National director of public prosecutions (NDPP) Shamila Batohi has faced pointed questioning about her decision to seek further external legal advice in the matter concerning allegations of misconduct against Gauteng director of public prosecutions Andrew Chauke.
The proceedings, chaired by justice Bess Nkabinde, aim to determine whether Chauke improperly drove the 2012 prosecution of former KwaZulu-Natal Hawks head Maj-Gen Johan 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. It is further probing an allegation that Chauke derailed the murder case against former crime intelligence boss Lt-Gen Richard Mdluli, despite strong evidence implicating him.
The inquiry questioned Batohi’s choice to obtain an additional opinion despite an internal memorandum from a senior National Prosecuting Authority (NPA) advocate recommending that no inquiry against Chauke was necessary.
The memorandum, authored by the late Adv Rodney de Kock on February 15 2023, evaluated competing legal opinions, those of advocates Joe Nalane and Ngwako Maenetje, and ultimately advised the NDPP that Chauke had provided satisfactory responses to the allegations and that a formal inquiry into his fitness to hold office should not be pursued.
De Kock criticised Nalane’s report for several shortcomings, including failing to specify the alleged extent of Chauke’s role in the Cato Manor matter and not interviewing a key witness, acting KwaZulu-Natal director of public prosecutions Cyril Mlotshwa, whom Chauke allegedly pressured to sign an indictment. De Kock further noted that Mlotshwa never lodged any complaint against Chauke.
De Kock said Chauke had satisfactorily explained his role in the Cato Manor matter as that of coordinating the activities of the prosecution team from his office.
De Kock, in his memo, added that in the absence of glaring evidence of bad faith, it would not be worthwhile to pursue a charge against Chauke. De Kock said the assertion in Nalane’s opinion that Chauke’s role was clearly “much more than that”, without any indication of what his exact role was, was “rather vague and embarrassing” as a basis for a charge.
Regarding the Mdluli matter, De Kock said the Supreme Court of Appeal (SCA) had described Chauke’s strategy of withdrawing all charges, including murder, and referring the case to an inquest as not irrational, and said there was insufficient evidence of bad faith on Chauke’s side to justify disciplinary action.
Nkabinde questioned Batohi on why she sought further opinions from outside counsel when a seasoned internal advocate had already provided guidance.
Batohi defended her approach, stating that neither she nor De Kock had reviewed the underlying evidence at the time of the 2023 memo. She said additional information had emerged from the Zondo Commission, the Booysen litigation and other internal materials suggesting deeper concerns about Chauke’s conduct.
She said she required a “proper, evidence-based” understanding before deciding whether to refer the matter to President Cyril Ramaphosa to establish an inquiry into Chauke’s fitness to hold office. She therefore instructed internal legal adviser Dr David Broughton to review the full evidentiary record.
Broughton’s supplementary report — containing statements, documents and Zondo commission materials — recommended referral to the president. This, together with subsequent external opinions, led the NDPP to conclude there were reasonable grounds to refer Chauke to the president for an inquiry. She said the president, after considering the combined opinions and evidence, agreed to institute the inquiry.
However, a significant portion of the inquiry on Wednesday focused on the SCA findings in the Mdluli matter. Nkabinde noted that the SCA had found Chauke’s conduct rational, questioning the need for Batohi to obtain further senior counsel input.
Batohi responded that the SCA addressed only the rationality of the procedural withdrawal and not whether the decision was substantively appropriate for a DPP or whether it complied with prosecutorial policy standards.
She stressed that the inquiry was concerned with whether Chauke’s decision-making — particularly withdrawing charges in the face of strong circumstantial evidence — may have been influenced by improper motives.
She said her concern was not a single decision by Chauke but a pattern of conduct, including withdrawing murder charges against Mdluli despite strong circumstantial evidence, relying on representations by Mdluli alleging a conspiracy which were later found baseless, and incorrectly stating that the inquest magistrate had “cleared” Mdluli.
She argued that taken together, these factors suggested possible ulterior motives and warranted a formal inquiry into Chauke’s fitness for office.
However, Nkabinde repeatedly asked whether a prosecutor could be disciplined merely for making an incorrect judgment call in the absence of evidence of bad faith.
Batohi said bad faith could be inferred from a range of indicators and that Chauke’s actions, viewed cumulatively, raised serious questions.
Batohi continues with her testimony on Thursday.
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