An attempt by former national director of public prosecutions Shamila Batohi to “massage” her image after her unprecedented walkout from a judicial inquiry has met with a blunt rejection from the panel.
The advocate also received censure from Justice Bess Nkabine and her team for attempting to get her side onto the record through a “back door” approach.
Andrew Chauke, the South Gauteng director of public prosecutions, was suspended last year by President Cyril Ramaphosa, almost two years after Batohi recommended the move amid withdrawals of state capture cases.
Batohi was called as a witness to the panel set up to ascertain Chauke’s fitness to hold office. When she began facing questions about some of her own actions in the position, she seemingly took umbrage. After her December refusal to continue her testimony, following an adjournment, she told the panel through a lawyer in April that she would not be returning.
She has subsequently petitioned the panel for leave to file formal written submissions to be admitted into the official record of the inquiry. The application sought to provide context to her uncompleted cross-examination and her subsequent decision to discontinue oral testimony before the panel.
Nkabinde has denied this request, finding it lacked merit.
She also declined to permit Batohi’s written submissions to be admitted into the record. This was after the ex-NDPP annexed to her application “the very written submissions she seeks the leave of the panel to file”.
“She seeks to place evidential material on record by way of written submissions, and I might say through a back door, which axiomatically ought to have been presented orally at the hearing.
“This inexplicable tactic is extraordinary. It offends the principles of procedural law. If this is not a display of a disdainful attitude toward the panel, it is not clear what it is,” Nkabinde said. “The only reasonable conclusion one may reach is that advocate Batohi did so to ensure that the panel reads the submissions before they are properly admitted into record.”
Outlining the reasons for the decision, Nkabinde said Batohi’s previous attempt to explain her conduct and reasons for declining to resume the witness stand to complete her partial evidence through a letter from the Bar was refused.
Before this latest approach, Batohi had unsuccessfully attempted to give the reasons, by a letter, for not returning to the inquiry to complete her evidence.
Chauke’s legal team had argued he would be prejudiced if it was allowed, because Batohi’s “curated, untested, self-justifying narrative on matters relevant to her credibility and her evidence would not be subjected to cross-examination”.
The evidence leaders argued that Batohi’s written submissions would not deal with the central issue at stake before the panel, namely Chauke’s fitness to hold office.
Batohi conceded this was the case.
“The concession is correct, but it illustrates the self-seeking nature of the application,” Nkabinde said.
“The point regarding the circumstances informing advocate Batohi’s decision not to continue with her testimony is irrelevant to the work of the panel, as provided for in the terms of reference.”
Batohi could not be allowed to interfere with the workings of the inquiry, Nkabinde said.
“Advocate Batohi has created a storm of her own making. She must make peace with her election not to return and complete her evidence and must stand by her decision.
“She must have made the election with a full knowledge of the fact that the incompleteness of her evidence may have implications on the weight to be attached to her evidence.
”Therefore, she cannot have her cake and eat it too.”
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