Former National director of public prosecutions Shamila Batohi. Photo: X
Officials at the Nkabinde inquiry investigating the fitness of Gauteng director of public prosecutions Andrew Chauke to hold office have requested a postponement after several witnesses changed their minds about testifying.
This came after outgoing national director of public prosecutions Shamila Batohi walked out of the inquiry in December and subsequently indicated she is not willing to return to the witness stand until she received legal advice.
Batohi, whose term in office ends this month, was grilled by Chauke’s counsel, advocate Tembeka Ncgqukaitobi who pointed out inconsistencies in the soon-to-depart National Prosecuting Authority (NPA) head’s statement and alleged she had not read the case dockets over which she is accusing Chauke of misconduct.
Batohi requested President Cyril Ramaphosa to institute the inquiry, alleging that Chauke failed to prosecute former crime intelligence boss Richard Mdluli while there was prima facie evidence and instituted racketeering charges against former KwaZulu-Natal head of the Directorate for Priority Crime Investigation (the Hawks) Johan Booysen with limited evidence.
Evidence leaders told the inquiry, headed by retired judge Bess Nkabinde, that they were facing challenges with key witnesses who were no longer available to testify. They included former KwaZulu-Natal director of public prosecutions advocate Moipone Noko. Her testimony is critical in unraveling the allegations of prosecutorial overreach against Chauke by deciding to prosecute on a case outside his region.
The inquiry ruled to subpoena Noko to submit a witness statement and testify. Evidence leader David Mohlamonyane said the team was facing difficulties securing witnesses in relation to the Cato Manor case and racketeering charges involving Booysen.
Mohlamonyane said evidence leaders could no longer reach advocate Shareen Riley, who was part of the NPA team which withdrew the racketeering charges against Booysen.
“It is not possible, madam chair, that advocate Riley’s statement will be in by tomorrow. She’s not answering calls, she’s not responding to Whatsapp messages,” Mohlanyane told panel chair Nkabinde.
The retired judge noted that the inquiry had only one witness who was willing to testify on Monday. She asked the evidence leaders how the inquiry was supposed to continue without witnesses.
“If the witnesses are there, please prepare them and exchange witness statements. If the witnesses are not there, simply close your case,” Nkabinde said.
She said Batohi was still technically under cross-examination and the panel needed to be informed about whether she would continue or withdraw entirely.
“We cannot leave it hanging forever; someone will have to report to us about the status of her evidence.”
On Monday, Batohi sent a letter to the inquiry stating that her position has not changed since she walked out in December and that she would not resume her testimony until she received legal advice.
“She has not yet received the legal counsel that she sought,” Mohlamonyane said, adding that Batohi had requested the appointment of senior and junior counsel from the Office of the State Attorney but the request was rejected.
Ngcukaitobi argued that his client, Chauke, was entitled to a speedy resolution to the allegations against him and that the panel should not forget that Batohi had walked out of proceedings.
“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, she had decided not to give evidence.
Analysts say her conduct has negatively affected her legacy. Speaking to the SABC, University of KwaZulu-Natal senior law lecturer Suhayfa Bhamjee said Batohi was leaving a “troubled” legacy and the Nkabinde debacle “damaged any sort of positivity that she had done”.
“She started on a strong note, in tending to handling a number of [Truth and Reconciliation Commission] cases and also tackling state and private corruption. But …there were challenges,” she said.
Former Constitutional Court judge Johann Kriegler said the NPA job was tough and Batohi had accomplished a lot within seven years.
“The job was objectively impossible. Shamila Batohi did not succeed in getting the ship on course and sailing at an appropriate speed but then I don’t think anyone could have, especially in seven years.”