Sources within both organisations say relations are poor, undermined by distrust and a fight for control of cases. To a degree, this is hampering investigations into complex commercial crimes but overall, insiders say things are happening and the wheels are turning. Action is happening, writes Mandy Wiener
Following a decade of capture and gradual destruction at the National Prosecuting Authority, 2019 rang in with the promise of change.
A steely, petite prosecutor with years of experience in KZN, who had been to the International Criminal Court had been appointed to head the crippled organisation.
She had been selected through a rare transparent process, the first step in restoring public confidence in the country’s prosecuting body. There was little doubt that she was the best person for the job of righting this listing ship.
What Shamila Batohi found when she walked into the VGM Building in Silverton on February 1 shocked her. It was indeed a house on fire.
She spent the better part of the next year telling us how much worse it was than what she expected. There was a 20% capacity hole, senior experienced prosecutors had fled their posts, staff were demoralised, corruption was rife, relationships with other bodies was dire and there was no money to make things better again.
Expectations were enormous and were continuing to mount – information about the breadth and depth of state capture and grand scale corruption were spilling out of ongoing inquiries and through investigative media reports.
The public knew about the pillaging and rampaging that went on at parastatals and state owned entities, in forensic detail. Surely criminal prosecutions had to follow.
Bolstering her forces, Batohi appointed advocate Hermione Cronje to head a special Investigative Directorate. A de facto special forces, it was tasked with building state capture cases and getting them court ready, a focus on those matters that would garner the greatest public sentiment. Highly reputable senior advocates were brought in to assist.
Then in May, a fresh, young Justice Minister was appointed to Ramaphosa’s cabinet. Ronald Lamola, a lawyer and former youth leader, brought with him the prospect of invigorating the criminal justice system.
He found a stash of money from government to help Batohi in her fight. But would it be enough to rebuild and restore the capacity of the NPA?
As 2019 draws to a close, a reflection of the year at the National Prosecuting Authority would likely leave many South Africans feeling that while the tasty appetizers may have been served, the main course is taking the chefs in the kitchen far too long to prepare and the country is ravenous for justice.
Amongst these appetizers are early glimmers of hope.
Most recently is the news that Batohi and Cronje have gone to the UAE to try and ensure the extradition of the Gupta brothers – an important development after the United States earlier this year invoked the Magnitsky Act against them.
The removal of problematic deputies Nomgcobo Jiba and Lawrence Mrwebi following protracted legal battles has been significant in restoring stability within the organisation.
The withdrawal of charges against former KZN Hawks head Johan Booysen, the appointment of Elaine Zungu as Director of Public Prosecutions in KZN, the charging of ex-Bosasa COO Angelo Agrizzi and former prisons boss Linda Mti, the arrest of ex State Security Minister Bongani Bongo, the charging of the Amathole Toilet Ten and the arrest of Ethekwini mayor Zandile Gumede on fraud and corruption charges – these are all positives.
But the negatives are glaring too.
There are significant vacancies in senior positions at the organisation with a head of the crucial Prosecutions Services not yet having been appointed. According to insiders, Batohi is isolated and distrustful of her deputies. The only advisor who has her ear is the Insititute for Security Studies’ Anton du Plessis. She is also entangled in a process to remove problematic provincial Directors, particularly in Gauteng and North West.
Batohi has not reinvigorated morale with prosecutors tired of hearing her speak publicly about how bad things are within.
Her decision to oppose and appeal a court application by Deputy Directors around occupational specific dispensation has lost her support within the organisation, alienating senior staff. This is an old fight which she inherited, but had a golden opportunity to correct. The prosecutors affected are all senior.
They litigated against the NPA and won, with the High Court ordering immediate backdated implementation. She could have ensured their loyalty, and ensured a vast tranche of knowledge.
The working relationship between the NPA and the Zondo Commission investigators is also reportedly strained. More concerning is the cooperation between the Hawks and the ID under Cronje.
Sources within both organisations say relations are poor, undermined by distrust and a fight for control of cases. To a degree, this is hampering investigations into complex commercial crimes but overall, insiders say things are happening and the wheels are turning. Action is happening.
From the outside though, progress looks as slow as molasses.
“We have seen very little discernible progress. But that said there was a lot of work to do that was essentially backroom work, largely to do with trying to restore some semblance of integrity to the NPA, particularly in top management structures. This will take time and will not be visible,” says ex-prosecutor and the DA’s spokesperson on justice Glynnis Breytenbach.
“There is a massive shortage of experienced prosecutors. There is no quick fix. The ability of the criminal justice system to deal with the huge influx of cases diminishes annually as a result. The position has regressed, and there are no structures in place to address this.”
Breytenbach says Batohi brings credibility and integrity to the NPA and that is hugely important.
“If the top structure can be fixed, the rest will follow, in time. She has a big job and there is huge pressure to produce results immediately. Arrests are meaningless unless they translate into successful prosecutions.
“The pace has been too slow. By now at least one serious state capture case should have been enrolled and in the process of being prosecuted. There are several that are available for this. It would satisfy the public craving for tangible action and take the pressure off sufficiently to prepare other cases for trial.
“A lot of expertise is available, offered pro bono with no strings attached, from very credible people and that has been ignored, in my view recklessly. A new, more inclusive approach could have been a game changer.”
Casac’s Lawson Naidoo says that while the credibility of the NPA and the Hawks has improved, much more still needs to be done.
“Batohi has been open, engaging and honest – it’s been a while since we have been able to say that about an NDPP. The deep rot that resulted from the Jiba/Abrahams era is now being fully exposed, and the overhaul will need patience and determination.
“There are improved levels of staff morale but key appointments still need to be made, especially with the departure of Jiba, Mwrebi and Willie Hofmeyr. There is also a need to review provincial DPP posts, and fill the many vacancies that exist within the NPA,” says Naidoo.
“The public are understandably impatient but need to recognise that thorough investigations take time. We need to dispel the notion that testimony before DCJ Zondo is sufficient to lay charges – this is partly what is driving public frustration. However it must be noted that the Hawks and the NPA, including the new Investigating Directorate, are pursuing matters and we hope to see results in the course of 2020.”
Naidoo believes that we are in a better place at the end of the year than we were at the beginning. However, the credibility that has been slowly restored will dissipate if high profile prosecutions are not forthcoming soon.
Constitutional law expert Professor Pierre de Vos’s impression is that there has been a slight improvement on how the criminal justice system operates.
“Most critically, those who head the NPA, the Hawks and the SAPS no longer actively protect powerful politicians and politically connected individuals from investigation and prosecution. There has recently been an increase in the number of arrests of those allegedly involved in corruption. However very few cases have yet successfully been prosecuted to conviction.”
Professor de Vos believes Batohi is in an impossible position.
“She was appointed to a completely dysfunctional and politically captured institution and it must be close to impossible for her to trust most of the NPA’s senior leadership or senior prosecutors, either because many of them are actively working to block her from pursuing the corrupt politicians, or because many of them lack the skills to do their jobs properly are incapable of doing their jobs.
“If she goes ahead with a high profile corruption prosecution and it fails, it would also be a disaster, which means she is treading very carefully. Under the circumstances, in my view, she is doing better than expected as she is quietly working to fix the NPA.”
De Vos says he is surprised that some cases are proceeding at all because of the catastrophic lack of skill in the SAPS and the Hawks to investigate complicated economic crimes. He is worried that cases might collapse when they go to trial because of defective investigations.
“So I am not satisfied with the pace of investigation and prosecution but I do not think much can be done in the short term to change this,” he suggests.
Batohi and Cronje both know that they have to tread carefully politically too when the prosecutions do come.
Batohi has already been accused on social media of having bribes paid into her account while details of Cronje’s accommodation in Pretoria have been leaked maliciously.
At a media round table to update journalists on their progress in November, Batohi was cautious and reserved. She has been careful to lower expectations from the public as her teams work to ensure cases are not only court ready, but crucially, that they are winnable.
Cronje suggested that strategies will begin to unfold towards the end of the year and next year. It looks like 2020 will be the year of state capture prosecutions. They will not only have to ensure that suspects are brought to court, but that they are sent to prison too if they are truly going to restore public confidence in justice.