“Massive” is a word National Prosecuting Authority (NPA) boss Shamila Batohi used often in her three-and-a-half-hour maiden appearance before Parliament’s justice committee. The prosecution service had “a massive credibility challenge”, alongside other “massive challenges” from skills to funding shortages, low morale and the “massive” task of ensuring integrity and ethics.
It’s an indication of the enormous task of rebuilding the NPA after several politically pliant appointments made during the Jacob Zuma administration — and the toxic and often debilitating office politics that engulfed the prosecution service at the highest level.
None of Batohi’s predecessors as National Director of Public Prosecutions (NDPP) since 1994 served their full 10-year terms for various reasons, from resignation to the court judgments that ruled invalid Zuma’s appointments of Menzi Simelane, as confirmed in October 2012 by the Constitutional Court — which also confirmed the invalidity of Shaun Abrahams’s appointment in August 2018.
“The NPA has a massive credibility challenge. It is publicly known why that is… One of the important issues we need to focus on is how to restore the credibility,” said Batohi in her opening statement, with a frankness that is seldom heard from officials in Parliament. “I came into an organisation that, unfortunately, is seriously divided, but I must also say, an institution of very committed prosecutors…”
Shortly after taking office in February 2019, Batohi went on public record saying she accepted the job after President Cyril Ramaphosa pledged there would be no political pressure, as the Constitution stipulated. However, on Tuesday opposition MPs asked whether she’d come under political pressure.
“No, absolutely not,” was Batohi’s response, to which both DA MP Glynnis Breytenbach and African Christian Democratic Party (ACDP) MP Steve Swart rejoined:
“And if you do, you’ll tell us!”
But, of course, there is the very concrete realisation that once the NPA is getting on the right track and on to the road of efficient credibility, the complaints and attacks will follow.
“I will come under intense attack from various sectors… It’s about doing the right thing. It’s not about me; it’s about the office and support for that office from civil society and this (parliamentary) committee,” said Batohi.
And while the challenges were massive, confidence about the possibility of prosecutors’ contribution to turning things around was tremendous, she said.
“It is challenging. It is terrifying — and hugely exciting.”
The reality check is brutal. With the national purse strained, all departments have had to take cuts and for the NPA that meant a 3% drop of its baseline allocations. Put that together with inflation, and the impact is clear: In the 2019/20 financial year the NPA may incur an irregular expenditure of R27-million on salaries — it may be less if prosecutors leave, MPs heard — and R94-million for goods and services.
With an average 20% vacancy rate that goes up to between 25% to 28% for specialised units such as the Asset Forfeiture Unit (AFU) and Serious Commercial Crimes Unit, the NPA is under, again, massive pressure. It has lost more than 600 prosecutors just since 2016.
“We’ve not recruited for three years. Because we’ve not recruited, we’ve not been able to promote,” Batohi told MPs. In a real-life example, that meant when the prosecutor at a court in Kuruman, Northern Cape, was ill for two days, another prosecutor had to drive 200km to that court to postpone cases.
And the funding crunch also meant “capacity constraints”, making the NPA lower its court conviction rates in high courts to 87%, from 90%; in regional courts to 74% from 78%; and to 88% from 93% in district courts.
But then it got a little complicated, unexpectedly. The NPA team raised the need to revise its targets because conviction rates, while important measurements, are not the sole or even a comprehensive measurement. South Africa’s court conviction rates are high, yet crime leaves South Africans feeling vulnerable, unsafe and insecure.
Such a move from technical, box-ticking performance targets may just be the clearest indication of significant changes in the making to rebuild the NPA. In many ways, it’s a work in progress, linked to a listening-to-staff campaign by the boss, as it is at the South African Revenue Service (SARS).
New measures include a strategic support and innovation unit in the Office of the NDPP that looks at efficiencies and new ways of doing things. Other steps are under way to ensure integrity and ethics across all levels of the NPA in what is considered a vital move to restore the prosecution service’s credibility.
Despite the cash crunch, the aspirant prosecutor’s programme is back. And memoranda of understanding have been signed with SARS, the Financial Intelligence Centre and the Special Investigative Unit (SIU) to facilitate prosecution of cases. The SIU, it emerged on Tuesday, had referred some 600 cases to the NPA that have yet to be processed.
Other desired changes required ministerial support and action such as legislation, including allocating a specific percentage of revenue from successful asset forfeitures to the AFU and, generally, to the NPA.
There is a push for the NPA to have its own accounting officer in the interests of greater independence, rather than the current situation in which the NPA accounting officer is the Justice Department director-general. A similar move to give the Office of the Chief Justice control over its own budget, with its own accounting officer, took several years.
But if anyone thought the newly established Investigative Directorate under advocate Hermione Cronjé would be the NPA’s equivalent of the knight in shining armour, they were quickly disabused of that notion.
The directorate, established by presidential proclamation earlier in 2019 to pursue cases of compromise and/or State Capture was, MPs were clearly told, “a short-term, crisis operational intervention”, not a panacea for corruption nor a sustainable long-term approach.
With about R37-million allocated to get the Investigative Directorate up and running, its requirement runs to R219-million to ensure it can access the necessary legal and forensic skills, also from outside the NPA and broader security cluster.
But it is a start to address South Africans’ questions over the lack of arrests and prosecutions, given the evidence that emerged before the 2017/18 parliamentary inquiry into Eskom State Capture, the Nugent inquiry into SARS, the one into state-owned asset manager, the Public Investment Corporation (PIC), and the Zondo State Capture commission of inquiry.
But in Parliament, politics is never far away and on Tuesday this unfolded in a polite verbal two-step between Batohi and Justice director-general Vusi Madonsela, who has previously headed the social development and co-operative governance departments.
ANC MPs, including committee chairperson Bulelani Magwanishe, had questioned Batohi about her delivery plan against the obstacle of funding — and what lack of funding meant.
“If I’m modest about that it’s because the DG has reined me in…” said Batohi before Breytenbach interrupted: “Ignore him. Don’t listen to him,” a sentiment echoed by ANC MP Richard Dyantyi.
Madonsela, who previously spoke to “defend my minister” from one of Breytenbach’s sharp interjections, sat there stone-faced as Batohi continued: “He’s training me to be the politician I am not. I must be the prosecutor.”
And with that remark, Batohi hit the nail on the head of what’s needed to rebuild the NPA. DM
"The past is always tense; the future perfect." ~ Zadie Smith