Nkabinde Inquiry Delayed As NDPP Shamila Batohi Insists On Legal Counsel Before Testifying

The Nkabinde Inquiry into the fitness of Advocate Andrew Chauke to hold office has encountered another setback, with National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi declining to resume her testimony until she is provided with legal representation.

The issue, which first surfaced in December 2025, returned to the spotlight on 26 January 2026. During proceedings, Advocate David Mohlomonyane SC, appearing for the evidence leaders, confirmed that Batohi’s stance has not changed.

He told the inquiry that Batohi had halted her testimony late last year after requesting legal advice, a request she maintains has not yet been adequately met.

Legal Representation Dispute Stalls Inquiry Proceedings

“On the 23rd of January 2026, the evidence leaders received a letter from Advocate Batohi informing us that the position as it pertained on the 15th of December 2025 is still the same,” Mohlomonyane said.

“She has not yet received the legal counsel which she sought.”

Batohi had originally approached the Office of the State Attorney for the appointment of both senior and junior counsel. She was subsequently advised that the matter required intervention from the Minister of Justice.

In early January 2026, the Minister recommended that Batohi make use of the National Prosecuting Authority’s internal legal team, headed by Advocate Garth Hulley SC and Advocate Leketo. Batohi, however, expressed dissatisfaction with this option, indicating that it did not meet her expectations.

Shamila Batohi Refuses to Continue Testimony Without Counsel

In correspondence addressed to the inquiry, Batohi reiterated that she would not proceed with giving evidence unless her request for legal counsel was granted.

“Advocate Batohi says there was no response from the panel, and therefore, she will not be able to continue with her evidence until and unless she receives legal counsel,” Mohlomonyane stated.

Presiding officer Justice Bess Nkabinde sought clarity on the Minister of Justice’s involvement, prompting confirmation that Batohi had formally appealed the refusal of her request, leading to ministerial consideration.

Questions were also raised about whether Batohi was aware of responses from Advocate Chauke’s legal representatives concerning her legal position. Mohlomonyane confirmed that she had not been notified, either formally or informally.

Procedural Concerns and Code of Conduct Debate

Advocate Themba Skosana, speaking for the evidence leaders, emphasised that they did not act on behalf of Batohi or the NPA, but were concerned with procedural integrity. He explained that the suspension of Batohi’s cross-examination was directly linked to her demand for legal advice.

“We know that there was a request, during the cross-examination of Advocate Batohi, that such cross-examination be suspended until she obtains legal advice,” Skosana said.

A central point of contention relates to Rule 55.5 of the Legal Practice Council (LPC) Code of Conduct, which limits consultations with witnesses under cross-examination. Skosana argued that the rule should not extend to legal practitioners who have not yet called a witness.

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Justice Nkabinde cautioned against advancing such arguments without a formal application before the panel.

“You are now making a submission that, as evidence leaders, you take issues with the point that has been raised,” Nkabinde said. “There is no pending application before us with a specific relief sought so that we can make a ruling or an order.”

Although Skosana acknowledged the concern, Justice Nkabinde stressed that procedural disputes must be dealt with through properly filed applications rather than informal submissions or correspondence.

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