THE COMEBACK: Chauke cleared for takeoff as possible replacement for NPA head Andy Mothibi

Advocate Andrew Chauke, Director of Public Prosecutions for South Gauteng – cleared this week by President Cyril Ramaphosa of all accusations – is ‘fit and proper’ to stand in line to succeed current National Prosecuting Authority head Andy Mothibi, who will step down in 2028.The President, who instituted the inquiry at the insistence of retired NPA head Shamilla Bathoi, said he accepted the findings of the commission led by retired judge Bess Nkabinde.“Having carefully considered the report of the panel and its findings in respect of all allegations contained in the Terms of Reference, I am satisfied that the allegations against you have not been substantiated by the evidence presented before the enquiry,” Ramaphosa wrote to Chauke.From the start, this inquiry was a nightmare, with the NPA steering itself clear-eyed into the iceberg of advocate Tembeka Ngcukaitobi, representing Chauke, and an irascible commission head in judge Nkabinde. Fit to hold officeOn Tuesday, President Cyril Ramaphosa communicated to Chauke (51), that “I accept the findings and recommendations of the panel. Consequently, I am satisfied that there is no basis upon which to conclude that you are unfit to hold office as Director of Public Prosecutions”.Dr Jean Redpath, senior researcher with the Dullah Omar Institute, said that the only requirement for National Director of Public Prosecutions (NDPP) was to have the right of appearance and to be fit and proper.“He has both”, she told Daily Maverick about Chauke, adding, “in our view the NPA Act does not comply with s179(4) of the Constitution which requires that national legislation ensure the NPA Act is applied without fear, favour or prejudice”.While Chauke has not expressed any such ambition, nothing stops him now from throwing his robe into the ring.At present, said Redpath, the National Director of Public Prosecutions and all top 16 persons in the NPA were, by law, appointed by the President only, and those below NDPP, on the advice of the national director.This means the President could appoint the next NDPP, with it being subject only to a rationality review. “As Chauke has been cleared, it would not be irrational to appoint him,” said Redpath.No legal shieldBathoi had complained earlier that she had, in fact, lacked “effective legal representation” throughout the inquiry. While advocate Garth Hulley had represented the NPA, there were limitations to protecting “individual interests as opposed to those of the office of the NDPP”, Batohi said.Batohi clarified that while she did not suggest any fault on Hulley’s part, the procedural requirement for him to act through the neutral evidence leaders meant her interests were not “adequately advanced or protected”.With retirement shimmering on the horizon and fresh from an earlier grilling at Parliament’s ad-hoc inquiry into allegations of capture of the law enforcement cluster by KZN SAPS head, Major General Nhlanhla Mkhwanazi in July 2025, Bathoi limped into the Nkabinde inquiry like a wounded Bambi into the forest.Bathoi’s disasterBathoi clearly regretted having anything to do with the inquiry from the start, when she challenged the terms of reference. The inquiry did not significantly broaden itself beyond the prosecutor’s decision-making in the two cases in question, even though there was room for this in the terms of reference, she had argued.In the end, Chauke’s decisions not to prosecute disgraced former head of Crime Intelligence and Zuma ally Richard Mdluli, and the institution of racketeering charges against former KZN Hawks head Johan Booysen were what were on the table.With Ngcukaitobi on one flank and retired Justice Bess Nkabinde on the other, Bathoi found herself under intense pressure and opted later to walk out of proceedings after the panel refused her permission to consult with her own legal representatives.By then the ball had been dropped, the axe had fallen. Chauke was going to be cleared and return to the powerful position.The ambushBathoi was ambushed in December 2025, when Ngcukaitobi unexpectedly introduced to the inquiry graphic video footage by police reservist Aristeidis Danikas, at an armed robbery shootout with members of the Cato Manor Unit at a house in Queensburgh in 2007.This is the footage Danikas, a Greek citizen, had placed on YouTube and formed part of several Sunday Times articles on the Cato Manor Unit, which were later withdrawn. Batohi told the commission she had never seen this evidence before.Bathoi was accused of suppressing evidence, of lying to the panel and defeating the ends of justice – without intervention from the panel or evidence leaders.She said she viewed the nature of proceedings as an “inquisitorial fact-finding investigative inquiry” rather than “an adversarial trial where she would be a complainant”.Chauke’s long roadAndrew Chauke was appointed by former president Jacob Zuma in 2011 as Director of Public Prosecutions of South Gauteng. As Ra’eesa Pather of Open Secrets has noted, in this position he was responsible for making decisions including those on State Capture cases assigned to his region.“While Chauke maintains he has made responsible decisions, he has faced criticism over his handling of various high-profile cases,” noted Pather.Chauke’s role in the 10-year delay to prosecute former Gauteng Health MEC Brian Hlongwa’s R1.2-billion corruption case as well as a case of alleged torture against a former senior Hawks official in North West, Major-General Jan Mabula, have raised questions about his conduct.The collapseIn January, the panel learnt that witnesses who had been requested to provide statements concerning the institution of racketeering charges against Booysen and the Cato Manor Unit had pulled out or been reluctant to give up their timeThese had included former KZN prosecutor, advocate Moipone Noko, whom Booysen accused of withdrawing charges against Durban businessman and Zuma family associate Thoshan Panday and his co-accused, Colonel Navin Madhoe. Noko resigned in 2o21 after being transferred to North West.In a surprise move in February, Noko came out to bat for Chauke at the inquiryApproached by Daily Maverick, Booysen, who is currently overseas, referred to findings of the “Gorven judgment” in which it was found that witnesses Colonel Aihyer, Danikas and a Mr Mthiyane had not challenged factual submissions in Booysen’s affidavits concerning his alleged crimes.The Dullah Omar Institute’s Redpath commented that the appointment of the NDPP should, in future, “be an open, transparent, competitive process, more stringent requirements, and a fixed term of office for those under [the] NDPP (who serve until 65)”. DM