The MK Party has lost its legal bid to prevent former National Director of Public Prosecutions Samila Batohi from receiving her pension payout.
Thahasello Mphatsoe/News24
- The MK Party has lost its application to halt the payment of former prosecutions boss Shamila Batohi’s pension, and to have an inquiry instituted to investigate misconduct allegations against her.
- The party wanted the president to launch the inquiry after her appearance at the Nkabinde Inquiry.
- Dismissing the application, the Gauteng High Court in Pretoria also ordered the political party to pay costs.
The MK Party (MKP) has lost its legal bid to prevent former National Director of Public Prosecutions (NDPP) Shamila Batohi from receiving her pension payout.
Without giving reasons, Judge Nicoline Janse Van Nieuwenhuizen dismissed the urgent application in the Gauteng High Court in Pretoria on Thursday, and ordered the party to pay costs.
The MKP brought the application for an interdict to stop the disbursement of Batohi’s pension, following her retirement earlier this year.
The anti-dissipation order the party sought followed another in which they asked that the court order President Cyril Ramaphosa to institute an inquiry into whether Batohi was guilty of misconduct.
The allegations of misconduct the MKP levelled against Batohi stem from her appearance as a witness before the Nkabinde Inquiry.
The arguments for and against the application last week primarily centred on whether Ramaphosa has the power to institute the inquiry, given that Batohi is retired and no longer an office-bearer of the state.
Advocate Kameel Premhid argued for the MKP that the president has wide powers under the principle of legality and that there is an implicit power, provided one can show that the said power is subject to rationality.
This argument was in reference to the party’s bid to have the president use his powers to institute an inquiry against Batohi, similar to one in terms of Section 12(6) of the National Prosecuting Authority (NPA) Act, which empowers the president to suspend an NDPP and initiate an inquiry into the person’s fitness to hold office.
READ | MKP’s Batohi ‘misconduct’, pension payout court battle centres around president’s powers
Premhid contended that one could interpret the power of the president to mean that he can continue exercising accountability over a former NDPP.
He said that, with these ancillary powers, the president has rational reasons to initiate the inquiry, which would ultimately determine whether Batohi is entitled to her pension before it is disbursed.
Advocate Nyoko Muvangua argued for Ramaphosa that the MKP had not identified a single law empowering the president to act against the former employee, but that it seemingly sought to give the president overriding powers akin to a dictatorship.
Muvangua asserted that while the president could not institute such an inquiry, the MKP still had substantial redress and could approach the Legal Practice Council because Batohi is a lawyer.
She said that the president had no power to hold a former state employee accountable in perpetuity.
She also argued that a president could not perform a function not conferred by law.
ALSO READ | MK Party launches urgent court bid to block pension payout for ex-NDPP Shamila Batohi
Batohi’s advocate, Geoff Budlender, SC, said the arguments around Section 12(6) of the NPA Act were the showstopper in the political party’s application.
If the court finds that the president can’t use this section against a former employee, then the entire case falls, he argued.
Budlender argued that the powers of the president were set out in the Constitution and statutes, and that the president could only do what he was authorised to do by legislation.
Budlender added: “You can’t invent a power and say that power is part of the president’s powers. What is the source of the power? You must have a source of the power and when you exercise it, it must be with legality, but legality is not the source.”
Nkabinde Inquiry
The MKP’s case against Batohi stemmed from her testimony before the Nkabinde Inquiry, which she had asked the president to institute against suspended South Gauteng Director of Public Prosecutions Andrew Chauke, based on his dealings in the Cato Manor case and the prosecution of former Crime Intelligence boss Richard Mdluli.
While under cross-examination, Batohi halted her testimony, saying she had to consult counsel, and walked out because she did not wish to be subjected to “that kind of questioning”.
READ MORE | I did not walk out, says Batohi on her exit from the Nkabinde Inquiry
News24 previously reported that Batohi had, on multiple occasions, told the inquiry that she did not know key facts, documents, or processes underpinning some of the most serious allegations levelled against Chauke.
The MKP claimed that Batohi, under oath, may have knowingly made false or misleading statements to the inquiry, highlighting discrepancies in her statements.
The party also questioned Batohi’s conduct in excusing herself from the proceedings while still on the witness stand.
