The inability of national director of public prosecutions Shamila Batohi to continue with her evidence at the board of inquiry into the fitness of South Gauteng prosecutions boss Andrew Chauke to hold office, due to the absence of legal representation, is deeply concerning.
After the brutal cross-examination by Chauke’s counsel Tembeka Ngcukaitobi SC in December and a reprimand from inquiry chair justice Bess Nkabinde for speaking to a potential witness while she was under oath, Batohi refused to continue testifying in December last year, saying she needed to obtain proper legal counsel.
The proceedings were postponed until Monday and it emerged that her request to obtain legal representation has been refused by the solicitor-general, and the justice minister suggested she use the counsel representing the National Prosecuting Authority (NPA) at the inquiry, a suggestion with which she did not agree.
While the right to legal representation is fundamental, the resulting halt in proceedings raises serious questions about preparedness, accountability and the broader integrity of the process.
It has been a month and a week since the proceedings last sat and what is troubling is that the evidence-leading team appears to have no alternative witnesses available to continue these proceedings. On Monday the team sought a postponement for a week to sort out some of these issues, including:
- the unavailability of legal presentation for Batohi; and
- whether there is a conflict of interest if counsel representing the NPA in the inquiry also offers her legal advice.
When proceedings stall due to foreseeable and preventable issues, public confidence in the justice system is eroded. Delays such as this risk creating the perception that the process is either poorly managed or insufficiently prioritised
This lack of readiness is difficult to justify, particularly given that the evidence leaders, comprising four advocates, were granted time off last year to consult with witnesses and prepare for this phase of the inquiry.
Nkabinde reminded one of the evidence leaders on Monday of this fact.
Another board of inquiry member, Elizabeth Baloyi-Mere SC, was more blunt. She said the evidence leaders are the drivers of this inquiry. After Batohi’s decision last year, the team should have thought about the way forward and explored multiple probabilities, one of which was if Batohi did not proceed in giving evidence. Baloyi-Mere said she expected the team would come with a guiding position.
Proceedings such as the board of inquiry are not only about the fairness to those testifying; they are also about serving the public interest. When proceedings stall due to foreseeable and preventable issues, public confidence in the justice system is eroded. Delays such as this risk creating the perception that the process is either poorly managed or insufficiently prioritised.
The absence of standby witnesses suggests a failure to anticipate disruptions, an expectation in any complex legal process.
Witness availability is rarely guaranteed, which makes contingency planning crucial. The seeming lack of planning in this case undermines the credibility of the evidence-leading team and raises concerns whether this case is being handled with the seriousness and urgency it deserves.
Nkabinde eventually relented to the request for a postponement, but only for a few days, and the inquiry is expected to sit again on Thursday. This signals her resolve to ensure that the process moves forward and other witnesses get to testify. Batohi has been the only witness so far.
Chauke has been on suspension on full pay since July 20 2025 pending the finalisation of this inquiry. The delays mean there is still some time before he will know the outcome of the charges he is facing. These processes should not take longer than expected.
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