Defence argues suspended DPP Chauke victim of 'grave misunderstanding' at Nkabinde Inquiry

The accusations levelled against suspended Director of Public Prosecutions, Advocate Andrew Chauke, are unfounded and unsustainable in law. It is based on a grave misunderstanding regarding the decisions he was empowered to make.

This is according to Advocate Tembeka Ngcukaitobi, who is representing Chauke in the Nkabinde Inquiry into his fitness to hold office.

In his opening address on Tuesday, setting out Chauke’s defence, Ngcukaitobi said the accusations levelled against his client are dangerous as prosecutors are never disciplined for exercising their lawful discretion in whether or not to prosecute cases. He said there is not a single reference against Chauke that he exercised his discretion for an ulterior motive or that he is guilty of gross negligence.

According to Ngcukaitobi, the charges against Chauke are vague and embarrassing and do not disclose any wrongdoing on his part or that he had acted with malicious intent. He also pointed out that the independence of prosecutors is protected by law. Ngcukaitobi indicated that they will call several witnesses, previously from the National Prosecuting Authority, to testify on behalf of Chauke to prove no wrongdoing on his part. This will include Advocate Gerrie Nel, who is now with AfriForum’s Private Investigating Unit.

Nel will testify regarding the difficulties which prosecutors face in making decisions to prosecute under circumstances where they do not have enough support from the police to build a case, while accused on the other hand are legally armed, the panel was told. Ngcukaitobi said it is dangerous to try and remove a prosecutor from office simply because someone else believed they had made a wrong decision - especially dangerous in a country which is crippled by crime.

He said it would be different if Chauke was accused of taking money from someone to proceed or not to proceed with a prosecution. “But there are no allegations of dishonesty or malice. He was bona fide throughout,” Ngcukaitobi said. Chauke has been an upstanding lawyer who has served the country for more than 40 years in various positions - from being a magistrate to heading the Johannesburg DPP. He started off as an interpreter, went to law school and worked himself up.

Ngcukaitobi said Chauke was the first African prosecutor in 1996 in Randburg and questioned how a man of such integrity can be called today to face the inquiry. The hearing concerns two broad complaints against Chauke. The first relates to the institution of racketeering charges against Major-General Johan Booysen and members of the Cato Manor Unit and the subsequent defences of the proceedings instituted by Booysen to set aside the racketeering certificates.

The second relates to his conduct regarding the failure to continue with charges against Lieutenant-General Richard Mdluli relating to Mdluli’s alleged involvement in the murder of Tefo Ramogibe. Ngcukaitobi went into detail into the circumstances of both matters and said there is nothing to show any wrongdoing on Chauke’s side in handling the matters. He said they will call witnesses - including a senior advocate - to prove this.

NDPP head Shamila Batohi, who initiated the charges against Chauke, is the first witness to testify. It is not yet certain if she will take the stand on Tuesday, although she is at the Inquiry waiting to be called. Certain preliminary issues are still to be sorted out between the evidence leader and the defence team, such as that the latter is still awaiting the case dockets in the Booysen and Mdluli matters.

Ngcukaitobi also said that he is awaiting permission from Batohi as NPA head, that the three former NPA members he intends to call, can fully make disclosures as the NPA Act prohibits them from making work-related disclosures without consent.

zelda.venter@inl.co.za