National director of public prosecutions Shamila Batohi’s powers came under sharp scrutiny last week at the inquiry into suspended Gauteng prosecutions chief Andrew Chauke’s fitness for office.
Now legal experts say the Constitutional Court could be the final arbiter in the matter.
Chauke, who was appointed director of public prosecutions in 2011, was accused of supporting racketeering charges against former KwaZulu-Natal Hawks head Maj-Gen Johan Booysen without evidence in 2012.
Should the inquiry make a finding against him, he could lose his job.
The Booysen case has taken so long and been so drawn out that three heads of the National Prosecuting Authority (NPA) have been involved in it.
Booysen was accused of contravening provisions of the Prevention of Organised Crime Act and was charged with racketeering offences with members of the serious and violent crimes unit known as the “Cato Manor Nine”.
Often referred to then as a “rogue unit”, some of its members also faced murder charges.
Booysen challenged the case, saying there was no substantial evidence against him and maintained it was politically motivated because he was investigating a case linked to politically connected businessman Thoshan Panday.
Panday was alleged to be in business with then-president Jacob Zuma’s son, Edward.
Authorisation for the charges was initially made by deputy national director of public prosecutions Nomgcobo Jiba, then acting NDPP at the NPA, but were later dismissed due to insufficient evidence.
In 2015, another NDPP, advocate Shaun Abrahams, was appointed by former president Jacob Zuma, and two months after his appointment, he reinstated the charges against Booysen.
Then, when Batohi took over as the NPA head in 2019, she reviewed and withdrew the charges against Booysen.
The inquiry has requested Batohi to seek legal advice on where she sourced the power to do so after a panel headed by retired Constitutional Court justice Bess Nkabinde and co-panellists advocate Elizabeth Baloyi-Mere and attorney Matshego Ramagaga sought clarification.
The main debate was on whether the NDPP had the power to review her predecessor’s decisions.
The panel agreed that Batohi had the power to review prosecutorial decisions of NPA directors in different provinces but were not convinced she had the same power regarding former national directors.
“The bottom line is there is … no case law on this. Until one day this very aspect is tested in the Constitutional Court, only then will we have a precedent to seek its guidance,” University of Pretoria senior law lecturer Dr Llewelyn Curlewis told Business Day.
Curlewis said though the matter had not been tested in court, he agreed with Batohi’s interpretation.
Batohi said her interpretation of the NPA Act and the constitution was that she could review her predecessor’s decisions if the decisions did not comply with the NPA’s policy directives.
The constitution empowers the national director to intervene in the prosecution process when policy directives are not complied with.
The NPA Act, which gives her the power to “review a decision to prosecute or not to prosecute, after consulting the relevant director”, does not expressly provide power for review of decisions made by a former national director.
“There is no reason why it should not be interpreted in that manner because … it is very possible a predecessor can be wrong,” said Curlewis.
“In the interest of justice, I would be more inclined to favour the approach by Shamila Batohi. I am very reluctant to suggest a decision by a previous NDPP is there forever and cannot be considered. That does not make sense.”
He said clarity on the matter would be provided when the NDPP is challenged in court; until then, it will remain doubtful.
University of Johannesburg legal expert Prof Hennie Strydom said the debate about Batohi’s review powers should not affect the probe against Chauke.
Questions on Batohi’s decision are not included in the terms of reference of the inquiry.
“The issue is about the correctness of the decisions that Chauke took at a certain time on two cases, and it is about political interference in those decisions, which may affect the independence of the NPA. That is where the focus should be at this time,” Strydom said.
He said the inquiry into Batohi’s powers was touching on a matter that was not its main mandate.
“If the inquiry is going further to look at the powers that advocate Batohi may have to review her predecessor’s decisions, we are moving into an area that is not covered by the constitution [or] the NPA Act.
“Both these instruments specify clearly that she has the power to review the decisions taken by the directors of public prosecutions in the different provinces.
“It is difficult to see how the panel is going to deal with [questions on Batohi’s powers] because there is no law on that which could guide the panel. Whether that is indeed an aspect that is of any relevance in the current matter, I doubt.”
The inquiry hearings continue this week.
