Did Batohi's evidence-based recommendation to the President on Chauke's fitness hold weight?

National Director of Public Prosecutions Advocate Shamila Batohi told the Nkabinde Inquiry on Friday that her recommendation to the President regarding the fitness of Advocate Chauke to hold office as Deputy Director of Public Prosecutions was informed primarily by evidence, rather than solely by legal opinions.

Batohi, who assumed office in February 2019, was questioned about the steps she took following reports and correspondence concerning Chauke’s conduct in the Booysen and Mdluli matters.

The inquiry, chaired by retired Justice Elizabeth Nkabinde, and assisted by Advocate Elizabeth Baloyi-Mere and Attorney Matshego Ramagaga.

Batohi told the panel that she had received a memorandum from Advocate Rodney De Kock in 2019, which outlined key issues in the Booysen and Mdluli matters. 

She told the panel that in May 2021, she wrote to Advocate Chauke seeking explanations for his actions in both matters.

Chauke responded a few weeks later, explaining that he did not believe a prima facie case existed in relation to the murder and attempted murder charges against Alice Manana, and that his involvement in the Booysen matter was limited to coordinating the prosecution team administratively.

“His role excluded prosecutorial decisions on whether to prosecute,” Batohi said.

The inquiry also addressed the issue of de facto authorisation. Batohi clarified that there was no formal document authorising Chauke to act, but evidence suggested he effectively functioned as DPP without formal authority.

She referred to the Zondo Commission’s earlier investigation into state capture, noting that its inability to conclude certain investigations contributed to the need for further review.

In October 2021, a legal opinion was obtained from Advocate Joe Nalane SC recommending an inquiry into Chauke’s fitness to hold office.

Batohi said she subsequently gave Chauke an opportunity to respond, sending him a letter in July 2022 explaining that she intended to make a submission to the President but first wanted his representations.

Chauke’s response was delayed by six months, during which he sought extensions to prepare affidavits, ultimately submitting opinions from Advocates Mainenshe SC and Scott, she said. 

Batohi emphasised that she considered all these opinions alongside the evidence.

She described receiving a memorandum from then-NDPP Advocate De Kock, which concluded, based on the opinions of Mainenshe SC and Scott, that no submission should be made to the President.

Batohi explained her reservations, saying: “It appeared to me that Advocate De Kock had merely accepted the opinions of Advocate Mainenshe SC and Scott at face value. I was of the view that there were indeed gaps identified by Advocate Nalane and that all the relevant evidence needed to be thoroughly considered.”

To address this, she asked Dr David Broughton, a legal advisor in the NDPP office, to compile and analyse all available evidence.

Batohi stressed that her decision was based on this thorough review. “I needed to have, as I would expect a person in this position making a decision that will impact on the life of a person, to make sure that I had looked at the relevant evidence. That evidence was what I considered very carefully,” she said.

Panel members pressed Batohi on whether she had sought opinions that would suit a pre-determined conclusion.

She rejected the suggestion, stating, “You would be very wrong to assume the worst from me. I was certainly not trying to find something that would support my view. I wanted to have all the evidence before me, so that I could make a properly considered, reasonable view on what this matter entailed.”

Batohi also clarified why she relied on Dr. Broughton’s opinion rather than reviewing all the evidence personally: the supplementary report collated affidavits, emails, and other documents into a coherent package for decision-making.

“All I am saying is that I needed to have the evidence, and that is precisely what Dr. Broughton provided,” she said.

The sequence of events, as outlined by Batohi, began with her assuming office in February 2019, dealing with pending review applications, then consulting a panel of senior advocates, followed by obtaining Nalane’s opinion in 2021, the Mainenshe and Scott opinions in early 2023, De Kock’s memorandum, and finally Dr Broughton’s comprehensive review.

She said that after carefully weighing the evidence and opinions, she was justified in recommending to the President that an inquiry into Chauke’s fitness to hold office should be considered.

hope.ntanzi@iol.co.za 

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