South Gauteng director of public prosecutions (DPP) Andrew Chauke initially made an application to consolidate the prosecution of a case that occurred in North West to KwaZulu-Natal despite the fact none of the offences occurred in his jurisdiction.
After the North West DPP, JJ Smit SC, acceded to Chauke’s request on August 2 2012 for the consolidation of a case to the KwaZulu-Natal high court, a similar request was subsequently made to Nomgcobo Jiba, then acting National Director of Public Prosecutions, ostensibly by acting KZN DPP Moipone Nono-Mashilo. Jiba approved the application on August 20 2012.
Testifying on Tuesday at the inquiry into Chauke’s fitness to hold office, NDPP Shamila Batohi said there would have been no need for a second application if Chauke had the authority to make the initial application.
The inquiry is tasked with determining whether Chauke improperly drove the 2012 prosecution of former KZN Hawks head Maj-Gen Johan Booysen and members of the Cato Manor Unit, despite an alleged lack of evidence.
The inquiry is also examining allegations that Chauke pushed for racketeering charges against Booysen, and that he derailed the murder case against former crime intelligence boss Richard Mdluli, despite strong evidence implicating Mdluli.
It appears the application to adv Jiba was meant to correct or create the impression that the DPP in KZN was applying for centralisation.
— NDPP Shamila Batohi
Batohi testified that the centralisation application must be made by the DPP who has jurisdiction over the relevant offences, in this case, the KZN DPP.
“It appears the application to Adv Jiba was meant to correct or create the impression that the DPP in KZN was applying for centralisation,” she said.
Batohi further explained that centralisation is a process engaged in by affected DPPs when a case involves offences committed across multiple jurisdictions. The DPPs consult and agree where, for convenience, the matter should be heard and then apply to the NDPP for centralisation.
She added that discussions around consolidating cases arising in KZN and North West should have taken place between the DPPs of those two provinces. Though Chauke motivated for centralisation before Smit, none of the cases fell within Chauke’s jurisdiction. She emphasised that the motivation for consolidation should have come from the KZN DPP.
Regarding the alleged racketeering involving Booysen, the inquiry heard that Chauke sent a memorandum to Jiba dated August 15 2012, together with an application for racketeering authorisation. The memorandum stated that most offences were committed in KZN but one matter fell within the North West jurisdiction. Chauke also attached summaries of the cases and charges that were included.
Chauke stated that Booysen and others were to be charged with racketeering offences in the KZN high court. They were allegedly part of an enterprise whose business was to kill suspected criminals and receive monetary rewards and certificates of excellence from the state for solving violent crime.
The memorandum described one matter in which five Cato Manor officers allegedly travelled to Rustenburg and killed Sifiso Ndimande, who was wanted for the murder of Inkosi Mbongeleni Zondi.
Jiba approved both the consolidation application and the racketeering authorisation application on August 17 2012.
After Jiba issued the racketeering certificates, Booysen launched a review application in the Durban high court on April 30 2013, seeking to have the certificate set aside.
After receiving the indictment, Booysen requested Jiba to provide all documents on which the state intended to rely. As a result, 23 dockets were made available. In his review affidavit, Booysen stated he was mentioned in only two of the dockets.
In one case, witnesses claimed Booysen arrived by helicopter after the incident. In another, a witness described seeing him at a shooting scene after it occurred.
Batohi also referred to an affidavit by Adv Anthony Mosing, who worked in the NPA’s Special Projects section. In the affidavit presented to the state capture commission, Mosing stated that the prosecution team, led by Chauke and himself, consulted with outside counsel Adv Laurance Hodes SC and Adv Naome Manaka on June 4 2013 in preparation for opposing the review application by Booysen.
Mosing stated in his affidavit: “Chauke was of the view that the prosecution memorandum should not be made available as it was privileged communication between the NDPP and the DPP, to which I agreed.”
However, inquiry chair justice Bess Nkabinde said earlier the panel was informed that Adv Sello Maema led the prosecution team in the Booysen case. She said Mosing’s affidavit suggested Chauke was the leader of the prosecution team.
“Elsewhere we are told Adv Maema led the team. Please clarify this discrepancy,” Nkabinde said.
Batohi said Chauke was the DPP, the overall person in charge of the prosecution. She said the prosecution team had a technical leader (Maema), while the DPP (Chauke) was in charge.
“These are different roles and not contradictory,” Batohi said.
Nkabinde said Chauke was appointed as a coordinator and asked whether he would not fall under the technical team.
“What Adv Jiba said was that he was the DPP in charge; he would not fall under the technical team. The technical team was headed by Adv Maema, and the overall responsibility lay with Adv Chauke,” Batohi said.
The inquiry continues.
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