At the end of what has been a rollercoaster legal battle involving criminal charges such as terrorism, false declaration of passports and possession of unexplained property against former intelligence agent Wilheminah Maswabi, remains State attorneys trying to convince the public that the charges were not a malicious prosecution campaign.
On Tuesday the Directorate of Public Prosecutions (DPP) withdrew all its criminal charges against Wilheminah Maswabi, referred to as ‘Butterfly’ citing that the prosecution did not have enough evidence to proceed with the case.
Standing in for the State, South African based Advocate Geri Nel told the media at a press briefing that his recommendation to the government was that, “although there is evidence, it will be irresponsible of the State to proceed prosecution without having all of it.”
Questioned by journalists why the case reached the courts before the determination of sufficient evidence was established, Adv. Nel defended his position by saying that they know that the evidence is there but other law enforcement agencies – both local and in South Africa were non-cooperative and not availing that which the prosecution team had spent time requesting for.
“It is not my recommendation that there is no evidence to proceed, but it is my recommendation that one should not proceed with prosecution if all of the evidence is not submitted when we know it is there and cannot get our hands on it,” explained Adv. Nel
Asked about the number of similar high-profile cases that the State has lost or either withdrew due to lack of evidence and its impact on the integrity of the DPP’s prosecutorial processes, Nel responded that he was happy with the work done by the team of investigators and the prosecution team, but the problem was mainly that the South African government was reluctant to cooperate with the Mutual Legal Assistances advanced during the course of the case.
“We have initiated a contempt of court case against the SA Department of Justice for refusing to comply with the MLAs sent to them. Yes, we are aware of integrity issues, but I cannot comment on other cases besides this one only,” replied Nel.
He also made inferences that the SA government is protecting ‘someone’ but refused to go into the details of that statement, adding that naming people might jeopardize the future prospects of the case since the State considers re-instating the charges.
Quizzed on public perception that the State may be using law enforcement to impinge on civil liberties given the methods of arrest and arraignment of Maswabi, Nel replied that his appointment brief was to only advise the DPP of a successful prosecution and nothing more.
DPP Director General Advocate Stephen Tiroyakgosi said that the public has the right to scrutinize his organization and hold it to account. “Every decision that we make is based on sound advice and to protect the interests of the public,” said Tiroyakgosi.
Maswabi’s attorneys Ndadi Law Firm have opposed the request by DPP to “withdraw the case without prejudice” and are yet to file in court ahead of the September 14 hearing. Withdrawing a case without prejudice could mean that the DPP wants to investigate further and bring more evidence and re-open the case in future.