Gauteng South director of public prosecutions Andrew Chauke issued an unlawful instruction to former KwaZulu-Natal acting director of public prosecutions Simphiwe Mlotshwa to sign an indictment charging Hawks head Maj-Gen Johan Booysen without evidence, national director of public prosecutions (NDPP) Shamila Batohi told an inquiry on Monday.
Batohi continued her appearance on the witness stand at the inquiry probing Chauke’s fitness to hold office. The NDPP took the inquiry through emails between Mlotshwa and Chauke in the preparation of the charges against Booysen and members of the serious and violent crimes unit known as the Cato Manor unit.
Booysen was arrested in August 2012 and charged with contravening provisions of the Prevention of Organised Crime Act. The unit was accused of extrajudicial killings of 23 suspects. The charges against Booysen and the unit were later withdrawn and the state has offered to pay for levelling damning accusations without providing substantial evidence.
Booysen labelled the case as politically motivated because during the time of his arrest he was investigating controversial business person Thoshan Panday, a business partner of former president Jacob Zuma’s son. Chauke faces the inquiry, which puts his job at risk, as he was leading the prosecuting team that drafted the case.
In one of the emails read to the inquiry, Mlotshwa refused to sign the indictment charging the police officers without a prosecutor’s report detailing substantial evidence the state had in charging the accused. Chauke had sent him the indictment in June 2012.
To ask advocate Mlotshwa to sign the indictments in these circumstances would in fact be unlawful.
— Shamila Batohi
Batohi described Chauke’s instructions as unlawful, citing that without a prosecutor report Mlotshwa could not give the green light to charging the cops.
“To ask advocate Mlotshwa to sign the indictments in these circumstances would in fact be unlawful,” Batohi said.
“When you put your signature in an indictment as a DPP [director of public prosecutions] or any prosecutor, it means you are satisfying yourself that there is evidence that supports the charges in the indictment. To require someone to do it without the evidence is in fact asking that person to do something unlawful.”
When Mlotshwa refused to sign the indictment, Chauke told him if he [Mlotshwa] was “uncomfortable” with signing the indictment he would address the matter with his bosses, the then justice minister Jeff Radebe and acting national director of public prosecution Nomgcobo Jiba.
“I do not want to play or undermine your jurisdictional authority in any way whatsoever. Another concern to me is the delay in issuing the instruction of reopening the inquest in view of the fact that you have been requested to sign the indictment. If this makes you uncomfortable, please indicate so I may urgently take the matter up with the acting NDPP [Jiba] as well as the minister [Radebe]. I do not want to step on your toes,” Chauke’s email read.
Batohi said Chauke’s response seemed like a threat to Mlotshwa because the minister should have not had “any role” in the matter.
Chauke needed Mlotshwa’s signature for Jiba to authorise the charges in the case against police officers.
A month after the heated email exchanges, Mlotshwa’s acting stint came to an end on July 9 2012.
Advocate Moipone Dinah Noko was appointed to the position as an acting director and in August 2013 President Jacob Zuma appointed her permanently to the position.
Noko previously testified she was never involved in the case and the application for authorisation of the charges was signed by Chauke. She said she signed the application’s cover letter.
Batohi in her evidence before the inquiry argued Chauke did not have the legal authority to sign the application for institution of the charges because he was the Gauteng South director and had no jurisdiction in prosecutorial matters in KwaZulu-Natal.
Jiba authorised the charge against Booysen. Her decision in the case contributed to her being found unfit to hold office in 2019 and was axed from the National Prosecuting Authority leadership.
The inquiry continues on Tuesday.
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