Des Erasmus
The Nkabinde Inquiry has dismissed former prosecutions’ boss Shamila Batohi’s bid to place written submissions on record, accusing her of trying to introduce a “curated, untested, self-justifying narrative” after she refused to complete cross-examination in the fitness inquiry into South Gauteng prosecutions head Andrew Chauke.
In a ruling that repeatedly and bluntly faulted Batohi’s conduct, issued on Friday, the panel said Batohi, who was a witness and not a party to the proceedings, had attempted to place material before the inquiry “through a back door” after previously failing to have her reasons for not returning to the witness stand read into the record.
“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!” the ruling said.
The inquiry said Batohi “had petitioned the Panel for leave to file formal written submissions to be admitted into the official record of the Enquiry”.
It said the application sought “to provide further context to her uncompleted cross-examination and her subsequent decision to discontinue oral testimony before the Panel”.
“Following a careful evaluation of the application, the answering affidavits, and the applicable legal framework governing these proceedings, the Panel has denied the application and declined to grant leave for the written submissions to be admitted into the record.”
The panel said Batohi’s role in the inquiry was limited to giving evidence and that she had no right, as a witness, to supplement her incomplete testimony through written submissions.
“As can be discerned from the relief sought in this application, a question that arises is whether the applicant Adv Shamila Batohi…who is merely a witness and not a subject of the Enquiry, should be allowed to file written submissions.”
The panel said Batohi had annexed to her application the very submissions she was seeking permission to file, without first obtaining leave. It found that this disregarded due process and the principle of finality.
In December last year, Batohi left the inquiry during a lunch adjournment while under cross-examination and did not return when proceedings resumed.
After being summoned back, she told the chairperson: “I decided, Chairperson, that I was not going to come back pending getting proper legal counsel.”
When asked why she had not approached the panel for permission or appropriate relief, Batohi said: “Chairperson, I was not seeking [your] permission, it is something that I decided I needed to do because it is about me and my integrity.”
The panel said it had waited from 15 December to 23 April for Batohi to decide whether she would return to complete her evidence, but she ultimately said she would not.
“Adv Batohi has created a storm of her own making,” the ruling said.
“She unequivocally decided not to complete her evidence. Now, in a volte face, she wants to present evidence to explain her decision and to assist the Panel. Adv Batohi cannot and will not be allowed to meddle with the Enquiry procedures to do as she pleases.”
The ruling said Batohi had to accept the consequences of her decision not to return.
“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,” the panel said.
Chauke and the evidence leaders opposed Batohi’s application, while the National Prosecuting Authority did not respond to it.
The panel agreed that Chauke would be prejudiced if Batohi’s submissions were admitted because her explanation would not be tested under cross-examination.
It also said it noted that Batohi had conceded her proposed submissions “do not address the central question before the Panel, namely the fitness of Adv Chauke to hold the office of Director of Public Prosecutions.”
The evidence leaders, according to the ruling, correctly refused to accept Batohi’s submissions for presentation because she was a witness seeking to assume the role of evidence leader.
“The Evidence Leaders cannot be faulted for having refused to partly share their reigns with her,” the ruling said.
The panel concluded that Batohi’s application lacked merit.
“Accordingly, the application lacks merits and the relief sought in the notice of motion should therefore be refused,” the ruling said.
“The application is dismissed.”
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