Sloppy drafting: Tembeka Ngcukaitobi asked if the NPA thought Andrew
Chauke erred in charging Johan Booysen. Photo: Delwyn Verasamy
Advocate Tembeka Ngcukaitobi has accused national director of public prosecutions Shamila Batohi of trying to distance herself from the terms of reference she originally sent to President Cyril Ramaphosa for the Nkabinde inquiry into Andrew Chauke, saying they differed materially from the gazetted version.
Batohi denied this on Thursday, telling the inquiry: “I’ve got no reason to lie in this matter. No doubt you’ll probably find an argument that I do have a reason. But let me say that I did not lie when I tended my argument.”
The investigation, established by President Cyril Ramaphosa, must determine whether Chauke is fit to remain the South Gauteng director of public prosecutions in light of his decision to pursue racketeering charges against the former KwaZulu-Natal head of the Directorate for Priority Crime Investigation (the Hawks), Johan Booysen.
Batohi insists Chauke sought charges without evidence and outside his jurisdiction, but his defence team — led by Ngcukaitobi — says there was sufficient evidence and that he acted within his powers.
Ngcukaitobi questioned inconsistencies between the draft and final gazetted terms, noting that the final terms removed an allegation that Chauke signed the indictment charging Booysen with racketeering. He asked Batohi to identify passages in the evidence that demonstrated that Chauke acted outside his powers.
“Certainly it does not specifically state, those words are not used here that he acted outside his jurisdiction, but everything that I’ve read indicates that every aspect to exercise power as DPP to exercise power within his jurisdiction,” Batohi replied.
Ngcukaitobi pressed her on why this was missing from the draft. Batohi said the omission might have been an oversight, but should not “constrain” the inquiry.
“So you see this enquiry as also fixing your mistake and oversight and your sloppiness in drafting,” he further asked.
She responded, “That is your comment, and I will not respond to that.”
Ngcukaitobi said, “You are the one who said that merely because there was a mistake, merely because there was an oversight, should not constrain the enquiry. So it’s completely justified for me to put it back to you that you see the role of this enquiry as fixing your mistake, fixing your oversight, and fixing your sloppiness in drafting.”
Batohi pushed back, saying, “Counsel, you think you’re justified, I don’t. We can agree to disagree about that.”
She added that the KwaZulu-Natal director of public prosecutions had not received 23 murder case dockets that might have justified decisions taken at the time.
Inquiry panel member Matshego Ramagaga challenged Batohi about her “non-provision of documents in advance”, saying several annexures referred to in her submissions were missing. Batohi said it “must have been an oversight” by her team.
Earlier in the week Ngcukaitobi interrogated Batohi’s decision to institute disciplinary charges against Chauke. He accused her of “attempting to poison the waters” by referring to state capture in connection with the suspended provincial director of public prosecutions.
“It was grossly irresponsible of you to mention state capture in the context of Advocate Chauke when you have no personal knowledge of his involvement in state capture,” he said.
Batohi stated that she mentioned state capture to explain the broader context in which she made decisions.
“I was asked what were the reasons for me doing certain things at the time, and I explained that that was the context within which I took certain decisions,” she said.
Ngcukaitobi asked whether the National Prosecuting Authority believed Chauke erred in bringing murder and racketeering charges.
“On the basis of the decision of the DPP in KZN, she found there was no evidence to justify murder charges against any of the accused,” Batohi said.
Ngcukaitobi argued that Batohi relied on a report rather than reviewing the docket herself when concluding that no case existed against Booysen.
Batohi said national directors may rely on reports and presentations.
Ngcukaitobi maintained that only the NDPP can sign racketeering charges and said it was irresponsible for her to overturn Chauke’s decision without reading the docket.
He also challenged her claim that Chauke tried to persuade KwaZulu-Natal DPP Siphiwe Mlotshwa to sign an indictment.
When asked if any other facts supported seeking a review of Chauke’s conduct, Batohi said: “I don’t know for now if there are any other facts.”
She stated that the answering affidavit was central to the misconduct case and required several steps. Ngcukaitobi said Batohi’s case remained weak and overly dependent on reports rather than direct evidence.