Director of Public Prosecutions

Ideally, the Director of Public Prosecutions (DPP) should have been informed about the decision to prosecute in the matter in May 2025 and the subsequent decision taken.

“the D P P in 2025, May or June, we consulted you on this matter and we informed you we are prosecuting, you agreed with us, and we have since taken another decision”

Advocate Johnson stated that IDAC attached the draft charge sheet to the prosecution memorandum so that the DPP could review both documents, raise questions, and identify any deficiencies in the charge sheet summary.

“The charge sheet, sorry, the memorandum is a summary. But the charge sheet is also attached so that the DPP is able to apply her mind to both the prosecution memo and the charge sheet. So where one may have missed something in the summary, she is fully within her right, as is always the case, to go through the charge sheet and to also raise questions about the charge sheet and/or any deficiencies in the charge sheet.”

Advocate Johnson testified that submitting charge sheets to the DPP provides checks and balances and requires DPP agreement on reasonable cause before enrolling criminal cases.

“I said in the original affidavit: “ … was the first is the DPP is a measure for checks and balances. The second is so that the relevant DPP may grant permission for and/or agree to the enrolment of the matter unless satisfied on the information given to him or her that there is reasonable and probable cause for the prosecution, the DPP will not place a matter on the role for criminal cases. ” So it does give them latitude. They are not a rubber stamp.”

Advocate Johnson conceded that the DPP could not have properly exercised their mind in approving the specific vetting count against Brigadier Mokwele when the details were present in the charge sheet but entirely absent from the prosecution memorandum.

“I accept that.”

Advocate Khumalo SC asserted that in file 62438, the DPP rubber-stamped the decision to prosecute within a single day without conducting any engagement or requesting clarification regarding missing details in the prosecution memo and charge sheet.

“And Commissioner Baloyi 's point that the DPP in file 62438 , all he or she then says is that having considered your memo and the charge sheet, they are satisfied that a prima facie case has been made out against the accused and they concur with your decision to charge them. So it means they only considered the two documents that Advocate Sello and Commissioner Baloyi are referring you to.”

IDAC applied for warrants of arrest against all the accused and prepared a prosecution memorandum submitted to the Director of Public Prosecutions (DPP) responsible for North Gauteng Division of the High Court, including a draft charge sheet and request for enrolment of the matter.

“Once the investigation was concluded , I was briefed by the team that had conducted the investigation on behalf of IDAC . IDAC then applied for warrants of arrest against all the accused . It then prepared a prosecution memorandum and submitted same to the Director of Public Prosecutions responsible for the North Gauteng Division of the High Court , that is the office of the DPP , together with a draft charge sheet and a request for the enrolment of the matter .”

The decision to prosecute was made by Advocate Johnson and concurred with by the Director of Public Prosecutions (DPP).

“Remember that letter I referred you to from the DPP, where they say they concur with your decision to prosecute? What they seem to be saying is that you made the decision to prosecute, they agree with you.”

The Director of Public Prosecutions (DPP) concurred with the decision to prosecute made by Advocate Johnson, indicating that he made the prosecution decision and the DPP agreed with it.

“Remember that letter I referred you to from the DPP, where they say they concur with your decision to prosecute? What they seem to be saying is that you made the decision to prosecute, they agree with you ... That letter said you made a decision, they concur with your decision.”

Advocate Johnson prepared a prosecution memorandum and submitted it to the Director of Public Prosecutions after IDA applied for warrants of arrest against accused persons.

“I then prepared a prosecution memorandum and submitted same to the Director of Public Prosecutions.”

Advocate Johnson indicated the prosecution memorandum was submitted prior to enrolment and referred to in terms of section 24(2) of the NPA Act.

“... kindly ask for the prosecution memo that is submitted to the office of the DPP prior to enrolment, which is what is referred to in terms of section 24, subsection 2 of the NPA Act.”

IDAC applied for the warrant of arrest against all the accused after the investigation was concluded, followed by a prosecution memorandum submitted to the Director of Public Prosecutions.

“once the investigation was concluded you were briefed, you were briefed and you applied, IDAC applied for the warrant of arrest against all the accused. You say: “I then prepared a prosecution memorandum and submitted same to the Director of Public Prosecutions.””

Advocate Johnson states that the prosecution memorandum and related documents are in the form of a set of correspondence, including a letter to the Director of Public Prosecutions and the response, constituting the documentation referred to in paragraph 30.

“They actually do just form, they are not a different set, they form a set. It is writing a letter to the DPP, saying this is what I attach, this is the purpose, and then you send that through, and then you get this response, Commissioner Khumalo, that you referred to.”

There was a lack of follow-up on alibis which allowed the defence to obtain statements and present them to the Director of Public Prosecutions (DPP).

“lack of follow-up upon alibis thus allowing defence to obtain statements and providing such to the DPP”

There is a letter directed to Major General E A Kadwa from the Director of Public Prosecutions regarding the request for re-enrolment of the docket related to Booysen case number 9807/2021, known as State v Magane and 3 Others.

“The letter is directed to Major General E A Kadwa... this matter relates to the request for a re-enrolment of the docket, Booysen's case number 9807/2021. And that is the matter of the State v Magane and 3 Others.”

The office of the Director of Public Prosecutions has decided to prosecute the suspect in the matter of Warrant Officer Magane's case once pending investigations have been finalized.

“The office has decided to prosecute the suspect in this matter. This matter will be enrolled as soon as practically possible once the pending investigation have been finalized.”