Batohi’s stalling of Nkabinde inquiry raises questions about her legacy
Midway through her cross-examination at the Nkabinde inquiry on Monday, national director of public prosecutions (NDPP) Shamila Batohi took an extraordinary step. After the lunch break, she simply did not return. Instead she sent a message, delivered by the evidence leaders, that she was excusing herself and would answer no further questions until she had obtained legal advice.
The panel’s chair, retired Constitutional Court justice Bess Nkabinde, was having none of it. Having ascertained she was still in the building, she called for Batohi to be brought back into the inquiry chamber. When Batohi returned, she said she was not requesting a postponement; she would answer no further questions until she had obtained legal advice, she said.
The Nkabinde inquiry was established to look into whether South Gauteng prosecutions head Andrew Chauke — for years under a cloud for his role in controversial decisions associated with state capture — was fit and proper for his job. Batohi herself wrote to President Cyril Ramaphosa asking for the inquiry.
For one of the most senior lawyers in the country to stall the inquiry in this way was a drastic step. But Batohi was in a difficult position.
The inquiry was meant to be about Chauke’s fitness for office, but the spotlight had shifted to her own conduct and her leadership of the National Prosecuting Authority. Before lunch, Chauke’s counsel, Tembeka Ngcukaitobi SC, had suggested she was obstructing the course of justice and lying under oath.
The subject of his questions was a racketeering prosecution against former KwaZulu-Natal Hawks head Johan Booysen. This was a famous story in the state capture anthology: Booysen’s police unit was alleged to have run a Cato Manor hit squad, responsible for several murders, but Booysen maintained the charges against him were baseless. He was prosecuted because he had been investigating a crony of Edward Zuma, son of the former president, he said.
An inquiry into whether former acting NDPP Nomgcobo Jiba was fit for her job, chaired by retired Constitutional Court justice Yvonne Mokgoro, found that Jiba, who first authorised the racketeering charge against Booysen, had “allowed, and in fact enabled, the independence of the NPA to be compromised”.
In the factual account detailed by Mokgoro’s April 2019 report, Chauke also played a role. It is this role that, years later, is finally being investigated by Nkabinde’s panel.
But Mokgoro’s report was about Jiba’s conduct. The report also expressly said it was not pronouncing on whether Booysen was innocent. So, when Batohi was appointed NDPP in 2019, she had a decision to make: what to do with the prosecution.
In July 2019, the racketeering charges were withdrawn. Batohi had set up a panel of senior prosecutors to review the racketeering authorisations. It unanimously concluded that “a proper case was not made out” for racketeering, said the NPA in a statement.
The “remaining charges” — murder, housebreaking, theft and defeating the ends of justice — would be reassessed on the evidence, said the statement. In the end, only one of the murders — of teenager Kwazi Ndlovu — went to trial, and the prosecution failed.
By the time of Batohi’s decision, information in the public realm overwhelmingly supported Booysen’s version. Batohi’s decision was seen as a step to set the NPA back on the right course.
But now her decision is being scrutinised at the Nkabinde inquiry. She was questioned about a March 2019 meeting, soon after she took office, that included Booysen’s legal team — before she had even consulted her own prosecuting team. She was grilled and eventually conceded that “nothing was done” by the NPA when a potential witness, Ari Danikas, sent a complaint that Booysen had tried to intimidate him. “All of you collectively defeated the ends of justice … because you failed to address a crime brought to your attention,” said Ngcukaitobi.
Ngcukaitobi’s cross-examination not only suggested that her decision-making on the Booysen prosecution was sloppy. It hinted at something more unsettling: that Chauke’s case will be that Booysen’s exoneration could have been influenced by extraneous factors.
A fundamental legal principle is that prosecutorial decisions must be made independently — without fear, favour or prejudice. Yet the NPA’s leadership has, from the start, been plagued by outside pressures, especially political ones, with varying degrees of resistance and collaboration over the years. Since the NPA’s inception, no national director has completed a full term in office — until Batohi.
In recent interviews for her successor, former Investigating Directorate Against Corruption (Idac) head Hermione Cronje, said these pressures should be expected. It is a “systemic issue” — gangsters, organised crime, corrupt officials, they all will target the NPA”. Earlier this year, crime intelligence head Dumisani Khumalo testified at the Madlanga commission that it is the modus operandi of criminal cartels to target law enforcement — to ensure their longevity and to protect their operations.
When Batohi took the reins in 2019, it was after “a decade of grand corruption perpetrated during the state capture era”, she said in the NPA’s 2024 annual report. “I could never have known the extent of the challenges that lay ahead.”
Lizette Lancaster of the Institute of Security Studies told the Sunday Times: “She took over an organisation that was riddled with compromised people, political interference [and] highly demoralised and under-skilled staff.” Nor were there enough staff to do what needed to be done.
It was an open secret that the upper echelons of the NPA were divided into factions. “When an organisation [becomes] toxic, when morale is low, [it becomes] very vulnerable to incidents of interference, bribery and corruption. It is just something that permeates through the organisation. Once you have a decade or so of that, it is really difficult to turn it around.”
In her interview, Cronje referred to a recent survey of prosecutors. More than 60% said they had been offered a bribe.
Trawling through the NPA’s annual reports from 2019 to 2025, the overall picture is one of an institution working hard to come to grips with many challenges and to rebuild, in the face of intense public pressure to deliver.
The reports contain oblique references to frustrations with delays in disciplinary processes and, over the years, an effort to build a credible internal structure to deal with ethics. Eventually a new office for ethics and accountability was established — the regulations came into effect this year, with 36 staff and a requirement that they pass a lifestyle audit.
As organised crime proliferated globally, the NPA struggled with a lack of capacity and specialised skills, the annual reports reveal. The creation of Idac, meant to inject new strength to tackle corruption, had a wobbly start because the legislation that created it prevented it from working optimally. Legislative amendments to fix it only came into effect in August 2024. An intelligence-led prosecution strategy to combat organised crime was adopted last year.
These efforts, slow and unglamorous, are important. Good defences against political pressure and the predations of crooks is an institution that works well in the ordinary course and has effective internal mechanisms to address deviance.
As Batohi’s tenure comes to an end in January, she has been criticised for the NPA’s failure to put state capture crooks behind bars. People are fed up with crime and impatient for tangible results. Yet with all the grumbling, her good faith, her independence and her honesty have never seriously been questioned. When the Nkabinde inquiry was finally established, two years after Batohi requested it, the prevailing view was that it was part of her process to restore integrity at the NPA.
This could still turn out to be the case; it is early days. But if Chauke claims Batohi was influenced by extraneous factors, and if the inquiry agrees, it would cast a new light on her legacy. It is also possible for several truths to co-exist: that Chauke may not be fit for office and that Batohi’s conduct was sloppy or worse. It may turn out that both Chauke and Batohi acted in good faith.
What matters is that the truth, however complex, emerges. It matters for the future of the NPA and it matters for justice. Kwazi Ndlovu was just 16 when he was shot dead while watching football on TV, allegedly by members of the Cato Manor unit. No-one was convicted for this crime. No-one was even charged for any of the other alleged murders.
