Nkabinde enquiry chairperson Bess Nkabinde shut down the application of the National Prosecuting Authority (NPA) to argue its own case in the process investigating South Gauteng director of public prosecutions Andrew Chauke’s fitness to hold office.
The NPA stated the inquiry had been adversarial in nature and sought to “have its own, independent status” and argued its own case against Chauke. It indicated the application was prepared when former NPA head Shamila Batohi testified in November and was cross examined in December.
The NPA has stated its case against Chauke has not been “properly advanced” and the procedure is “preventing a proper and fair ventilation of facts”.
It added that the evidence leaders do not have a sufficient grasp of the “intricacies of all the facts related to the matter and have not managed to digest the sheer volume of documents and are unable to properly present the true facts”.
Batohi walked out of the Nkabinde inquiry mid-testimony citing unfair treatment from Chauke’s counsel advocate Tembeka Ngcukaitobi.
Nkabinde highlighted the difference in powers and responsibility the NPA had between a judicial enquiry process and its own internal disciplinary hearing when seeking to hold an employee accountable.
“The NPA is the complainant,” she said. “Its legal representatives were not and could not therefore be appointed to lead evidence in a matter in which it is the complainant which may be the case in an internal disciplinary hearing.”
In her ruling, Nkabide said the “proposed midstream intervention by the NPA in the enquiry’s proceedings will not only cause further delays but also impact unfairly on matters pertaining to the alleged misconduct by Adv. Chauke”.
The NPA asked the panel to allow it to lead evidence and cross examine witnesses through its own chosen counsel, advocates Michael Hulley and Leonard Lekgetho.
The NPA requested provisions to: “Question witnesses (including witnesses called by Adv Chauke and Chauke himself) on any issue not raised by the evidence leaders”.
“While the NPA understands the independent and neutral role played by the evidence leaders, it is concerned that in discharging this role, there may be and are disagreements between the NPA and the evidence leaders on which witnesses to call and what evidence to present,” the NPA said in an affidavit.
Chauke’s counsel opposed the application stating there was no factual basis regarding the inadequacy of the evidence leaders or legal provision for NPA to lead its own evidence. The evidence team chose not to oppose the NPA’s application.
“It must be said from the outset that these remarks are not only condescending but lose sight of the fact that not only the evidence leaders but also Adv. Chauke’s representatives and the panel, also had to consider the same sheer volume within a short space of time,” said Nkabinde.
She said the “contentions, denigrating as they appear, cannot be used as a basis to draw up founded conclusions”.
The panel was established after former NPA head Batohi requested President Cyril Ramaphosa to establish an enquiry to investigate Chauke’s conduct in instituting racketeering charges against former KwaZulu-Natal Hawks head Johan Booysen while dropping corruption charges against former crime Intelligence boss Richard Mdluli.
Batohi argued when she was appointed director of public prosecutions in 2019 she found the NPA in a “wracked” state, pointing to Chauke and former director of public prosecutions Nomcobo Jiba as the culprits.
In an application to the Nkabinde enquiry panel, NPA counsel advocate Karen van Rensburg stated the process investigating Chauke’s fitness had become adversarial in nature and raised concern that the NPA’s case was not adequately presented.
However, Nkabinde said the NPA was seeking to act as prosecutor in the inquiry itself. She added that when evidence leaders digressed to impartiality the panel has been able to correct them.
“It follows that the entitlements of the NPA assets are substantially prosecutorial. Clearly the NPA’s spirited argument disregards the nature of the enquiry proceedings and its attitude seeks to favour a particular cause,” she said.
While the NPA argued the Nkabinde enquiry had become adversarial the panel chairperson Bess Nkabinde said the Prosecuting Authority cannot play referee in its own case
