Getting justice is difficult, Batohi says
• NPA puts 700 officials behind bars and recovers R6bn
The National Prosecuting Authority (NPA) has over the past five years put 700 government officials behind bars, achieved an 88% conviction rate for complex commercial crimes and recovered more than R6bn stolen out of SA’s coffers.
This is according to NPA head Shamila Batohi, speaking at its annual media briefing in Pretoria on Wednesday.
Despite these successes, Batohi admitted she “was really quite wrong” about how quickly the NPA could win at least “one really ... big [state capture] case”.
Reflecting on the harsh criticism from the public, media and the courts, Batohi acknowledged the NPA could do better. “We hear the deafening calls for accountability,” she said.
Pointing to the implosion of Steinhoff, however, she noted “impunity is no longer a given” and accountability “will come”.
Regarding state capture prosecutions, she noted the NPA’s failure to obtain a conviction in the Nulane Investments matter last year. It had attempted to prosecute Free State department of agriculture officials and others, including Gupta associates, of paying almost R25m to Gupta-linked company Nulane Investments.
The NPA’s Investigating Directorate (ID) accused them of corruption and fraud, but the accused were discharged or acquitted after what the court described as “lackadaisical” conduct by the NPA due to poor evidence.
“To say the manner in which the investigation was conducted is a comedy of errors would be the understatement of the millennia,” Free State acting judge Nompumelelo Gusha wrote in April 2023.
NO BLUEPRINT
Batohi, however, said the NPA would “take lessons” from that case and the matter has been appealed. Andrea Johnson, the head of the ID, said the judgment was given to senior members of the NPA to critique how the ID had conducted the case.
Batohi also noted that stopping corruption cannot be “prosecuted away”. She noted the importance of working “holistically”, pointing to a recent directive implemented by the NPA to allow corruption-linked corporations to come forward voluntarily, avoiding criminal charges and engaging in alternative dispute resolution mechanisms.
Rodney de Kock, Batohi’s deputy, stressed that the new mechanism was “not a free pass” for corporations.
Batohi stressed that the Zondo report on state capture “did not give ... a blueprint for prosecutions”. She felt it “raised expectations unreasonably” that prosecutions would “follow quickly”. Proving a prosecution took time and involved sometimes highly complex issues.
De Kock pointed to Steinhoff as an example of that complexity. There was an enormous number of documents to sift through and Steinhoff was “multijurisdictional”, requiring multiple groups working in tandem. The NPA had to obtain “digital forensic capacity” to turn complex evidence into evidence that was clear to a court.
In terms of how the NPA has improved in the past five years, Batohi noted the leadership had “stabilised”, with an increase in staff capacity, and a greater partnership with civil society and international experts. It is seeking more independence in terms of legislation.
She expressed her “respect” to President Cyril Ramaphosa and justice minister Ronald Lamola for never “encroaching” on the NPA’s work.
Batohi also noted SA should be proud of its prosecuting authority as it sought to prosecute a former president, Jacob Zuma, and a former secretarygeneral of the ANC, Ace Magashule.
Both matters are ongoing, though Batohi said the NPA struggled against “Stalingrad tactics”, which she described as “one of the greatest risks to the rule of law”.
Speaking about the failed extradition of the corruption-linked Gupta brothers from the United Arab Emirates, she noted high-ranking government officials, including Lamola, had travelled there.
Batohi said they never got a “satisfactory” explanation for what SA did wrong in trying to extradite the Guptas, adding the case needed “political intervention” to get the ball rolling. She said she could not say more.
She concluded that nothing made her more proud than the billions in rand the NPA had recovered and preserved from being stolen, the improvement in staff and capacity, and better laws and regulations for the NPA’s independence.
She said the NPA’s “work must speak for itself”.