By Simon Nare
Retired Constitutional Court Justice Elizabeth Nkabinde has conceded that there was a case to answer against members of the Cato Manor Organised Crime Unit, based on testimony presented at the inquiry and the report compiled by former KwaZulu-Natal Director of Public Prosecutions Advocate Moipone Noko.
During cross-examination of former North West Director of Public Prosecutions Advocate Sello Maema, who was the lead prosecutor in the matter, Nkabinde said she found it unusual that former National Director of Public Prosecutions Shamila Batohi withdrew the charges in 2019 but only requested a report from Noko in 2020.
The retired justice, who is chairing the inquiry into the fitness of South Gauteng Director of Public Prosecutions Andrew Chauke to hold office, said that in ordinary circumstances Batohi should have sought a report before withdrawing the charges — not after.
“It should have happened the other way round, chairperson, prior to taking the final decision to get inputs from the role players,” Maema agreed.
Nkabinde said that according to Noko’s testimony, she compiled two reports: a comprehensive report submitted to Batohi outlining the evidence that informed her decision to charge members of the Cato Manor unit for the alleged systematic killings of rival Maphumulo taxi operators, and a second report circulated to prosecutors handling the case to update them on developments.
Maema testified that he had not seen the comprehensive report submitted to Batohi but had read the one shared with prosecutors.
“My reading of that comprehensive report, together with her testimony here, seems to suggest that there was indeed evidence warranting prosecution in the Cato Manor matters,” Nkabinde said.
Maema agreed with the chairperson’s assessment.
“That is correct, chairperson. Even in the presentation that the team had with her, there were issues we raised and dealt with. She was convinced there was sufficient basis to justify a racketeering prosecution,” he said.
Nkabinde further remarked that even after Batohi received the comprehensive report and had sufficient time to consider whether there was a case for the unit members to answer, “it seems nothing happened until today.”
“Nothing happened, chairperson. You are very correct. The prosecution should have proceeded,” Maema responded.
Maema has previously testified that Batohi acted unlawfully in withdrawing the charges against the Cato Manor unit. He said her decision to review and overturn her predecessor’s ruling — without representations from either the accused or the families of the deceased — was invalid.
Batohi is expected to continue her testimony after she walked out midway through proceedings, insisting on appointing legal representatives of her choice at state expense rather than being represented by the National Prosecuting Authority’s legal team.
She has since been granted that request, although it is not yet known when she will return to the witness stand.
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