Evidence will be presented to show that former South Gauteng director of public prosecutions (DPP) Andrew Chauke was effectively the person who decided to prosecute former KwaZulu-Natal Hawks head Johan Booysen.
National Director of Public Prosecutions (NDPP) Shamila Batohi made this claim while testifying before the inquiry into Chauke’s fitness to hold office in Pretoria on Monday.
The proceedings, chaired by justice Bess Nkabinde, aim to determine whether Chauke improperly drove the 2012 prosecution of Booysen and members of the Cato Manor unit despite a lack of evidence.
The inquiry is also examining allegations that Chauke pushed for racketeering charges against Booysen, and that he later derailed the murder case against former crime intelligence boss Richard Mdluli, despite strong evidence implicating him.
Batohi said she had asked Dr David Broughton, an adviser in her office, to review the facts around the Booysen prosecution and provide an opinion. According to Broughton’s assessment, she said, there was prima facie involvement by Chauke in prosecutorial decisions related to Booysen.
This directly contradicts Chauke’s affidavit to the state capture commission, in which he claimed he was responsible only for logistics and coordination after then acting NDPP Nomgcobo Jiba asked him to help assemble a prosecution team.
Chauke said he served merely as coordinator of the team, led by prosecutor Sello Maema, and was not involved in taking prosecutorial decisions.
Batohi highlighted that the acting KwaZulu-Natal DPP at the time, Cyril Mlotshwa, left office on July 9 2012, and a new acting DPP, Moipone Noko-Mashilo, was to begin on July 16.
“It is striking,” she said, that an application dated July 10 2012 — submitted in Chauke’s name — was sent to adv Jiba requesting racketeering authorisation for the Booysen prosecution.
Batohi also referred to an affidavit by Anthony Mosing, who worked in the NPA’s special projects section. Mosing said he originally received the racketeering application under cover of a letter from the South Gauteng DPP’s office, which had no jurisdiction over the matter. After this was pointed out, a second application arrived around August 15 2012, this time under cover of a letter from the KZN DPP.
A memorandum dated August 16 2012, printed on a KwaZulu-Natal DPP letterhead, from Noko-Mashilo to Jiba, recommended the application and noted that the accused had already appeared in the Durban regional court. But Batohi said that though Noko-Mashilo’s name appeared on the document, the signature belonged to Chauke.
Nkabinde questioned why Noko-Mashilo would put her name and designation on a letter she did not sign. In response, Batohi pointed to an email from Maema to Mosing in which he wrote: “I have also done the prosecution memo on the KZN letterhead, though our DPP will sign as arranged with DPP KZN.”
Batohi said this indicated that the team dealing with the Booysen matter operated from the NPA’s head office in Pretoria under Chauke’s direction, despite the case originating in KwaZulu-Natal.
She said the memorandum to Jiba, signed by Chauke, was central to the allegation of impropriety.
Applications for racketeering authorisation must be submitted by the DPP from the jurisdiction where the case originates. The DPP must be satisfied that sufficient evidence exists. Here, advocate Chauke recommends the application, which ordinarily a KwaZulu-Natal DPP should do
— National Director of Public Prosecutions Shamila Batohi
“The second paragraph — ‘I have perused the documents and recommend the application’ — is important,” Batohi said.
“Applications for racketeering authorisation must be submitted by the DPP from the jurisdiction where the case originates. The DPP must be satisfied that sufficient evidence exists. Here, advocate Chauke recommends the application, which ordinarily a KwaZulu-Natal DPP should do.”
Nkabinde asked Batohi whether recommending a prosecution differed legally from taking a decision. Batohi responded that a DPP’s recommendation constituted a prosecutorial decision because the NDPP relied on that assessment to authorise racketeering charges.
“Though it is a recommendation, it is a prosecutorial decision,” Batohi said.
Evidence leader David Mohlamonyane also drew the panel’s attention to a 2015 affidavit by Noko-Mashilo. In it, she said she did not directly oversee the Cato Manor case until March 2014, when then NDPP Mxolisi Nxasana instructed her to do so.
“Before this instruction, the DPP South Gauteng division, Johannesburg, Andrew Chauke, was directly overseeing the case,” she said. “He supervised the prosecution team, and they reported directly to him.”
She added that in August 2012, Chauke had asked her to sign a covering letter to a prosecution memorandum for the NPA head office.
“I signed this covering letter as procedure, being the acting DPP where the matter was pending, but not directly overseeing the case. DPP South Gauteng was,” she said.
Batohi said Noko-Mashilo’s affidavit supported one of the inquiry’s terms of reference, namely that Chauke supported the decision to prosecute Booysen and others.
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