Batohi’s actions at the commission echo troubling moments from South Africa’s recent past.
National Director of Public Prosecutions advocate Shamila Batohi shocked the country when she decided not to return from a lunch adjournment at the Nkabinde Commission of Inquiry into the fitness to hold office of South Gauteng director of public prosecutions head, advocate Andrew Chauke.
When Justice Bess Nkabinde insisted that Batohi return to the inquisitorial chamber to clarify the inquiry on her course of action, she did.
Only to tell them that she has decided, by herself, not to continue answering questions that Chauke’s lead attorney, advocate Tembeka Ngcukaitobi, was asking her under cross-examination.
It needs to be noted that Batohi had indicated that she had wanted the terms of reference of the commission be amended, well before she was cross-examined.
This means that she had not really prepared herself for the process as she had probably thought that because she petitioned President Cyril Ramaphosa through a letter to set up a commission, she must have thought that her request to change the terms of reference was a shoo-in.
She was wrong. Very wrong in fact, given that it would have been grossly unfair for a man’s career to be ended through a commission in which he could not cross-examine her accuser.
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Even just the basic rules of natural justice should have been enough to know that she cannot accuse Chauke and not be cross-examined by him or his team.
That is what is at the heart of fairness and lack of bias. Commentators have always tried to be fair to her as head of the National Prosecuting Authority (NPA).
It was always stated that she inherited an institution that had been hollowed out and almost completely incapacitated by the state capture process that happened until the point that she took over as NPA head.
In fact, as one of her accusations against Chauke, Batohi alleged that he enabled the proponents of state capture by not prosecuting without bias or fear.
So, she was generally treated as that one head of a state institution who had inherited a mess that did not allow her to do her job properly.
But her actions on Monday, 15 December, left her being compared to the man who was president at the height of state capture, Jacob Zuma.
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His actions of leaving the Zondo commission led not only to his brief incarceration in July 2021, it also resulted in a level of unrest that had not been seen in this country since democracy, particularly in Gauteng and KwaZulu-Natal.
And this is what Nkabinde, Ngcukaitobi and the country want Batohi to answer: does she not know the consequences of walking out of a commission of inquiry without permission, or does she simply not care?
If she cared, she would have done the simplest thing that any legal practitioner would have advised her to do: “Communicate your decision to stop answering questions at the commission through your legal team.”
The NPA, as the complainants, have a whole array of lawyers at the commission who could have easily communicated that she cannot continue without further legal advice.
Batohi had displayed a certain level of arrogance bordering on “I said I don’t want to be cross-examined so I will not answer questions in a helpful manner” all through her cross-examination. It is that attitude that made it clear why her tenure as NPA head had not come to an end quickly enough.
She found a compromised institution when she took over the NPA, but clearly she was not the right person to lead it back to health.
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