National Prosecuting Head Advocate Shamila Batohi was on Monday confronted with the question of whether the terms of reference in the Nkabinde Inquiry did not read more like an indictment in a criminal prosecution.

This question was posed by retired Constitutional Court Judge Bess Nkabinde, who is heading the inquiry into the fitness of suspended Johannesburg Director of Public Prosecutions, Andrew Chauke. Judge Nkabinde said it seems to her that President Cyril Ramaphosa’s terms of reference to the Inquiry are “akin to an indictment in a criminal prosecution.” Batohi responded, “broadly, but not limited to.”

Monday was the fourth day of Batohi giving evidence in the Inquiry, which she was instrumental in orchestrating. Chauke is facing allegations that he protected politically connected people and mishandled high-profile cases.

His alleged actions, which resulted in drawn-out litigation, were not only costly as the NPA faced many cost orders against it over the years, but his actions also harmed the reputation of the National Prosecution Authority, it is claimed.

Evidence leader Advocate David Mohlamonyane, earlier in his opening address, said the inquiry concerns two broad complaints against Chauke. The first relates to the institution of racketeering charges against Major-General Johan Booysen and members of the Cato Manor Unit and the subsequent defences of the proceedings instituted by Booysen to set aside the racketeering certificates.

The second relates to his conduct regarding the failure to continue with charges against Lieutenant-General Richard Mdluli. This relates to Mdluli’s alleged involvement in the murder of Tefo Ramogibe. Both matters resulted in a great deal of litigation at the instance of various public interest bodies and civic organisations.

In referring to the Booysen matter, Chauke apparently insisted on Booysen’s and members of the Cato Manor Unit’s prosecutions on racketeering charges, while there was said to be no evidence to link them to this.

Batohi on Monday mostly dealt with emails and other documentation relating to the Booysen and Cato Manor matter in a bid to prove that Chauke did everything in his power to see them charged with racketeering. She also said that Chauke is the DPP for South Gauteng (Johannesburg), and that is his jurisdiction. Yet, she testified, he was actively involved in seeing that Booysen and members of the Cato Manor Unit were prosecuted in KwaZulu Natal, while this was out of his jurisdiction.

Chauke claimed that he simply acted as a co-ordinator, as requested by Jiba, in the matter and that he never took any prosecutorial decisions regarding the racketeering charges and the issuing of a certificate in this regard. Judge Nkabinde, meanwhile, from the onset of the proceedings, time and again questioned how Batohi’s evidence tied to the terms of reference given by the president to this Inquiry.

She said she and the panel wanted an understanding of the alleged unlawfulness of Chauke’s conduct. “Up to now, it’s not clear in reference to terms of reference that seems to suggest Advocate Chauke misbehaved,” Judge Nkabinde said.

She also questioned Batoyi as to what led to her turning to the president to suspend Chauke and to investigate his alleged conduct. Batohi responded that it will all still become clear in due course, adding that evidence will be led that Chauke had overstepped his boundaries as a DPP.

In the Booysen matter, Chauke’s defence is that he did not authorise racketeering charges—that decision was made by the Acting NDPP, Adv Jiba—he merely supported it, he said. His counsel at the start of the hearing told the panel that the allegations against him are vague and embarrassing and do not disclose misconduct on his part.

zelda.venter@inl.co.za

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