Senior prosecutors at the National Prosecuting Authority (NPA) are the subject of an internal investigation for their role in pursuing an unsubstantiated case of racketeering against former KwaZulu-Natal Hawks head Johan Booysen, a report by Open Secrets has revealed.
The report by the investigations NGO, released on Thursday morning, quoted the NPA’s Phindi Mjonondwane saying it had instituted “internal proceedings” on the role played by Johannesburg director of public prosecutions Andrew Chauke and “the prosecutors in this matter”.
Chauke is the most senior prosecutor in Johannesburg. Another who “may” be subject to investigation, according to the Open Secrets report, is North West deputy director of public prosecutions Sello Maema, as he was a key prosecutor in the Booysen matter.
However, the NPA would not give further details on the investigations. Spokesperson Mthunzi Mhaga would only confirm that “disciplinary processes against certain senior NPA staff, including deputy directors of public prosecutions, are at an advanced stage”.
“We have invested extensive time and resources into the process, which includes criminal investigations into certain staff as well. These are complex labour matters that involve internal processes between employer and employee that need to be procedurally and substantially fair. As such, we cannot at this stage disclose further details,” he said.
The prosecution of Booysen, ultimately withdrawn for lack of evidence, was central to the story of state capture at the NPA, with Booysen alleging the charges were bogus and brought to prevent him from investigating graft allegations against businessman Thoshan Panday, who had links to Edward Zuma.
The Durban high court in 2014 set aside the racketeering charge, saying there was insufficient evidence. The racketeering charge was authorised by former acting NDPP Nomgcobo Jiba and was also key to a finding that she was not fit for her job.
The NPA’s confirmation that it is investigating Chauke and other prosecutors assigned to the Booysen case, is an indication that there are serious concerns within the prosecuting authority about the conduct of these prosecutors.
— Open Secrets report
At the state capture commission, Booysen’s evidence implicated Chauke and Maema, among others. Both strongly denied the capture allegations, gave their own versions to the commission and applied to cross-examine Booysen. But the commission ran out of time and its chair, chief justice Raymond Zondo, agreed with the lawyers for those implicated that they would withdraw their applications to cross-examine if they got a chance to put their version across.
The law enforcement stream of state capture would be left to others to “take the investigation further and that includes the question of cross-examination”, said Zondo on June 15 2021. This means the allegations against the two have not been tested by cross-examination.
However, Open Secrets says in its report that Chauke and others being investigated should “be placed on precautionary suspension until the NPA’s investigation is concluded”.
“The NPA’s confirmation that it is investigating Chauke and other prosecutors assigned to the Booysen case, is an indication that there are serious concerns within the prosecuting authority about the conduct of these prosecutors,” says the report.
Mhaga said the NPA was “committed to rebuilding the NPA after the negative impact of state capture.
“Any allegations of complicity or involvement on the part of NPA staff are taken very seriously, and implicated colleagues will be dealt with fairly but very firmly.”
He said: “We are committed to ensuring any alleged misconduct by NPA employees is addressed in strict compliance with applicable labour and criminal laws. We are doing everything to expedite the matters.”
Open Secrets points out that Maema was also lead prosecutor in two other controversial state capture-related prosecutions that were ultimately dropped because of insufficient evidence — the prosecution of fraud charges against former Ipid head Robert McBride and the prosecution of former Sars officials for unlawfully bugging the offices of the NPA on behalf of a “rogue unit” within Sars.
Mhaga said national director of public prosecutions Shamila Batohi had put in place monitoring and review processes “to ensure that all seminal state capture matters proceed unhindered”.
“We are making important progress in this regard, with more to come soon. The ID (investigating directorate) leads the NPA’s efforts on state capture matters, and under its new leadership the ID is delivering on its crucial mandate,” he said.
Approached for comment, Chauke said he would respond later. The story will be updated when he does.
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