JAUNDICED EYE

President Cyril Ramaphosa and National Director of Public Prosecutions (NDPP) Shamila Batohi have more in common than the fact that the latter was selected by the former and serves at his pleasure.

Both are congenitally averse to conflict. Both, despite being entrusted with positions of power critical to the country’s future, have underperformed desperately. Both are habitually excused their failings by a habitually benign media.

Last week, the Centre for Development and Enterprise (CDE), a Johannesburg-based think tank with a reputation for practicable policy recommendations, released another report — this one on the need to energise the National Prosecuting Authority (NPA) — in its Agenda 24 series identifying actions that the Government of National Unity must take urgently if it is to reverse 15 years of stagnation and decline. 

It’s no secret that the NPA is a mess. Public confidence in the law and justice system is low and hopes that political corruption was a temporary phenomenon that would be corrected when Ramaphosa ousted Jacob Zuma have proved illusory. State looting remains widespread albeit now less brazen.

Yet the NPA, which is the lynchpin between policing and punishment, continues its unhappy history of performing poorly. “The slow and erratic prosecution of widely reported cases of corruption undermines democracy and encourages the [continued] misappropriation of state resources,” writes the CDE. The result is a sense of impunity on the part of the criminals and among the citizenry “a pervasive sense of despair that the state cannot enforce the law”. 

It’s also no surprise, as the CDE report makes clear, that there is an entire range of contested reasons for the NPA’s lack of performance. These, to be fair, cannot all be laid at the door of Batohi. In some areas of its operations, as the NPA has pointed out in response to the CDE report, there have been incremental improvements in prosecution rates. 

Nevertheless, the first half of Batohi’s 10-year tenure has been characterised by a failure to execute its lynchpin function of bringing to book the ANC-connected big fish who plundered South Africa to the tune of R1.6 trillion. As CDE Director Ann Bernstein points out, “Not one high-profile politician involved in state capture has been successfully prosecuted.” 

It’s a dismal record. The CDE notes the NPA has failed to institute and successfully prosecute a significant number of the major cases of corruption long identified in the forensic reports into the Passenger Rail Authority dating back to 2017, Transnet and Eskom dating back to 2018, and by the Zondo Commission in 2022, as well as by the exemplary investigative journalism that triggered the appointment of Zondo.

“In several instances, these reports provided the NPA with a complete or near complete basis to issue an indictment, and where this was not so, more than enough time has elapsed to have permitted the commencement of prosecutions,” says the CDE. 

However, the catalogue of NPA failure is even more extensive than the CDE report records. There were two recent abysmal NPA failures that, in most countries, would have seen the humiliated head of the national prosecuting agency exit office in disgrace.

The extradition of Atul and Rajesh Gupta, kingpin diverters of state assets, failed last year because of the NPA’s legal ineptitude. The United Arab Emirates dismissed the application because it “did not meet the strict standards for legal documentation as outlined in the extradition agreement”. Some of the paperwork was either incorrect or simply missing, claimed the UAE. 

Also last year, the Bloemfontein High Court dismissed with derision a NPA case that Batohi described as “seminal” in the drive for state capture convictions, against eight people accused of ripping off R24.9 million destined to support emerging black farmers. The judge described the NPA prosecution as “lackadaisical”, “laborious”, “a comedy of errors”, “stillborn”, and not meeting the “barest [evidentiary] threshold”.

Indeed, the NPA’s major problems — political interference, inadequate budgets, internal sabotage, and poor staff competency— all precede Batohi. However, it's because of Batohi’s poor leadership that none of these impediments has been adequately addressed.

For example, one reason for the lack of professional expertise is the focus on race transformation. One seasoned former prosecutor accuses Batohi of compromising on quality in the name of diversity. Staff of the “wrong” race and gender demographics have left because it’s been made clear to them that they have few prospects for promotion and replaced with people with the “right” profile. 

“It’s not a matter of talent,” they say. “Talent on its own doesn't make a good prosecutor. Experience makes a good prosecutor. You need 10 years to make a decent prosecutor and you need 20 to make a decent specialist.” 

Given the importance of experience, it is then difficult to find a charitable explanation of why, until very recently, Batohi shunned offers by some of South Africa’s leading legal lights to provide, often pro bono, hands-on assistance with these cases. 

Then there is the matter of is internal political resistance and sabotage. Legacy appointments from the Zuma era, people who have been undermining corruption prosecutions, have been allowed to sow chaos and dissension. One of the rare disciplinary reviews initiated by Batohi to deal with this has been sitting on Ramaphosa’s desk since August 2023, awaiting his approval to proceed to the formal inquiry required to dismiss the executive in question.

None of this is because Batohi has an overt political agenda, a former NPA insider tells me. “It’s simply that Batohi is afraid of conflict. She hasn’t dared to take on Ramaphosa on the swingeing successive cuts that have been made to the NPA budget. She hasn’t dared take him on regarding the stalled dismissal of that executive. She’s a people pleaser.” 

The NPA has always been at the heart of state capture, as the CDE report makes clear. There is a long history, stretching back to the Thabo Mbeki years, of interference in the NPA, which in the unfolding of various political scandals caused it to churn through five “permanent” NDPP appointments, as well as four acting heads. The NPA also lost its dedicated investigatory arm, the Scorpions, when this was closed down to protect the ANC elite from prosecution for state looting.

Such internecine battles continue to this day. As I write, the NPA is in the throes of a bitter battle with the Department of Justice (DOJ) over unfettered access for prosecutorial purposes to the vast trove of documents and testimony contained in the Zondo Commission into State Capture’s archives. This means that NPA prosecutors can’t get their hands on the evidentiary detail required for successful prosecutions. 

It’s an unforgivable state of affairs, an example of both Batohi ’s and Ramaphosa’s lack of appetite for a fight with Zuma-supporting elements at the highest level in the DOJ. Yet, during her regular appearances before the parliamentary Justice oversight committee, Batohi not once complained about this. When challenged on her silence, Batohi told the parliamentarians last week that she had wanted “to keep it in the family”.

As another legal expert put it to me, “You don't need nice, “Should I do this or should I do that?” people at the top. You need a human Rottweiler.” 

This is something that the CDE series of reports has kept coming back to — the identification of the “mission-critical” public service jobs necessary to repair the terrible damage that has been done to the country. “Let’s make sure that the very best people occupy them, Bernstein tells me. “Not only at the very top of the NPA but the entire leadership core of the NPA.”

That’s not easily done, says Gareth Newham of the Institute for Strategic Studies. While he supports the CDE’s call for a speedy inquiry, headed by a retired judge, into the reasons for the failed state of the NPA — other recommendations are dedicated corruption courts and the public commitment of Ramaphosa and the Justice Minister to supporting the NPA — he stresses that unless the NPA is completely separated from DOJ, it is bound to fail.

Newham says he has sympathy for Batohi, sandwiched as the NPA is between two “hugely dysfunctional” components of the justice system, the police and the DOJ. “The NPA has to be fully independent, financially and administratively. It needs to negotiate its own budgets with the Treasury and hire and fire its own administrative and support staff. All this is currently controlled by the DOJ.”

That’s all good and well, as are the CDE’s sensible and immediately implementable recommendations. But the stumbling block of the Ramaphosa years has never been understanding what needs to be done. It’s finding the political will to do it.

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The CDE report can be found at https://www.cde.org.za/wp-content/uploads/2024/09/ACTION-FIVE.pdf