News24 | Batohi challenges legality of Chauke’s withdrawal of murder charges against Mdluli

NDPP Shamila Batohi read into the record her 13 May 2021 letter demanding clarity on several controversial decisions Andrew Chauke made as DPP while testifying before the Nkabinde Inquiry into his fitness to hold office on Thursday.

• Batohi criticised Chauke for justifying his 2012 decision to withdraw charges against Mdluli by referencing later reviews, emphasising that the decision’s legality must be judged at the time it was made, not years after.
• Despite his team’s recommendation to proceed with charges based on strong circumstantial evidence, Chauke opted for an inquest, a move described by Freedom Under Law as “irrational and unlawful”.
• Chauke’s withdrawal of charges formed part of a broader pattern of decisions within a short period, including the withdrawal of fraud and corruption charges by a Special Director and SAPS dropping internal disciplinary actions against Mdluli.

Suspended South Gauteng Director of Public Prosecutions Andrew Chauke’s controversial 2012 decision to scrap murder charges against ex-Crime Intelligence boss Richard Mdluli came into focus as National Director of Public Prosecutions Shamila Batohi challenged whether he had acted within the law.

Testifying before the Nkabinde Inquiry into Chauke’s fitness to hold office on Thursday, Batohi read into the record her 13 May 2021 letter demanding clarity on several controversial decisions he made as DPP – including the withdrawal of the Mdluli murder case and the failed racketeering charges in the Booysen/Cato Manor matter.

The inquiry is probing Chauke’s failure to pursue the prosecution of Mdluli for the 1999 killing of Oupa Ramogibe, as well as his defence of the since-invalidated racketeering charges against former KZN Hawks head Johan Booysen and the Cato Manor unit.

In her letter to Chauke, Batohi wrote: “A number of issues and decisions made by you have come to my attention and require additional information and clarification. I would like to offer you the opportunity to formally respond… I require your urgent response.”

Chauke’s written reply sought to justify his decision to withdraw the murder charges and refer the matter to an inquest, arguing that he had later been vindicated by then-NDPP Advocate Mxolisi Nxasana, who revisited the case more than two years later.

Batohi read directly from Chauke’s submission, in which he stated: “The SCA (Supreme Court of Appeal) found that my decision was not irrational. A report was prepared and submitted to the NDPP, who came to the same decision that I earlier made. If any person should be criticised, it should also include the then NDPP.”

He went further, alleging that criticism of his conduct was politically motivated:

“The unfounded criticism levelled against me is done so for nefarious reasons or in the service of an unknown agenda.”

But Batohi told the inquiry that Chauke was misrepresenting the issue.

The legality of his decision, she said, must be assessed at the moment he withdrew the charges in 2012, not on the basis of Nxasana’s later review following the Supreme Court of Appeal’s 2014 judgment.

READ | Andrew Chauke personally shut down Mdluli prosecution despite evidence, Batohi testifies

She relied on senior counsel Advocate Fana Johannes Nalane SC, who dismissed Chauke’s framing. According to Nalane:

“The question is not whether, on a reconsideration of the matter by the NDPP, the decision was rational. The critical time period is when he had to make the decision. In my view, Chauke’s conduct is against the policies and directives.”

Batohi highlighted this point for the panel: “The critical period of time is the time when advocate Chauke took the decision.”

She added that Nxasana’s review came more than two years later, long after key witnesses – including Tshidi Buthelezi and Ramogibe’s mother – had died.

Earlier in the day, Batohi testified that Chauke had personally shut down the murder, kidnapping and assault case against Mdluli despite the prosecution team’s explicit advice to proceed.

After Mdluli’s arrest in March 2011, his lawyers submitted representations claiming the case was a political conspiracy engineered by senior police officials. Chauke then tasked senior advocate Zaais van Zyl to assess the claims.

“They recommended the prosecution continue,” Batohi said. “They were of the view that there was strong circumstantial evidence. They rejected the conspiracy claims.”

Despite this, Chauke withdrew all charges on 2 February 2012 and opted for an inquest – a move later described by Freedom Under Law as “irrational and unlawful”.

Batohi placed Chauke’s decision within a sequence of rapid developments that effectively cleared Mdluli on multiple fronts: