National director of public prosecutions Shamila Batohi refused to continue testifying at the inquiry into South Gauteng director of prosecutions Andrew Chauke’s fitness to hold office on Monday, saying she needed to obtain proper legal counsel.
Batohi was still in the building in Pretoria where the inquiry is being held when proceedings resumed after lunch. However, evidence leader David Mohlamomyane SC told the panel, chaired by justice Bess Nkabinde, that Batohi had indicated she would like to be excused from the proceedings to seek legal advice.
Before the lunch break, Batohi faced tense questioning from Nkabinde about talking to a potential witness at the inquiry, KwaZulu-Natal director of public prosecutions Elaine Harrison, despite being warned not to talk to anybody about the case as she was still under oath.
Mohlamonyane told Nkabinde that Batohi was still in the building but was not willing to return to the chamber.
“The situation as it stands is that she is not here because she is asking to be excused and wishes to seek legal counsel. She is asking the panel to excuse her,” Mohlamonyane said.
Nkabinde asked that Batohi be called back into the chamber.
When she returned, Nkabinde asked Batohi why she decided to stay away without seeking the panel’s permission. Batohi replied that she decided not to return pending proper legal counsel.
Nkabinde then asked Batohi why she took the decision without the panel giving direction or permission for her to leave while being cross-examined. Batohi replied she thought it was an important decision and one she needed to take herself.
“You are before us. You decide to leave without approaching us with a request or an application through your team, and you stay away,” Nkabinde said.
Batohi replied she was not seeking permission.
“It is something I decided I needed to do because it concerns me and my integrity.”
Asked if she thought she can do whatever she wanted without approaching the panel, Batohi replied: “I did not want to come here because I did not want to be subjected to this kind of questioning. I would appreciate it if I could be excused now.”
Nkabinde reminded Batohi that the inquiry was instituted at her request and the panel appointed to preside over the inquiry, and asked her whether she wanted to “walk away now”.
“I would appreciate it if I could be excused,” Batohi replied.
Nkabinde said Batohi should have made the request to be excused before “you behaved the way you did”.
Panel member Elizabeth Baloyi-Mere SC said though the inquiry might not be a formal court, a witness could not walk out, especially under oath.
“I understand that this is generally the case. My appearance here is voluntary. However, because of what I have been subjected to, I felt I needed legal advice. That was my decision. I am not prepared to continue at this stage pending legal advice. I am not withdrawing, but I am not prepared to continue.”
Baloyi-Mere said Batohi could not say her appearance was voluntary.
“The trigger was your referral to the president. We are here because of an act of parliament. This is not a kangaroo court where one can say, ‘I am not going to participate’,” she said.
Nkabinde asked Batohi whether she had sought the panel’s permission to leave, noting that she had instructed the National Prosecuting Authority’s advocate to relay her message to the panel. Batohi responded that she was not seeking the advocate’s counsel because she was not allowed to speak to him.
When Nkabinde persisted with her questioning, Batohi said: “I will not be shouted at. I am trying to assist.”
Nkabinde remarked that Batohi had been disrespectful to almost everybody during the proceedings.
Nkabinde asked Batohi what was to happen to the proceedings now that she had decided to walk away while still under cross-examination and when she intended to return. Batohi said she had no idea.
“I am, for now, stopping my testimony pending legal advice.”
Tembeka Ngcukaitobi SC, counsel for Chauke, told Batohi she had made no application for postponement and was abandoning participation in the inquiry.
“I am not absconding. I am not continuing with my testimony pending legal advice. I am not prepared to be cross-examined at this stage. I am not answering further questions. This is the last question I will answer, and I ask to be excused.”
Ngcukaitobi said the last time someone walked out of an inquiry, there were serious consequences.
“I am not giving you legal advice.”
Ngcukaitobi appeared to be referring to former president Jacob Zuma, who left the state capture commission without seeking permission from the chairperson, deputy chief justice Raymond Zondo, in November 2020.
Nkabinde concluded that Batohi had indicated she would not answer any questions.
“She is acting without permission from the panel. Given the extraordinary circumstances, proceedings are adjourned to January 26 2026.”
Ngcukaitobi said Chauke did not accept Batohi was entitled to return and continue with her evidence.
“We will submit that a witness who refuses to answer further questions in the middle of cross-examination and abandons the inquiry without leave has waived their right to participate in the inquiry.”
He said while it happened quite often that a witness requested an opportunity to consult, what happened in this instance was unprecedented.
“What has happened today has been the most extraordinary thing. A witness has taken it upon herself to make those determinations. There are consequences to that, which we will address in due course.”
Ngcukaitobi said Chauke’s team should not be seen to be co-operating with any approach that would waive its entitlement to seek the striking of Batohi’s evidence in its entirety.
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