NPA withdraws charges against ‘SARS Rogue Unit’ trio

NDPP media statement

The National Director of Public Prosecutions, Adv Shamila Batohi has decided to withdraw charges against Ivan Pillay (Pillay), Andries Janse Van Rensburg (Van Rensburg) and Johan Van Loggerenberg (Van Loggerenberg) (collectively “the accused”). The NDPP has informed relevant prosecutors and the lawyers representing the accused (the “Defence”) of this decision.

Pillay and Van Rensburg are charged with the alleged contravention of Section 49(1) of the Regulation of Interception of Communication and Provision of Communication Related Information Act, No 70 of 2002 (Count 1). The essential allegations are that Pillay and Van Rensburg authorised the installation of surveillance equipment at offices of the Directorate of Special Operations (DSO) in the National Prosecuting Authority (NPA), and the interception of communication at those offices, without an interception direction.

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Pillay and Van Loggerenberg are charged with the alleged contravention of Section 10 of the Prevention and Combatting of Corrupt Activities Act, No 12 of 2004 (Count 2). In the alternative, they are charged with contravening section 3 of the said Act. The essential allegations are that Pillay and Van Loggerenberg, whilst in the employ of SARS gave, or agreed to give, to a certain individual (name withheld) an unauthorised gratification of approximately R100 000 in cash, in relation to the exercise or performance of the said individual’s powers duties and functions within the scope of his employment relationship. In the alternate charge, Pillay and Van Loggerenberg are alleged to have given, or agreed to give to the said individual, an illegal gratification.

This matter has since been the subject of protracted litigation and communication between the Defence and the NPA.

Following the Defence submitting representations to the NDPP in support of a request to have the decision to prosecute reviewed, the NDPP appointed a Review Panel to consider the matter, and to provide her with an opinion and recommendations. The Panel comprised Director of Public Prosecutions, Mr. Barry Madolo, Acting Director of Public Prosecutions, Adv. Indra Goberdan, and Deputy Director of Public Prosecutions, Adv. Adrian Mopp.

The Panel finalised its work and submitted a report with recommendations to the NDPP. After a careful assessment of the evidence and other relevant material, the unanimous conclusion of the Panel in respect of all counts, is that there are no reasonable prospects of a successful prosecution. The Panel recommends that all charges against the accused be withdrawn.

When instituting or maintaining criminal proceedings, a prosecutor should proceed only when a case is well founded, upon evidence contained in the police case docket reasonably believed to be reliable and admissible, and should not continue such proceedings in the absence of such evidence, that is, if there is no prima facie case.

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In terms of the Prosecution Policy of the NPA, a prosecutor, in deciding whether to institute criminal proceedings against an accused person, must assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution, otherwise, the prosecution should not be commenced or continued. The Prosecution Policy provides further that the test of a reasonable prospect must be applied objectively after careful deliberation, to avoid an unjustified prosecution. The Prosecution Policy states that various factors are to be considered when the prosecutor evaluates evidence, notably (i) the strength of the case for the State, (ii) the availability of evidence, (iii) whether the State witnesses are likely to be credible, (iv) the admissibility of evidence, (v) the reliability of evidence, and (vi) the strength of the case for the defence.

Exercising prosecutorial discretion requires prosecutors to assess the evidence and the substantive criminal law, and to follow necessary prescripts and prescribed prosecutorial directives or guidelines, in order to determine whether and how to bring a criminal case forward. Prosecutorial discretion must be exercised in good faith, based on an impartial, independent, honest assessment of the evidence, the law and the public interest, and in a manner consistent with the Constitution, the NPA Act, the Code of Conduct for Members of the NPA and the Prosecution Policy directives and guidelines.

In line with the above, the NDPP has carefully considered the Panel’s report, the evidence and other relevant material, and held discussions with the panel. The NDPP agrees with the Panel that there are no reasonable prospects of a successful prosecution in this matter.

As a result, the NDPP has decided that charges against all the accused will be withdrawn.

Statement by Freedom Under Law

Withdrawal of charges against Pillay, Van Rensburg and Van Loggerenberg

Last night the office of the National Director of Public Prosecutions announced that she had accepted the unanimous recommendation of a panel of senior staff to withdraw criminal charges against former acting SARS Commissioner Ivan Pillay and his co-accused. This is bad news for the Moyane moles left lurking in SARS, and for their embattled ally, the Public Protector.

It is no doubt also a grave disappointment for certain resourceful politicians, one-eyed conspiracy theorists, media gossips and other “useful idiots” of the state capture brigade.  Sadly, however, they’re unlikely to be deterred by facts.

But for the rest of us it is very good news indeed. For Mr Pillay, his co-accused and their many supporters within SARS and elsewhere, it is good that their names are cleared at last. For far too long they have been the targets of the vicious lies of the “rogue unit” fantasy, their lives and reputations irreparably damaged.

There is a different and more important reason why it is even better news for the country generally. The statement speaks for itself – soberly and frankly, providing reassuring and informative detail. In particular it evidences careful and reasoned scrutiny by the NDPP of a thorough report by impartial experts. This attitude and style contrast starkly with the razzmatazz antics of Advocate Batohi’s predecessor. It promises honest and competent service from a vital agency in the fight to restore the integrity of the public service. It augurs well for the future of the Rule of Law.

We in Freedom Under Law now look forward to rotten apples in the NPA – responsible for instituting and pursuing these bogus charges – being swiftly identified and dealt with.

  • Please attribute quotes to Judge Johann Kriegler, Chair of Freedom Under Law’
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