Deputy National Director of Public Prosecutions Willie Hofmeyr told the Mokgoro inquiry that he was not in a position to be cross-examined on comments Supreme Court of Appeal judges made in the October 2017 "spy tapes" judgment, in which adverse findings were made against him.His advocate, Annade Theart, told retired Constitutional Court Justice Yvonne Mokgoro, who chairs the inquiry, that he needed to make a considered decision on whether or not he might implicate himself.The inquiry has been tasked with establishing whether suspended deputy prosecutions boss Nomgcobo Jiba is fit for office as well as suspended special director of public prosecutions, Lawrence Mrwebi. Theart pointed out that the inquiry was not about Hofmeyr's conduct but about Jiba's and Mrwebi's fitness to hold office.She also said they were concerned that the opportunity to cross-examine Hofmeyr might be "abused" and that he might be the subject of an inquiry process which was not properly constituted."It should be considered what this inquiry is not about - it is not about the conduct of Mr Hofmeyr. He is not an accused and he is not the subject of this inquiry," she said.She said Hofmeyr was asked to respond to issues that fell outside the inquiry's terms of reference.READ: 'Normal' racketeering criteria not met in Booysen case - Mokgoro inquiry hears"There is absolutely no indication at all by Mr Hofmeyr that he wasn't prepared to give evidence. He is prepared to give evidence...the problem was the extent at which he would be cross-examined. "Mr Hofmeyr says that he would refrain from commenting on issues that might implicate him. He would like to make a considered decision about whether he might possibly implicate himself or not, which he hasn't had the opportunity to do at this point because he doesn't know which questions might be asked," Theart said.But Jiba's advocate, Norman Arendse, SC, hit back at Hofmeyr. He argued that if Hofmeyr refused to answer questions regarding the "spy tapes" saga, which was part of the terms of reference, his evidence should be ignored and disregarded from the record."Mr Hofmeyer has placed his own credibility on the line. It can't be that Mr Hofmeyr is allowed to bad mouth Ms Jiba, whose job is on the line…and his own conduct can't be tested," Arendse submitted.Arendse said Hofmeyr expressed strong views in his affidavit and that it was important to test those views.He said it had become clear that "holes had been plugged and more and more witnesses are being called or affidavits had been solicited to shore up what seems to be a case against Ms Jiba". ALSO READ: Jiba first seen as breath of fresh air, until the Booysen matter – HofmeyrAfter the arguments, Mokgoro ruled that Jiba's lawyers could continue to cross-examine Hofmeyr on comments the judges made.However, she added that Hofmeyr could consult a senior counsel.Hofmeyr is expected to return to the inquiry on a date which counsel agree upon.