Nkabinde Inquiry in limbo as Batohi demands independent legal advice

National Prosecuting Authority (NPA) head Shamila Batohi has refused to resume her testimony at the Nkabinde Inquiry, after her request for personal legal representation was denied by both the Solicitor-General and the Minister of Justice.

Batohi’s decision to withhold her testimony has left the inquiry at a standstill, as the legal question of whether she can secure counsel, despite the government’s refusal to provide funding, remains unresolved.

The issue arose when Batohi sought legal counsel to advise her on matters beyond the scope of the inquiry.

Despite her role in the NPA, her request was initially turned down by the Solicitor-General, and when she appealed to the Minister, her request was again denied, citing that the NPA, which she leads, is central to the ongoing inquiry.

Batohi’s inability to obtain independent legal representation has left her at a crossroads, and she has chosen not to testify until the issue is resolved

During the hearing, Advocate Themba Skosana, one of the evidence leaders, explained that the legal team's role was not to represent Batohi personally but to facilitate the inquiry’s progress.

However, he acknowledged the complications arising from Batohi’s refusal to testify in the absence of legal representation.

“As evidence leaders, we are not yet at the point where we are dealing with the leading of further evidence, but we are dealing with the position that this inquiry finds itself in so far as Advocate Batohi is concerned.”

He highlighted that, without clarity on Batohi’s legal status, the inquiry could not proceed effectively.

Justice Bess Nkabinde, presiding over the inquiry, expressed frustration over the delay and the uncertainty surrounding Batohi's decision.

She pointed out that the panel had no formal application outlining Batohi’s legal needs.

“If we are asked to make a decision, it must be on an application. It is then that we have all the facts by all the parties, we have legal arguments by all the parties, and then we can form a view and make a ruling,” Nkabinde said.

She added that the inquiry’s ability to continue hinged on resolving this issue swiftly, as time was of the essence.

Despite the legal roadblock, the panel has not dismissed the possibility of moving forward with other witnesses.

Justice Nkabinde made it clear that the inquiry could progress with further testimonies if Batohi chooses to forego her testimony, stating, “We cannot go. Now we spent almost half a day talking about the interests of Advocate Batohi, which we all understand. But a decision must be taken. If she decides not to take a witness stand, that will be her choice.”

One of the issues raised during the hearing was the potential conflict of interest surrounding Advocate Garth Hulley, who represents the NPA.

Batohi had requested Hulley’s team to provide her legal advice, but doubts arose over the impartiality of this arrangement, especially considering Batohi’s leadership position within the NPA. 

Skosana acknowledged the complication, stating that the conflict of interest only became apparent after Batohi’s initial request for legal counsel was denied.

“We must remember that when she was disallowed to appoint a new counsel, and when the NPA legal team was appointed as the ones who should give her the advice, that issue had not arisen,” he said. 

While acknowledging the conflict, Skosana refrained from concluding whether it had been formally considered by the Minister or the Department of Justice.

Nkabinde sought clarification on whether Batohi could seek legal representation independently, either through her own funding or via legal aid.

Skosana confirmed that Batohi was not barred from seeking private counsel, but acknowledged that she may face financial barriers in securing it.

“As far as I am aware, no. She is not barred from doing so,” Skosana said, referring to Batohi's ability to hire private legal counsel.

However, he cautioned that Batohi’s circumstances likely meant she would not qualify for legal aid due to her high-ranking position within the NPA.

“If she qualifies, yes, she may obtain legal aid funding, but I am not sure she would meet the criteria,” he added.

The failure of the Solicitor-General and the Minister to approve Batohi’s request has created a significant procedural delay.

The panel has expressed concern over the time wasted addressing these legal questions, and Justice Nkabinde urged the evidence leaders to resolve the issue promptly. “We cannot move forward without clarity on this,” she said. 

hope.ntanzi@iol.co.za

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