NPA race rift in high court
One group of prosecutors applies to interdict another from making defamatory accusations
An unprecedented race-based legal battle is set to pit two groups of National Prosecuting Authority (NPA) staffers against each other in the high court, exposing a deep racial fissure in the agency.
But even as court papers were served in a bid to stop allegedly racist and defamatory comments from being published, the looming court showdown was uncompromisingly described by one protagonist at the weekend as “Asia vs Africa”.
The application to the high court in Makhanda for an interdict was filed by a group of five NPA staffers — three prosecutors of “black Indian ethnic origin”, one coloured prosecutor, and a white administrative official — against five “black African South Africans”, part of an informal group known as “the concerned group of prosecutors”.
The applicants, led by former East London magistrate’s court senior prosecutor Indra Goberdan, object to claims of racism and nepotism made by the “concerned group” in news and social media as well as in personal exchanges, arguing that such comments defame them.
Goberdan is now senior deputy director of public prosecutions based in Port Elizabeth but in 2019 was based in
Makhanda as acting head of the NPA for the Eastern Cape division of the high court, excluding Mthatha.
She has been joined by Zwelitsha prosecutors Brenhan Sam and Sarika Chetty, NPA director of administration Anthony Bean, and senior EL prosecutor Althea Rhodes in the high court action.
They are seeking to interdict East London prosecutors Siyabulela Sitshetshe, Nomsa Mgxwati and Asanda Nolusi, Peddie prosecutor Khotso Seithleko and Jansenville prosecutor Zukiswa Zokufa.
Sam has previously issued a damages summons for defamation against members of “the concerned group”.
The interdict application has primarily been brought to silence the five prosecutors. But National Director of Public Prosecutions (NDPP) Shamila Batohi has been cited because she may have an interest in the application.
The National Union of Public Service and Allied Workers (Nupsaw), a registered trade union, has also been cited as a respondent.
The applicants said Batohi had sought to root out racism and corruption in the NPA and to restore its ability to discharge its constitutional mandate.
They said “the concerned group” had seized on Batohi’s approach opportunistically to defame them.
When Batohi visited East London in November 2019, some prosecutors made claims of racism against others, who were not given an opportunity at the meeting to respond.
Seithleko allegedly accused Goberdan of racism, nepotism and favouritism and Sam of being a racist who had denied him a merit award purely on the basis that Seithleko was black.
Within days of the meeting, Gobardan was removed from her position as acting Eastern Cape NPA director.
Various grievances were allegedly submitted by members of “the concerned group”.
Grievances allegedly raised by Sitshetshe were published in a national newspaper in January 2020 but prosecutors were not named in the article.
He allegedly claimed in a letter to Gobardan that he had not been promoted to various posts and wanted the vacancies to be advertised afresh “to avoid this nepotism and favouritism”, although Gobardan had not served on the selection panels for the vacancies.
Nupsaw, in a letter to Batohi complaining about “poor leadership issues” in the East London cluster, wrote about management favouring juniors, using performance bonuses to frustrate some and favour others, and controlling appointment processes.
Seithleko wrote a letter to Batohi after the meeting with the NPA head accusing Gobardan of appointing her niece, Chetty. Gobardan denies that she and Chetty are related.
Seithleko also accused Sam of favouring Chetty because they are on the same WhatsApp group.
An investigation into the allegations raised at the November meeting started in March 2020.
The applicants for the interdict noted that it was necessary to deal with the question of the race of each of their colleagues. While this was regrettable and unfortunate, it was necessary because the application concerned “gratuitous and defamatory” statements premised on alleged racism by the applicants.
Gobardan states that she and her co-applicants abhor racism and are committed to a nonracist SA and to the norms and values enshrined in the country’s constitution.
Sam, citing the alleged conduct of “the concerned group”, resigned from his appointment as acting chief prosecutor in East London. He has said the allegation that he is a racist not only damages his good name and reputation but goes against his entire belief system and will be severely detrimental to him in the community generally.
Gobardan and the co-applicants are asking for an interdict preventing their colleagues and the union from making, publishing or causing to be published defamatory statements, and for them to remove such statements from any media platforms on which they have already been published.
They also want them to publish an unconditional retraction of, and apology for, defamatory statements which have been published.
After the interdict application was served on members of “the concerned group”, however, some commented on Facebook.
Seitlheko commented: “Yhooo this case will redefine defamation of character ..... ‘Asia vs Africa’ [black fist emoji] we are not intimidated!!!”
And, referring to Sam’s separate legal notice, he wrote: “This is the second lawsuit in a space of 3 weeks I’m receiving from an Indian NPA manager trying to silence me ... many blacks were caused to resign, commit suicide, and/or suffer depression in the past due to the Indian reign.”