Exclusive: Batohi acts fast, tough in Bosasa’s NPA mole case

NPA Boss Shamila Batohi (Gallo)

It has taken the country’s new National Director of Public Prosecutions, advocate Shamila Batohi, barely two weeks to swing into action in the case of Jackie Lepinka, an NPA employee accused of having received R20,000 in monthly bribes from Bosasa.

The NPA, in response to questions from Daily Maverick, confirmed that Jackie Lepinka was suspended on Monday – making her one of the first casualties of damning testimony emanating from the State Capture inquiry.

The one-time PA of suspended deputy national director of public prosecutions, Nomgcobo Jiba – and before that, an assistant to former Correctional Services Commissioner, Linda Mti – stands accused of feeding confidential internal documents to Bosasa over the course of several years.

Lepinka was implicated by former Bosasa COO, Angelo Agrizzi, who in January told the State Capture inquiry that she was part of an NPA trio allegedly paid R130,000 in total each month to help extract information from the institution.

Agrizzi named Jiba and special director, advocate Lawrence Mrwebi, as the other two individuals, though he said that while he always packed cash to hand it to Mti to pay them, he never physically witnessed such a hand-over.

Jiba has denied receiving any money from Bosasa, and on Thursday, appearing before the Mokgoro Inquiry into her fitness to hold office, said:

I’ve never met Agrizzi, I’ve never met (Gavin) Watson, I’ve never met Mti. Somebody somewhere must have been receiving money, but that person was not me.”

Jiba also told her inquiry that she never knew that Lepinka had previously worked as Mti’s PA and agreed to have her removed from the NPA’s Bosasa meetings once she found out.

According to on-day reports by eNCA’s Govan Whittles, Jiba said Lepinka had created a beautiful filing system to check cases and the reports on those cases, including Bosasa.

Her role was to ensure that when I do get those reports they are arranged in a proper fashion.”

Through her job then, Lepinka had access to highly confidential NPA documents.

Agrizzi earlier testified to a list of NPA material allegedly bought by Bosasa, including documents titled “Draft Charge Sheet: POC Gillingham dated April 30 2013,” “Proposed Racketeering Memorandum (marked CONFIDENTIAL DOCUMENT)” and a “Progress Report on the Bosasa investigation”.

One document is labelled as “Minutes (NPA/Extended Ministerial Meeting) dated 9 March 2010. The Secretary of the meeting is listed as J. Lephinka. The information contained in here relates to a briefing to then justice minister, Jeff Radebe by then NPA head, Advocate Menzi Simelane.”

Daily Maverick asked the NPA for comment upon establishing that it was business as usual as Lepinka – code-named “J” in Agrizzi’s little bribe books – continued in her job in the secretarial pool at the NPA in early February.

In an initial response to our questions, the NPA referred, apparently as an explanation, only to a 2009 Labour Court ruling, seemingly to justify why no action had been taken.

In a follow-up shortly after, the NPA withdrew that response, then saying that Lepinka’s file had been sent to Batohi and that all relevant documents had been requested from the State Capture Commission.

Her suspension appears to emanate from this intervention.

A labour law practitioner told Daily Maverick that the 2009 matter referred to by the NPA, Mogotle vs Premier of the North West and another, found that there ought to be some objectively justifiable reason to deny an employee access to the workplace based on the integrity of any pending investigation into misconduct.

Importantly, this Labour Court case dictates that the employee is given the opportunity to state a case before a final decision is made to suspend.

On the face of it, it sounds extreme that an employer could be forced to retain an employee accused of wrongdoing due to a “prima facie” requirement of wrongdoing before a suspension.

Said the expert: “A reason advanced in some HR circles in the public service, including the NPA, for the state not being more robust in suspending employees implicated in State Capture is that these employees are, beyond the provisions of the Public Service Act, still owed a duty of fair dealing.”

This, he said, involves laborious pre-suspension procedures and the collation of significant amounts of evidence prior to taking action – even for a precautionary suspension.

The Public Service Act expects none of this. Indeed, the whole point of an investigation is to obtain evidence once there is a reasonable suspicion, and a suspension is used to prevent employees interfering with witnesses or evidence while the investigation ensues.

It is curious that “fair-dealing”, proposed by the Labour Court in the 2009 Mogothle case, may have got in the way at the NPA previously. Said the expert:

This notion was decisively rejected by the Supreme Court of Appeal.

As in so many things connected to State Capture, it is difficult to know whether the misplaced reliance on superseded case law was deliberate or flowed from a shortfall of knowledge.”

In 2014 Hawks officers raided Lepinka’s home in search of “missing” NPA material, either documents or a laptop as part of an investigation.

The Hawks told Daily Maverick that its investigation has been concluded and that the file has since been sent to the NPA for a decision.

However, it could not immediately be established whether this was done in recent weeks, months or years.

But Batohi, having assumed the NDPP post on 1 February 2018, appears to have jumped into action – swiftly – following the startling allegations against Lepinka at the State Capture Commission. DM

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