Former National director of public prosecutions Shamila Batohi. Photo: X
Outgoing national director of public prosecutions Shamila Batohi has opted not to resume her testimony before the Nkabinde inquiry until she receives legal advice, the inquiry heard on Monday.
In December, Batohi walked away from the witness stand before briefly returning to inform the panel that she wished to suspend her testimony, pending legal counsel. Batohi is the main complainant in an inquiry into the fitness of the South Gauteng director of public prosecutions, Andrew Chauke, to hold office.
On Monday evidence leader advocate David Mohlamonyane told the panel that the past Friday the evidence team had received communication from Batohi that her stance remained unchanged.
“She has not yet received the legal counsel that she sought,” Mohlamonyane said, adding that Batohi had requested the appointment of both senior and junior counsel from the Office of the State Attorney but the request was rejected.
The acting solicitor-general had advised Batohi to approach the minister of justice and constitutional development. Justice Minister Mmamoloko Kubayi had responded that because the National Prosecuting Authority (NPA) had a legal team, Batohi should use those services.
Mohlamonyane said Batohi had then expected the NPA legal team to advise her. The NPA subsequently wrote to the inquiry, requesting permission to consult Batohi.
“To date advocate Batohi says there was no response from the panel and, therefore, she will not be able to continue with her evidence until and unless she receives legal counsel,” he said.
Panel chairperson Judge Bess Nkabinde summarised Batohi’s position: “I suppose what you are saying in a nutshell is that advocate Batohi will not resume where she ended last year, subject to her being afforded what she asked for.”
Nkabinde asked whether the evidence team had discussed a way forward if Batohi did not return to the witness stand. Mohlamonyane said the team was devising a plan to proceed with the inquiry without her testimony.
Nkabinde indicated that the panel had not been informed of the nature of legal advice Batohi was requesting.
Advocate Tembeka Ngcukaitobi, for Chauke, said the panel should not forget that Batohi had walked out of proceedings without its permission.
“The panel should not create the impression that you can reward the delinquent behaviour of a witness who walks out and then makes an application while outside,” he said, noting that while Batohi was present on Monday after walking out in December, she had decided not to give evidence.
“In both of those instances those were unilateral decisions which did not have the permission of the panel,” he said. “The context must not be forgotten, that we are dealing with a witness who has taken the law into her own hands.”
He said Batohi’s decision had negatively affected his client who was on suspension and deserved speedy deliberation on the allegations.
Advocate Themba Skosana, who is part of the evidence team, said a legal code of practice prevented the team from consulting Batohi while she remained under cross-examination.
“We are saying this at this point in time that advocate Batohi has indicated her unwillingness to proceed without having attained legal advice,” Skosana said, adding that Batohi needed to clarify her legal rights and interests in light of how her cross-examination had unfolded.
“Once duly advised she will then make that call about continuing or not continuing with her testimony,” he said.
Skosana said if Batohi ultimately refused to continue, the evidence leaders had the power to subpoena her. He said the question of whether Batohi would be permitted to return to the witness stand by Chauke’s legal team would be considered once she decided whether she was returning.
Skosana told the panel that Batohi had been “crudely reprimanded” about the legal consequences of her walkout, but said she could only properly consider the implications after receiving legal advice.
He emphasised that the evidence team did not represent Batohi or the NPA but was mandated to place credible evidence before the panel.
He said Batohi should be given the opportunity to obtain legal counsel so that she could testify effectively and credibly.
Nkabinde said the NPA had provided legal counsel and that Batohi remained the head of the institution, but noted that she was seeking independent personal legal representation.
“If we were to make a decision, on what evidence are we going to make such a decision, if we even know what she seeks advice on?” Nkabinde said.
Skosana said the team required additional time to resolve potential conflicts of interest involving the NPA legal team and to determine how to deal with Batohi’s possible return to the witness stand.
He also told the inquiry that the evidence team was facing difficulties securing witnesses, particularly in relation to the Cato Manor case and racketeering charges involving former KwaZulu-Natal head of the Directorate for Priority Crime Investigation, commonly known as the Hawks, Johan Booysen.