National director of public prosecutions (NDPP) Shamila Batohi has conceded that one of the terms of reference in the inquiry into South Gauteng director of public prosecutions Andrew Chauke’s fitness to hold office was incorrect. Batohi made the admission on the first day of cross-examination by Chauke’s counsel, Tembeka Ngcukaitobi SC, on Monday. The inquiry panel — headed by justice Bess Nkabinde — is probing: Ngcukaitobi referred Batohi to one of the terms of reference, which stated that Chauke sought to improperly have the acting director of public prosecutions of KwaZulu-Natal Cyril Mlotshwa sign the case dockets and/or prosecution memorandum detailing the alleged evidence implicating the Cato Manor accused on which the decision to indict had to be made.
Batohi conceded that reference to case dockets and Chauke improperly having Mlotshwa sign them was incorrect. When I prepared the affidavit, I prepared it based on what I knew and what I did. I did not prepare the affidavit to align it with the terms of reference “You never gave evidence that Mr Chauke sought to have advocate Mlotshwa sign a prosecution memorandum.
Is that incorrect?” Ngcukaitobi asked. Batohi agreed. “It is not our case that advocate Chauke sought to have advocate Mlotshwa sign both documents.
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The evidence is that he sought advocate Mlotshwa to sign the indictments,” she said. Ngcukaitobi said there was no single charge in the terms of reference that referred to Chauke attempting to get Mlotshwa to sign the indictment. When challenged to show the panel where it was alleged that Chauke sought to have Mlotshwa sign an indictment, Batohi said: “It may or may not be there, but that is our case.” This exchange prompted panel member Matshego Ramagaga to enquire from Batohi whether she had familiarised herself with the terms of reference, considering she was the complainant in the matter.
Batohi admitted she had not, but said she did not see herself as a complainant. Ngcukaitobi had earlier asked Batohi whether the terms of reference emanated from the draft she had sent to President Cyril Ramaphosa when referring the complaint about Chauke and whether the president had endorsed the draft. Batohi said the NPA submitted a draft to the president.
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