The MK Party's Chief Whip, Des van Rooyen, says allocating pension and other financial benefits to the former National Director of Public Prosecutions (NDDP), Advocate Shamila Batohi, will result in "irreversible" financial loss to the government.
Image: Phando Jikelo / Parliament of SA
The uMkhonto weSizwe Party (MKP) has warned the government against disbursing pension and post-tenure payments to the former National Director of Public Prosecutions, Shamila Batohi saying these payments will result in “irreversible” financial loss to the state.
In its court papers, the official opposition party cites Batohi’s conduct at the Nkabinde Inquiry, which is probing the fitness of Johannesburg prosecutions head Andrew Chauke to hold office.
President Cyril Ramaphosa established the Nkabinde Inquiry at the formal request of Batohi to investigate the fitness of Chauke to hold office and Batohi was among the key witnesses at the inquiry.
However, her testimony took an unexpected turn when she walked out during cross-examination while still under oath.
Based on this walkout, the MKP filed an urgent application in the Gauteng High Court to freeze Batohi’s pension and post-term gratuities.
The application also aims to reverse the decision to fund her legal costs in the Nkabinde Inquiry.
The party accused Batohi of misconduct, particularly relating to her testimony and conduct at the Nkabinde Inquiry, adding that the authorisation and payment of pension, gratuity, and post-tenure benefits to Batohi will result in the vesting of public funds in her personal estate.
The party added that once such benefits vest, the court will no longer be in a position to grant effective preventative relief, adding that any subsequent challenge would be confined to recovery proceedings, which are procedurally complex, protracted and uncertain.
“Recovery proceedings against an individual, particularly in respect of benefits lawfully received on their face, carry a materially heightened risk of non-recovery and significant litigation costs,” read the papers.
The MKP also alleged that Batohi made false and misleading statements under oath during the Nkabinde Inquiry.
The party also claimed that Batohi failed to safeguard sensitive prosecutorial matters and “materially compromised sound governance” during her tenure.
The party also argued that her “walkout” from the inquiry in December was unlawful and intended to evade accountability.
In the court papers, Ramaphosa is cited as the first respondent, while Batohi is mentioned as the second respondent. The National Prosecuting Authority (NPA) and the Minister of Justice and Constitutional Development, Mmamoloko Kubayi, are cited as the third and fourth respondents.
Ramaphosa's spokesperson, Vincent Magwenya, on Tuesday said there was nothing further to say on the matter.
NPA’s head of communication, Bulelwa Makeke, confirmed that the prosecuting authority received the application, adding that they will respond in line with “legally acceptable high court procedures”.
Batohi did not respond to a request for comment.
Department of Justice spokesperson Terrence Manase also confirmed the recipient of the court papers, adding that the department is currently studying the application and intends to oppose it.
“As the issues raised are now before the court, it would be inappropriate to comment further on the merits at this stage,” he said.
In his affidavit, Chief Whip Des van Rooyen submitted that, in accordance with established forfeiture jurisprudence in South Africa, the court has a duty to safeguard assets where there exists a real dissipation, particularly where such assets constitute a financial interest tied to State funds.
Van Rooyen said that although the party does not allege that Batohi is intending to dissipate the funds, the risk arises objectively from the nature of the payment and the absence of safeguards, not from any imputation of bad faith.
“If payment proceeds notwithstanding unresolved and material concerns, the principle of legality will be rendered hollow, as any subsequent engagement with those concerns will occur only after the irreversible transfer of public funds,” Van Rooyen stated, adding that Batohi will suffer no irreparable prejudice if payment is temporarily withheld or lawfully conditioned.
“In circumstances such as these, the imposition of a security undertaking by the respondent (Batohi) is not merely discretionary but essential to protect the underlying asset and preserve the integrity of public funds,” said Van Rooyen, who also stated that the party requests that the court order the provision of an appropriate security undertaking to ensure that the financial interest in question is preserved pending the final determination of the matter, more particularly if the interdiction is refused.
He also added that the existence of unresolved issues arising from the Nkabinde Inquiry, together with sworn material from senior officials within the NPA, constitutes relevant information that bears directly on the rationality of any payment decision.
“Where credible, objectively verifiable material exists raising concerns about the conduct of a constitutional office-bearer, that material constitutes relevant information which cannot be ignored.”
manyane.manyane@inl.co.za