Accordingly, the Commission shall submit a second interim report by 29 May 2026 and a final report on the completion of the inquiry, on 31 August 2026.

This extension was granted at the request of the Commission due to the number of persons who must still appear.

The President appointed the Judicial Commission Inquiry in terms of section 84(2)(f) of the Constitution on 21 July 2025.

Justice Mbuyiseli Madlanga was appointed Chairperson of the Commission of Inquiry and Advocates Sesi Baloyi and Sandile Khumalo were appointed as members of the Commission.

The Commission submitted its first interim report to the President on 17 December 2025 and resumed its activities in January of this year.

In its interim report, the Commission referred a number of matters for immediate criminal investigation and urgent decisions on prosecution, as well as recommendations on the employment status and recommended suspension of individuals.

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Katlego Mokoena (19) is charged alongside with his co-accused, Lungelo Sithole (19), in connection with the murder of Mathabela, who was allegedly stabbed multiple times at her home in Mataffin, outside Mbombela, in November 2025.

Mpumalanga National Prosecuting Authority (NPA) Spokesperson Monica Nyuswa said Sithole and Mokoena applied for bail on separate occasions.

Sithole’s bail application was dismissed by the same court last month.

“It is alleged that on the day of the incident, the accused hired an Uber driver to transport them to the victim’s residence, where they allegedly gained entry by jumping over the wall. The accused were allegedly found at the crime scene, and the victim’s lifeless body was discovered in a pool of blood in the bathroom,” she said.

Nyuswa said in handing down the judgment, the court considered the serious nature of the charge and the significant public interest generated within the community where the crime was committed.

“The court found that releasing the accused on bail pending trial would likely disturb public order and undermine peace and security. It further concluded that granting bail would undermine confidence in the criminal justice system and the proper administration of justice,” she said.

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According to SAPS Mpumalanga, an investigation into the orchestrated hit that cut short the life of 43-year-old , is nearing an end as one accused was sentenced to 15 years’ imprisonment in a judgment handed down by the Mpumalanga High Court sitting in Middelburg.

The reports suggest that Kutu was coming back from deployment when he met his untimely death.

It was established through the investigation that upon his arrival at home in Vosman, Emalahleni, his wife was not at home. The deceased’s wife, Patricia Kutu, later arrived and parked the vehicle in the garage.

She allegedly entered the house with two suspects who opened fire. Kutu succumbed to his wounds shortly thereafter in hospital.

The docket was handed over to the Hawks Middelburg-based Serious Organised Crime Investigation unit.

The investigation led to the arrest of two accused linked to the gruesome murder, and two service firearms, a handgun and a rifle, were recovered.

An intense investigation further led to the arrest of Sgt Kutu’s wife, as the trio conspired to commit murder.

Since the accused were arrested, they were denied bail. Kutu’s wife appealed and was later released on R10 000.00 bail.

The matter was set to proceed on 09 February 2026, but was postponed to 11 February 2026, due to legal representation challenges.

On 11 February 2026, Xolani Ndabezitha (29) pleaded guilty and was sentenced to 15 years’ imprisonment.

One of his co-accused, Bonginkosi Langa, also indicated his intention to plead guilty. Langa’s matter was postponed to 18 February 2026.

The deceased’s wife is expected to appear before court on 17 January 2028.

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He insists he appeared to give evidence on corruption in the criminal justice system and warns that if the hearing turns into a “kangaroo court” focused on defending himself, he will not continue assisting the committee.

It seemed as if O’Sullivan was angered by EFF leader Julius Malema who requesting that their legal team or parliamentary secretary to get the Acsa advert where they were advertising the position which they offered to O’Sullivan.

O’Sullivan jumped and said:

“Am I here to give evidence or to be interrogated? I am going to withdraw my cooperation. I am not going to assist in a kangaroo court. I came here to give evidence about the corruption in the criminal justice system which has resulted in the mess that we have in the criminal justice system today.

“The false allegations that have been made against me will take a lot more than an hour to get through. And if it’s going to be curtailed because people don’t want to hear the truth, it means what we’re actually doing is not allowing a witness to explain why this happened and why that happened.”

He further accused other witnesses of peddling false narratives that he had infiltrated the Independent Police Investigative Directorate (IPID), the National Prosecuting Authority (NPA) and the South African Police Service (SAPS) for ulterior motives.

“What I cannot contemplate is that everyone should think I woke up one day and decided to infiltrate IPID, the police and the NPA, because that pack of lies has been peddled in this House by multiple witnesses that belong in prison.

“I didn’t come here just to defend myself against the allegations of criminals. And if that’s the only thing the committee wants to hear, then it will be a problem, because the reality is that those allegations were only made against me because I took steps to hold them accountable for their criminal conduct,” he said.

O’Sullivan will continue with his testimony today at 10:00am.

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Ntuli called the latest criticism labeling it as unfair attacks and unjustified and misdirected.

In a virtual interview on SABC News, ANC Chief Whip Mdumiseni Ntuli defended National Assembly Speaker Thoko Didiza against criticism for declining to issue subpoenas for forensic investigator Paul O’Sullivan and businessman Brown Mogotsi to appear before Parliament’s Ad Hoc Committee.

Ntuli described the attacks on Didiza as unjustified and misdirected, insisting she is ensuring proper procedure is followed.

Ntuli, a member of the committee probing misconduct and infiltration in the criminal justice system, said Didiza wants decisions safeguarded from court challenges.

He explained that the committee must address security concerns raised by O’Sullivan (currently in the UK with death threats) and Mogotsi (demanding funded protection) before forcing in-person appearances.

O’Sullivan left the country with his seven kids.

He rejected claims of undue delay, noting correspondence with the Speaker began late last year, with responses from O’Sullivan in December and January.

Ntuli stressed unanimity on holding O’Sullivan accountable for alleged contempt toward Parliament, while warning that bypassing process could embarrass the committee legally.

The ANC maintains Didiza’s guidance protects the inquiry’s integrity.

The committee continues its work toward the mid-February deadline, with Ntuli calling for responsibility rather than shifting blame to the Speaker.

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Witnesses described a pipeline that depended on physical files, email correspondence, and individual initiative rather than integrated digital systems. Commissioners expressed concern that such reliance increases the risk of delay, miscommunication, and loss of accountability.

According to testimony, PKTT dockets were prepared for transfer through internal verification processes, but once handed over, there was limited ability to track progress centrally. Provincial units maintained their own registers, often using different formats and standards.

Commissioners questioned whether SAPS leadership had a real-time view of where sensitive cases were within the system. Witnesses conceded that no consolidated dashboard or monitoring mechanism existed to provide such oversight.

The commission heard that in some instances, case movement depended on personal follow-ups rather than automated alerts. This meant that proactive supervision was contingent on individual diligence rather than institutional design.

Legal representatives highlighted the risks associated with manual systems in high-stakes investigations, particularly where delays can compromise evidence or witness cooperation. Commissioners noted that modern policing increasingly depends on digital integration, an area where SAPS appears to lag.

Testimony further revealed that responsibility for updating records was not consistently defined, leading to gaps in documentation. In some cases, commissioners were told, it is unclear who last handled certain dockets.

The commission is now probing whether the PKTT pipeline was ever designed with scalability in mind, or whether it evolved reactively in response to operational pressures.

Findings on this issue are expected to inform recommendations on modernising SAPS case management infrastructure.

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Witnesses described a handover process that prioritised administrative compliance over operational continuity. While physical files were transferred and formally acknowledged, little attention was given to ensuring that investigative context, strategic intent, and accumulated intelligence moved with the dockets.

According to evidence, PKTT investigators who had worked on cases for extended periods were not systematically briefed to receiving units. Instead, provincial detectives were often left to reconstruct complex investigations from written records alone, a task made more difficult by inconsistent documentation practices.

Commissioners questioned why no structured debriefing sessions were conducted between outgoing PKTT members and incoming investigators. Witnesses acknowledged that no such protocol existed, and that communication after transfer was largely informal and ad hoc.

The commission heard that this lack of structured engagement resulted in investigative drift. In several cases, lines of inquiry previously identified by PKTT were not pursued with the same urgency or clarity, leading to duplication of work or abandonment of promising leads.

Legal representatives assisting the commission noted that continuity is especially critical in organised crime and corruption cases, where institutional memory plays a central role. Commissioners echoed this concern, warning that investigative resets can significantly weaken cases.

Testimony also revealed that provincial units were sometimes hesitant to seek clarification from PKTT counterparts, citing uncertainty about jurisdiction and authority after transfer. This further deepened the disconnect between units.

The commission is examining whether this breakdown reflects broader structural weaknesses in SAPS inter-unit coordination. At issue is whether the organisation is equipped to manage transitions in complex investigations without losing momentum.

As hearings continue, the commission is expected to consider whether mandatory handover frameworks should be instituted to safeguard continuity in future high-risk cases.

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Majola appeared in court on the charge of premeditated murder, following the fatal shooting of DJ Warras in Johannesburg on 16 December 2025. The court heard that the matter has been postponed to 6 January 2026 to allow for further legal processes.

Majola is expected to apply for bail at his next appearance. The State has indicated that it will oppose any bail application, citing the seriousness of the charge and the interests of justice.

In a further development, prosecutors confirmed that charges against a second suspect linked to the case have been provisionally withdrawn. The National Prosecuting Authority has not ruled out the possibility of reinstating charges should new evidence emerge.

DJ Warras, whose real name was Warrick Stock, was a well known DJ, radio presenter, and television personality. His killing sent shockwaves through the media and entertainment industry, prompting an outpouring of grief and tributes from colleagues, artists, and fans across the country.

As the legal process unfolds, public interest in the case remains high, with many closely watching the upcoming bail proceedings and the State’s case against Majola.

The matter returns to court in January as investigations continue.

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INTRODUCTION

1 Chairperson, this enquiry concerns allegations made against Adv Andrew Chauke, a career prosecutor and the Director of Public Prosecutions for South Gauteng. He denies each of the charges. They are unfounded in fact, unsustainable in law. They are based on confusion of what Mr Chauke actually decided, what he was empowered to decide, and what the courts have already pronounced upon.

2 Two preliminary matters must be made clear at the outset.

3 First, Adv Chauke is not accused of dishonesty, corruption, ulterior motive, personal benefit, or any dereliction of ethical duty. The allegations relate solely to two prosecutorial decisions taken more than a decade ago in the Booysen and Mdluli matters. In the Booysen matter, he is not charged for authorising racketeering charges—that decision was made by the Acting NDPP, Adv Nomgcobo Jiba—but merely for supporting it. In the Mdluli matter, he is not charged for deciding that murder charges should never be brought, but for withdrawing them pending an inquest in terms of statute. Both allegations are vague and embarrassing and do not disclose misconduct on his part.

4 Second, the case now advanced against him rests on legal and factual premises that have already been overtaken by judicial authority. The criticisms directed at the Booysen authorisation are traceable to the judgment of Gorven J—not to the facts, not to the dockets, and not to the law. A Full Court of the Gauteng Division has since examined the very evidence before the NDPP, the very statements relied upon, and the exact allegations of “no evidence”, “mendacity”, and “irrationality”. It rejected them. It held that the evidence did implicate Booysen, that reliance on hearsay was lawful, that the factual premise of the review was incorrect, and that no case of mala fides or impropriety had been established. In that Court’s words: “I cannot find any mala fides and or ulterior motive in the authorisation… POCA requires the freedom and space to be given to the members of the prosecuting authority… Anything short of this… ought to be based on very cogent, serious and exceptional circumstances.” GCB v Jiba and Others 2017 (2) SA 122 (GP) at para 67

5 And, critically for this Enquiry: “[68] It suffices for now to conclude on Booysen matter by stating that no case has been made for removal or suspension from the roll of advocates. I now turn to deal with the other matter and basis of complaints thereto against Jiba.”

6 It is that same decision—found not to constitute misconduct for the actual decision-maker—that Adv Chauke is accused of supporting. That cannot be a basis for disciplinary sanction.

7 Similarly, the charge relating to the Mdluli matter proceeds on the premise that the withdrawal of the murder charge and the subsequent delay were irrational. Yet the Supreme Court of Appeal has already held that the withdrawal and inquest decision was rational; that later events were not before the review court; and that one cannot retroactively invalidate a lawful decision by relying on criticisms of conduct occurring months afterward. That judgment, together with the independent review later undertaken by NDPP Nxasana, should end the matter.

8 Chairperson, this enquiry is convened under section 12(6) of the NPA Act. Section 179(4) of the Constitution requires that prosecutors act “without fear, favour or prejudice”. That constitutional imperative protects not only the institution, but the individual prosecutor exercising specialised judgment under conditions of pressure and controversy. If prosecutors are to fear that decisions taken in good faith—years earlier, and upheld by appellate courts—may later be used as grounds for suspension and removal, the chilling effect on prosecutorial independence will be acute and immediate.

9 It is against this backdrop that we will, in due course, lead the evidence of Mr Mxolisi Nxasana, Adv Laurence Hodes SC, Adv Sello Maema, Adv Silas Ramaite, and Adv Gerrie Nel—all of whom were directly involved in the events now under scrutiny. They will demonstrate that the decisions in issue were lawful, rational, and grounded in proper prosecutorial principle; that Adv Chauke acted within the limits of his authority; and that nothing about his conduct remotely approaches misconduct.

10 This opening statement will therefore proceed in four parts:

10.1 The correct legal standard for a section 12(6) enquiry;

10.2 The improper expansion of the case beyond the Terms of Reference;

10.3 The evidence and law relating to the Booysen matter; and

10.4 The evidence and law relating to the Mdluli matter.

11 At the end of this process, we submit, the Panel will have no difficulty concluding that none of the charges against Adv Chauke are substantiated, and that they do not meet the constitutional threshold for suspension or removal.

THE LEGAL STANDARD GOVERNING THIS ENQUIRY

12 At the outset we must refer to section 179(4) of the Constitution. That section requires legislation to be passed to guarantee that the NPA should act “without fear, favour or prejudice”. This is not just about the institution. It is also about individual prosecutors who make decisions to prosecute or to decline to prosecute. If they fear that one day a member of the executive will suspend them, and subject them to disciplinary enquiry because they have made a prosecutorial decision, in good faith, that will have a choking and chilling effect in the discharge of their duties as prosecutors.

13 The threshold question in any enquiry into prosecutorial fitness is what legal standard governs both the nature of the charges and the manner in which the Panel must assess them. It is the constitutional backbone of the entire process, because, unlike most public servants, prosecutors hold constitutionally protected independent authority.

14 Section 179(4) of the Constitution explicitly requires that national legislation guarantee the independence of the NPA. The Constitutional Court in Nxasana underscored that this independence is not abstract, but practical: it must be secured through tenure, fair processes, and insulation from improper or arbitrary interference.

15 In Democratic Alliance v President of South Africa (Simelane), the Constitutional Court held that the requirement that a National Director be “fit and proper” is an objective jurisdictional fact.

15.1 The standard is objective, not subjective.

15.2 It must be established by clear evidence, not impressions or dissatisfaction.

15.3 It must be tied to a specific breach of a legal or ethical requirement.

15.4 Specific attributes were set out as potential disqualifiers for a National Director of Public Prosecution, which would apply equally to a Director of Public Prosecution: credibility, honesty, integrity and conscientiousness.

16 Therefore what is required in proceedings of this nature is an allegation, not just of a breach of a rule but of the kind of breach that would show lack of credibility, honesty, integrity and conscientiousness.

17 To establish misconduct, the charge must at the minimum show:

17.1 a breach of the NPA Act;

17.2 a breach of the Code of Conduct or Prosecution Policy;

17.3 bad faith or improper motive; or

17.4 gross negligence or abuse of power.

18 The charges before this Enquiry do not identify a single clause in the Code, Policy or Act alleged to have been breached. Not one alleges corruption, dishonesty, ulterior motive or bad faith. The charges are framed in generalities, without pinpointing what rule was violated, how it was violated, or why the conduct of Mr Chauke amounts to misconduct.

19 Now, where a prosecutor is taken to task for the manner in which they have exercised their discretion either to prosecute or not to prosecute, the Ginwala Commission has made it clear that that is not an area that can be addressed through misconduct proceedings:

“101 I must also point out that this complaint comes very close to trespassing on the terrain that the legislature and the Constitution has reserved for the discretion of the NDPP. It would not be proper for anyone to second-guess the judgment of the NDPP without encroaching on the constitutionally guaranteed independence of the NPA. The decision to prosecute or not to prosecute the eleven mercenaries or to conclude or not to conclude a plea and sentence agreement is one which the Constitution says the NPA must take without any fear, favour or prejudice. The legislation governing the judicial review of administrative actions and decisions specifically exempts a decision to prosecute or not to prosecute from judicial review. This to me points decidedly that an enquiry such as this one must be cautious not to do anything that might be seen or interpreted to be a review or to second-guess a decision of the NPA to prosecute or not to prosecute.

102 It would appear to me that if Government was concerned about how prosecutorial discretion was being exercised they could have engaged with the NDPP and could also have amended or clarified the Prosecution Policy to ensure consistency in decision-making and the appropriate prioritisation of particular offences. In the absence of a policy adjustment of that nature, a decision of the NPA must be respected.”

20 It is not our intention to submit that Mr Chauke is not accountable for prosecutorial decisions. The Constitution contains a framework of that accountability. In National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA), it was held:

“[58] As mentioned before, s 179 created a new prosecutorial structure where, instead of having a number of Attorneys-General, each with their respective areas of jurisdiction, one now has an NDPP who is a presidential (political) appointee at the apex of a single NPA and below him DPPs and prosecutors who are not.

[59] Against this background sub-sec (3)(b) states that DPPs are to be ‘responsible’ for prosecutions in their specific jurisdictions, subject to the contentious sub-sec (5). ‘Responsible’, as Mr Kemp argued, means in this context ‘answerable, accountable; liable to account’. By virtue of the cross-reference to sub-sec (5), this implies that DPPs are answerable to the NDPP. Paragraphs (a)-(c) proceed to deal with three functions of the NDPP in his capacity as head of the NPA and his control over DPPs and the prosecutors for whom they are in turn responsible. They are to determine prosecution policy; to issue policy directives; and to intervene in the prosecution process when policy directives are not complied with.”

So the decisions of DPPs can be changed. That is the answer. It is not the answer to discipline a DPP who has acted in good faith for a decision to prosecute.

22 We submit that in support of what we have stated above is that our law starts with a presumption: that public officials—particularly those exercising independent constitutional functions—act bona fide, for lawful purposes, and in accordance with their duties. In this regard, guidance can be sought from cases dealing with malicious prosecution and the test to be applied. In National Director of Public Prosecutions v Sijoyi Robert Mdhlovu 2024 (2) SACR 331 (SCA) the SCA held:

“[21] It follows that a prosecutor need not have evidence establishing a prima facie case or proof beyond a reasonable doubt when deciding to initiate a prosecution. Suspicion of guilt on reasonable grounds suffices. The question is what a reasonable prosecutor would have done in light of the information available at the relevant stage.”

23 The NPA’s independence would mean little if prosecutors could be held to account years later not on the basis of dishonesty or impropriety, but because a later officeholder or external party disagreed with the outcome of past prosecutorial decisions. Independence protects prosecutors from the spectre of being removed for making unpopular decisions or for exercising imperfect but honest judgment.

24 If prosecutors could be removed based on dissatisfaction with discretionary decisions long after the fact, without evidence of bad faith or violation of clear rules, independence would be fundamentally compromised.

25 Courts have long held that administrative and prosecutorial decisions are presumed to be taken lawfully and in good faith unless evidence shows otherwise. This presumption is even stronger in respect of prosecutors, whose role in the criminal justice system is constitutionally recognised as central.

26 The majority in Nxasana underlined why independence must be real, not illusory. If prosecutors are assumed to be acting in bad faith unless they justify every historical decision anew, independence collapses.

27 In this case, not a single charge alleges bad faith, dishonesty, corruption, ulterior motive, personal vendetta, or improper purpose. Nor does any charge allege that Adv Chauke benefitted personally or acted to favour any person. There is, in truth, no allegation of mala fides at all.

28 Given the legal framework, this is decisive. Without allegations of improper motive or breach of a clear standard, a charge of unfitness to hold office is incompetent.

29 Prosecutorial decisions are often complex, taken under pressure, and based on evolving evidence. The law has never required perfection; it requires lawfulness, good faith, and rational basis. Reasonable people can disagree about outcomes or hindsight assessments. That is not misconduct.

30 To collapse the distinction between bona fide decisions and misconduct would chill prosecutorial independence and undermine public confidence in impartial prosecution.

31 Thus, unless the charge shows dishonesty or breach of a clear legal duty, the enquiry must presume that the prosecutor acted lawfully and in good faith.

32 The charges are therefore incompetent.

32.1 They are vague and embarrassing because they do not disclose an offence because they do not allege mala fides on the part of Mr Chauke.

32.2 They are unconstitutional, as held by the Ginwala Commission, because in essence they are about prosecutorial discretion.

THE BOOYSENS MATTER

33 Chairperson, in relation to the Booysen matter, Adv Chauke faces a very specific allegation. He is not charged with exercising the statutory power to authorise a racketeering prosecution — because he did not, and could not, do so.

34 The power under POCA is vested exclusively in the National Director of Public Prosecutions. The authorisation in this case was issued by Acting NDPP Jiba.

35 Yet the Terms of Reference frame the complaint against Adv Chauke as follows: that he “supported”, “recommended”, “defended”, or continued with a POCA authorisation which is now alleged to have been irrational because there was “no evidence” implicating Booysen.

36 Everything therefore turns on a single proposition: that the POCA authorisation lacked any evidentiary foundation. And that proposition derives entirely from the judgment of Gorven J in Booysen v NDPP.

37 The difficulty — and it is fatal — is that a Full Court in GCB v Jiba has already reconsidered those allegations in detail and found that the criticism levelled by Gorven J was based on a misunderstanding of the NDPP’s affidavit and an incomplete factual picture.

38 Once the Full Court’s findings are appreciated, the premise of the charge against Adv Chauke cannot withstand scrutiny.

What Gorven J held – the starting point of the charge

39 Gorven J’s findings were stark. He concluded that:

39.1 the NDPP had “no material” linking Booysen to POCA offences (paras 25–35);

39.2 the four statements she said she relied on were either irrelevant, unsworn, or post-dated the authorisation; and

39.3 her explanation therefore lacked “rhyme or reason” and was irrational.

40 It was on this basis — and only on this basis — that he reviewed and set aside the authorisation.

41 The Chief Evidence Leader now relies on those conclusions to argue that Adv Chauke acted improperly in supporting the authorisation.

42 But that foundation is unsound, because it was expressly reconsidered — and rejected — by a Full Court.

What the Full Court found

43 In General Council of the Bar v Jiba and Others 2016 (2) SA 122 (GP), a three-judge Full Court analysed the very same criticism levelled by Gorven J.

44 The Court found that key aspects of his reasoning rested on incorrect factual assumptions.

45 First, Gorven J held that the NDPP had misled the court by describing annexures NJ2–NJ5 as sworn statements when some were not.

46 The Full Court held unequivocally that this was factually wrong:

“Nowhere in Jiba’s answering affidavit did she make such a statement, neither did she say any of the annexures NJ2, NJ3, NJ4 and NJ5 were under oath.” (para 51)

47 Thus, the very premise of the “mendacity” criticism in Gorven J’s judgment was flawed.

48 Second, the allegation that the NDPP had been “mendacious” emerged for the first time in Mr Booysen’s replying affidavit.

49 The Full Court emphasised that:

49.1 the NDPP did not have a proper procedural opportunity to respond;

49.2 the prosecution team had, in fact, sought to file a further affidavit to deal with the point; and

49.3 senior counsel advised that no further action was required.

50 As the Court put it

“Based on the explanation above, it is clear that Jiba did not ignore the serious allegations made by Booysen. By seeking to file a further affidavit… she was mindful of the need to explain and correct any inaccuracies.” (para 54)

51 This strikes at the core of the accusation now echoed against Adv Chauke.

52 Third, most critically, the Full Court held that Gorven J’s approach to evidence was inconsistent with POCA itself:

“In my view the provisions of section 2(1) (e) and (f) referred to in paragraph 44 of this judgment are meant for the criminalisation of such activities. The point I am making is this: Courts for the purpose of an exercise of its discretion in terms of section 2(2) referred to in paragraph [62] of this judgment, may rely on hearsay evidence, information and or documentation collected by the police and presented to it by the prosecution. If that is so, and courts are entitled to have regard to hearsay evidence during trial, so too should the National Director of Public Prosecutions (Jiba in Booysen’s case) be entitled to rely on hearsay and similar facts evidence for the purpose of authorisation as contemplated in subsection (4) of section 2 of POCA. Otherwise, pervasive presence of criminal gangs will continue to rule with impunity and fear in many of our communities and resultantly pose harm to the well-being of many communities.” (para 63)

53 This directly contradicts the foundation of the criticism that “no admissible evidence” existed.

54 After reviewing all material placed before the NDPP, the Full Court concluded:

“I cannot find any mala tides and or ulterior motive in the authorisation by Jiba as contemplated in POCA. POCA is like a cry out loud for declaration of war against serious, continuous and organised crimes. That needs specialised investigation and prosecution. Most importantly, POCA requires the freedom and space to be given to the members of the prosecuting authority in the exercise of their legislative power to investigate through members of their Investigating Directorate and under the watchful eye of a special director so appointed to prosecute without fear, favour and prejudice those implicated in the commission of serious crimes. Anything short of this, or anything which tends to impede on this constitutional and legislative imperative, for example, hauling Jiba to the proceedings in terms of Section 7 of the Admission of Advocates Act, ought to be based on very cogent, serious and exceptional circumstances”. (para 67)

55 And further that:

“You do not want members of the prosecution authority to unduly watch their backs for fear of being dismissed or removed from the roll of advocates every time when they make mistakes in prosecuting and presenting cases in court, or every time when an application for authorisation is made in terms of section 2(4) of POCA. An overriding factor for them for consideration should be to adhere to the rule of law and the Constitution. It suffices for now to conclude on Booysen matter by stating that no case has been made for removal or suspension from the roll of advocates. I now turn to deal with the other matter and basis of complaints thereto against Jiba” (para 68)

56 The Full Court then turned to the evidentiary foundation for the POCA authorisation. It accepted, in careful detail, the prosecution’s explanation of the material placed before the Acting NDPP: the two Aiyer statements; the Danikas statement — unsigned at the time, but legitimately relied upon pending formalisation under the mutual legal assistance framework; the Ndlondlo statement; and the broader evidentiary matrix emerging from the Cato Manor investigations.

57 The Court expressly recognised that this body of material did implicate Major-General Booysen in the pattern of racketeering activity allege.

58 Although the Full Court ultimately found that Adv Jiba should be struck from the roll, none of that finding was based on the Booysen authorisation. On that issue specifically, the Court found no basis to conclude that she had acted irrationally or improperly. The criticisms levelled by Gorven J were not found to have any merit; they were understood, contextualised, and ultimately rejected.

The logical consequence

59 Once the Full Court’s judgment is properly brought to bear, the implications for this enquiry are unavoidable.

60 First, the actual decision-maker in the Booysen authorisation — the Acting NDPP — has been judicially exonerated on the very issue that underpins the present charge. The Full Court held that there was evidentiary material implicating Major-General Booysen; that reliance on hearsay and similar-fact material was permissible under POCA; that the criticisms made by Gorven J rested on factual misunderstandings; and that there was no mala fides, irregularity, or impropriety in issuing the authorisation. In short, the Court found no basis, in the Booysen matter, to impugn the integrity of the person who actually exercised the statutory power.

61 Secondly, once that is accepted, it becomes legally incoherent to suggest that Adv Chauke — who did not make the decision, and who could not have made it — is somehow unfit or improper for having supported a decision which the High Court has held was not improper at all. One cannot condemn the supporter when the underlying act has been judicially confirmed as lawful.

62 And thirdly, the consequence follows with some force: the disciplinary charge collapses on its own premise. It rests entirely on the correctness of Gorven J’s conclusions. But those conclusions have been qualified, corrected, and contradicted by a Court of three Judges. A disciplinary tribunal cannot breathe life into a factual foundation that the High Court itself has already rejected.

THE MDLULI MATTER – THE NDPP AND THE SCA HAVE ALREADY ANSWERED THIS CHARGE

63 Chairperson, the allegation in paragraph 3.1.2 of the Terms of Reference is very specific. It is that Adv Chauke “failed to continue with charges against Lieutenant-General Richard Mdluli for his involvement in the murder of Mr Tefo Abel Ramogibe”, in that he “caused the charge of murder… and related charges to be withdrawn, notwithstanding that there was strong evidence justifying the institution of a prosecution in the matter, which decision caused a significant delay in proceeding with charges concerned.” The complaint, properly construed, concerns (a) the withdrawal of the existing charges, and (b) the alleged delay that followed.

64 The Chief Evidence Leader invited the Panel to view this allegation almost entirely through the lens of Murphy J’s judgment in Freedom Under Law v NDPP 2014 (1) SACR 111 (GNP). But that judgment no longer represents the law. It was overturned. The controlling authority is now the Supreme Court of Appeal in NDPP v Freedom Under Law 2014 (2) SACR 107 (SCA). Once the SCA’s judgment is applied, the allegation in paragraph 3.1.2 cannot stand.

65 The SCA addressed directly the decision now impugned: the withdrawal of the murder and related charges, and the decision to refer the matter to an inquest, coupled with an aversion to fragmented, piecemeal prosecutions. At paragraph 43, the Court held:

“On the face of it the decision that the findings at an inquest could perhaps enable him to take a more informed view of the prospects of the State’s case with regard to the murder charge, was not irrational…What he tried to avoid, so he said, was a fragmentation of trials. That line of reasoning I do not find irrational either, particularly since the evidence supporting the related charges would also impact on the murder charge.” (para 43, emphasis added)

66 This answers two core elements of the charge:

66.1 First, the withdrawal decision was rational and legally defensible; and

66.2 Second, referring the matter to an inquest made prosecutorial and evidential sense.

67 The SCA then turned to the further argument—repeated again yesterday—that

the real difficulty lay in the later failure to reinstate the charges after the inquest

findings became available. The Court rejected that proposition in terms. At

paragraph 44, it held:

“But that decision – or really his failure to apply his mind afresh to the

matter after the conclusion of the inquest – was not the subject of

the review application… I do not believe the earlier decision to withdraw

the charges – which is the impugned decision – can be set aside on the

basis that a subsequent decision… was not justified.” (para 44,

emphasis added)

68 This is the pivotal point. The SCA drew a bright-line distinction between:

68.1 the withdrawal decision, and

68.2 the later period, after the inquest, when charges were not reinstated.

69 Only the first was properly before a court; only that decision can lawfully be

scrutinised. And the SCA held that it was rational, reasonable, and defensible.

70 The Terms of Reference, and the Chief Evidence Leader’s submissions

yesterday, collapse these two distinct periods into one. Paragraph 3.1.2 treats

the withdrawal and the later period as a single, continuous wrong “which caused

a significant delay”. But the SCA held the exact opposite. They are legally and temporally discrete, and only one — the withdrawal — falls for lawful scrutiny. And

on that issue, the SCA’s answer is unequivocal.

71 Because of this temporal split, Murphy J’s criticism of the post-inquest period

could not lawfully be used to invalidate the withdrawal decision. Those later

issues, the SCA held, “were not the subject of the review application.” That

finding should, with respect, bring the Mdluli complaint to an end. Reliance on

the overturned reasoning of Murphy J is therefore misplaced.

72 The SCA then recorded a further undertaking from the NDPP, Mr Nxasana, to

take responsibility for the next steps:

“There is no answer to the proposition that at least some of the murder

and related charges are bound to be reinstated… The NDPP will take a

decision as to which of the 18 charges are to be reinstated… [and] if the

NDPP decides not to institute all 18 charges, he will provide FUL with

his reasons…” (para 45)

73 Crucially, after the SCA judgment, it was the NDPP — not Adv Chauke — who

bore responsibility for reconsidering and deciding whether any charges should

be reinstated. Mr Nxasana exercised that statutory power. He reviewed the

matter and ultimately concluded that there was no basis to proceed with a murder

charge against General Mdluli. In substance, he endorsed the outcome of Adv

Chauke’s approach.

74 That combination — a Supreme Court of Appeal finding that the withdrawal was

rational, and an independent review by the NDPP reaching the same outcome —

ought, with respect, to conclude the matter. It is difficult to see how this Panel

can now hold that a decision the SCA refused to overturn as irrational, and which

the NDPP later effectively confirmed, constitutes misconduct warranting removal.

75 It is more striking still that the present NPA leadership, despite criticising the

decision, has itself not instituted a murder prosecution against General Mdluli. If

they were satisfied that “strong evidence” exists, they are constitutionally

empowered to act today. Nothing binds them to a twelve-year-old decision by a

DPP. Their own inaction is at odds with the allegation they now advance.

76 In short: the case the Chief Evidence Leader seeks to make on Mdluli requires

this Panel to disregard the SCA’s binding findings, to treat issues the SCA held

were not reviewable as if they were, and to second-guess the head of the

prosecuting authority, who reconsidered the matter and declined to charge.

Properly understood, the Mdluli complaint does not disclose misconduct at all.

THE EVOLVING CASE

77 Chairperson, it is important at the outset to make plain the distance between the

case authorised by the President and the case outlined by the Chief Evidence

Leader yesterday. The Terms of Reference establish a targeted, two-issue

enquiry. Paragraph 3.1 identifies, with specificity, the two prosecutorial decisions

that the President has placed before this Panel: the Booysen racketeering

authorisations (para 3.1.1) and the withdrawal of the Mdluli charges (para 3.1.2).

Those are the only charges.

78 The opening statement delivered yesterday, however, presented a materially

different, and far broader, case. The Chief Evidence Leader did not confine his

address to the two incidents in paragraph 3.1. Instead, he introduced a series of

new and far more serious allegations that appear nowhere in the Terms of

Reference. He stated, for example, that “the evidence will show that Adv

Chauke… was for all intents and purposes appointed as the leader of the

prosecution team, [and] acted as the de facto OPP of KwaZulu-Natal” (para 11);

that he was “intimately involved in the preparation” of the Jiba answering affidavit

and that “some of the information contained in this affidavit were to his knowledge

incorrect” (para 23); and that in the Mdluli matter he “weakened the State’s case”

(para 49). None of those allegations — acting as the de facto OPP; knowingly

placing incorrect information before a court; or deliberately weakening a

prosecution — is articulated in paragraph 3.1. They are not elaborations of the

charges. They are new charges altogether.

79 … must not possess a free-ranging mandate to investigate any matter the Evidence

Leaders choose to advance. Paragraph 3.2.7 — whether his conduct “brought

the NPA into disrepute” — is not a roving authorisation to litigate the last decade.

It is an evaluative question only insofar as reputational harm arises from the

Booysen and Mdluli decisions themselves. To treat it as a free-standing charge

is to fundamentally rewrite the Terms of Reference.

80 The law does not permit that. This is an enquiry established under s 12(6) of the

NPA Act. Its jurisdiction exists only because the President has established it,

and it extends only as far as the President has authorised. Paragraph 7 of the

Terms of Reference codifies this limit in unambiguous terms: “In the event of new

matters emerging during the course of the enquiry, the President may include

these matters as part of the enquiry, by way of amendment to these terms of

reference.” The Chief Evidence Leader cannot, by an opening statement,

enlarge the scope of the enquiry. The Panel cannot enlarge it either. Only the

President may do so. Until such an amendment exists, the Panel’s jurisdiction

remains fixed. To proceed on the basis of an expanded case is to act ultra vires

the Terms of Reference and in breach of the rule of law requirement of clarity

and certainty.

81 There is an additional, and troubling, form of expansion. The Chief Evidence

Leader repeatedly sought to attribute to Adv Chauke the misconduct of Adv Jiba

and Adv Mrwebi, even though the Terms of Reference do not allege — because

they cannot allege — that he engaged in their conduct. He invoked criticisms

made of Adv Jiba in the Booysen review (paras 24–25), findings made about her

and Mrwebi in the Mokgoro Enquiry, and even the structural failings of the NPA

during their tenure, and presented these as if they were imputable to Adv

Chauke. But the Terms of Reference charge him only with supporting,

recommending, and defending decisions that Adv Jiba herself made. They do

not allege that he authorised racketeering charges, issued certificates, exercised

statutory power, or misled a court in her stead. Yet the opening statement

repeatedly conflates her misconduct with his role, erasing the distinction between

the NDPP and a DPP and, in effect, trying to place upon him the cloak of findings

made against others. That is impermissible. He cannot be tried for what the

President has not charged.

82 Finally, the most fundamental mischaracterisation must be addressed head-on.

The Chief Evidence Leader spoke throughout as though Adv Chauke were the

decision-maker in the Booysen matter. But he was not — and the Terms of

Reference never say that he was. Only the NDPP (or Acting NDPP) can issue a

racketeering certificate under s 2(4) of POCA, and that decision was made by

Adv Nomgcobo Jiba. The ToR therefore frame the allegations as such: he

“supported” the decision (3.1.1.1); he “recommended” the authorisation (3.1.1.2);

he “defended” the decision in review (3.1.1.3); he “instituted” an appeal without

approval (3.1.1.4). He is not charged with making the racketeering decision,

because he did not. Yet the Chief Evidence Leader referred to him as the de

facto DPP of KZN (para 11), attributed to him knowledge of incorrect averments

in Jiba’s affidavit (para 23), and framed the entire Booysen chapter as if he were

the statutory decision-maker. That recasts the very nature of the accusation.

The President did not charge him with unlawfully issuing a racketeering

certificate; the Chief Evidence Leader cannot now reconstruct the case as though

he had.

CHAUKE’S PROFESSIONAL HISTORY

83 It is important to situate the career of the man who appears before you. Adv

Andrew Chauke has served the administration of justice for more than forty

years, rising through every rung of the prosecutorial system through diligence,

competence and integrity.

84 He began in 1983 as an interpreter at the Giyani Magistrates’ Court, completing

the Diploma Iuris in 1988 and thereafter being appointed as a prosecutor. From

the outset, he was entrusted not only with prosecutorial work but with training

new clerks, interpreters and junior prosecutors — a sign of the confidence placed

in him even at an early stage. After completing his B Iuris and LLB while working

full-time, he was promoted to prosecute in the Regional Court, and later served

as a magistrate after completing the Magistrates’ Civil Seminar at Justice

College.

85 In 1996 he became the first African Senior Prosecutor in the Randburg region,

managing 19 prosecutors and overseeing all district and regional courts in

Randburg, Wynberg and Midrand. He was responsible for supervision, training,

docket preparation, media engagement, and representing the DPP in

stakeholder forums. His responsibilities broadened further when he was

transferred to the Office of the DPP: Witwatersrand Local Division, where he

prosecuted High Court trials and appeals, prepared indictments, and vetted the

work of junior advocates.

86 From 2001 to 2004 he served as Chief Prosecutor of the Vaal Triangle Cluster,

managing ten offices with extensive administrative, financial and oversight

responsibilities, including PFMA compliance, performance monitoring, liaison

with SAPS and local authorities, and the overall functioning of the cluster. He

later completed a Diploma in Corporate Governance and was appointed

Regional Head of the Special Commercial Crimes Unit in Johannesburg, leading

a team specialising in complex fraud and corruption prosecutions, and

contributing to the Donen Commission of Inquiry into the Oil-for-Food

Programme.

87 In 2007 he joined the Johannesburg Bar, practising across civil, labour, criminal

and equality matters and interacting with senior officials in both the public and

private sectors. On 1 September 2011, he was appointed the Director of Public

Prosecutions: South Gauteng, responsible for approximately 400 prosecutors

and 100 support staff. In this capacity he has overseen prosecutions in some of

the country’s most prominent matters, represented the NPA in high-level

engagements, and managed one of the busiest prosecutorial offices in the Public.

88 Chairperson, this is the professional record of Adv Chauke: a prosecutor,

magistrate, senior manager, specialist investigator, practising advocate and

ultimately the DPP of this province. It is a record of steady advancement, deep

institutional experience, and decades of commitment to the administration of

justice. Nothing about his career suggests a person prone to recklessness, mala

fides, or disregard for the rule of law. To the contrary, his history is one of

sustained public service and trusted leadership.

MR CHAUKE’S PROPOSED WITNESSES

89 In answer to the case made against him, Mr Chauke will call several witnesses.

90 These witnesses are:

90.1 Mr Mxolisi Nxasana, former National Director of Public Prosecutions;

90.2 Adv Lawrence Hodes SC, a senior advocate, who advised the NPA on the Booysen and Mdluli matters;

90.3 Adv Sello Maema, former senior official within the NPA and the lead prosecutor in the Booysen matter;

90.4 Adv Silas Ramaite, former Acting National Director of Public Prosecutions and the longest serving Deputy NDPP;

90.5 Adv Gerrie Nel, former Senior State Advocate and former director of Gauteng’s Directorate of Special Operations; and

90.6 Three officials from the SAPS.

91 For the witnesses who were previously employed by the NPA, we have asked for permissions to be issued in terms of the NPA Act, to enable them to consult fully with us.

CONCLUSION

92 Chairperson, when the dust settles, this Enquiry must answer a single question: do two prosecutorial decisions taken more than a decade ago justify his removal as Director of Public Prosecutions? On the evidence, on the law, and on the constitutional framework governing prosecutorial independence, the answer is plainly no.

93 In the Booysen matter, the Acting National Director of Public Prosecutions issued the POCA authorisation. That decision, long criticised on the basis of the judgment of Gorven J, has since been scrutinised by a Full Court. The Full Court found that the evidentiary material did implicate Major-General Booysen; that reliance on hearsay and similar-fact material was permissible under POCA; that the criticisms relied upon were based on factual misunderstandings; and that no case of mala fides, impropriety, or irrationality had been established. Crucially, the Court held that “no case has been made for removal or suspension from the roll of advocates” on the basis of that authorisation.

94 It is that very decision for which Adv Chauke is now criticised, not because he made it, but because he supported it. With respect, it is legally incoherent to hold that the person who did not exercise the statutory power is unfit for office when the Court has already held that the person who did exercise it acted lawfully.

95 In the Mdluli matter, the Supreme Court of Appeal has already answered the key question. It held that the withdrawal of the murder charge, the decision to refer the matter to an inquest, and the desire to avoid fragmented, piecemeal prosecutions were rational, reasonable and fully defensible. It held explicitly that later criticisms of the post-inquest period could not be used to invalidate the original withdrawal, because those later events were “not the subject of the review”. Thereafter, the NDPP, Mr Nxasana, independently reconsidered the matter and concluded that there was no basis to proceed with a murder charge. That combination — an SCA judgment and an NDPP’s independent review — should have been the end of the matter.

96 The present allegation requires this Panel to disregard the SCA’s binding findings, collapse two temporally distinct decisions into one, and treat as misconduct a course of action that both the SCA and the NDPP themselves found to be rational. That is not a legally sustainable basis. Chauke acted within the limits of his authority; and that the charges laid against him bear no resemblance to misconduct as contemplated by section 12(6).

100 At the end of this process, we submit that this Panel will have no difficulty finding that none of the charges against Adv Chauke has been substantiated; that they do not meet the constitutional threshold for suspension or removal; and that he remains fit and proper to serve as the Director of Public Prosecutions for South Gauteng.

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This report is a great honour to the late Babita Deokaran, civil servants, and whistleblowers committed towards clean governance and administration, and building an ethical developmental state capable of delivering services to the most vulnerable of society.

The ANC applauds the progress made in recovering the monies siphoned from the state and attempts to bring to book those involved in the plundering of state resources to the detriment of the poor and the state.

The arrest, conviction, and sentencing of those who killed Babita Deokaran is not sufficient nor proportionate to the sanctity of life in the absence of the full recovery of the money stolen from the state. The preservation of the order against those involved in graft is a positive development as the net finally closes against those involved in corruption.

The ANC has full confidence in the criminal justice system to fight graft in all its manifestations.

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