National director of public prosecutions Shamila Batohi. (X)
Suspended Gauteng director of public prosecutions (DPP) Andrew Chauke unlawfully signed a prosecution letter recommending racketeering charges against the former head of the Directorate for Priority Crime Investigation (the Hawks) in KwaZulu-Natal, Johan Booysen, the national director of public prosecutions, Shamila Batohi said on Monday.
“Advocate Chauke was appointed specifically as DPP in Gauteng; he could not exercise his powers as DPP in another division,” Batohi testified before a commission chaired by retired judge Bess Nkabinde, which is examining allegations that Chauke is fit to hold office after the national director of public prosecutions made allegations against him.
President Cyril Ramaphosa appointed the panel in July after suspending Chauke.
“Making a decision that there is sufficient evidence in a matter to recommend prosecution to the national director is a prosecutorial decision,” Batohi added on Monday, referring to the letter in which Chauke stated: “I have perused the documents and recommend prosecutions.”
Besides allegations of political interference in instituting the racketeering charges against Booysen, the Nkabinde enquiry will also examine Chauke’s decision not to prosecute former crime intelligence boss Richard Mdluli for the alleged murder of Tefo Ramogibe.
Last week, Batohi pushed back against public criticism from advocate Tembeka Ngcukaitobi, who said she was going after a prosecutor for simply doing his job. Batohi said this “could not be further from the truth”.
Batohi said she had been abroad for 10 years during the 2011 Mdluli scandal and the 2012 Cato Manor organised crime unit case.
She argued that, while a recommendation was not the same as instituting charges, it still constituted a prosecutorial decision because it conveyed the view that the evidence supported prosecution.
“When a DPP recommends a prosecution, that DPP is taking a prosecutorial decision to recommend the prosecution. In that sense, you must be satisfied the evidence supports the recommendation,” she said.
Chauke claimed to be merely a coordinator in the Booysen matter, but “the evidence does not bear that out”, Batohi added.
She said former deputy National Director of Public Prosecutions, Nomgcobo Jiba, had wrongly identified Chauke as the de facto coordinator in the Booysen matter in the case documents.
“Advocate Jiba in that affidavit states Advocate Chauke is the DPP in charge of this matter. And that’s important to understand his role,” Batohi said, adding that the evidence before the inquiry would show how Chauke took over decision-making in a case based in KwaZulu-Natal.
In her testimony last week, Batohi said Chauke’s actions were politically motivated and that he sought to impede the authority of former KwaZulu-Natal DPP Cyril Mlotshwa in the case involving Booysen and members of the Cato Manor organised crime unit. Chauke has denied any wrongdoing.
Batohi said Chauke also protected Mdluli from prosecution. She argued that there was strong evidence supporting a prima facie case against Mdluli, which Chauke allegedly ignored, while there was not enough evidence against Booysen, against whom he pursued charges.