Batohi acknowledges faulty terms of reference in Chauke fitness probe

National director of public prosecutions (NDPP) Shamila Batohi has conceded that one of the terms of reference in the inquiry into South Gauteng director of public prosecutions Andrew Chauke’s fitness to hold office was incorrect.

Batohi made the admission on the first day of cross-examination by Chauke’s counsel, Tembeka Ngcukaitobi SC, on Monday.

The inquiry panel — headed by justice Bess Nkabinde — is probing:

• allegations that Chauke supported a decision to prosecute former KwaZulu-Natal Hawks head Maj-Gen Johan Booysen and members of the Cato Manor unit on racketeering charges, despite there allegedly being no evidence justifying the decision.
• an allegation that Chauke caused a murder charge relating to the killing of Tefo Abel Ramogibe and related charges against former crime head Lt-Gen Richard Mdluli to be withdrawn, despite strong evidence justifying prosecution.

Ngcukaitobi referred Batohi to one of the terms of reference, which stated that Chauke sought to improperly have the acting director of public prosecutions of KwaZulu-Natal Cyril Mlotshwa sign the case dockets and/or prosecution memorandum detailing the alleged evidence implicating the Cato Manor accused on which the decision to indict had to be made.

Batohi conceded that reference to case dockets and Chauke improperly having Mlotshwa sign them was incorrect.

When I prepared the affidavit, I prepared it based on what I knew and what I did. I did not prepare the affidavit to align it with the terms of reference

—  Shamila Batohi, national director of public prosecutions

“You never gave evidence that Mr Chauke sought to have advocate Mlotshwa sign a prosecution memorandum. Is that incorrect?” Ngcukaitobi asked.

Batohi agreed. “It is not our case that advocate Chauke sought to have advocate Mlotshwa sign both documents. The evidence is that he sought advocate Mlotshwa to sign the indictments,” she said.

Ngcukaitobi said there was no single charge in the terms of reference that referred to Chauke attempting to get Mlotshwa to sign the indictment. Batohi agreed.

When challenged to show the panel where it was alleged that Chauke sought to have Mlotshwa sign an indictment, Batohi said: “It may or may not be there, but that is our case.”

This exchange prompted panel member Matshego Ramagaga to enquire from Batohi whether she had familiarised herself with the terms of reference, considering she was the complainant in the matter. Batohi admitted she had not, but said she did not see herself as a complainant.

Ngcukaitobi had earlier asked Batohi whether the terms of reference emanated from the draft she had sent to President Cyril Ramaphosa when referring the complaint about Chauke and whether the president had endorsed the draft. Batohi said the NPA submitted a draft to the president.

“What the president subsequently adopted is different from the draft. There is a difference.”

Ngcukaitobi requested that Chauke’s team be provided with the NPA draft they had forwarded to the president, and Batohi promised to provide it.

Nkabinde said as the NPA had indicated last week it was seeking to amend the terms of reference, that draft document might be relevant in determining what Batohi had initially conveyed to the president.

Though Batohi agreed there were differences in the NPA draft and the subsequent terms of reference, she could not tell Ngcukaitobi what the differences were.

Nkabinde also asked Batohi when she first saw the terms of reference that were gazetted on September 30. Batohi could not recall.

“Should I assume by November 17, when the inquiry started, that you would have looked at the gazetted terms of reference?” Nkabinde asked.

Batohi replied she could not remember whether she scrutinised them in great detail.

“I honestly cannot recall.”

Panel member Elizabeth Baloyi-Mere SC asked Batohi whether she was preparing an affidavit to testify in relation to the terms of reference in this inquiry. Batohi replied the terms of reference was for the panel: “When I prepared the affidavit, I prepared it based on what I knew and what I did. I did not prepare the affidavit to align it with the terms of reference.”

Another term of reference alleged Chauke sought to defend the racketeering charges in the review brought by Booysen in the high court, and that he finalised the answering affidavit of acting NDPP Nomgcobo Jiba despite the fact there was no evidence justifying the racketeering charges.

“Is it the NPA’s case that when it says Chauke defended the proceedings, it is referring to his role in preparing the answering affidavit [by Jiba]?” Ngcukaitobi asked. Batohi agreed.

Ngcukaitobi asked if there were any other facts other than Chauke preparing the answering affidavit, Batohi said there were different actions Chauke took — including liaising with the prosecution team and with external counsel Laurance Hodes SC — all relating to the finalisation of the affidavit.

“There is no charge here accusing advocate Chauke of acting outside his jurisdiction, especially regarding racketeering which only the NDPP can authorise. There is nothing here saying he acted outside his jurisdiction,” said.

—  Andrew Chauke, South Gauteng director of public prosecutions

When Ngcukaitobi pointed out that the charge itself was limited to Chauke’s role in preparation of the answering affidavit, Batohi said she was trying to convey the full scope of Chauke’s conduct.

Nkabinde asked Batohi whether settling an affidavit that was to be signed by Jiba constituted an unlawful action.

“My answer is yes. A decision to oppose a review application is a prosecutorial decision. That decision was taken by advocate Chauke and supported by him as reflected in the contents of the affidavit he settled.”

Nkabinde pointed out that the affidavit was not Chauke’s but was Jiba’s as it was under her signature.

Batohi agreed with Nkabinde’s proposition that even if someone drafted something for the head of NPA, once the NPA head signed it, she was accountable for the affidavit’s contents.

Ngcukaitobi said racketeering charges against Booysen and members of the Cato Manor unit were within the exlusive powers of the NDPP. This means no one can be charged with racketeering before the NDPP authorises it.

“There is no charge here accusing advocate Chauke of acting outside his jurisdiction, especially regarding racketeering which only the NDPP can authorise. There is nothing here saying he acted outside his jurisdiction,” Chauke said.

Another charge in the terms of reference was that Chauke allegedly instituted an appeal against the high court decision setting aside the racketeering certificates.

“You have not referred to any record indicating adv Chauke made the decision to institute the appeal,” Ngcukaitobi said.

Batohi replied that her understanding was that if former NDPP Mxolisi Nxasana testified, he might clarify.

“My question is simple: you have not referred to a single document recording that it was advocate Chauke’s decision to appeal.”

Batohi said Chauke was a de facto DPP in the Booysen matter, and had met Hodes to discuss whether to appeal.

“After that meeting the appeal was lodged. In my reading it was on his instruction.”

The inquiry will continue on Thursday.