On 4 December 2018, President Cyril Ramaphosa appointed Shamila Batohi as the National Director of Public Prosecutions in SA, thus ending a ten-year hiatus in her career in the National Prosecuting Authority. In 2009 she accepted a position at the ICC in The Hague, but was persuaded by her son, she says, to accept the position of NDPP because it would be selfish not to do so.
At the time she left the NPA in 2009, she had risen through the ranks of prosecutors to occupy the position of Director of Public Prosecutions in Kwazulu-Natal. She was famous for her cross-examination of disgraced SA cricket captain Hansie Cronje during the King Commission into allegations of bribe-taking against him.
The hiatus in Batohi’s NPA career is attributable to the demise of the Scorpions and the looming capture of the NPA by the Zuma-led cadres of the national democratic revolution. They resolved to dissolve the successful anti-corruption unit within the NPA because of the attention it paid to crooked politicians and their fellow travellers in the business world. Batohi wanted no part of this, and insisted that she be accorded independent status before she accepted the position of NDPP. None of her predecessors had seen out their terms of office. Her last boss, Vusi Pikoli, was suspended by the Mbeki-led administration for prosecuting Jackie Selebi, the bent police chief. He was dismissed by President Kgalema Motlanthe for charging Jacob Zuma for corrupt activities, charges which are still pending in the high court.
During the course of her term of office as NDPP, Batohi has appealed to Parliament to enhance the independence of the NPA. Her entreaties have fallen on barren ground. The DNA of the ANC includes a burning desire to secure hegemonic control of all the levers of power in society.
The NPA, which has a constitutional mandate to prosecute crime, is far from independent, a topic visited previously. In short, it is subject to the “final responsibility” of the minister of justice who must concur in all prosecution policy and has as its accounting officer the director-general of the department of justice. The NPA is in fact run as a programme within the department of justice.
The performance of the NPA under the leadership of Batohi has been somewhat underwhelming through no fault of hers. Its inability to address the backlog of cases, in particular serious corruption matters, has led to the backlog increasing instead of being worked off.
‘Saboteurs’ and presidential dithering
Batohi complains that her institution is infested with saboteurs planted in it during the Zuma era to ensure that no politically connected corrupt operators ever see the inside of a courtroom, let alone a prison cell. She has been slow to weed them out, aided and abetted by presidential dithering.
The institution remains gutted, to use the word Justice Richard Goldstone chooses for it. It does not have the capacity to mount relatively simple prosecutions against high-profile suspects identified during the Zondo Commission hearings, a fact bemoaned by commission evidence leader Matthew Chaskalson SC during the Primerio conference on anti-corruption enforcement held in KwaZulu-Natal on 21 September 2023.
At the end of August 2023, the minister of justice published a bill designed to upgrade the status of the 2019 Investigating Directorate of the NPA, created by proclamation, to what he incorrectly called permanent status by establishing what is called the Investigating Directorate Against Corruption (Idac)
Neither Batohi nor anyone else within the NPA has responded directly to a challenge issued by Accountability Now early in September 2023 “to reconsider your position, assert your duty to uphold the rule of law and respect the binding precedent created by the Glenister litigation. If you think that the minister is right that the stirs criteria [specialised, trained, independent, resourced and secure in tenure of office] are satisfied by his bill, say why you think so; if, on the other hand, you prefer the Breytenbach sponsored private member’s bills say why too.
“History will judge you harshly if you do not live up to your aspirations to be ‘the peoples’ advocates’ by taking a stance that you believe serves the interests of the people you have sworn to serve.”
Batohi did, however, somewhat lamely, take critics of the bill to task during her input to a conference organised by Primerio on 21 September 2023 by labelling them “short-sighted”, without saying why.
Her address had three themes: the rule of law is on life support in SA, State Capture as a “person-made crisis” and SA as the “comeback kid”.
It is more than surprising that, having placed the rule of law in the ICU, Batohi said not a word about the binding nature of the criteria set by the Constitutional Court in its seminal Glenister 2 judgment. These criteria, now known as the stirs criteria, are meant to be the features of any new anti-corruption entity put in place by government. Implementing that decision, which has never been done properly, is central to restoring the rule of law and respecting the binding nature of court decisions. Not a peep on these fundamentals from Batohi in her self-described ICU for the rule of law.
Idac’s independence-crippling disabilities
It is clear that Batohi supports the establishment of Idac despite the unarguable facts that it is bound to lack independence and secure tenure of office.
The structures and functions of the new Idac will be legally indistinguishable from those of the Scorpions.
As a new unit in the NPA, Idac will suffer the same independence-crippling disabilities as are currently suffered by the NPA. Ministerial “final responsibility” and departmental control of the purse strings can only serve to undermine independence. As a creature of an ordinary statute, like the Scorpions were, the new Idac will be vulnerable to closure by a simple majority vote in Parliament. The Achilles heel of the Scorpions will be transplanted to Idac should it ever see the light of day and not be abandoned (as it should be) or impugned as unconstitutional.
The Scorpions met their Waterloo in 2009 – the year that Batohi left the NPA – and the new Idac will meet its Waterloo the first time a simple majority in Parliament is mustered by peeved politicians.
There are two practical difficulties with Idac that Batohi has not addressed. In fact, she does not appear to have seen them coming, despite warnings from those she labels as “short-sighted”.
The first is that few with the necessary training and expertise will join the ranks of Idac for fear of suffering the same fate as was suffered by the Scorpions. The expertise of the Scorpions no longer resides within the NPA – the specialised personnel have been scattered to the four winds.
Batohi herself decamped to The Hague, her deputy, Anton du Plessis, a leading Scorpion, took a top job at the UN and had to be coaxed back to SA by Batohi. Many others joined the private sector or departed to other departments of state where they enjoy greater security of tenure of office. The old maxim “once bitten twice shy” will apply to most who have the potential to fill the gaps in Idac in personnel and expertise.
The second is that the wording of the Idac bill as regards the role of the police in the investigation of serious corruption is a sure-fire recipe for turf wars of the kind waged by Jackie Selebi. His anti-Scorpions antics led to the appointment of the Khampepe Commission of Inquiry into the Scorpions and its spurned recommendation that the Scorpions be retained despite the turf wars.
It would be preferable by far to exclude the police from the investigation of serious corruption above a set threshold value and leave the Hawks to busy themselves with other “priority crimes” already within their remit that they are better equipped to investigate. No one, not even the President, is suggesting today that the Hawks have been a success at countering serious corruption. Any successful prosecution of serious corruption has to be preceded by a successful and expert-led investigation.
Glynnis Breytenbach, the shadow minister of justice, appreciates the inwardness of the problems besetting the NPA. As an ex-prosecutor, she remained loyal to the NPA for many years until she was persuaded to adopt the thinking of Accountability Now on the topic of reform of the capacity of the criminal justice system to counter serious corruption. Her private member’s bills are preferable by far to the unconstitutional “stopgap” Idac bill that won’t work in practice and is not really intended to be permanent, as has been conceded by the deputy minister of justice under questioning by disgruntled parliamentarians.
Napoleon never returned to Waterloo. Batohi should not descend to supporting the establishment of a Scorpions-like body that will surely lead to her second Waterloo in the NPA. – DM