South Africa


Batohi: No convictions for State Capture accused in 2019 — prosecutions are likely in 2020

National Director of Public Prosecutions Shamila Batohi updates the media on 19 November 2019. (Photo: Chanel Retief)

After 300 days in office, the National Director of Public Prosecutions Shamila Batohi is not close to getting a State Capture accused into orange overalls.

In an update to journalists on Tuesday 19 November 2019, National Director of Public Prosecutions Shamila Batohi said that there was progress in her department because a R1.3-billion budget boost to the National Prosecuting Authority means she can start filling positions.

The NPA is understaffed by 800 prosecutors who have either quit or not been replaced since 2016. This is a chunk of the total prosecutorial staff of 3,600 and with the new budget, the authority is on a hiring and promotions drive to lift staff morale, which she said was rock bottom when she arrived.

So, it will rain prosecutors soon, but will it rain prosecutions?

Batohi says her philosophy is to under-promise and over-deliver and to manage expectations, but she says she is well aware of the clamour for justice. “There is a real mandate for change in the NPA – it cannot be business as usual,” she said.

But when asked if there was a single State Capture case close to being taken to court, she could not say.

The NPA’s head of the investigative directorate which deals with State Capture, Hermione Cronje, says:

I’m a person for action so I have been frustrated. I want to get things going. I have a five-year brief – a much shorter time horizon. (I thought) how hard can it be? You get in here and you make it happen.”

But not so fast, she has found.

Overwhelmed by crisis

Batohi outlined some of the crises they inherited and which has slowed the NPA to such an extent that the goodwill she enjoyed when she took office in February is being whittled away.

  • (There was) very low staff morale”.

  • The Zondo commission is great (at uncovering State Capture), but it doesn’t help us. There is a big difference between testifying at the Zondo commission and putting together a case ready for trial.”

  • There are serious challenges with regard to the Hawks (the Hawks provide the investigative ammunition for the prosecutorial gun of the NPA). They (too) have serious capacity problems and similar vacancy rates to what we have.”

  • The NPA I have come into was a tired organisation where there was no innovation or dynamism. I left 10 years ago and (it) felt as if nothing had changed. We are lagging behind in technology and innovation.”

The bottom line: it is still going to take a while.

We are building these severely weakened institutions to get to a point where these hundreds, may thousands of cases can be properly investigated or prosecuted,” said Batohi.

Cronje suggested that there may be at least some action before the end of 2019 – possibly at Eskom.

You will see strategies unfolding,” said Cronje, adding that she had to tell her teams to simplify and focus. “So many people were on the bandwagon (of corruption) that I have to say ‘cut the losses’.”

Both women face blowback. Batohi has been accused, on social media, of having bribes paid into her account while Cronje has faced a leak of her accommodation details with the subtext that she is living lavishly.

Sabotage can be subtle, where you don’t know it (is happening),” said Batohi, adding that “I have to work on the premise of trust. I feel confident that there is a lot of good in the NPA (and that) the culture of goodness will kill off people with intentions to frustrate the NPA. I want it to return to the employer of choice it was in 1998.”

Investigating directorate on the move

Cronje has brought in big guns on secondments to her unit, but she also said that the NPA lacked data processing and other modern skills.

I am as frustrated as the next person – when people look at me, they say ‘when?’ – it happens so often, I can’t go out anymore. I want to have a nice December (and go out).”

Good partnerships have been forged with the SA Revenue Service (SARS) to attempt “Al Capone”-type investigations where the mafia was disarmed through tax prosecutions. The NPA is working more closely with the Special Investigations Unit (SIU) and with the Hawks and key cases have been identified – 10 senior members of the Hawks have been seconded to Cronjé’s unit. She is working closely with forensic firms which have capabilities the NPA does not.

Her team is busy authenticating the #GuptaLeaks emails and has already subpoenaed bank statements to corroborate the leaks – this set of documents contain the most complete evidence of State Capture.

You only need a couple of charges,” says Cronje. The Estina dairy case (a signature State Capture case implicating Free State officials and the Gupta family) is likely to go back to court (it was thrown out) and is being treated with more seriousness. Cronje revealed that her team had retrieved bank statements from the UAE (where the Guptas are likely to now live) and that the flow of funds is being properly analysed.

Focus on apartheid as a crime against humanity

But Batohi says it can’t all be State Capture cases.

(I understand) that corruption prosecutions build confidence. We understand the impact the NPA will make with a few focused prosecutions, but there is still murder, sexual crimes, cyber-crimes. Another important area for us is TRC (Truth and Reconciliation Commission) cases. We are working very closely with families who have lost loved ones. We are looking at how to utilise the legal framework to even charge (perpetrators with) apartheid as a crime against humanity.”

The wheels turn slowly

People just want to see the wheels of justice are turning – but (the people) don’t see they have been really crusted with dust. Getting them to turn is extremely difficult,” said Batohi who said she regularly received emails asking when there would be justice.

It was clear from the briefing that both women, who represent the new lady justices, are keenly aware of the calls for prosecutions from almost every corner in South Africa. But Batohi’s mantra of under-promising and over-delivering means she is playing her cards close to her chest – from Daily Maverick’s reading of things, it will take at least six months more to see prosecutorial action at a scale and intensity to build confidence. DM


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