National Prosecuting Authority (NPA) head Shamila Batohi took the witness stand at an inquiry into Gauteng director of public prosecutions Andrew Chauke, adamant that her testimony would reveal he had taken politically motivated decisions.
Batohi gave testimony before the inquiry, chaired by retired Constitutional Court judge Bess Nkabinde, which is looking into Chauke’s fitness to hold office.
Chauke, who was appointed director of public prosecutions in 2011, is accused of two counts of wrongdoing. First, that he supported the institution of racketeering charges without evidence against former KwaZulu-Natal Hawks head Maj-Gen Johan Booysen in 2012.
The authorisation of the charges by Nomgcobo Jiba, then acting national director of public prosecutions at the NPA, was later dismissed due to the state having insufficient evidence to prosecute.
Jiba was fired by President Cyril Ramaphosa in 2019 on the recommendation of an inquiry headed by the late justice Yvonne Mokgoro, which found she was not fit to hold office.
In the second case, the NPA accuses Chauke of failing to proceed with charges against former police crime intelligence boss Lt-Gen Richard Mdluli for his involvement in the murder of Tefo Abel Ramogibe. It is also alleged that Chauke was instrumental in withdrawing the case, despite evidence justifying prosecution.
Chauke’s legal representative, Advocate Tembeka Ngcukaitobi, told the inquiry it would be dangerous for a prosecutor to be punished for exercising discretion to withdraw charges when considering cases.
Batohi disagreed and said her testimony would show Chauke’s decision appeared to have been politically motivated.
“Ngcukaitobi said the case is legally defective and dangerously seeks to punish a prosecutor exercising lawful prosecutorial discretion. This cannot be further from the truth in this matter,” Batohi said.
“This is about prosecutions that the testimony will reveal were, it appears, politically motivated. I do think there was no evidence to support one of the charges. In the other case, it appeared to protect [someone] from being prosecuted when there was strong evidence in the matter.”
Batohi, who took office in 2019, withdrew the racketeering charges in the Booysen case after an attempt to reinstate the charges after the NPA’s original decision was dismissed.
Chauke was the south Gauteng director of public prosecutions at the time of the Booysen case, which had transpired in KwaZulu-Natal.
Batohi told the inquiry prosecutors lacked the right to exercise their legal powers in a different province, a submission that would be further argued at the inquiry.
She added that prosecutors had to have compelling reasons to withdraw a criminal charge if there was strong evidence of wrongdoing.
Chauke’s involvement in the Mdluli matter would be put to the test, looking at the provisions of the NPA Act, she said.
Batohi said it was not easy for her to consider Chauke’s fitness to hold office, though “I do believe a full and transparent hearing like this will be in the interest of advocate Chauke as well as the NPA to ensure a fair and final decision on this matter is reached.”
She also emphasised that prosecutorial decisions that cast doubt on the NPA were a threat to its independence and credibility.
“The constitution requires us to serve the people of SA without fear, favour or prejudice. Our prosecutorial independence is not a theoretical ideal; it is a constitutional imperative.
“Prosecutors in any country are powerful people in the criminal justice system. The NPA cannot fulfil its constitutional mandate if our decisions are vulnerable to pressure, direction and influence from external factors from politicians, the rich, the powerful, the private sector, the media or civil society.”
Batohi will continue her testimony on Thursday.
