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
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However, just over an hour after the case was quietly withdrawn in a cramped courtroom in the Bloemfontein magistrate’s court, Ajay Gupta released a statement saying he is confident the case “will never see the light of day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
New national director of public prosecutions, advocate Shamila Batohi