It is extremely dangerous to charge a prosecutor for an exercise of prosecutorial discretion to institute or withdraw a charge.
This is the submission made during the inquiry into the fitness of Gauteng director of public prosecutions Andrew Chauke to hold office, which is headed by retired Constitutional Court justice Bess Nkabinde and is sitting in Pretoria.
Tembeka Ngcukaitobi SC, for Chauke, said the reason Chauke’s legal team said the charges were dangerous was because they threatened to interfere with the independence of prosecutors.
Chauke is accused of wrongfulness regarding the institution of racketeering charges against former KwaZulu-Natal Hawks head Maj-Gen Johan Booysen and members of the Cato Manor unit, notwithstanding lack of evidence.
Chauke is also accused of calling for the withdrawal of the murder charge against then head of crime intelligence Lt-Gen Richard Mdluli despite strong evidence, which caused delays.
“Prosecutors are never disciplined for the exercise of their discretion. They are disciplined only when they act (in bad faith),” Ngcukaitobi said.
Ngcukaitobi said one of the witnesses Chauke’s team will call is former prosecutor Gerrie Nel, who will explain the impact this has on the ability of prosecutors to make decisions.
“They must make robust decisions in difficult environments with uncertain facts, often without sufficient support from the police, and frequently facing accused persons who are heavily legally armed,” Ngcukaitobi said.
He said prosecutors made many decisions and some may be legally imperfect.
“But if you start a pattern where you say to a prosecutor: ‘I disagree with your decision, and I am going to initiate removal proceedings’, that is extremely dangerous. Prosecutors will become reluctant to make the decisions they need to make,” Ngcukaitobi said.
He said there was a level of thoughtlessness underlying the request for President Cyril Ramaphosa to charge Chauke for the exercise of prosecutorial discretion, because its consequences in a country besieged by crime were very serious.
“The second point regarding these charges is that the factual premises have been overtaken by judicial authority. There are judgments that have pronounced specifically on whether the NPA was rational or irrational in its decision to charge Booysen for racketeering, or its decision to provisionally withdraw charges against Mdluli pending an inquest under the Inquest Act,” Ngcukaitobi said.
Once the NDPP chooses to defend a decision, junior officials such as Mr Chauke merely give effect to that decision. It would be a sad day if people are disciplined simply for signing affidavits in good faith. There is no allegation that they lied under oath.
— Tembeka Ngcukaitobi SC
In the charges related to Booysen, Ngcukaitobi referred the panel to a judgment in the Pretoria high court in 2016 where the General Council of the Bar (GCB) had sought to strike the name of then acting national director of public prosecutions Nomgcobo Jiba from the roll of advocates. Jiba was the one who had taken a decision to charge Booysen.
“That case is crucial: the GCB sought to strike Jiba from the roll of advocates, relying on the judgment of judge (Trevor) Gorven.”
Govern, in the judgment passed in the Durban high court in February 2014, held that the decision by Jiba to authorise the prosecution of Booysen was irrational and unconstitutional.
However, the full court in Pretoria in the GCB case reviewed the evidence and concluded that Jiba acted rationally in authorising the racketeering charges.
Ngcukaitobi asked the panel to have sight of a number of passages in the Pretoria high court judgment, one of which read: “You do not want members of the prosecution authority to unduly watch their backs for fear of being dismissed… every time when they make mistakes… The overriding factor should be adherence to the rule of law and the Constitution.”
Ngcukaitobi said there was clear judicial authority that Jiba acted lawfully based on the information before her at the time she authorised the racketeering certificate.
He said the judgment went further and warned that dismissing prosecutors for genuine exercises of discretion was dangerous.
On the charge that Chauke supported the decision to prosecute Booysen, notwithstanding lack of evidence, Ngcukaitobi said the decision-maker was Jiba.
“She has been found to have acted lawfully and rationally. How then can a person who merely supported the decision be charged with misconduct,” Ngcukaitobi said,
On the charge that Chauke defended the institution of racketeering charges in review proceedings, Ngcukaitobi said this charge was vague and embarrassing.
“Once the NDPP chooses to defend a decision, junior officials such as Mr Chauke merely give effect to that decision. It would be a sad day if people are disciplined simply for signing affidavits in good faith. There is no allegation that they lied under oath.”
On the charge that Chauke allegedly instituted an appeal against the Gorven judgment. Ngcukaitobi said evidence will show that when Gorven’s judgment came out, the NPA decided to appeal. Mxolisi Nxasana was the National Director of Public Prosecutions at the time.
“He will testify about the process and confirm that senior counsel Laurance Hodes recommended that there were grounds to appeal.”
On the Mdluli charge, Ngcukaitobi said Chauke never decided Mdluli would never be charged. His decision was a provisional withdrawal pending an inquest.
“Mr Chauke will accept the decision was his, but he will say it was valid and lawful.”
Ngcukaitobi said a judgment in the Supreme Court of Appeal found that the decision by Chauke to withdraw the murder charge pending the inquest was not irrational.
The SCA said Chauke intended to reinstate charges after the inquest.
Ngcukaitobi said what was striking about the charges was that there was no allegation of dishonesty or malice, which meant Chauke acted without intention to deceive throughout.
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