Delay in Nkabinde Inquiry as Shamila Batohi's funding dispute and other problems revealed

The Nkabinde Inquiry is faced with yet another delay - National Director of Public Prosecutions (NDPP), Shamila Batohi, did not resume her evidence on Monday. The evidence leaders want the matter regarding her funding finally resolved, and the panel wants to move on to another witness in the meantime.

The inquiry resumed after it was adjourned in December, when Batohi, while under cross-examination by Advocate Andrew Chauke’s legal team, walked out of the commission.

The panel, chaired by retired Judge Bess Nkabinde, is hearing evidence into the fitness of Chauke, suspended Gauteng Director of Public Prosecutions, to hold office. The probe follows after Batohi, whose term as the head of the prosecuting authority comes to an end next week, requested President Cyril Ramaphosa to look into Chauke’s fitness to hold office following several allegations by her, including claims that he made politically motivated prosecutorial decisions.

Batohi insists that she wants her own legal team, at State expense, to assist her while answering questions. But this was refused by the Office of the Solicitor General. Batohi took her plight to Justice Minister Mmamoloko Kubayi, who also turned her down.

The minister recommended that she make use of the NPA legal team at the inquiry, headed by Advocate Garth Hulley SC. But another problem arose, as the inquiry was told that there may be a potential conflict of interests between herself and the NPA’s legal team, which bars her from consulting with them while she is still under cross-examination.

Advocate David Skosana SC, a member of the evidence-leading team, meanwhile wants a postponement of the matter until next Monday. This is to establish whether there is a potential conflict of interest based on possible new facts. Skosana said it is important to establish Batohi's position so that she could return to the witness stand and conclude her cross-examination.

He said the evidence-leading team must have clarity because if there is no new evidence entitling her to State-funded lawyers, she will have to obtain these services from her own pocket. He also suggested that the new NPA head Advocate Andy Mothibi should look at the matter when he starts office next week.

But Judge Nkabinde said it is not his decision to make. Advocate Tembeka Ngcukaitobi, acting for Chauke, also made it clear that Batohi is not entitled to State-funded lawyers for herself. He also commented that the topic of her funding has occupied the inquiry the entire day on Monday, yet she " took the law into her own hands" when she walked out of the inquiry last month.

He further said she is not allowed to consult with the NPA’s legal team, who are part of this inquiry, as it's against the law. Skosana at first wanted to launch an application for the court to determine this issue, but Judge Nkabinde pointed out that the issue of State funding for Batohi has nothing to do with the inquiry. It is an issue which can be taken up with the Solicitor General and the Minister, she said.

Another issue which is vital to the inquiry is Skosana’s contention that he now has problems in securing the evidence of the witnesses in the matter regarding former Hawks head Major-General Johan Booysen and members of the Cato Manor organised crime unit.

This is one of the two main subjects before the inquiry, as it is claimed that Chauke persisted in seeing Booysen prosecuted on racketeering charges, despite those charges being dropped. Skosana explained that two of the witnesses in the Booysen matter - both advocates in the NPA - now refuse to testify. Booysen, he said, will testify but he can only consult with his lawyers at the end of February.

Judge Nkabinde questioned whether he could not in the meantime call witnesses pertaining to the second leg of the inquiry, which involves former police crime intelligence boss Lieutenant-General Richard Mdluli. Chauke is accused of doing everything in his power to see to it that Mdluli is not charged with murder.

It however, emerged that the witnesses in the Mdluli matter have not yet been consulted. In fact, the inquiry was told, there is no other witness ready to testify at this stage. This prompted Judge Nkabinde to remarked that it seems very little has been done to secure the evidence of witnesses. 

Late on Monday, it was eventually resolved that if Batohi cannot continue her cross-examination, another witness will be ready to testify.

zelda.venter@inl.co.za