The panel presiding over the inquiry into the fitness of Advocate Andrew Chauke to hold office as Gauteng South Director of Public Prosecutions has dismissed a National Prosecuting Authority (NPA) application seeking expanded powers to lead evidence and cross-examine witnesses.
Panel Chairperson Justice Bess Nkabinde shared the ruling. It found that the application lacked both factual and legal basis and risked undermining the inquisitorial nature of proceedings.
NPA behind complaints against Chauke
The inquiry was established following complaints by the NPA against Chauke, the former Director of Public Prosecutions for Gauteng South. The president suspended Chauke pending the outcome of the process, which must be concluded within 12 months of the suspension.
At the centre of the dispute was the NPA’s request to participate in the inquiry as an active litigating party. The authority argued that it should be allowed to lead its own evidence, question witnesses directly, and raise objections during cross-examination.
“In short, the NPA is of the view that its case is not being properly advanced in these proceedings,” the ruling notes, summarising the authority’s argument. The NPA was also concerned that “there may be disagreements between the Evidence Leaders on which witnesses to call and what evidence to present”.
‘Inquiry is inquisitorial, not adversarial’
However, the panel rejected the argument, emphasising that the inquiry was designed to be inquisitorial rather than adversarial.
The ruling states Rule 2.1 of the enquiry makes it clear that proceedings must be conducted in an inquisitorial manner in which the panel actively seeks the truth rather than adjudicating between competing parties.
“The inquisitorial process in an official enquiry in which a panel takes a proactive role is to ascertain the truth,” the ruling says. It added that adversarial court proceedings are “victory-driven”.
The panel found that allowing the NPA to lead evidence independently would fundamentally alter that structure.
‘NPA not appointed to lead evidence’
The ruling notes that the NPA is the complainant in the matter.
“Juxtaposing the responsibility of the evidence leaders with the standing and/or role of the NPA, it is beyond question that the NPA was not appointed and/or intended to lead evidence at an inquisitorial process such as the enquiry,” the panel said.
It also rejected the NPA’s attempt to rely on constitutional and criminal procedure provisions governing the rights of accused persons in court proceedings.
‘Inquiry is not criminal nor civil’
The authorities the NPA cited “have no bearing or relevance to the issues of fact raised in this matter,” the ruling states. It notes that the enquiry is neither criminal nor civil in nature and that Chauke is “neither a defendant nor an accused person”.
The panel further criticised the practical consequences of the NPA’s proposal. It warned that granting the application would create duplication and delays in the proceedings.
If the NPA was permitted to cross-examine witnesses independently, Chauke would face “duplicative rounds of cross-examination by the evidence leaders and the NPA”, the ruling says.
‘NPA’s position inconsistent with its own stated stance’
It would also introduce different procedural rules for certain witnesses and risk transforming the inquiry into an adversarial contest.
“Lastly, the inquiry proceedings will, indeed, degenerate into an adversarial process,” the panel warned.
It also suggested that the NPA’s position was inconsistent with its own stated stance that it did not wish to act as a prosecutor in the inquiry.
“In its replying affidavit, the NPA suggests that it does not want to act as a prosecutor. However, its claim of right is founded on section 35 of the Constitution and section 166(1) of the CPA. This is telling,” the panel observed.
‘Evidence leaders’ independence is central to inquiry’s integrity’
The panel concluded that the NPA’s interests were already adequately represented through the evidence leaders and that their independence was central to the integrity of the inquiry.
“The Evidence Leaders are independent and should be neutral. Their independence or neutrality … does not preclude them from presenting all relevant information to the inquiry, whether favourable to Adv Chauke or not,” the ruling states.
Finding that the application had no merit, the panel dismissed it in full.
The decision clears the way for the inquiry to proceed under its existing structure as it continues to examine allegations relating to Chauke’s fitness to hold office.
