The National Prosecuting Authority (NPA) is making “significant progress” in prosecuting high-level corruption but continues to “face strong headwinds” which frustrate its ability to get on with the job swiftly, officials from the NPA said in Parliament on Friday.

“We accept; we know what we have to do, and we know that a lot more needs to be done. But in order for us to really, exponentially increase what we’re doing, the Investigating Directorate (ID) has to get the permanence and the powers that it needs. Otherwise, we will continue to proceed at this pace that’s not fast enough for us,” said National Director of Public Prosecutions, Shamila Batohi. 

Batohi was seeking the National Assembly’s approval for the NPA’s budget and its 2023/2024 annual performance plan (APP). She said the APP builds on two years of “post-Covid investment”, and “recent successes and also significant process in relation to enrolling high-level and complex corruption matters.”

  230512Final NPA 2023-2024 APP-Budget Presentation to Parliament 09 May 2023 002 by victoria on Scribd

The NPA’s annual report for 2021/2022, tabled in Parliament last year, painted a “fact-based picture of an organisation on the move,” NPA Deputy Director of Public Prosecutions, Advocate Anton du Plessis, wrote last July.  

Presenting to Parliament on Friday, Batohi said: “I can say with absolute confidence that we have succeeded in returning the NPA to a period of institutional growth and stability.”

NPA firepower

The NPA’s appearance before Parliament on Friday followed a series of blows to the NPA and came amid public concern about its firepower in taking on the State Capture bigwigs. 

The United Arab Emirates (UAE) refused South Africa’s request to extradite Gupta brothers Atul and Rajesh, on 13 February 2023. The NPA and Department of Justice (DoJ) were only notified of the UAE’s decision in early April, and were “blindsided” by the response, delivered in a note verbale. In the fallout of the failed Gupta extradition, a clear picture of the UAE’s duplicity has emerged. Read Ferial Haffajee’s reports here and here. 

Read in Daily Maverick: NPA’s ID head Andrea Johnson on the failed Gupta extradition – ‘We were blindsided when we got the response’

To make matters worse, the NPA ID’s first State Capture case to proceed to trial was going pear-shaped in the Free State high court, and on 21 April, the presiding judge granted seven accused in the multimillion rand Nulane Investments matter discharge. The NPA’s ID has since filed an application for leave to appeal the judgment, and the DoJ confirmed to Daily Maverick this week that it has ordered an official inquiry into the handling of the Nulane case. 

“You are aware, Chair and Honourable Members, that there has been a significant amount of critical and negative reporting of late relating in particular to the NPA in the criminal justice system…”

“This has been particularly in the context of two matters for which the NPA has been heavily criticised – that’s the application for the extradition of the Gupta brothers, as well as the Nulane case. That said, it would be most unfortunate for us to calibrate today’s discussion through the lens of these two cases alone,” said Batohi. 

While noting these cases as setbacks, Batohi cautioned against throwing “out the justice baby with the proverbial bathwater. This will be in no one’s interest, except maybe those who are hoping to escape accountability.”

Batohi said South Africa has a “solid criminal justice platform” built on nearly 30 years of experience and leading jurisprudence – “to which the NPA has significantly contributed, especially in the last couple of years.”

“Now is the time to build on this and not break it down… the narrative that the NPA is failing is a dangerous and flawed one. We are making significant progress,” she said, adding that the NPA’s work was done in what she described as a “very difficult and sometimes toxic environment”. 

The NPA boss lauded the dedication and commitment of her staff, who she said are working hard to deliver justice.

Responding to Batohi’s presentation, DA MP Glynnis Breytenbach acknowledged the very big job of the NPA and its prosecutors, and gave credit for the smaller matters which, she said, are being dealt with “successfully and well”.

Advocate Glynnis Breytenbach in Parliament on 13 June 2018 in Cape Town, South Africa. (Photo: Gallo Images / Netwerk24 / Jaco Marais)

But that doesn’t absolve the NPA from successfully prosecuting the big cases, which “capture the imagination of the public”, said Breytenbach.

“In that respect, the progress is disappointing,” said Breytenbach.

Read in Daily Maverick: Why the NPA is misfiring on high-profile corruption cases

She noted that arrests are mere “baby steps” in a successful prosecution. 

“Where are the prosecutions… It’s not unreasonable to expect progress…  and we’re not seeing enough of it. South Africans… want to see high-profile prosecutions in court – not arrests, not ‘watch this space in six months.’” 

State Capture prosecutions

Responding to questions from MPs, Adv Du Plessis said the NPA is making important progress in prosecuting high-level corruption, but more is needed. He “respectfully disagreed” with Breytenbach that the many matters involving former and sitting ministers, CEOs, secretaries general of parties that are on trial – not just arrested but enrolled in court – are not high-profile matters. Du Plessis said the NPA’s ID has enrolled 34 cases, with 89 investigations having been declared, and nearly 200 accused in these matters which are on trial:

“I think just those statistics alone speak to the fact that there is progress being made against State Capture cases… The nine seminal matters that were enrolled last year – I just don’t think it’s correct to say that those are not high-profile, high-impact matters.”

Batohi added that many of the high-level corruption matters that have been enrolled are in the pre-trial process. She said that it was important to remember that the Zondo report was only finalised last year. 

“To expect that cases are going to be finalised or proceeding to advanced stages in trial within six months, I think is unrealistic. But certainly we are doing our best to ensure that these cases proceed through the system to ensure that there is confidence in the rule of law.”

Batohi said the statement that the NPA hasn’t prosecuted a single person for State Capture, “is not supported by the facts”. 

There were 122 recommendations in the report on State Capture that are being dealt with by the NPA’s ID, according to Batohi. The Directorate for Priority Crime Investigation (DPCI) and the ID are working together on 32 recommendations; the DPCI and the NPA’s Specialised Commercial Crime Unit are dealing with 43 recommendations; and the Independent Police Investigative Directorate is dealing with three recommendations. 

“With regard to the 122 recommendations, there are 20 matters in the intake process – so the ID is considering whether investigations should be authorised in those matters. Under investigation or asset recovery proceedings, there are 81 matters. The number of recommendations where matters have been enrolled in courts already is 20. That’s the breakdown of recommendations in the ID space,” explained Batohi.  

Batohi said her priority in the coming months is to “ensure that all of these cases are moving with a huge sense of urgency”.

“Those high-level, impactful cases… that the country will in fact measure the success of the NPA on… We know we need to do more.”

Establish a permanent ID (now)

In October 2022, President Cyril Ramaphosa promised that the NPA’s ID would become a permanent entity, but seven months later the question of whether, and when, the ID would be made permanent is ongoing. 

Batohi and Du Plessis said this change of status would be a “gamechanger” for the ID. Making the ID a permanent entity would allow it to be properly capacitated, said Batohi, and for it to recruit investigators and analysts with the specialised skills needed to support the work of the ID, permanently. 

“We need the NPA Amendment Bill; we need these amendments… in order to establish the ID as a permanent entity with all the requisite criminal investigative powers. 

“If we don’t, the ID will not be able to do the work that we plan to do in the coming year,” Batohi said. DM