National director of public prosecutions Shamila Batohi’s legal powers to review her predecessor’s decisions was scrutinised on Thursday by the inquiry probing Gauteng South director of public prosecutions Andrew Chauke’s fitness to hold office.
Chauke, who was appointed director of public prosecutions in 2011, is accused of supporting 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 dismissed by President Cyril Ramaphosa in 2019 after she was found to be unfit to hold office. Chauke faces the same probe, which puts his future at the NPA at risk.
When Batohi took over as the National Prosecuting Authority (NPA) head in 2019, she reviewed and withdrew charges against Booysen authorised by her predecessors, Jiba and advocate Shaun Abrahams.
Batohi gave testimony on Thursday before the inquiry, chaired by retired Constitutional Court judge Bess Nkabinde, on her powers and was probed about whether she had the legal authority to review decisions of previous national directors of public prosecutions.
Batohi cited provisions of the NPA Act, which give her the power to “review a decision to prosecute or not to prosecute, after consulting the relevant director”.
The constitution also empowers the national director to intervene in the prosecution process when policy directives are not complied with.
Batohi said her interpretation of the legal provisions was that she could review her predecessor’s decisions if the decisions did not comply with the NPA’s policy directives.
She said the NPA Act and the constitution did not expressly exclude former national directors’ decisions from being reviewed by a successor.
“Given that the NPA Act states that the national director may review a decision to prosecute or not to prosecute, my understanding is that it gives the national director the power to review any such decision, whether it is made by a prosecutor, a deputy director of prosecutions or even a previous national director,” Batohi said.
The inquiry panel, consisting of Nkabinde, advocate Baloyi-Mere and attorney Matshego Ramagaga, agreed Batohi had the power to review prosecutorial decisions, but were not convinced she had the same power when it came to former national directors.
Nkabinde said if a sitting national director of public prosecutions had the legal power to review the decisions of predecessors, it meant a matter decided by a national director 10 years ago could be reviewed and a prosecutorial decision could be changed.
She raised questions about how that would affect cases reaching legal finality.
“If, after several years, a new incumbent upset what happened years ago [in a case], that would be nonsensical and would affect the interests of so many people. It will affect the interest of justice in terms of finalising matters timeously when matters run for many years; that has a chilling effect. Please reflect on it,” Nkabinde said.
Batohi agreed to interrogate further the provisions but maintained that if a national director could not review a previous national director’s decision, then, in cases where justice was not achieved, the NPA would not be able to fix those mistakes.
“It could have the chilling effect if there was a grave miscarriage of justice, and 10 years later a national director was not able to correct it. In my view, that can also have a chilling effect on victims and in the interest of justice. It could cut both ways.”
She said prosecutors were able to review and change their decisions, and the legal principle of finality on decisions might need to be interrogated to determine whether it applied in the same way to prosecutors as compared to judges.
Batohi said she would seek further legal advice on the matter.
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