This article has been amended to reflect that the Priority Crimes Litigation Unit did not launch the cases against Gordhan and Breytenbach, but prosecuted them. The police started the investigation.
In addition, the NPA division which prosecuted Dramat and Sibiya was wrongly identified. The Daily Maverick apologises for the errors.
Appointed in late 2018, Shamila Batohi jetted back from her job this week as a senior legal adviser at The Hague to the International Criminal Court into an institution with “lots of shit”, according to the colourful description of a senior official who spoke to Daily Maverick.
Two commissions of inquiry have heard evidence in the past two weeks of how senior office-bearers at the NPA allegedly took money to quash prosecutions and of how political considerations trumped justice. Giving testimony at the Zondo Commission of Inquiry into State Capture, former Bosasa COO Angelo Agrizzi alleged that confidential NPA documents related to a Special Investigating Unit investigation were given to the company by Dudu Myeni, the powerful sidekick to former President Jacob Zuma.
“She is coming into an institution that is utterly dysfunctional and riven by division; (its leaders) have done the bidding of those in power. The network of corruption required that the key decision-makers in the NPA be controlled. There are individuals (working there) who have overseen the effective destruction of the institution,” says advocate Howard Varney who worked with Batohi in the highly regarded Investigation Task Unit (ITU) which developed investigations into violence in KwaZulu-Natal in the 1990s.
The Mokgoro Commission of Inquiry into whether two senior officials of the NPA are fit to hold office is providing another close-up view of Batohi’s inheritance of fire.
Retired Judge Yvonne Mokgoro is hearing evidence into the conduct of Batohi’s suspended deputy Nomgcobo Jiba and of the suspended head of the Specialised Commercial Crimes Unit Lawrence Mrwebi in obstructing justice. The evidence is emerging of how prosecutions into political high-ups such as the late national police commissioner Jackie Selebi were obstructed and prevented, a trend which continues today.
Another deputy at the NPA, Willie Hofmeyr, says that the Anti-Corruption Task Team at the NPA has identified 80 cases, but not a single one has been prosecuted. While the country is agog with a wave of stories about State Capture and grand corruption, the NPA has not been able to mount one successful prosecution.
Its attempt at prosecuting the Estina dairy deal, an early Gupta family foray into agriculture, has ended on a sour note.
From killing fields to capture fields
Luckily, Batohi knows this kind of vexed terrain. A veteran prosecutor with more than 30 years’ experience, Batohi cut her teeth in the killing fields of KwaZulu-Natal in the 1990s when the prosecutorial service was as riven by division and as politicised as it is today.
Then, her boss was Tim McNally, a powerful apartheid apparatchik and attorney-general for Natal who banned Batohi from his courts when she joined Varney and other progressive lawyers and investigators in the ITU. They had been mandated by President Nelson Mandela to investigate the roots of third force violence in the then Natal, but McNally stymied effective prosecutions and ruined the case against former apartheid strongman and defence force minister Magnus Malan.
“Natal was a front of violence with its genesis in the ’80s. Mandela said something had to be done to expose and disable the third force,” recalls Varney who started the unit and brought in Frank Dutton as lead investigator to probe the blood-soaked province’s sustained violence. Dutton and Batohi formed one of the first investigator-led prosecutorial teams, a model they would go on to emulate at the Scorpions, where they both worked.
Batohi and Dutton later also worked together at the ICC at the Hague and he is a now lead investigator at the Zondo commission.
In her first national address, Batohi identified State Capture as a significant risk to South Africa. Colleagues hope that one of her first acts will be to set up a body similar to the ITU to prosecute State Capture cases in order to turn South Africa’s festival of truth (the various exposés of grand corruption at four commissions of inquiry) into justice.
The ITU worked outside apartheid structures and out of McNally’s clutches to probe state-sponsored and Inkatha-related violence in the same way that a contemporary structure would be quarantined from the corrupted parts of the NPA and of the police.
While it seems unlikely that Jiba and Mrwebi will be returned to the NPA, they have long fingers and networks in the NPA who may advocate against Batohi.
The Priority Crimes Litigation Unit under veteran prosecutor Torie Pretorius is a red light for the new chief prosecutor: while tasked with investigating significant criminal risks to the country, it has instead become a “hit squad” according to progressive prosecutors who want to do the right thing at the NPA.
Pretorius and other members of this team prosecuted the cases against Public Enterprises minister Pravin Gordhan (when he was finance minister and former President Jacob Zuma wanted him out) as well as against DA MP Glynis Breytenbach.
The problems don’t end at the priority crimes unit. Another section of the NPA also spuriously prosecuted the former head of the Hawks Anwa Dramat and his Gauteng head Shadrack Sibiya. All these prosecutions are widely recognised as having been revenge tactics against the anti-corruption stance of each of the four.
In addition, Batohi faces opposition from seven senior prosecutors whom former incumbent Shaun Abrahams earmarked for promotion, but who were denied the jump-ups. From speaking to NPA officials, the place sounds like a vipers nest, but the good thing is that Batohi has wrestled with big snakes.
A reluctant boss in a snake-pit
Abrahams’ sense of grandeur was in inverse proportion to his effectiveness, say NPA insiders who do not rate the former NDPP highly. He is said to have travelled with a bodyguard and enjoyed the status of office while delivering very little justice. Instead, those who know her say that Batohi is not one for easy comforts or status.
“Shamila is diligent, methodical, smart, committed to justice. (When I worked with her) she was not a loudmouth. She was quiet and she delivered. She never sought the limelight and she was dependable,” says Varney. Batohi did not apply for the NDPP role but had to be persuaded by civil society leaders.
By her own admission, she does not suffer fools gladly and when she was NDPP for KwaZulu-Natal in the 1990s, she became caught up in allegations of racism by a black staff member. She was sent for anger management counselling, Batohi told the panel which interviewed her for the top job in 2018. This is also a red light as the NPA has become more rancid than it was in the ’90s. Batohi’s successor in the KZN job, Moipone Noko, has been embroiled in serial controversies in the province. The former Hawks boss in the province, Johan Booysen, has released as many files on her alleged support for provincial crony networks as Agrizzi has released on Bosasa. Noko declined an interview with Daily Maverick.
There is the additional problem of internal spying in the NPA. In November 2018, City Press reported on an alleged sex tape of acting NDPP Silas Ramaite in his office with a security guard employed by the prosecuting authority. Insiders say this was the work of the institution’s own security and warn that spying on one another is par for the course.
There is a freeze on hiring in the civil service, so it is unclear whether Batohi will be able to bring in her own team or move people about without attracting the negative headlines with which the prosecuting authority is now synonymous.
But the Hague has imbued Batohi with unparalleled smarts, believes Varney. “At the ICC, she would have worked with the world’s leading prosecutors, judges and investigators on quite complex criminal cases and on crimes against humanity. That kind of experience over many years is invaluable. Very few prosecutors in the world have that experience,” says Varney.
A Durban girl
Batohi grew up in Clare Estate, a former Indian area not far out of central Durban which was a hotbed of activism by the Natal Indian Congress. She was an activist at school and at university and still has that spirit, say friends.
Editor and media guru Mary Papaya, who was Sowetan bureau chief when Batohi worked there, says “she struck me as a behind-the-scenes person, but one who was accessible”. Papaya says Batohi is of the generation of strong women activists from KwaZulu-Natal such as former deputy president Phumzile Mlambo-Ngcuka, minister Nkosazana Dlamini-Zuma and former head of the UN Human Rights Commission Judge Navi Pillay.
Batohi has never been attracted to a rich corporate legal life, although offers of private work must have been made regularly. And while her job at the ICC is recognised as both comfortable and permanent, she has called her return to South Africa an act of service.
The young prosecutor first came to prominence when she was the lieutenant to Richard Goldstone, who headed the Goldstone commission of inquiry into third force violence and later, for her work as evidence leader against the disgraced cricketer Hansie Cronjé.
Thereafter, she worked at the Scorpions in its glory days before the elite crime-fighting unit was killed by politics and she became provincial head of the NDPP before taking the job at the Hague. In a series of interviews, sources said that while Batohi is non-partisan, she is regarded as one of the first big appointments by President Cyril Ramaphosa, so she will enjoy his support and backing in the many fights she is going to have to have.
In addition, she is said to be close to Minister of Energy Jeff Radebe and to have worked with National Police Commissioner Bheki Cele. These relationships will be vital as Batohi tackles a tough role.
Personal details about Batohi are scarce: she has two sons and a network of loyal and loving friends with whom she has retained close relations even though she lived abroad. Batohi and the NPA declined interviews before she starts her job on Friday, 1 February. DM