National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi testified at the Nkabinde Inquiry on Wednesday, stating that the prosecution team decided not to appeal the 2014 judgment in the Booysen vs National Director of Public Prosecutions case, but instead to pursue new racketeering authorisations.
The decision, she confirmed, was made collectively by the prosecution team, with Advocate Andrew Chauke, the Director of Public Prosecutions for South Gauteng, playing an administrative role in the process.
Batohi explained that the prosecution team’s decision was based on the absence of evidence implicating Booysen in any criminal activities that would warrant an appeal.
“The prosecution team did not recommend lodging an appeal against Gorven J’s judgment in light of the concession made by counsel during the review application,” Batohi said, referencing a memorandum from the prosecution team dated 5 March 2014.
The memorandum, Batohi clarified, was directed to Advocate Chauke, but its purpose was to inform him of the team’s intended course of action.
“The memorandum was meant to update Advocate Chauke, who, as DPP for South Gauteng, would pass the information up the chain of command to the NDPP,” Batohi said.
She emphasised that while Chauke was the senior figure in the prosecutorial hierarchy, the decision to seek new racketeering authorisations was a team decision, not solely his.
Advocate David Mohlamoynane, who is leading evidence in the inquiry, questioned Batohi about Advocate Chauke’s role, particularly whether his involvement in the decision suggested he was acting as the de facto DPP in charge of the case.
“Though Advocate Chauke was the DPP, the decision to apply for new racketeering authorisations was made by the prosecution team, which included several senior prosecutors. Advocate Chauke’s role was primarily to coordinate and facilitate the process, not to make the decision on his own.”
The decision not to appeal, Batohi explained, was influenced by the prosecution team’s view that there was no compelling evidence to justify an appeal.
She quoted from a memorandum in which the prosecution team concluded, “though not satisfied with the outcome of the matter, at least the door was still open to bring a new racketeering application as indicated in the judgment,” indicating that they felt it would be more appropriate to pursue this alternative course of action.
Batohi also confirmed that the memorandum suggested preparing and submitting a new application for racketeering certificates to the NDPP.
The memorandum stated, “In the meantime, pending an intended application to you, sir, for a new authorisation,” referring to the process of applying for new racketeering charges.
The term “you, sir” was understood to refer to Advocate Chauke, as he was the DPP overseeing the matter at the time.
When questioned further by Mohlamoynane, Batohi explained the standard procedural steps that were followed in submitting such applications.
“The application would go through Advocate Chauke as DPP, who would then pass it on to the NDPP for final authorisation. It’s a standard process,” Batohi said.
She clarified that while the application for new racketeering certificates ultimately needed the approval of the NDPP, it was first routed through the DPP to ensure that all necessary documentation and information were in order.
Batohi also addressed the role of Chauke’s in the decision-making process.
Despite the memorandum being directed to him, Batohi maintained that the decision to seek new racketeering authorisations was a collective one made by the prosecution team.
“Advocate Chauke was part of the team, but he was not the one making prosecutorial decisions on his own. The decision was made by the team after careful consideration of the judgment,” Batohi said.
This point was further highlighted by Advocate Mohlamoynane, who asked Batohi if the decision to pursue new racketeering charges should be attributed solely to Advocate Chauke. “No, it was a team decision,” Batohi said.
“Advocate Chauke, as DPP, had a coordinating role, but the team made the decision together.”
Batohi’s testimony also touched on the internal dynamics within the prosecution team at the time.
Advocate Anthony Mosing, who was a member of the team, had written in his affidavit that after reviewing the judgment, the team concluded there had been a misunderstanding between the counsel and the court regarding the concession made during the hearing.
“It was apparent to us that there may have been some misunderstanding between counsel and the court,” Advocate Mosing had written in his affidavit.
Batohi quoted from the affidavit, explaining that the team felt the concession made during counsel’s address was incorrect, especially given the evidence presented to them.
The decision to move forward with a new racketeering application, Batohi explained, was a strategic one. “
Though not satisfied with the outcome, at least the door was still open to bring a new racketeering application,” she reiterated, quoting the prosecution team’s conclusion.
She also emphasised that the memorandum was a key step in the decision-making process, summarising the team’s collective stance and laying out the intended course of action.
Batohi’s testimony highlighted the complex nature of prosecutorial decision-making and the roles of various individuals involved. It also addressed questions raised during the inquiry regarding the hierarchy within the prosecution team and the responsibilities of those in charge.
“The decision was made by the prosecution team collectively, with Advocate Chauke playing a coordinating role,” Batohi said.
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