A 2013 Pretoria high court order, which set aside South Gauteng director of public prosecutions (DPP) Andrew Chauke’s decision to withdraw murder and attempted murder charges against former crime intelligence boss Richard Mdluli, should not have been appealed.
National Director of Public Prosecutions Shamila Batohi made this submission on Thursday at the inquiry into Chauke’s fitness to hold office as a prosecutor.
The inquiry, headed by retired justice Bess Nkabinde, is looking into allegations that Chauke supported a decision to prosecute former Hawks head in KwaZulu-Natal, Maj-Gen Johan Booysen, and members of the Cato Manor organised crime unit, despite a lack of evidence justifying the decision.
The inquiry is also tasked with investigating an allegation that Chauke failed to continue with charges against Mdluli for his involvement in the murder of Tefo Ramogibe, by causing the murder and related charges to be withdrawn despite strong evidence justifying prosecution.
Batohi said on Thursday that Mdluli had been charged in March 2011 with the February 1999 murder of Ramogibe. He was also charged with attempted murder and assault among others.
However, Mdluli made representations to Chauke in November 2011, requesting that the charges be withdrawn. Upon receipt of the representations, Chauke asked the prosecution team, led by Adv Zaais van Zyl, to consider them. Batohi said the team recommended that the prosecution proceed.
“They were of the view there was strong circumstantial evidence and that the representations of Lt-Gen Mdluli were essentially that the case was fabricated against him in the context of a conspiracy by then police commissioner Gen Bheki Cele,” Batohi said.
Despite this recommendation, Chauke withdrew the charges against Mdluli in February 2012 and recommended that the matter proceed to an inquest on the Ramogibe murder.
Adv Chauke should have reinstated the charges at multiple points: after the inquest magistrate’s conflicting findings, after (Pretoria high court) judge (John) Murphy’s strong judgment explaining why prosecution should succeed, and in line with the prosecution team’s recommendation that the matter proceed.
— Shamila Batohi, National Director of Public Prosecutions
As a result of the withdrawal, Freedom Under Law launched a review application before the Pretoria high court.
The high court passed judgment in 2013, setting aside Chauke’s decision. However, the National Prosecuting Authority successfully appealed the judgment in the Supreme Court of Appeal (SCA).
Commenting on the high court judgment, Batohi said it strongly supported the prosecution team’s recommendation to reinstate the matter.
“However, in the circumstances, Adv Chauke does not do that. Instead, he decides to appeal the high court decision. The question is why, given everything that had preceded in the inquest and the review application,” Batohi said.
Batohi referred to several passages in the high court judgment, including one that stated: “The affidavits before the inquest and the evidence as summarised by the magistrate in his written reasons do indeed support a conclusion that there is a prima facie case against Mdluli on the murder and related charges.”
The high court also noted that Chauke, in his answering affidavit in the 2012 review application, ignored key inquest findings, merely saying that the magistrate found no evidence implicating Mdluli.
“Clearly, there is evidence implicating Mdluli. The magistrate’s conclusion is, in any event, not decisive. Guilt or innocence is a matter for the trial court tasked with determining culpability,” the high court noted.
Batohi said though Chauke claimed the SCA decision vindicated him, “a careful reading of the judgment makes it clear this is far from the case.”
She said the SCA made several important findings and noted peculiarities in the magistrate’s conclusions.
In one instance, the magistrate said: “The theory of Mdluli being the one who orchestrated the death of the deceased is consistent with the facts,” but later stated, “there is no evidence on a balance of probabilities implicating Richard Mdluli and his co-accused in the death.”
Batohi said the SCA included several remarks that amounted to admonitions of Chauke’s handling of the matter.
The SCA suggested that Chauke should have appreciated the magistrate’s inconsistencies.
“He did not. He instead relied upon the magistrate’s findings as a basis for not pursuing criminal charges,” Batohi said.
Batohi said that after the high court judgment, Chauke should have reconsidered the matter in light of the inquest and court findings, and should have re-enrolled the case instead of appealing further.
“Given all circumstances, if Adv Chauke had properly applied our policies on evidence and considered his prosecution team’s view that the matter should proceed, there was no justification for taking the matter on appeal. The matter ought to have been carefully reconsidered and reinstated at that point,” Batohi said.
When Batohi asked Chauke for reasons why he had referred the Ramogibe murder for an inquest, Chauke had replied in a letter that his rationale was that it might cause inculpatory evidence to surface, which could then be used in a criminal trial.
“However, Adv Chauke does not explain why he believed additional evidence was needed, what gaps he thought existed, or why an inquest was appropriate. Objectively, based on the prosecution team’s views, and the findings of the high court and the SCA, there was sufficient evidence to prosecute,” Batohi said.
She said referring a matter to an inquest in such circumstances posed a serious risk of weakening the case.
In a formal inquest, witnesses must testify. She said in this case, the docket showed that witnesses, including the mother of the deceased, were highly traumatised by intimidation, kidnapping and attacks allegedly committed by Mdluli.
“Exposing vulnerable and traumatised witnesses to cross-examination during an inquest is difficult to understand when you have a strong case. Prosecutors generally avoid placing witnesses in such a position.”
By 2012, the matter was already 13 years old — the murder occurred in 1999 — and Mdluli had escaped accountability for that period. She said referring the matter to an inquest created significant risks for any future prosecution.
“Adv Chauke should have reinstated the charges at multiple points: after the inquest magistrate’s conflicting findings, after (Pretoria high court) judge (John) Murphy’s strong judgment explaining why prosecution should succeed, and in line with the prosecution team’s recommendation that the matter proceed.”
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