Tensions between the National Prosecuting Authority (NPA) and the justice department were on full public display on Tuesday when Parliament’s justice committee met to discuss a media report that the NPA was being blocked from accessing the database of evidence emanating from the commission of inquiry into State Capture.
The claims were strenuously denied by representatives of the justice department and the Zondo Commission — but the committee did hear that “technical glitches” may have prevented full access.
A scoop published by News24 in August reported that “the NPA and the ID [Investigating Directorate] have completely lost access to a large digital evidence database gathered by Zondo Commission investigators”, and that the NPA had sent “almost 20 letters to the ministry pleading for access to the database, but without success”.
NPA spokesperson Mthunzi Mhaga confirmed to News24 at the time that the NPA had been informed that “because of lack of maintenance, the data is no longer accessible”.
However, justice director-general Doc Mashabane was adamant on Tuesday: “There is access.”
He said/she said over question of accessibility
Shamila Batohi of the National Prosecuting Authority addresses Parliament’s justice committee meeting on 10 September 2024. (Photo: Phando Jikelo / Parliament)
National Director of Public Prosecutions Shamila Batohi told Parliament: “The NPA has been working on getting the access that we need for close to four years.”
Batohi said that the ID required “unhindered access”, and had been provided with “levels of access, but not the access that they need”.
The meeting became something of a “he said/she said” session when Professor Itumeleng Mosala, representing the Zondo Commission, flatly denied Batohi’s version, telling the committee: “It’s four years since the NPA has not been getting access — that’s not a fact. Can we give empirical proof that it’s not true, because we actually have it?”
Batohi stuck to her guns: “We’ve been having, since the changes in regulations [the NPA Amendment Act making the ID permanent], ongoing engagements for four years to try to enhance accessibility.”
Part of the power struggle seems to come down to the meaning of two words: “unhindered access”.
Batohi said what was necessary was for “investigators and prosecutors employed by the NPA and ID” to “enter the Zondo archives where they may without hindrance and at their own discretion, search”.
In reality, what seems to be happening is that investigators have to give very clear instructions about the specific documents they are seeking to access and then apply for permission to retrieve solely those documents.
Mosala, on the one hand, gave assurances to the committee that “there is nothing in [the database] that we can’t make available to the NPA” — but simultaneously seemed to provide multiple caveats.
He said, for instance, that there were complications involving data “acquired under particular conditions, and those conditions have to be observed”.
He cited as an example data relating to individuals’ bank accounts, which he said the commission could not legally pass on because it would have to be subpoenaed from the banks themselves.
In response, the DA’s Glynnis Breytenbach advised prosecutors: “Banks can’t refuse you to subpoena evidence. You can tell them — well, you know what you can tell them.”
Mosala also expressed the position that only information which was admitted into evidence by the commission head, former Chief Justice Raymond Zondo, could be released.
“There is information which is highly sensitive… Some information was not used in the commission.”
Justice director-general Doc Mashabane (centre) and Minister of Justice and Constitutional Development Thembi Simelane (left) at Parliament’s justice committee meeting on 10 September 2024. (Photo: Phando Jikelo / Parliament)
Mashabane added that cognisance needed to be taken of “Popia [the Protection of Personal Information Act] and other related laws [which] govern processing of information”.
Warranties have expired
The sole concession made about the struggle for access was Mosala’s admission that some “logins” and “warranties” had expired.
The committee was told of the massive size of the database involved: the equivalent of some 500 billion pages of printed data.
Mosala said there was also a “full backup of the entire system” at a secret location — the coordinates of which are considered so sensitive that Mashabane said that non-disclosure agreements were being prepared for Mosala and his team “for life”.
The committee’s MPs expressed concern and also confusion over the issue of database accessibility, with Breytenbach asking the NPA leadership why no mention of this problem had been brought to the committee over the past four years before the News24 reporting.
“We haven’t raised it because we wanted to find solutions within the family,” responded Batohi. “It was not our intention that it be made public.”
All parties seemed to find a point of agreement in criticising the media, with Mosala observing: “I don’t think we would be here if the media had not done to us what it did.”
Justice Minister Thembi Simelane said the relevant article was published just two weeks after her first meeting with the NPA, and questioned how observers were “already making damning findings on my department and my leadership”.
She protested: “The first 100 days [as a minister] is to meet, greet, get presentations…”
Manyi, implicated at Zondo Commission, now sits on justice committee
MK party Chief Whip Mzwanele Manyi addresses Parliament’s justice committee on 10 September 2024. (Photo: Phando Jikelo / Parliament)
A complicating twist to events is found in the fact that at least one of the individuals implicated at the Zondo Commission is now sitting on Parliament’s justice committee: MK MP Mzwanele Manyi, who gave one of the most bizarre performances the commission ever heard.
On Tuesday at the committee’s sitting, Manyi unsurprisingly sought to cast doubt on the entire edifice of the Zondo Commission, including questioning why evidence leaders from the commission were permitted access to the database for subsequent prosecutions. “It’s like someone having the chance to mark their own homework,” he said.
Among Manyi’s other lines of inquiry: whether the ID was in cahoots with state security before the Zondo Commission; and whether NPA deputy head Andre du Plessis was a CIA plant.
Manyi was wing-manned by his MK colleague Sibonelo Nomvalo, who opined that South Africa had been “taken for a ride” by the Zondo Commission because it did not include in its focus wrongdoing in the judiciary.
Former Public Protector Busisiwe Mkhwebane, now an EFF MP, rounded things out by suggesting that “foreign actors” may be attempting to tamper with the database. DM