Simon Nare
The Nkabinde Inquiry into the fitness to hold office of suspended Gauteng Director of Public Prosecutions Advocate Andrew Chauke ran into new delays on Monday.
Evidence leaders said key witnesses were not ready to testify and raised concerns about a possible conflict of interest involving the National Prosecuting Authority’s (NPA) lawyers representing National Director of Public Prosecutions, Advocate Shamila Batohi.
The inquiry resumed after an adjournment in December when Batohi left while still under cross-examination, saying she needed to seek legal advice.
On Monday, the evidence leaders asked the panel, chaired by Constitutional Court Justice Elizabeth Nkabinde, to postpone proceedings to allow Batohi time to obtain that advice.
Batohi’s request to appoint her own legal team at state expense was rejected by the Solicitor-General and, on appeal, by Justice and Constitutional Development Minister Mmamoloko Kubayi. The inquiry heard that the minister advised Batohi to use NPA lawyers instead.
Evidence leader Advocate Themba Skosana SC told the panel that this had created a further difficulty because it could present a conflict of interest if Batohi is expected to rely on NPA counsel while she is a witness under cross-examination and the issue has not yet been tested.
Skosana said the evidence leaders did not represent Batohi or the NPA, but had a duty to place relevant facts before the panel.
“We have examined as evidence leaders the position of Advocate Batohi, who has been called by the evidence leaders to give testimony. She has put it plainly what her position is and that she requires counsel.
“First of all, she must be given an opportunity to consult and obtain that legal counsel from whatever quarters. Whether it be from the NPA legal team or any other legal team,” he said.
Justice Nkabinde cautioned that the inquiry had limited time and urged the evidence leaders to call other witnesses to avoid wasting sitting days. She said the panel had already applied to President Cyril Ramaphosa for an extension and was awaiting a response.
Skosana told the inquiry that the evidence leaders had not prepared any witness other than Batohi and that other witnesses had not yet been consulted.
He added that some witnesses linked to other lines of evidence had withdrawn their availability, and that witnesses relating to former crime intelligence head Richard Mdluli had not yet been consulted.
The panel granted a postponement, but refused the evidence leaders’ request to stand the matter down until next Monday. Instead, it adjourned to Thursday, saying a longer postponement would go beyond the period allocated by the President for the inquiry.
“There can be no doubt that the request for a further week will cause a delay in finalising this matter, or rather, with making progress in relation to this matter.
“Thus far, only one witness, Advocate Batohi, has testified and is still under cross-examination.
“Having considered the request and submissions made by the legal teams we agree that the postponement under the circumstances is warranted.
“However, the request until February 2 2026, cannot be granted because such a postponement to that date will go beyond the period allocated by the president for the enquiry,” Nkabinde said.
Earlier in the day, the evidence leaders came under criticism from the panel for not bringing a more formal, detailed application for postponement and for not clearly setting out what legal advice Batohi was seeking.
Skosana said he could not consult Batohi on the detail of her request because she was not represented by the evidence leaders and remained under cross-examination.
The inquiry is hearing evidence into Chauke’s fitness to hold office after Batohi asked Ramaphosa to initiate the process, citing complaints — including by herself and others — that Chauke had made politically motivated prosecutorial decisions.
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