The terms of reference for the inquiry into the fitness of South Gauteng director of public prosecutions Andrew Chauke to hold office are “virtually identical” to the draft terms of reference that the National Prosecuting Authority sent to President Cyril Ramaphosa when motivating for the inquiry.
This was the observation of Tembeka Ngcukaitobi SC, counsel for Chauke, during his cross-examination of national director of public prosecutions Shamila Batohi on Thursday.
At the start of her cross-examination on Monday, Ngcukaitobi had asked Batohi whether the terms of reference for the inquiry emanated from the draft she had sent to the president when referring the complaint about Chauke, and whether the president had endorsed that draft. Batohi responded that the NPA had submitted a draft to the president.
“What the president subsequently adopted is different from the draft. There is a difference,” she said on Monday. Ngcukaitobi requested that Chauke’s team be provided with the draft the NPA had forwarded to the president, and Batohi undertook to provide it.
On Thursday, Ngcukaitobi referred Batohi to a letter sent by the NPA to the president, provided after his request, which contained terms of reference that were nearly the same as those now before the inquiry.
“This is the whole point of why we asked for the draft that was sent to the president. What we can see is that these terms of reference are virtually identical to what you sent to the president. And yet you gave evidence that seeks to distance yourself from your own terms of reference,” Ngcukaitobi said.
Batohi replied that she was not seeking to distance herself from the terms of reference.
She maintained that the letter in question was not the draft terms of reference she had meant.
“The document counsel is referring to is the draft letter to the president. I was referring to the draft terms of reference which I understood we sent to the president’s office separately from this letter,” Batohi said.
She added that she had seen a draft of that separate document, but her office was still trying to locate the exact version that had been sent to the president.
To be clear, when I said it was different, I was not referring to the president’s draft letter — I was referring to the draft terms of reference we submitted.
— National director of public prosecutions Shamila Batohi
“And that is the document I was referring to when I said that it was different from these terms of reference. I was not comparing these final terms of reference with the draft letter to the president.
“To be clear, when I said it was different, I was not referring to the president’s draft letter — I was referring to the draft terms of reference we submitted.”
At the start of the proceedings on Thursday, panel chair justice Bess Nkabinde announced that the evidence-leading team had filed an interlocutory application on Wednesday to amend the terms of reference.
She said the parties agreed that Chauke’s team would file an answering affidavit on Friday, and that the evidence-leading team, if so advised, would file a replying affidavit on Saturday.
“The panel will consider the application and make a decision in the course of next week,” Nkabinde said.
The inquiry panel 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.
It is also probing 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.
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