By Lehlohonolo Lehana.
The Nkabinde Commission of Inquiry has dismissed former National Director of Public Prosecutions (NDPP) Shamila Batohi’s application to obtain legal advice while still under cross-examination.
In a unanimous ruling on Friday, inquiry chairperson Bess Nkabinde found that Batohi had failed to demonstrate that her right to procedural fairness had been infringed.
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.
Chauke has been suspended on full pay since July 20, pending the outcome.
Batohi the primary complainant whose allegations triggered the presidential inquiry, sought to expand or alter the scope of the investigation while testifying before the panel.
She argued that the final terms of reference signed by the President differed from the documentation she had initially submitted.
However, during cross-examination, Batohi conceded that she had not familiarised herself with the specific terms of reference before the inquiry commenced.
This is an admission that drew sharp scrutiny from Chauke’s legal representatives.
They argued that amending the terms would shift the goalposts, forcing Chauke to defend himself against a materially different case than the one he had prepared for.
The panel agreed.
In its ruling, the inquiry recommended that Batohi’s application be denied, confirming that the proceedings will continue under the original terms of reference as mandated by the Presidency.
Tensions escalated further when Batohi abruptly excused herself from the ongoing cross-examination without submitting a formal application to the panel.
Nkabinde found that Batohi was not entitled to the same procedural safeguards as an accused person and, therefore, could not claim an automatic right to legal consultation during cross-examination.
“She said the line of questioning during cross-examination did not amount to unfair administrative action. She’s not entitled to any such safeguards under section 35 of the Constitution. This is so because the applicant is not an accused person. Accordingly, the application is dismissed. This is a unanimous ruling.”
Nkabinde also raised concerns regarding the current NDPP, Advocate Andy Mothibi’s decision to authorise Batohi’s private legal counsel at the state’s expense while she was merely a witness under cross-examination. The ruling noted that such a move might set an “untenable precedent” within the NPA.
While Batohi maintained that her request was a move to protect her integrity and understand her obligations, Nkabinde emphasized that the professional rule is “inviolable”.
Batohi, who served as NDPP since December 2018, has been at the centre of scrutiny over high-profile prosecutions and the handling of sensitive corruption cases during her term.