Key Takeaways
- The Nkabinde Inquiry, appointed under Section 12(6) of the NPA Act, is examining whether suspended Advocate Andrew Chauke remains fit to serve as Director of Public Prosecutions for South Gauteng.
- Former NDPP Shamila Batohi testified between November and December 2025 but walked out of her cross‑examination on 15 December 2025, insisting she could not continue without independent legal advice.
- Batohi’s attorneys sought either a declaratory order allowing her to consult her legal team during testimony or formal leave to do so, arguing the inquiry’s potential impact on her constitutional rights and professional reputation justified an exception.
- The inquiry panel rejected the request, stating Batohi failed to show that pausing cross‑examination for counsel was necessary to protect her procedural fairness and emphasizing that the “professional rule” prohibiting lawyer‑witness contact during testimony is inviolable.
- Chauke’s legal team characterised Batohi’s departure as an “abscondment” and accused her of approaching the panel with “unclean hands” after already breaching the professional rule.
- The panel also warned that authorising state‑funded private counsel for a witness could set an untenable precedent within the NPA.
- Batohi retired as NDPP on 30 January 2026, leaving a legacy marked by high‑profile prosecutions and continued scrutiny over the handling of sensitive corruption cases.
Overview of the Nkabinde Inquiry
The Nkabinde Inquiry was convened under Section 12(6) of the National Prosecuting Authority (NPA) Act to investigate the fitness of Advocate Andrew Chauke to hold the office of Director of Public Prosecutions for South Gauteng. Chaired by Justice Bess Nkabinde, the panel’s mandate is to assess whether Chauke’s conduct, including any alleged misconduct or inability to fulfill his duties, warrants removal or other remedial action. The inquiry operates as a fact‑finding body, gathering testimony from witnesses, reviewing documents, and considering legal submissions before making recommendations to the President and the Minister of Justice. Its proceedings are governed by procedural fairness principles, yet they must also respect established legal protocols governing witness testimony and lawyer‑witness interaction.
Background of the Allegations Against Advocate Andrew Chauke
Chauke’s tenure as DPP has been shadowed by accusations of improper conduct, including allegations of influencing prosecutions, breaching confidentiality, and failing to uphold the independence required of the office. The NPA’s internal audit and complaints from various stakeholders prompted the initiation of the fitness‑to‑hold‑office inquiry. Chauke was subsequently suspended pending the outcome, and the Nkabinde panel was tasked with determining whether the allegations substantiate a finding of unfitness. The inquiry’s scope therefore encompasses not only the specific claims but also broader questions about institutional integrity and the safeguards that protect prosecutorial independence.
Shamila Batohi’s Role and Initial Testimony
As the former National Director of Public Prosecutions, Batohi lodged the original complaint that triggered the investigation into Chauke’s conduct. Between November and December 2025 she appeared before the Nkabinde Inquiry as a key witness, providing testimony about her interactions with Chauke, the decision‑making processes within the NPA, and any observed irregularities. Her evidence was considered crucial because it could shed light on whether Chauke’s actions constituted a breach of statutory duties or ethical standards. Batohi’s testimony spanned several sessions, during which she answered questions posed by the panel and counsel for both sides.
The December 15, 2025 Walk‑out
During a rigorous cross‑examination led by Advocate Tembeka Ngcukaitobi on 15 December 2025, Batohi informed the panel that she would not return after the lunch break. She explained that she felt unprepared to continue without receiving independent legal counsel, expressly stating that she did not wish to be represented by the NPA’s internal legal team. The walk‑out marked a dramatic interruption in the proceedings, prompting the panel to consider whether her departure warranted sanctions or a reconsideration of the procedural rules governing witness testimony. Batohi’s insistence on outside advice underscored her perception of the inquiry’s potential jeopardy to her personal and professional interests.
Batohi’s Request for Legal Consultation
Following her walk‑out, Batohi’s attorneys, Harris Nupen Molebatsi Attorneys (HNM), filed an application seeking either a declaratory order that she does not need the panel’s permission to consult her legal team while testifying, or, alternatively, formal leave to consult them during breaks. They argued that the inquiry’s nature—potentially affecting her constitutional rights to a fair hearing and her professional reputation—justified an exception to the standard rule that prohibits lawyer‑witness contact once testimony has begun. The application emphasized that Batohi sought advice solely to understand her obligations and to ensure her responses were not inadvertently self‑incriminating or misleading.
The Professional Rule Concerning Witness‑Lawyer Contact
Central to the dispute is the “professional rule” that generally bars legal practitioners from interviewing a witness once they have commenced testifying until cross‑examination is complete. This rule is designed to protect the integrity of the truth‑seeking process, preventing witnesses from tailoring their evidence based on legal advice received during breaks. The rule aims to ensure that testimony reflects the witness’s independent recollection rather than a version shaped by counsel. Inquiries and courts alike treat this provision as a safeguard against undue influence, and any deviation is typically scrutinised closely to avoid compromising evidentiary reliability.
Opposition from Chauke’s Legal Team
Advocate Chauke’s legal representatives strongly opposed Batohi’s application, characterising her departure from the hearing as an “abscondment” and asserting that she approached the panel with “unclean hands” after already violating the professional rule by seeking outside counsel. They argued that allowing Batohi to consult her attorneys during testimony would set a dangerous precedent, potentially encouraging other witnesses to interrupt proceedings for legal advice and thereby undermining the efficiency and fairness of the inquiry. Chauke’s team maintained that the panel should enforce the existing rules strictly, insisting that Batohi’s request was an attempt to manipulate the process rather than a genuine need for protection.
Panel’s Consideration of State‑Funded Private Counsel
The Nkabinde panel also examined the decision by the then‑acting NDPP, Advocate Andy Mothibi, to authorise Batohi’s private legal counsel at state expense while she remained a mere witness under cross‑examination. The panel warned that such a move could create an “untenable precedent” within the NPA, blurring the line between witness protection and state‑funded legal assistance for individuals who are not parties to the proceeding. Concerns were raised about resource allocation, the perception of preferential treatment, and the potential erosion of the principle that witnesses should bear the cost of their own legal advice unless a compelling justification exists.
Inquiry Chairperson Bess Nkabinde’s Ruling
Chairperson Justice Bess Nkabinde ultimately dismissed Batohi’s application, ruling that she had failed to demonstrate that pausing cross‑examination for legal counsel was necessary to safeguard her right to procedural fairness. The judgment stressed that the professional rule is “inviolable” and that any exception must be supported by a clear showing of prejudice or imminent injustice—elements the panel found lacking in Batohi’s case. The ruling reiterated that the inquiry’s truth‑seeking function depends on witnesses providing unvarnished testimony, and that permitting mid‑testimony consultations could compromise that objective. Consequently, Batohi was directed to resume cross‑examination without external legal advice, or else face potential sanctions for non‑cooperation.
Implications for Batohi’s Legacy and NPA Practices
Batohi’s tenure as NDPP, which began in December 2018, has been marked by high‑profile prosecutions and intense scrutiny over how the NPA handles complex corruption cases. Her resignation on 30 January 2026, shortly after the inquiry’s contentious episode, concludes a period characterised by both notable successes and criticism regarding transparency and independence. The Nkabinde ruling may influence future NPA policies concerning witness assistance, potentially reinforcing the prohibition on state‑funded legal counsel for witnesses unless extraordinary circumstances are proven. Moreover, the episode highlights the tension between protecting individual rights and upholding procedural rigor—a balance that will likely continue to shape inquiries into prosecutorial conduct.
Conclusion and Outlook
The Nkabinde Inquiry’s decision to deny Batohi’s request for mid‑testimony legal consultation underscores the primacy of evidentiary integrity in factual investigations. While Batohi’s apprehensions about her rights and reputation are understandable, the panel concluded that existing procedural safeguards adequately address those concerns without compromising the inquiry’s fairness. As the panel proceeds toward its final findings on Chauke’s fitness to serve, the legal community will watch closely to see whether this ruling prompts any revisions to NPA guidelines on witness support or stimulates broader debate about the appropriate limits of legal intervention during testimonial proceedings. The outcome may also affect how future senior prosecutors navigate complaints and inquiries, reinforcing the expectation that senior officials submit to the same procedural constraints as any other witness.