HER­CULEAN TASK AHEAD

New NPA head Shamila Ba­tohi faces a mess that puts the Augean sta­bles in the shade. If her fight to clean it up and take on the cor­rupt is to suc­ceed, civil society needs to throw its weight be­hind her

Financial Mail - - FEA­TURE - Karyn Maughan

Just five hours be­fore Pres­i­dent Cyril Ramaphosa an­nounced that ad­vo­cate Shamila Ba­tohi was his choice to lead the Na­tional Prose­cut­ing Authority (NPA), the state with­drew its first “state cap­ture” pros­e­cu­tion against mul­ti­ple Gupta fam­ily mem­bers and as­so­ci­ates.

The state stressed that the with­drawal is pro­vi­sional, the re­sult of the NPA’S fail­ure to meet a court-or­dered dead­line to hand over its docket and fi­nalise in­dict­ment in the Estina dairy farm “scam” case.

How­ever, just over an hour af­ter the case was qui­etly with­drawn in a cramped court­room in the Bloem­fontein mag­is­trate’s court, Ajay Gupta re­leased a state­ment say­ing he is con­fi­dent the case “will never see the light of day again”.

While his words have been greeted with scorn, de­ri­sion and out­rage, Gupta may not be wrong.

The Estina pros­e­cu­tion, and its mul­ti­ple fail­ures, is il­lus­tra­tive of the mess that Ba­tohi will walk into when she takes over as na­tional di­rec­tor of pub­lic prose­cu­tions (NDPP) in Fe­bru­ary.

Un­der­re­sourced, dispir­ited, di­vided and foren­si­cally in­com­pe­tent, this is an NPA in the midst of a cred­i­bil­ity and staffing cri­sis — with jus­tice min­is­ter Michael Ma­sutha warn­ing that cer­tain courts may have to close be­cause there are sim­ply no pros­e­cu­tors to staff them.

Be­fore she takes over as NPA head, Ba­tohi needs to com­plete her no­tice pe­riod at the In­ter­na­tional Crim­i­nal Court (ICC) in The Hague, where she has worked as a se­nior le­gal ad­viser to the pros­e­cu­tor for the past nine years.

Ba­tohi left the NPA in 2009 — the same year that the then act­ing NDPP Mokotedi Mp­she made his un­law­ful de­ci­sion to drop the cor­rup­tion pros­e­cu­tion against Ja­cob Zuma (shortly be­fore Zuma be­came pres­i­dent). She’d started there in 1986, as a pros­e­cu­tor in Chatsworth, and has now risen to be­come

the first black woman ap­pointed as the per­ma­nent head of the agency.

Dur­ing her in­ter­view with the panel ap­pointed by Ramaphosa to se­lect five can­di­dates for the po­si­tion, Ba­tohi said she had been “proud” to serve in the NPA in those years.

“I was a very proud pros­e­cu­tor, and pros­e­cu­tors were proud, and the ma­jor­ity of pros­e­cu­tors to­day are still those com­mit­ted pros­e­cu­tors,” she said. “But un­for­tu­nately, be­cause of what’s go­ing on in the NPA … it’s a mess, for want of a bet­ter word.”

The first woman to serve as a di­rec­tor of pub­lic prose­cu­tions, in Kwazulu-na­tal, Ba­tohi is no stranger to high-pro­file cases.

She led the pros­e­cu­tion of dis­graced Proteas cricket cap­tain Han­sie Cronje at the King com­mis­sion of in­quiry — one of the first ju­di­cial hear­ings to be tele­vised.

She’s also not afraid of con­fronting po­lit­i­cally loaded ques­tions about the al­leged agen­das be­hind prose­cu­tions. In her po­si­tion at the ICC, Ba­tohi was called on to de­fend the court against ac­cu­sa­tions it only tar­geted African lead­ers in its war crimes prose­cu­tions.

In an in­ter­view with the SABC five years ago, she said the sug­ges­tion was un­fair. “We are deal­ing with eight sit­u­a­tions and they are all in Africa. The court has in fact come in for a lot of criticism for the fact that all of our sit­u­a­tions are in Africa, but the real po­si­tion is that only two of th­ese cases were in fact ini­ti­ated by the pros­e­cu­tor of the court,” she said.

“All the other sit­u­a­tions were calls by the African coun­tries or the [UN] Se­cu­rity Coun­cil for the ICC to get in­volved …

“The real is­sue is the fact that I think we all want the same thing. Whether it’s the AU, whether it’s the or­di­nary peo­ple of Africa, whether it’s the ICC — we all want peace in Africa. We all want sta­bil­ity in Africa. We all want re­spect for demo­cratic val­ues. We all want jus­tice for the vic­tims, for the mil­lions of vic­tims in Africa, and the re­al­ity is that each one of us can’t deal with it on our own.

“We need to work to­gether … to try to en­sure that we do try to end im­punity, [and] bring jus­tice to the mil­lions of vic­tims in Africa and other parts of the world.

“There are so many voices in this de­bate. But where is the voice of the vic­tims?”

Five years later, in her in­ter­view for the NDPP po­si­tion, Ba­tohi took a sim­i­lar stance. She sug­gested that she would seek Ramaphosa’s ap­proval for an in­ves­ti­gat­ing direc­torate tasked specif­i­cally with deal­ing with cor­rup­tion — a direc­torate that would seem­ingly op­er­ate very much like the dis­banded Scor­pi­ons. But with a key dis­tinc­tion: Ba­tohi wants state in­sti­tu­tions such as the au­di­tor-gen­eral, as well as the pri­vate sec­tor and civil society, to work with pros­e­cu­tors on th­ese cases.

She stressed that “peo­ple have got to un­der­stand that it’s about giv­ing for the sake of the coun­try” — and em­pha­sised that none of the role play­ers in­volved could ex­pect to get any favours as a con­se­quence of their con­tri­bu­tion. “It has to be all hands on deck,” she said. “It’s got to be about giv­ing with­out ex­pect­ing any­thing in re­turn.”

With the NPA fac­ing ma­jor bud­get chal­lenges — and more than 200 key pros­e­cu­to­rial po­si­tions cur­rently va­cant and frozen — Ba­tohi’s fo­cus on a mul­ti­dis­ci­plinary ap­proach to tack­ling cor­rup­tion is both born out of ne­ces­sity, and ex­tremely smart.

Pri­vate law firms such as Werks­mans have been at the cen­tre of prob­ing al­leged multi­bil­lion-rand loot­ing at the Pas­sen­ger

Rail Agency of SA (Prasa), but the ev­i­dence that’s been col­lected and col­lated has, for years now, been gath­er­ing dust.

As a re­sult, Prasa took the ex­tra­or­di­nary step of su­ing the Hawks — with the aim of forc­ing the unit to fi­nalise its in­ves­ti­ga­tion — so that the NPA could make a de­ci­sion on whether to pur­sue charges.

If the NPA were em­pow­ered to cre­ate an in­ves­tiga­tive unit, it would have the abil­ity to work with firms such as Werks­mans and not be de­pen­dent on the po­lice to present pros­e­cu­tors with the ev­i­dence they need to in­sti­tute charges.

The He­len Suz­man Foun­da­tion re­cently re­vealed that it had been ap­proached by the NPA to as­sist with the in­ves­ti­ga­tion into multi­bil­lion-rand cor­rup­tion, fraud and loot­ing at Eskom. The foun­da­tion has gone to court to re­cover the money linked to th­ese ac­tiv­i­ties, and the NPA ap­par­ently be­lieves the foun­da­tion can as­sist it with in­for­ma­tion for po­ten­tial crim­i­nal prose­cu­tions.

If Ba­tohi can con­vince the pri­vate sec­tor and civil society that the NPA is ready and will­ing to work with them, and will pur­sue cor­rup­tion cases with­out fear or favour, she could ac­cess sig­nif­i­cant sup­port for the limp­ing and over­whelmed prose­cut­ing authority.

Her big­gest chal­lenge, in many re­spects, lies in ad­dress­ing the se­ri­ous cred­i­bil­ity cri­sis that con­tin­ues to de­fine how the NPA is viewed, a cri­sis that has led to the state fac­ing un­prece­dented num­bers of le­gal chal­lenges to its pros­e­cu­to­rial de­ci­sions.

From le­gal at­tacks on the in­tegrity of the SA Rev­enue Ser­vice “rogue unit” pros­e­cu­tion and the de­ci­sion to charge for­mer Kwazu­lunatal Hawks head Jo­han Booy­sen with rack­e­teer­ing, to chal­lenges to the pros­e­cu­tion of po­lit­i­cally con­nected busi­ness­man Thoshan Pan­day and the court bid by Zuma to end his cor­rup­tion pros­e­cu­tion, the NPA seems to spend more time de­fend­ing its de­ci­sions to pros­e­cute than it does ac­tu­ally prose­cut­ing. And that may take some time to change. Add to that the po­lit­i­cal mine­field of prose­cu­tions linked to the loot­ing of VBS Mu­tual Bank, and the charges and coun­ter­charges laid by pub­lic en­ter­prises min­is­ter Pravin Gord­han and EFF leader Julius Malema against each other, and it’s ap­par­ent that Ba­tohi has no hope of avoid­ing criticism. And she should not seek to.

In­stead, as she said through­out her NDPP panel in­ter­view and in her ad­dress to SA on Tues­day, all she can do is fo­cus on a cen­tral con­sti­tu­tional pre­script: the rule of law.

“We in the NPA have im­por­tant work to do which in­cludes de­vot­ing our ef­forts to hold­ing ac­count­able those who have cor­rupted our in­sti­tu­tions, who have be­trayed the pub­lic good and the val­ues of our con­sti­tu­tion for pri­vate gain — es­pe­cially those in the most priv­i­leged po­si­tions of gov­ern­ment and cor­po­rate power.

“My ex­pe­ri­ence as a ca­reer pros­e­cu­tor has re­vealed the rule of law reigns supreme.”

In other words, Ba­tohi has em­pha­sised, an in­de­pen­dent NPA ex­am­ines the ev­i­dence and ap­plies the law — re­gard­less of who the ac­cused may be and how much noise he or she may make about be­ing taken to court.

The greater truth is this: fix­ing a bro­ken NPA can­not be Ba­tohi’s job alone.

If the prose­cut­ing authority has any hope of restor­ing cred­i­bil­ity, it needs to be equipped to do its job — and not be sec­ondguessed or in­ter­fered with when it does so. That’s what “with­out fear or favour” ac­tu­ally looks like. Let’s hope we get to see it soon.

My ex­pe­ri­ence as a ca­reer pros­e­cu­tor has re­vealed the rule of law reigns supreme Shamila Ba­tohi

Masi Losi

New na­tional di­rec­tor of pub­lic prose­cu­tions, ad­vo­cate Shamila Ba­tohi

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