MAKHUDU SEFARA

News headlines during the week told us how former National Prosecuting Authority head Shamila Batohi “opted” out of the inquiry into the fitness for office of Andrew Chauke, director of public prosecutions for the South Gauteng Division. She did not opt out. She ran for cover.

This inquiry showed us how the hunter became the hunted. Batohi must not be allowed to play hide and seek after going to President Cyril Ramaphosa with serious claims that Chauke made politically motivated prosecutorial decisions and protected high-profile individuals. In other words, he was a version of judge John Hlophe, who fell from grace after trying to influence two Constitutional Court judges to favour former president Jacob Zuma in one of the legal battles against him.

Chauke was, according to Batohi, the devil incarnate. A cancer to be eliminated. A judge-led inquiry was overdue. Ramaphosa indulged Batohi, appointing Bess Nkabinde to head such an inquiry. Now Batohi must be wishing Ramaphosa had ignored her.

How is it that the whole country has been made to believe that Chauke is a crook in advocate’s robes and yet the people who have fuelled this narrative are running for cover when called upon to elaborate?

Since this inquiry started, Batohi has been evasive. She said at the outset she believed that, following a private discussion with Nkabinde, she would not be cross-examined. The judge denied this, forcing Batohi to issue a public apology for misrepresenting the panel’s stance.

The red flags went up. Where do you get the chutzpah to misrepresent the inquiry’s chair in her presence? Even if Batohi was correct, how would the truth of her evidence be tested if she were not subjected to cross-examination? How did she, as a prosecutor, think this was going to pan out? It was legal mumbo-jumbo that should have alarmed us from the start.

Right there, the edifice collapsed. Everything else appeared academic

As cross-examination got under way, she was like the proverbial frog in a pot of gradually warming water, except she managed to jump out — for now. She absconded following questioning by Chauke’s legal representative, Advocate Tembeka Ngcukaitobi SC, in December. It then became clear that Batohi had made major decisions without reading case dockets and evaluating the evidence.

Specifically, she withdrew the Cato Manor racketeering case against Maj-Gen Johan Booysen but could not explain the basis of her decision. In her submission to Ramaphosa, she had accused Chauke of supporting unsubstantiated racketeering charges against Booysen. Faced with Ngcukaitobi’s questions, she couldn’t explain herself.

Ngcukaitobi suggested to her it was “irresponsible” to overturn Chauke’s decisions without reviewing the underlying facts herself. He highlighted contradictions between her testimony and a letter she had written regarding certain offences, calling it a “transparent lie”. He said to Batohi: “It’s either you are misleading the panel in your affidavit, or now [during her live testimony].”

This saga has been hugely embarrassing for Batohi. But the biggest issue was Ngcukaitobi saying Batohi “poisoned the waters” by repeatedly linking Chauke to state capture without providing direct evidence; she responded that she had no direct evidence of his involvement in state capture. Right there, the edifice collapsed. Everything else appeared academic.

Batohi took an unplanned, unsanctioned break in December. This week, she told the commission she is not returning, prompting the commission to call her conduct “disrespectful”.

In her letter to the inquiry, Batohi states: “It should be noted that during the course of my testimony, serious allegations were put to me, including that I had suppressed evidence, misled and lied to the panel, defeated the ends of justice, acted in breach of my oath of office and contravened the National Prosecuting Authority Act. These are matters of considerable gravity.”

The commission ruled her letter was of no value and would not form part of the final report.

It is strange that when one lawyer is quizzed by another, the result is so uncomfortable that the seasoned prosecutor turns tail, abandoning the proceedings midway. It’s a sad movie

Like many of the witnesses at the Madlanga commission of inquiry, Batohi asked to consult a lawyer as the cross-examination of her evidence grew more pointed. This request was turned down.

She is right to be worried. Police commissioner Fannie Masemola didn’t seem fazed until this week when he found himself in the dock, camera lights flashing. If Masemola could be arrested on charges under the Public Finance Management Act, then there is broad scope for prosecuting Batohi.

Did she suppress evidence, mislead the panel, lie and violate her oath? Why the sudden reticence?

As this commission comes to an end, I do not know if Chauke is a crook protected by a great lawyer, or if he is a poor man who served under someone who was unworthy to lead, who is now too precious to be cross-examined because, crucially, she doesn’t read, contradicts herself, tells transparent lies and has no evidence to support her own story.

It is also strange that when one lawyer is quizzed by another, the effrontery is so uncomfortable that the seasoned prosecutor turns tail, abandoning the proceedings midway. It’s a sad movie.

To say Batohi has been a letdown is to be polite. She deserves to be prosecuted, or even sued. We have become inured to Batohi-type incompetence. We shrug it off like it’s normal. Yet, people such as Babita Deokaran and many others pay the price. It’s incompetence that kills, that makes a mockery of the judicial system. The damage, the destruction of trust, is incalculable.

Many have compared Batohi’s behaviour with former president Jacob Zuma’s walkout from the Zondo commission; the Constitutional Court ordered jail time for him, making clear that no-one, regardless of their position, is above the law. This, too, should apply to Batohi. It is not enough to say she failed to prove her case against Chauke. She must face consequences for her actions.