Police's use of 'lethal force' under scrutiny

Some of the 28 Cato Manor Organised Crime Unit members who faced 116 criminal charges, and the sweeping trial against them was ultimately withdrawn by the National Prosecuting Authority (NPA) in July 2019.

Image: SIBONELO NGCOBO/ ANA Studio

The shooting of KwaZulu-Natal businessman Thabiso Ngcobo has put the use of lethal force by police under renewed scrutiny, following the release of a presidential inquiry report that found evidence supporting the prosecution of members of the controversial Durban's Cato Manor organised crime unit.

The report, released by President Cyril Ramaphosa on Thursday, cleared prosecutions boss Andrew Chauke of allegations that he had acted improperly in pursuing charges against members of the unit. But it also found that there was evidence supporting the racketeering and murder charges brought against them.

The timing is significant.

Ngcobo is currently at the centre of a criminal case involving 10 South African Police Service officers, including celebrated officer Captain Pedro Rodriguez, who face attempted murder charges over the May 2024 shooting of the businessman on the M13 eastbound.

Ngcobo was approached by officers in unmarked vehicles flashing blue lights and shortly after his armoured Toyota Fortuner came under fire from high-calibre rifles.

Ngcobo was not injured.

He called KwaZulu-Natal police commissioner Lieutenant-General Nhlanhla Mkhwanazi, who advised him to drive to Pavilion Shopping Centre in Westville. Ngcobo got out of his vehicle and entered the mall, followed by armed men wearing balaclavas.

He has consistently maintained that the shooting was not a case of mistaken identity, but a targeted attack.

The case has been postponed several times, frustrating Ngcobo. On Friday, the Durban High Court postponed it to October 5 for a pre-trial hearing.

The allegations against the officers have not been tested in court.

But the Ngcobo case comes against the backdrop of one of the darkest chapters in KwaZulu-Natal policing — the Cato Manor unit and the deaths allegedly linked to it.

‘THE BULLETS DISPROVED THE POLICE VERSION’

Sixteen years ago, 16-year-old Kwazi Ndlovu was asleep on a couch in his family’s lounge in eSikhaleni (formerly eSikhawini) near eMpangeni, when police kicked down the door of the house at about 3am on April 1, 2010.

Four shots were fired from an R5 rifle. Three struck Kwazi, killing him.

His mother, Lindiwe, did not initially know her son had been shot. Police ordered her to remain in the bedroom with her husband and newborn while they searched the house.

When she was eventually allowed into the passage, one of the officers blocked her view of the lounge.

She could see Kwazi lying motionless on the couch and believed he was asleep.

She was ordered out of the house while police said they were still questioning him.

After taking the newborn to her mother’s house, she returned to find the property cordoned off with police tape.

She forced her way through the tape and looked through the lounge window.

“I saw my son lying on the couch with the bullet wound on his arm and there was a firearm that was put next to him,” she said.

Kwazi’s killing was one of 23 murder cases brought against members of the Cato Manor organised crime unit.

The unit was accused of operating as a death squad and was blamed for killing about 28 people between 2008 and 2011, many of them members or associates of the KwaMaphumulo Taxi Association.

Police generally maintained that the men they shot had produced firearms and that officers had responded in self defence.

But evidence presented to the Nkabinde inquiry challenged that version.

Ballistics expert Christiaan Mangena, who has worked in the SAPS forensic science laboratory since 1995 and examined more than 6 000 firearm cases, prepared 23 crime-scene reconstructions.

He told the inquiry that 13 had never been included in the indictment. One concerned Kwazi’s death.

Mangena found that four shots had been fired from a 5.56mm rifle, with three striking Kwazi while he was lying on the sofa.

The bullet trajectories and bloodstain patterns showed that the teenager had not been moving when he was shot.

The firearm found next to his body could not be reconciled with his wounds or the direction of fire.

Nkabinde said the ballistic evidence had remained unchallenged.

“The ballistic expert findings above, simply disproved the police version,” the report said.

‘PLANTED’ FIREARMS

The inquiry also heard allegations that firearms were planted on people after they had been shot.

Former police reservist Aristides Danikas, who fled to Greece after receiving death threats over his whistleblowing, told the inquiry that members of the unit routinely carried stolen firearms that could be planted on suspects.

He alleged that spent cartridges were removed from scenes, suspects were tortured and members photographed dead victims and exchanged the pictures as trophies.

The charges against the unit’s head, Major-General Johan Booysen, and 18 other members were never successfully prosecuted.

For more than a decade, the National Prosecuting Authority maintained there was insufficient evidence to support the case.

That position became central to the allegations against Chauke.

Former national director of public prosecutions Shamila Batohi accused him of backing racketeering and murder charges against the unit despite allegedly lacking evidence.

Chauke denied wrongdoing.

The Nkabinde inquiry ultimately found that there was no credible evidence that Chauke had improperly taken prosecutorial decisions in the Cato Manor matter.

But it reached an important conclusion about the underlying cases: there was evidence supporting the institution of racketeering charges against members of the unit.

In clearing Chauke, the panel therefore did not pronounce the Cato Manor officers innocent. Nor did it determine that the police killings had been justified.

Nkabinde specifically noted that the inquiry was not a criminal trial and that the forensic evidence would have to be tested in court.

ANOTHER SHOOTING, ANOTHER UNANSWERED QUESTION

The historical evidence becomes particularly significant in light of what happened to Ngcobo.

In his case, the people allegedly firing at him were not criminals. They were police officers themselves.

Ngcobo says he was approached by men in unmarked vehicles and shot at after being instructed to open his vehicle window.

The officers now face attempted murder charges.

The case will ultimately have to establish what happened on the M13, why Ngcobo was targeted and whether the officers acted lawfully.

But the Cato Manor evidence demonstrates why the police version of a shooting cannot simply be accepted without scrutiny.

The inquiry examined another case involving KwaMaphumulo Taxi Association chairperson Bongani Mkhize, who was shot dead in his black Lexus on February 3, 2009 on uMngeni Road.

Five members of the Cato Manor unit said Mkhize had fired first.

But Mangena found that every shot had been fired from outside the vehicle.

The pistol recovered inside the Lexus belonged to one of the men at the scene.

Four months before his death, Mkhize had obtained a court order prohibiting police from killing, injuring, threatening, harassing or intimidating him.

The inquiry also heard about Thabo Sunshine Msimango, who was shot at a Berea block of flats in May 2008 after his door had been forced open with a crowbar.

Sharmilla Williams, then a senior investigator at the Independent Complaints Directorate, found that Msimango had fallen four floors and was lying face down when he was shot twice or more.

She concluded that the killing was unjustified and recommended that those involved be charged.

Her recommendation was approved by her supervisor.

The KwaZulu-Natal director of public prosecutions nevertheless declined to prosecute.

YEARS WITHOUT JUSTICE

The 23 Cato Manor dockets were eventually rolled into a single racketeering case in 2012, alleging that members of the unit operated together as a criminal enterprise.

The charges were later set aside on review and never reinstated.

Nine members of the unit were charged in connection with Kwazi’s death, but none has ever been successfully tried for it.

That is one of the most important findings to emerge from the Nkabinde report.

While Chauke has been cleared, the victims and their families remain without justice.

Nkabinde said the Cato Manor matter involved numerous dockets in which victims and their families had “not seen justice and found closure”.

“The delayed justice as the investigation in this Inquiry has exposed, without doubt translates to a denial of justice,” she said.

Ramaphosa accepted the panel’s findings and said there was no basis to conclude that Chauke was unfit to hold office.