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ANALYSIS

The NPA still has a very long walk to redemption

The NPA still has a very long walk to redemption
The author argues that the risk of government interference will persist until such time as the NPA is a fully independent organisation that is in control of its own budget and administrative support services. (Graphic: Amelia Broodryk/ISS)

With the Gauteng Division of the High Court in Pretoria due to rule on Tuesday, 2 April, whether National Assembly Speaker Nosiviwe Mapisa-Nqakula can be arrested on corruption charges, this is a good time to assess whether the NPA is making progress in restoring the rule of law in South Africa.

In her first public appearance upon taking office in 2019, the National Director of Public Prosecutions, Shamila Batohi, promised wrongdoers that “your days of acting with impunity are numbered”.

This was her consistent message, which she repeated to audience after audience.

At the time, the Zondo Commission was just beginning to hear testimony of widespread corruption in government and state-owned enterprises. It was widely expected that criminal charges would be lodged against those who were implicated.

But, despite the massively revealing testimonies and the Zondo Commission’s 2022 final findings, the National Prosecuting Authority (NPA) has appeared asleep.

Three years after Batohi took office, it was clear that frustration at the lack of movement was building. At the same time, the problems facing the NPA were growing. It was under pressure to act not only against those implicated in corruption during the State Capture era but also against President Cyril Ramaphosa over the Phala Phala scandal.

There was worse to come.

In 2023, the NPA suffered major setbacks in court.

First, the Nulane case, described by the Investigating Directorate as the “blueprint”  for State Capture prosecutions, fell apart when the presiding officer ruled the case could not continue.

Then, the case against former Eskom CEO Matshela Koko was struck off the roll, on the grounds that prosecutors were not ready to proceed.

Former president Jacob Zuma’s corruption trial has still not started, 20 years later, and despite the fact that Schabir Shaik was convicted for making corrupt payments to him.

And, of course, those implicated in corruption by the Zondo Commission — Malusi Gigaba, David Mahlobo and Zizi Kodwa, to name but a few — have still not faced criminal charges.

This has allowed them to continue with their political careers, a public reminder of the NPA’s apparent failure.

Meanwhile, in the private sector, cases against Markus Jooste and Steinhoff showed little progress, with no charges being laid.

Change is coming

The claims that the NPA had not properly reformed and that Batohi’s promises were hollow may now be tempered by signs that things are about to change.

First, in a rare example of a judicial ruling being re-examined, News24 reported that the magistrate in the Koko case had not declared his interest in the matter — magistrate Stanley Jacobs is the director of a company that received money from Eskom while Koko was working there.

It is surely concerning that a magistrate felt he could preside over this case despite knowing that there must be a conflict of interest.

It also raises questions about how cases are allocated and whether those who allocated this case to him knew about the conflict of interest.

It is worth noting that the Nulane case was heard by an acting judge. It is not clear why a matter of such significance was given to an acting judge, who may have lacked the experience to preside over such an important matter (the NPA is also appealing against this decision).

At the same time, questions have been raised about how judges have dealt with the cases before them.

As Daily Maverick’s Professor Balthazar has noted, the Stalingrad defence could be completely dismantled if judges simply disallowed frivolous arguments.

However, what may definitively change the perception of the NPA are some of the actions it is taking. 

Foremost among these has been its handling of the prosecution of National Assembly Speaker Nosiviwe Mapisa-Nqakula.

It is clear that the NPA is determined to proceed with her arrest. As has been pointed out, the importance of this cannot be overstated. The NPA is following the law in arresting the head of one of the three branches of government. There appears to be no political attempt to prevent this from happening.

The fact that the NPA put up a robust legal argument against her application to stop her arrest shows the institution is serious in its intent.

If the NPA wins this case, and then arrests her this week, that intent would be publicly confirmed.

At the same time, it is now clear the NPA had made progress in the case of Jooste and Steinhoff, and that Jooste’s suicide pre-empted his arrest by a day.

It was clear that when Batohi and her team took over at the NPA that they would face concerted opposition to reform from within. Zuma’s control over appointments at the NPA brought his lieutenants into important positions where they could make decisions in his favour.

One of those people was the head of prosecutions in Joburg, Andrew Chauke. In July 2022, Open Secrets reported how Chauke had been involved in some of the major decisions during that time that allowed wrongdoing to continue.

Chauke was so aggrieved at a conversation about this on Newzroom Afrika that he demanded a right of reply. It was clear from that conversation that he believed he had done nothing wrong.

He is now facing action over his role during that time, although he is still in office and making decisions. 

Some political parties may now argue that justice is taking too long and that procedures need to change. They will say that it is too easy for suspects to delay cases against them and that our justice system favours the guilty.

While the NPA may be making progress, for many people, the only thing that matters is “orange overalls” — convictions of those implicated in State Capture. As long as those against whom evidence was heard at the Zondo Commission are free to campaign for office in the ANC, or are able to live freely, the NPA will be under pressure.

This could see the NPA and the entire criminal justice system becoming the focus of a major political debate. DM

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  • Jimbo Smith says:

    I often wonder if the NPA hasn’t closed down. There is generally silence from this organization which is accountable to the citizens of SA. Batohi; well apart from her opening remarks on Day 1, she is missing in action. When they do get one of our top flight thieves into court ( which is very seldom), there are serious problems with the manner in which they have prepared their case and the perpetrator walks out and continues stealing. At the very least, the NPA should be compelled by law ( or perhaps a sense of accountability) to report to the nation a scorecard detailing cases on hand, in motion and successful prosecutions. Is anyone at the NPA paying any attention????

  • Alley Cat says:

    There is a lot of criticism about Ms Batohi, which I don’t agree with. I heard her speak shortly after she was appointed to her position and she came across as honest and determined. She previously held a position at the ICC, which she was reluctantly persuaded to give up to serve our country.
    I cannot believe that she gave up a cushy and well-paid job to return to SA with ill intent, so I believe her apparent lack of action is due to the fact that the NPA is under resourced and has many “moles” from the Zuma era that are obstructing her. Let’s give her a chance, the recent cases as mentioned in this article are proof that she is moving in the right direction.

    • Geoff Coles says:

      But for how much longer…..she hails from KZN, like almost all the NPA Heads, since 1995…to me, problematic.

      • Jean Racine says:

        Since 1995? How is that possible seeing the NPA came into existence in 1998?
        National Directors Bulelani Ngcuka, Vusi Pikoli, Mokotedi Mpshe, Silas Ramaite (acting) and Nomgcobo Jiba (acting) will be surprised to hear they hail from KZN.

    • Nick Griffon says:

      The first part of the Zondo report was released on 4 January 2022.
      Are you telling me that she could not pick even 1 low hanging fruit case and make it stick?
      You do not have to prove EVERYTHING in the entire report to get a conviction.
      You pick something that you can prove and then get them locked up for that.

      I will begin to share your optimism when ANC politicians and cadres are being prosecuted successfully and serve prison sentences.

      We all know that will never happen.

      • Sihle Sigwebela says:

        So I assume you’ve been reading all reports produced by both the Justice Committee in Parliament and the NPA’s own reports about the cases on their docket, the nature of these cases, and the progress made? You must have in order to state with so much conviction that the NPA hasn’t even secured a “low-hanging fruit” conviction?

  • Geoff Coles says:

    NPA suffers from extreme constipatio, or perhaps has the Ramaphosa disease of dithering very, very slowly.

    • James McMichael says:

      Indeed but while also ensuring that epic looting and corruption can continue unabated, given the assurance that Batohi even makes CR look “proactive”.

  • Rae Earl says:

    There is only one chance for the NPA left, a new government. Money should flow in, crooked staff kicked out, and the Scorpions re-established. Shamila Batohi is more than capable of handling the NPA providing it is completely free of the criminal political interference it is being subjected to by the ANC ‘collective’ of Ramaphosa.

  • John Patson says:

    Destroying can be done quickly.
    Building or rebuilding takes time, planning and resources. Which is why many colonial and early independence institutions in Africa, once destroyed, are never rebuilt.

  • Middle aged Mike says:

    I’ve completely lost faith in the NPA. Whether they intentionally fubar much of what they touch or not matters little.

    • Kenneth FAKUDE says:

      Domestically few departments seem to function Justice is one of them, if only politicians will just stop running to the courts for nonsense and just arrest themselves it would make less load for the courts.
      How can you ask the courts to stop law enforcement officials from doing jobs they are paid for by taxpayers?
      Power corrupts absolutely.

  • zweli Thaketa says:

    Correction, The NPA came out and said it would be too expensive to prosecute Jooste so they could not prosecute him. his Death must have been huge relief for them cause they get to avoid giving reasons for their inactivity in allowing this man to live free like a king while he has decimated the pensions of ordinary south africans.
    I was shocked!!! this has never happened in the History of our democracy. this was a shocking and frankly, it was suspicious. Im reminded of a book i once read about how Joseph Stalin received feedback from his Police Chief about his unsuccesful efforts to bring charges against a politician. Apperantly stalin asks him “How much do you think the Kremlin, all state buildings ,stationary, army vehicles, ships, planes Etc. weigh”.
    He was confused by the impracticality of the question and Responded “but Joseph Vissarionovich, it would be impossible to Quantify it is too big of a number “.
    Stalin then says to him “Do u mean to tell me u are unable too bring to bear the entire weight of the state of Russia on just 1 man”.

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