Andrew Chauke, who heads the National Prosecuting Authority's South Gauteng division, has been cleared by the presidential inquiry into his fitness to hold office and told by President Cyril Ramaphosa that he has been exonerated
Image: FILE
Sixteen-year-old Kwazi Ndlovu was asleep on the couch in his family's lounge in eSikhawini when policemen kicked down the door at 3am and fired four shots from an R5 rifle.
Blissfully unaware that Kwazi had just been struck and killed by three of the bullets, his mother, Lindiwe, was ordered by the men in blue to stay in her bedroom with her husband and newborn while they searched the house.
When she was finally allowed into the passage, she found one of the men standing in front of the lounge, blocking her view.
She could only see past his shoulder to Kwazi lying on the couch, so still and so quiet that, to her, he looked as though he was fast asleep.
Desperate to get to him, she was instead ordered out of the house, because police said they were still questioning the boy.
Believing Kwazi was safe, she carried the newborn to the car, dropped the baby off at her mother's house and returned to find her yard taped off.
Shocked and horrified, she pushed through the tape and rushed to the lounge window.
"I saw my son lying on the couch with the bullet wound on his arm and there was a firearm that was put next to him," she said.
Kwazi's death on April 1 2010 was one of 23 murder cases brought against the Cato Manor organised crime unit, according to the report of the presidential inquiry into prosecutions boss Andrew Chauke, released by President Cyril Ramaphosa's office on Thursday.
Chauke was suspended last year over his role in bringing the charges, but an inquiry into his fitness for office found that there was evidence to prosecute the unit after all.
He was subsequently cleared of the allegations against him in July.
Nine members of the unit were charged over what had happened to Kwazi, but none has ever been successfully tried for it.
The unit, based at the Cato Manor police station west of central Durban and accused of operating as a death squad, was blamed for shooting dead about 28 people between 2008 and 2011, most of them taxi association members hunted down after a senior policeman was ambushed and killed in KwaZulu-Natal.
The 23 dockets, some involving more than one killing, were rolled into a single racketeering case in 2012, which accused members of the unit of operating together as a criminal enterprise.
The case was assembled by a prosecution team appointed by Chauke, then Johannesburg's head of prosecutions.
The charges were later set aside on review and were never reinstated.
For more than a decade, the National Prosecuting Authority maintained there was insufficient evidence to support the charges.
That position ultimately cost Chauke his job.
Then national director of public prosecutions Shamila Batohi referred the matter to Ramaphosa.
The inquiry reached the opposite conclusion, finding there was evidence to prosecute the Cato Manor unit and clearing Chauke of all the allegations made against him by Batohi.
Batohi's referral also covered Chauke's decision to drop the murder charge against former crime intelligence boss Richard Mdluli over the killing of Tefo Ramogibe, a decision that ended up in the Supreme Court of Appeal.
Batohi told Ramaphosa that Chauke had backed racketeering and murder charges against the Cato Manor organised crime unit in KwaZulu-Natal despite there being no evidence to support them, and had taken decisions that were above his pay grade.
According to the report, most of those the unit was accused of killing were members or associates of the KwaMaphumulo Taxi Association, targeted after Superintendent Chonco was ambushed and shot dead on August 27 2008 while transporting accused men to court.
In each case, police claimed the suspect had pulled a firearm and officers had shot him in self-defence.
Former police reservist Aristides Danikas, who fled to Greece in 2008 after receiving death threats over his whistleblowing, told the inquiry that members of the unit routinely carried stolen firearms that could be planted on suspects they had shot.
He said spent cartridges were removed from scenes on instruction, that suspects were tortured, and that members photographed the dead and traded the pictures among themselves as trophies.
The charges against its head, Major-General Johan Booysen, and 18 other members were never prosecuted.
And for more than a decade, the prosecuting authority maintained there was no case to answer.
Retired Constitutional Court justice Bess Nkabinde, who chaired the inquiry, however, found there was.
"In light of the overwhelming evidence presented at the Inquiry, the 'no evidence' notion is unsubstantiated," her report said.
"Accordingly, it is recommended that there was evidence supporting the institution of racketeering charges."
That finding pulled the rug out from under the case against Chauke.
If the charges were justified, backing them could not amount to misconduct.
Nkabinde also found that Chauke had never taken the decisions he was accused of making, but had simply co-ordinated the prosecution team he had been appointed to lead.
"There is no credible evidence on the basis of which one may find and recommend that Adv. Chauke took prosecutorial decisions, as alleged in relation to the Cato Manor matter," the report said.
"Adv Chauke should be found to be fit to continue to hold office as Director of Public Prosecutions."
Former national director of public prosecutions Shamila Batohi, whose allegations against Andrew Chauke were found by the presidential inquiry to be unsubstantiated after she walked out while still under cross-examination
Image: HENK KRUGER
The rest of Batohi’s allegations were never tested.
She accused Chauke of misleading the Zondo Commission and lying under oath, but walked out of the inquiry halfway through her cross-examination and never returned.
"The accusations by Batohi against Chauke could not be tested at the Inquiry because she walked out while still under cross-examination," the report said.
"The accusations were, thus, unsubstantiated by direct evidence."
Batohi gave evidence from November 19 to December 15 last year, leaving on the final day before the December recess and never returning to the witness box.
In February, she applied to consult her lawyers while still under cross-examination, but the panel dismissed the application.
In May, she tried again, asking to submit written arguments instead of returning to finish her evidence. That application was also dismissed.
Her counsel argued that fairness required the panel to accept her written submissions because her evidence had only been partly tested. Chauke’s legal team called it an abuse of process, saying she was trying to avoid cross-examination.
The evidence leaders told the panel Batohi was the author of her own misfortune.
They said she had left the country after appearing before the Khampepe Commission, despite knowing she was expected to indicate whether she would return.
Batohi’s term as national director ended on January 31.
The evidence Batohi said did not exist was presented to the panel over several months, according to the report.
Ballistics expert Christiaan Mangena, who has worked in the SAPS forensic science laboratory since 1995 and examined more than 6,000 firearm cases, built 23 crime scene reconstructions for the investigation.
He told the inquiry 13 of those reconstructions were never included in the indictment.
One was the killing of Kwazi.
Police said the boy had pointed a firearm at them in the early hours of the morning.
Mangena found four shots were fired from a 5.56mm rifle, three of them striking the teenager while he lay on a sofa.
He found the bullet trajectories and bloodstain patterns showed the boy had not been moving when he was shot.
The firearm lying next to him could not be reconciled with his wounds or with the direction of fire.
His mother, Lindiwe Desiree Ndlovu, was kept outside the lounge while police told her they were still questioning her son.
"I forced my way through the tape and ran straight to the lounge window and I peeped through and I saw my son lying on the couch with the bullet wound on his arm and there was a firearm that was put next to him," she said in her statement in the docket.
"I screamed saying my child has been killed and the firearm has been placed next to him."
Nkabinde said the ballistics work remained unchallenged.
"The ballistic expert findings above, simply disproved the police version," the report said.
Bongani Mkhize was shot dead in his black Lexus on February 3, 2009.
Four months earlier, he had gone to court and secured an order barring police from “killing, injuring, threatening, harassing or in any way intimidating” him.
Five members of the unit said in their statements that Mkhize had fired first.
Mangena found that every shot had been fired from outside the car and that the pistol recovered inside it belonged to one of the men at the scene.
The inquiry also heard about the killing of Thabo Sunshine Msimango, who was shot at a Berea block of flats on May 24 2008 after his door was forced open with a crowbar.
Sharmilla Williams, then a senior investigator at the Independent Complaints Directorate, told the inquiry that Msimango had fallen four floors and was lying face down when he was shot twice more.
She found the killing was not justified and recommended that those involved be charged.
Her supervisor agreed and signed off on the recommendation.
The file was sent to the KwaZulu-Natal director of public prosecutions, who declined to prosecute.
A footnote in the report records that Batohi held that post in 2008.
Nkabinde also found that Ramaphosa was not given all the information when the case against Chauke was put before him.
"It seems that the NPA selectively presented information when the referral was made," the report said.
Nkabinde said the prosecution memoranda setting out the evidence against the Cato Manor unit should have been in the papers put before Ramaphosa, and were not.
Booysen never gave evidence to the inquiry.
His attorneys wrote to the panel in December, complaining that he had not been told he might be incriminated at the inquiry and had been given no chance to respond.
"A dishonest narrative is projected in the public domain, namely that he committed an offence and ultimately his human rights are violated, including his right to dignity," the letter said.
"Our client has been prejudiced and is alarmed that he has not received any prior notification that he may be incriminated during the inquiry."
Booysen, suspended by the SAPS in 2012 over the racketeering charges, undertook to file a witness statement and withdrew it in April.
An internal disciplinary hearing chaired by Adv Nazeer Cassim SC found the police had not proved wrongdoing against him and recommended he be reinstated, which the SAPS accepted.
The Durban High Court later set his suspension aside.
Nkabinde said the panel was not deciding whether anyone was guilty, and that the forensic findings should stand unless and until they are tested in court.
On the second part of the inquiry, which dealt with the withdrawal of murder charges against former crime intelligence head Richard Mdluli, the panel found that Chauke had not acted irrationally.
Ramaphosa's spokesman Vincent Magwenya said the president accepted the findings.
"The panel chaired by Justice Baaitse Elizabeth Nkabinde found that there was no credible evidence upon which it could conclude that Adv Chauke had taken prosecutorial decisions as alleged in respect of the Cato Manor matter, or that he had acted unlawfully in the performance of his co-ordination functions," Magwenya said.
The report was signed on June 30.
Nkabinde ended by turning to the dockets that have never been acted on.
"The Cato Manor matter involving many case dockets in which the victims and their families have not seen justice and found closure, remains unprosecuted," she said.
"The delayed justice as the investigation in this Inquiry has exposed, without doubt translates to a denial of justice."
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