyi SC explains that the charge sheet is drafted by prosecutors, submitted to management, and approved by higher authorities who rely on Colonel Padayachee's affidavit for approval, implying that Colonel Padayachee is responsible for the content of his affidavit and the charge sheet.

“they relied on your affidavit. They can say that, that they relied on your affidavit to approve this charge sheet. And it is simply not good enough that you have it attached to your affidavit and the charge sheet is attached to your affidavit and then you say, well, I did not see it. It is simply not good enough”

The decision to oppose the bail condition appeal was made collectively by Colonel Padayachee and the prosecutors involved in the matter who compiled the documentation for the appeal.

“I was part of the collective. That would have been myself and the prosecutors that were in the matter that put together documents for the appeal.”

The section 28(1) document authorizes a full-blown investigation after a preliminary investigation is done and the prosecution has presented it.

“That is a full-blown investigation. So after your preliminary investigation is done and your prosecutor put together the preliminary investigation and they present it and it is the request for it to go into a full-blown investigation, which is 28(1)...”

Colonel Padayachee has no authority or power to influence prosecutions; his role is only investigative.

“I am only an investigator that goes out and investigate. I have no authority or power to influence prosecutions. I go out, I am directed by the prosecutors, investigate, collect the evidence... That is in the domain of the prosecutors.”

The chief criminal investigator leads a team assembled to conduct the investigation, interviewing witnesses and gathering evidence which is analyzed by prosecutors who decide if sufficient evidence exists to charge an individual.

“The chief criminal investigator assembles his investigators ... you go out, you interview, obtain witness statements, other related evidence ... The team, put together with the prosecutors, look at this evidence, they analyse this evidence, the prosecutors look at it, and if they see that there is sufficient evidence based on facts, then they will start with a chargesheet on who they are going to charge and what charges they are going to put.”

General Kadwa and Brigadier Sekgobela threatened prosecutors and a lawyer to enroll a matter which was initially refused to be placed on the roll.

“General Kadwa and Brigadier Sekgobela came to court and threatened them, the prosecutors and the lawyer, to enrol the matter”

Accused are considered dangerous contract killers and there were alleged attempts to bribe investigators, prosecutors, and/or the magistrate to get them out on bail.

“I informed them that the accused were considered dangerous contract killers and that there were alleged attempts to bribe investigators, prosecutors, and/or the magistrate.”

The information about bribe attempts came from a source alleging a lawyer was given a bag full of money to approach investigators and others to get the accused out on bail.

“the information was, remember, the attorney is already given a bag full of money. We must approach the investigators. If he fails, the prosecutors or the magistrate, because that is how disparate they showed that they want these people out on bail.”