Unaccountable 00033: Andrew Chauke
by Ra’eesa Pather for Open Secrets
5 July 2022
In this series, Open Secrets profiles the prosecutors inside the National Prosecuting Authority who motivated questionable prosecutions and unduly delayed important cases. In this instalment, we focus on Andrew Chauke, the NPA’s head of public prosecutions in Johannesburg.
In downtown Johannesburg, in the midst of the city centre bustle, the National Prosecuting Authority’s (NPA’s) building — known as Innes Chambers — is covered by honeycomb-shaped windows. The building has undergone extensive restoration to return it to its former glory, but deep in its interior, the NPA is grappling to clean up its image.
Public trust in the NPA has weakened due to ineffective leadership and continual delays in corruption prosecutions. Inside the authority, there are prosecutors who stand accused of prosecuting officials without the necessary evidence and delaying important cases. Despite the allegations, these prosecutors remain employed in key positions within the NPA. Among the most senior of them is Andrew Chauke, the NPA’s head of public prosecutions in Johannesburg.
As the Director of Public Prosecutions (DPP) in Joburg, Chauke makes decisions on prosecutions that are heard in the Johannesburg High Court. These include decisions on State Capture cases in the South Gauteng region, which have been assigned to Chauke’s office. Many State Capture cases have seen little progress from law enforcement agencies, including the cases of corruption at the Passenger Rail Agency of South Africa (Prasa). The NPA has said that Chauke’s office is working in collaboration with the Investigating Directorate on the Prasa case. Chauke has been the Joburg DPP since 2011. He was appointed by the president, who has the power to remove him. But while Chauke maintains he has made responsible decisions, he has faced criticism over his handling of various high-profile cases.
His role in the 10-year delay to prosecute former Gauteng Health MEC Brian Hlongwa’s R1.2-billion corruption case has been closely scrutinised. NPA court documents also raise concerns about his decision-making involving a case of alleged torture against a former senior Hawks official in North West, Major-General Jan Mabula. In addition, Chauke was a member of the prosecution team that brought the debunked racketeering case against former KwaZulu-Natal Hawks boss Johan Booysen.
Open Secrets sent detailed questions on each of these cases to Chauke in June. NPA regional communications manager Phindi Mjonondwane responded on Chauke’s behalf via email. She confirmed that the prosecuting authority was investigating the prosecutors, including Chauke, who had worked on the Booysen case.
“The NPA instituted internal proceedings regarding the role played by the DPP and the prosecutors in this matter and it is prudent to wait for the finalisation of such internal processes,” Mjonondwane said.
The confirmation that Chauke is being investigated by the NPA is an indication that there are serious concerns within the authority over Chauke’s conduct. He may face a presidential inquiry into his fitness to hold office if he is found guilty of misconduct. Yet, the Joburg DPP has not been placed on precautionary suspension pending the outcome of the investigation. Instead, he remains seated as the Johannesburg prosecutions boss, where he retains authority over high-profile cases.
The Booysen charges
In Unaccountable 00031, Open Secrets highlighted the erosion of the NPA in the Zuma-era and how the prosecution of former KZN Hawks head Johan Booysen led to declined public trust in the prosecuting authority. The then acting National Director of Public Prosecutions (NDPP) Nomgcobo Jiba had authorised racketeering and murder charges against Booysen and several other police officers in 2012. At the time, Booysen had been investigating a corruption case that had alleged links to Jacob Zuma’s son Edward.
The Durban High Court set aside Jiba’s decision to prosecute Booysen in 2015, finding there was not sufficient evidence to support the racketeering charges. However, the charges were reinstated in 2016 by then NDPP Shaun Abrahams after the NPA ostensibly found further evidence to support the case.
But in 2019, an internal NPA investigation, led by current National Deputy Director of Public Prosecutions, Rodney de Kock, found that neither Abrahams nor Jiba had sufficient evidence before them to authorise the racketeering charges. The De Kock report recommended that the racketeering charges Abrahams had reinstated be dropped, and in 2019 Batohi made a decision to withdraw the charges in accordance with De Kock’s recommendation.
When Jiba authorised the Booysen prosecution, she assigned a group of prosecutors — including Chauke — to the case. Details from the De Kock report significantly note that Chauke attempted to have the indictment signed without handing over a prosecution memorandum — a document that summarises the evidence in the case and which is required before the indictment can be signed.
In June 2012, Chauke and KZN prosecutions boss Simphiwe Mlotshwa clashed via email over the indictment. Chauke, in emails sent by his assistant, insisted that Mlotshwa sign the indictment, while Mlotshwa refused without a prosecution memorandum that detailed the evidence to support the charges. Chauke never sent the memorandum, but at the Zondo Commission, he blamed his assistant for the oversight, failing to recognise that he had the ultimate responsibility to ensure the report was shared with Mlotshwa.
In an affidavit submitted to the Zondo Commission in 2021, Chauke also denied that he had detailed knowledge of the Booysen-related evidence on which the charges were brought. He claimed that he would not have been able to comment on the success of the prosecution as he had not studied the dockets. He also distanced himself as only a “coordinator” on the case who was not responsible for the final decisions.
However, the De Kock report contradicts Chauke’s claim that he was unaware of the evidence in the case. Between 2012 and 2014, Chauke received four documents that dealt with evidence from the prosecution team, indicating he was aware of some evidence in the case.
The Mokgoro inquiry — a 2019 presidential inquiry that investigated allegations of wrongdoing against Jiba and former senior NPA prosecutor Lawrence Mrwebi — also made findings that contradict Chauke’s claims. According to the Mokgoro report, Chauke was responsible for signing and submitting a memorandum in 2012 for the charges against Booysen to be authorised. The application will have contained details of evidence in the case.
The Mokgoro inquiry also casts doubt on Chauke’s role as merely a distanced supervisor, stating that prosecutors had been reporting to him on their daily operations and he signed the 2012 prosecution memorandum on the case. This signifies that he was involved in important details of the case, beyond merely coordinating staff members.
Mjonondwane, however, reaffirmed that the Joburg DPP’s role in the case was “limited to that of a coordinator at the behest of his then senior, Adv Nomgcobo Jiba”. In response to questions about Chauke’s knowledge of the evidence in the case and his reasons for encouraging Mlotshwa to sign the indictment without a prosecution memorandum, Mjonondwane said that the NPA was dealing with these matters internally.
The findings of the Mokgoro inquiry and the De Kock report are significant because all prosecutors are bound by the NPA’s Prosecution Policy, which states that there must be sufficient evidence and a reasonable prospect of a successful prosecution for a case to proceed. In the Booysen case, the Durban High Court in 2015 and the De Kock report in 2019 found that neither of these requirements was met.
While Chauke was not the lead prosecutor on the case and was not responsible for making the decision to prosecute, he still had a duty as a prosecutor to abide by the NPA’s Prosecution Policy.
Chauke’s role in questionable prosecutions is not limited to the Booysen case. Recently, Chauke has caused chagrin within the NPA over his delay to prosecute former North West SAPS Deputy Commissioner Major-General Jan Mabula, who is accused of authorising and overseeing the kidnapping and torture of detainees in police custody. Mabula was also the lead investigator in the Booysen case.
The Mabula case
In a throwback to the violent and vicious apartheid-style abuses by the Security Branch, Mabula faces charges of kidnapping, assault and extortion along with seven of his colleagues in a case dating back to 2006. Open Secrets has seen a 2018 indictment, where Mabula faces charges of assault to do grievous bodily harm and kidnapping in relation to the alleged torture in detention of Paul Kgoedi, a suspect in a case Mabula’s team had been investigating.
Senior officials in the NPA have criticised Chauke’s handling of the case, which includes an agreement he made with the accused’s lawyers that would add further delays. Open Secrets has seen correspondence between BDK Attorneys, who represent the policemen, and Chauke that confirm the parties agreed to postpone the case pending a review from the NDPP.
In an email dated 10 June 2019, Chauke told BDK Attorneys that the indictment would “not be served on the accused pending your application for review by the office of the NDPP as well as your intended application to the high court”. One year later, in 2020, News24 reported that Chauke wrote in a prosecution memorandum that he had provisionally withdrawn the summonses against Mabula and his co-accused, pending the finalisation of the indictment and a review of the case as requested by the policemen’s lawyers. The concern officials within the NPA raised about the deal was that it would add significant delays to the case.
In November 2020, Rodney de Kock reportedly blasted Chauke’s decision in court papers submitted to the Johannesburg High Court, stating that Chauke had acted “contrary to the instructions you received from this [the National Deputy Director of Public Prosecution’s] office”. De Kock also pointed out the crushing effect such an agreement would have.
“This would bring the wheels of justice to a dramatic halt and would hold the NPA to ransom for many years to come,” De Kock reportedly submitted in an affidavit before the court.
Mjonondwane said in an email to Open Secrets that Chauke’s decision to enter into an agreement with BDK may be reviewed by the NDPP’s office. The NPA communications manager added that Chauke believed the agreement was a sound decision.
“The DPP was of the view that it was only rational to give the accused the opportunity to exhaust recourse mechanisms to avert any details that would be of hindrance to the trial,” Mjonondwane said.
Mabula and his co-accused appeared in the Johannesburg High Court in May 2022 as trial proceedings began. The lengthy delay, however, is an injustice for which Chauke should be held to account. The Joburg prosecutions boss, meanwhile, has also faced criticism over his handling of a case which involves another former high-profile official: Brian Hlongwa.
Hlongwa and the R1.2-billion corruption scandal
The 10-year delay to prosecute former Gauteng Health MEC Brian Hlongwa has been widely documented in the news media. Hlongwa faces allegations of tender corruption amounting to a staggering R1.2-billion in a case that dates back to 2006. The Hlongwa case was at the heart of capture involving healthcare investment advisory firm Regiments Health in the years that preceded its partner company, Regiments Capital, becoming a key player in State Capture.
The Special Investigating Unit (SIU) first handed the matter over to the Anti-Corruption Task Team — an interministerial unit which includes members of the NPA and the Hawks — in 2011. In its investigation, the SIU revealed that the Gauteng Health Department had awarded corrupt tenders for the establishment of an internal project management unit in 2007. According to the SIU, Regiments Health director Niven Pillay had paid R1-million toward the purchase of Hlongwa’s R7-million home in Bryanston, Johannesburg, while 3P Consulting boss Richard Payne, who is widely implicated in the scandal, paid a further R1.6-million. This is just one example of how Hlongwa benefited from irregularly awarding the tender to 3P and Regiments Health.
Chauke’s office has been working with the NPA’s Specialised Commercial Crime Unit on the Hlongwa prosecution. According to NPA documents from 2019, officials inside the NPA were struggling to understand the delays in the case. An NPA report on the case in 2019 stated: “The [matter] is to date still to be enrolled and it is not clear as to what has been the cause of the delay”.
A separate memorandum on the cases, dated 4 June 2019, stated that a forensic auditor contracted to help investigate the financial details of the case in 2011 had still not delivered their findings in 2013. The memorandum said that “the charges could not be finalised” without the forensic report, which meant that the NDPP could not authorise the prosecution. Eventually, the auditor submitted a report in November 2013, but it was incomplete, insufficient and could not be used as expert evidence in court, according to the NPA memorandum.
In November 2014, another forensic audit specialist was contracted to produce an expert investigative report. However, due to delays in handing over necessary evidence, a breakdown in communication with the police, and a time lapse in the contract, the new forensic auditor was unable to deliver the report in a reasonable time. Significantly, the NPA memorandum mentioned that Chauke only escalated concerns in February 2016 to request that the NDPP intervene to help finalise the case. This means Chauke waited a significant period of time before he took serious action to stem the delays.
Eventually, in August 2018, the new forensic auditor submitted the report. The NPA memorandum stated that the new report was still “incomplete”, however.
In the course of this time, warrants of arrest had been authorised for the arrests of Hlongwa and others in the case. However, in a strange turn of events, the NPA memorandum stated that “after the matter was discussed with the DPP, Adv. Chauke, and the ACTT [Anti-Corruption Task Team], an instruction was issued for the warrants of arrest to be cancelled for everyone except Richard Payne”. According to the Criminal Procedure Act, only the authority that authorised the arrest warrant — such as a magistrate — can revoke it. Unless a warrant is revoked, it must be acted upon and executed.
Hlongwa finally appeared in the Johannesburg Magistrates’ Court in December 2021 on charges related to violating the Prevention of Organised Crime Act — 10 years after the case landed with the NPA.
Mjonondwane stated that the delays in the case could not be solely attributed to Chauke’s office, saying that the case had been moved to the Priority Crimes Litigation Unit before it was returned to Chauke’s office in 2019.
“There were no undue delays from the prosecution team and/or the DPP,” Mjonondwane said.
Regarding any role Chauke potentially held in the decision for the warrants of arrest to be cancelled, Mjonondwane said: “This relates to internal matters which are subject to internal processes.”
Many of these cases, which have been on Chauke’s desk for a number of years, have yet to be finalised. Mjonondwane has said that no in-depth comment can be made on these cases because they are still ongoing. In the meantime, Chauke has not faced any serious consequences for his role in these delays, but there is some indication that the NPA is considering holding him to account.
Time for justice
The NPA’s confirmation that it is conducting an internal investigation into Chauke indicates that there are serious concerns about his conduct as the Joburg DPP. Despite these concerns, Chauke remains Joburg’s public prosecutions boss. In that position, he continues to make important decisions that have an impact on which prosecutions are pursued and how they are conducted. These include decisions on State Capture cases, where there is a dire need for prosecutions and convictions to hold perpetrators of corruption to account.
There is enough in Chauke’s track record for the prosecuting authority to place him on precautionary suspension pending the outcome of its investigation. The NPA must also request that the Presidency appoint a commission of inquiry into Chauke’s fitness to hold office if its own investigation suggests Chauke is guilty of misconduct. It is time to determine if Chauke is fit to occupy the office he still holds.
Unaccountable, we have not forgotten.