By Marcus Moloko and Johnathan Paoli
The Nkabinde Inquiry into the fitness of senior prosecutor Andrew Chauke to hold office has taken a sharp turn, with his legal team urging the panel to reject the testimony of National Director of Public Prosecutions (NDPP) Shamila Batohi.
Chauke’s lawyers argued that her evidence lacked credibility, particularly in relation to the controversial prosecution of former KwaZulu-Natal Hawks head Johan Booysen.
Advocate Tembeka Ngcukaitobi, Chauke’s legal representative, said Batohi relied on the report of then Deputy NDPP Rodney De Kock. He said Batohi did not study the docket.
“You say to the panel there was no case against Major General Booysen without ever having read the docket. Can I suggest that is astonishing, coming from the head of our prosecution service, and I’m going to tell the panel that at the end that your evidence must be rejected…because it is irresponsible to make such a claim without having read the docket.”
Batohi, who was cross-examined on Monday, maintains that Chauke’s prosecutorial decisions were politically motivated.
Chauke faces allegations that he improperly pushed for Booysen’s racketeering prosecution in 2012, a case later withdrawn after a panel review.
Batohi, who assumed office in 2019, has told the inquiry that her decision-making process was grounded in a comprehensive assessment of documentation, legal opinions, and investigative material accumulated over several years.
She insisted that her recommendation to the President to consider an inquiry into Chauke’s fitness was based on a thorough and systematic review.
The inquiry, chaired by retired Justice Bess Nkabinde with advocate Elizabeth Baloyi-Mere and attorney Matshego Ramagaga as panel members, is scrutinising Chauke’s conduct in both the Booysen matter and the Richard Mdluli case.
These cases have long raised questions about prosecutorial independence and the credibility of decisions taken within the National Prosecuting Authority (NPA).
Batohi has testified that her first formal step regarding Chauke was after receiving a memorandum from De Kock shortly after she took office.
The document summarised unresolved issues arising from Chauke’s handling of both the Booysen racketeering case and the Mdluli murder and attempted murder dockets.
In May 2021, Batohi wrote to Chauke requesting explanations for his actions. His written response maintained that he had not believed a prima facie case existed in the Mdluli matter and that his role in the Booysen case was purely administrative.
Central to the inquiry is whether Chauke ever held de facto authority to act as Director of Public Prosecutions (DPP) without a formal appointment.
Batohi explained that while no official document conferred such authority, evidence suggested Chauke was effectively functioning as DPP.
She also referenced the Zondo Commission’s related work, noting that gaps in its conclusions underscored the need for a more focused inquiry under the NPA Act.
By October 2021, Batohi had obtained a legal opinion from senior counsel, Advocate Joe Nalane, recommending an inquiry into Chauke’s fitness.
Before making a submission to the President, she again wrote to Chauke in July 2022 requesting his representations.
Chauke’s team sought successive extensions, ultimately responding six months later with opinions from advocates Khathutshelo Mainenshe and Stuart Scott, both supportive of his position.
To ensure a complete analysis, Batohi instructed legal adviser David Broughton to compile all affidavits, correspondence, emails, legal opinions, and investigative documents into a single review.
This supplementary report became central to her final recommendation.
Panel members pressed her on whether she had selectively sought opinions to confirm a predetermined outcome, but Batohi rejected the suggestion, insisting she wanted all evidence before her to make a properly considered decision.
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