By Simon Nare
The Nkabinde Inquiry heard on Tuesday that there was no record showing Advocate Andrew Chauke personally took prosecutorial decisions in the Cato Manor matter, as evidence leaders conceded a key document had wrongly carried his name.
The inquiry, chaired by retired Constitutional Court Justice Bess Nkabinde, heard that an apparent error, which may have suggested Chauke took a prosecutorial decision, had been clarified during the proceedings.
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The issue related to a letter contained in an email attaching a prosecutorial memo on the racketeering charges against former Cato Manor organised crime unit officers, which carried Chauke’s name.
Former North West prosecutor Advocate Sello Maema had previously testified that the email, dated 15 August 2012, erroneously reflected Chauke’s name, but that this was identified early and corrected.
Reading from the testimony record, Chauke’s legal representative, Advocate Tembeka Ngcukaitobi, pointed out that Maema had told the inquiry he prepared the memo on the KwaZulu-Natal Director of Public Prosecutions office letterhead and that it would be signed by the DPP.
Nkabinde then asked evidence leader Advocate David Mohlamonyane whether, given that testimony, he accepted that there was no record proving Chauke took prosecutorial decisions in the Cato Manor matters.
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“Yes, madam chair,” conceded Mohlamonyane.
Mohlamonyane also accepted that the Supreme Court of Appeal had ruled that Chauke did not act irrationally when he provisionally withdrew murder and attempted murder charges against former crime intelligence boss Richard Mdluli.
Ngcukaitobi submitted that, despite that ruling, former National Director of Public Prosecutions Advocate Shamila Batohi had maintained that Chauke’s decision to withdraw the charges amounted to misconduct.
That formed part of the basis of complaints to President Cyril Ramaphosa when Batohi requested that he establish the inquiry.
“It seems the evidence leaders accept the binding force of the SCA decision, not that they have an option, but it does seem that Advocate Batohi did not from the transcript,” said Ngcukaitobi.
He referred to day nine of the inquiry, when Batohi was questioned by the panel on what made her disagree with the SCA decision. Chauke said it was unfortunate that Batohi had misread the SCA judgment.
Batohi, in her testimony, argued that while the SCA may have ruled in Chauke’s favour, his actions still constituted misconduct.
The National Prosecuting Authority had taken the matter to the SCA after a lower court ruled against it, and Batohi argued that Chauke should have acted differently at that stage of the proceedings, maintaining that the judgment did not absolve him of misconduct.
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“So, for the first time today, we have an admission that the SCA decision exonerated you. But the problem was their witness (Batohi) who refused to accept the binding force of the SCA judgement,” argued Ngcukaitobi.
Chauke replied that Batohi had been influenced by a legal opinion from Advocate Garth Hulley of the NPA legal team. Nkabinde rejected the suggestion that Batohi had simply been misled, saying she was a senior advocate who should have read the judgment for herself.
“I do not think it is fair to Advocate Hulley to say that the senior counsel would mislead Advocate Batohi. Advocate Batohi is similarly an officer of the court. She is an advocate and I think an advocate for a long-term standing. She has been an advocate for a long time.
“So, it is not fair to attribute a blame entirely to an advocate who prepares an opinion. She ought to have read the SCA judgement as you can see in the transcript, we adjourned and said let’s go back and read this judgement again because it troubles me that you (Batohi) take such a view that the SCA got it wrong,” said Nkabinde.
Chauke apologised for the suggestion and withdrew the statement.
He concluded his testimony on Tuesday, but was warned that he could be called back to the enquiry if the need arose.