By Lehlohonolo Lehana.
Advocate Tembeka Ngcukaitobi, acting on behalf suspended Gauteng NPA boss Andrew Chauke has began with his cross-examination of the NDPP boss Shamila Batohi.
Last week, a tense exchange erupted between Batohi and the panel presiding over the inquiry on whether she would be cross-examined.
While it seemed Batohi had the impression that she would not be cross-examined, after she expressed her discomfort with the panel in a private conversation, inquiry chair, Bess Nkabinde, insisted that no promise was made to Batohi that she would be shielded from cross-examination.
The inquiry has also heard that the NPA would like to amend the terms of reference and will be making a formal application.
President Cyril Ramaphosa established the Nkabinde enquiry to determine whether Chauke is fit and proper to continue as the South Gauteng prosecutions director.
According to its terms of reference, Chauke must account for his decision to institute racketeering charges against the former KwaZulu-Natal head of the Directorate for Priority Crime Investigation (the Hawks), Johan Booysen.
Batohi said Chauke pushed for charges against Booyen despite there being no evidence to justify them.
Ngcukaitobi asked whether it was the National Prosecuting Authority’s (NPA’s) position that Chauke erred in charging Booysen with murder and racketeering.
“On the basis of the decision of the DPP [director of public prosecutions] in KZN, she found there was no evidence to justify murder charges against any of the accused,” Batohi responded.
Ngcukaitobi argued that Batohi relied on a report when instituting disciplinary charges against Chauke and did not study the docket relating to charges against Booysen.
He said she concluded there was no case against Booysen, contrary to Chauke’s recommendations, without ever reading the case docket.
“There’s case law that national directors are not expected to read every single bit of evidence, every docket in cases. It’s perfectly acceptable for a national director to rely on reports, to rely on presentations,” Batohi answered.
Ngcukaitobi said only the national director of public prosecutions could sign racketeering charges and argued it was irresponsible for Batohi to overturn Chauke’s decision without reading the docket.
He also challenged her assertion that Chauke attempted to persuade KwaZulu-Natal director of public prosecutions Siphiwe Mlotshwa to sign an indictment sheet against Booysen.
Ngcukaitobi pressed Batohi on whether any other facts supported the decision to seek a review of Chauke’s conduct.
“I dont’ know for now if there are any other facts,” said Batohi, adding that finalising the answering affidavit was a key element of the misconduct case against Chauke and involved several sub-steps.
However, Ngcukaitobi said Batohi’s evidence against Chauke was slim and reiterated that she relied on reports without having gone through the case dockets herself.
Batohi insisted that she was merely providing context for her actions at the time, given the serious concerns about the integrity of the NPA and the criminal justice system as a whole.
“I could not turn a blind eye to what was happening around me, “she said, reiterating that her focus had been on the broader challenges faced by the NPA, not on implicating any specific individual.
“It was the atmosphere we were dealing with at the time. I took those decisions with all of that in mind.” Batohi is expected to continue on the witness stand when the inquiry continues on Tuesday.