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NPA’s Batohi cautions MK Party on plans to bring private prosecution of Ramaphosa over Phala Phala

National Prosecuting Authority head Shamila Batohi cautioned against the abuse of private prosecutions to ‘further certain agendas’. She was appearing before Parliament’s justice portfolio committee on Friday 11 October.
NPA’s Batohi cautions MK Party on plans to bring private prosecution of Ramaphosa over Phala Phala
Victoria O’Regan
By Victoria O’Regan
11 Oct 2024
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uMkhonto Wesizwe (MK) party’s chief whip Mzwanele Manyi suggested a private prosecution is looming in relation to Phala Phala, requesting when a nolle prosequi certificate will be issued from the National Prosecuting Authority (NPA). 

In a meeting of Parliament’s justice committee on Friday morning, Manyi questioned the “bizarre” decision taken by the prosecuting authority not to prosecute President Cyril Ramaphosa — or anyone — in the Phala Phala matter. 

He asked when a nolle prosequi certificate would be issued “so that the private prosecution can kick in”.

A nolle prosequi certificate is issued by the NPA to a party that has an interest in pursuing private prosecution when the prosecuting authority has declined to prosecute in that particular case. The certificate must be explicitly requested from the relevant Director of Public Prosecutions (DPP) by a person who wishes to institute private prosecution proceedings. 

Read more in Daily Maverick: A visual timeline of Ramaphosa's Phala Phala

The issuing of a nolle prosequi from the NPA would open the door for MK leader Jacob Zuma to potentially pursue a private prosecution of Ramaphosa in relation to Phala Phala. 

The NPA was presenting its annual report to the parliamentary committee on Friday. 

Batohi hits back


Appearing before the committee, NPA National Director of Public Prosecutions Batohi hit back at Manyi’s statements, which suggested that a private prosecution would soon be instituted, cautioning against the abuse of private prosecutions to further agendas. 

“Firstly, there must be a formal request to the DPP for this certificate. And secondly, the words used ‘to kick in the private prosecution’ would seem to suggest that the decision has already been made to in fact institute a private prosecution,” said Batohi. 

“And this actually highlights the dangers of private prosecutions… We need to ensure that — like the NPA that works within a particular legal framework and has a constitutional obligation to ensure that we prosecute without fear, favour or prejudice — that private prosecutions are not utilised to further certain agendas,” she added. 

“There are processes — review processes — that can be utilised for interested parties who are dissatisfied with the decision.”  

The NPA on Thursday decided not to prosecute President Ramaphosa in relation to the Phala Phala case stemming from the criminal complaint laid by the former director-general of the State Security Agency, Arthur Fraser, in June 2022. 

The complaint, laid against Ramaphosa, related to the theft of forex from the President’s Phala Phala farm in Limpopo, in February 2020. Fraser alleged that Ramaphosa had concealed the multimillon-dollar heist from the SAPS and Sars.  

Read more: Ramaphosa off the hook in Phala Phala case after NPA declines to prosecute

The Director of Public Prosecutions in Limpopo, advocate Mukhali Ivy Thenga, made the decision not to prosecute anyone in the case after a “comprehensive investigation process” was conducted by the Directorate for Priority Crime Investigation, NPA spokesperson Mthunzi Mhaga said in a statement. 

According to Mhaga, Thenga concluded that there was no reasonable prospect of a successful prosecution based on evidence contained in the docket. 

Read more: Money laundering and housebreaking charges brought against Phala Phala farm theft suspects

The criminal case against the alleged burglars, Imanuwela David and Froliana Joseph, who stole the forex, continues. 


MK’s Hlophe calls decision ‘shocking’


At a press conference in Johannesburg on Friday, MK party deputy president John Hlophe said the decision by the NPA not to prosecute Ramaphosa was “shocking, to say the least”, and made a reference to the NPA as being “captured”. 

“The suggestion by the NPA that there are no reasonable prospects of success, that it doesn’t make sense to prosecute the President, is nonsensical to say the least. It does show, in my view, that these institutions are controlled, are being monitored… by those who support the President,” he said. 

Hlophe did not confirm whether the party was indeed pursuing the private prosecution route, but said MK would be dealing with the issue of Phala Phala in its own way. DM

Comments

Les Thorpe Oct 11, 2024, 05:11 PM

So any citizen of S.A. can now legally hold large amounts of foreign currency, preferably hidden out of sight under the bed, and there is no longer a requirement to declare such.

Indeed Jhb Oct 11, 2024, 06:34 PM

Seems like it. Wonder if the supplier of the cash can demand it back? Since no transaction took place - hope the Pres kept his insurance current. Considering the 'safekeeping' method will the insurance pay out?

Thomas Cleghorn Oct 11, 2024, 11:14 PM

I have less of a problem with the cash in the sofa (which was not a huge amount & other stuff...) than I do with unfettered or properly documented use of special state security task teams, kidnapping? and cross border shenanigans. Bottom line, we have a right to know what our tax money is spent on.

seanbozalek53 Oct 12, 2024, 08:59 AM

Any ordinary SA citizen would have been prosecuted for breaking the SARB foreign exchange control regulations , the fact Ramaphosa did not declare this raised questions of probity and a conflict of his business interests with his public office.

Richard Blake Oct 12, 2024, 06:45 PM

It was 9.8 million not exactly pocket change.

Greeff Kotzé Oct 23, 2024, 06:43 PM

Exactly. I notice that, in the NPA's statement, none of the actions Roode took (whether with or without CR's knowledge) are listed as potential crimes investigated by the Hawks. Unsurprising perhaps, since the VIP security detail and Hawks are both under SAPS.

Werner Hautmann Oct 12, 2024, 05:51 AM

the people who made the accusations obviously have a stellar record and dont lie? if there is no evidence one cannot prosecute. has anyone actually seen the Forex. Hidden in a couch? why would he do that its not a shack that does not have a safe!

laurantsystems Oct 12, 2024, 07:04 AM

The lady with the permanently lugubrious expression, Batohi, is doing her real job to perfection. That job is to slow down, obfuscate and bungle all prosecutions of the ANC connected, like those who hide unexplained millions of forex in their sofas.

Rod MacLeod Oct 11, 2024, 06:31 PM

I have no regard for MK or Hlope - however, where the NPA publicly declares they will not proceed against a person, why do they feel they can deny any citizen a nolle prosequi declaration? This is bizarre I'm afraid and to not issue a nolle prosequi in the circumstances is indefensible.

B M Oct 11, 2024, 07:30 PM

My understanding is that the NPA says the nolle prosequi must be applied for, then it is reviewed under existing legislation and processes before it is granted or denied. And to be granted, new evidence must come to light, because the current docket is insufficient. Seems reasonable.

Stephen Mcbride Oct 12, 2024, 07:58 AM

Not reasonable. If state does not think evidence enough then it should allow others to proceed with what evidence there is if they think it enough. An aggrieved person should have the right to charge the person who offends him so that all evidence brought to light.

William Dryden Oct 12, 2024, 10:44 AM

I agree with BM, if the MKP has other information that would change the NPA's decision then that information should be shared with the NPA so that the matter can be resolved, however I suspect the MKP's decision to want a private prosecution is politically motivated by Zuma.

Gerrie Pretorius Oct 14, 2024, 02:33 PM

And the npa’s decision not to prosecute is politically motivated by ramaphosa’s anc?

Greeff Kotzé Oct 23, 2024, 06:50 PM

Your understanding's flawed, I think. But so's Manyi's. It's simple: an interested party must request the certificate from the relevant provincial DPP. If the NPA declined to prosecute, then written confirmation (the certificate) has to be issued upon request; it's not optional nor conditional.

Wilson Javangwe Oct 11, 2024, 10:42 PM

The requirements for proving Locus Standi in terms of the Criminal Procedure Act and Vexatious Proceedings Act will almost certainly neuter any attempt to prosecute CR for what was effectively a violation of the Exchange Control Act and possibly PRECCA for allegedly failung to report the theft.

Dermot Quinn Oct 11, 2024, 11:17 PM

How many prosecutions of people holding forex have u seen? Zero. It’s a no brainer because it’s not really prosecutable. Thousands of people hold onto Fx.

Richard Blake Oct 12, 2024, 06:43 PM

Yes, but how many people hide 9.8 million in a sofa and mattress. Most people I know bank their millions. Criminals on the other hand do not bank their money.

Lian van den Heever Oct 12, 2024, 06:54 AM

Mr Hlope, are you serious ? What about ALL your cases ? It cuts both ways. Should you be in parliament ?

William Kelly Oct 12, 2024, 07:33 AM

'highlights the dangers of private prosecutions'.... Batohi is incapable of seeing the irony. It's why what little confidence we have had in her has long ago evaporated. The NPA is a joke, a shadow of the 'full might of the law' and honestly, who takes it seriously any more?

Rodshep Oct 12, 2024, 07:58 AM

No trust left in the NPA, that's what happens when members of the judiciary are appointed by the government. They are dependent on the government for funding, and so they are controlled. Not a single ANC member has been successfully prosecuted for any crimes committed. Makes you think yes.

Greeff Kotzé Oct 23, 2024, 07:01 PM

A (minor) quibble: the NPA does not form part of the judiciary. Those are the magistrates, judges and justices. I suppose the other officers and employees of the courts might count as well. But the NPA is merely an agency of the executive. It's not even a Chapter 9 institution.

Fanie Rajesh Ngabiso Oct 12, 2024, 09:21 AM

I have no issue with everyone being held to account, but MK live in a glass house 40 stories tall. It is ludicrous that they should be trying to take the high road. What I want to understand more about is who funds these fools in MK to afford all this litigation.

Hilary Morris Oct 12, 2024, 10:16 AM

The presence in parliament of a large number of beyond dubious members of the MK, not only diminishes respect for the institution, but respect for the law. That the ANC also has shady characters as parliamentarians, may explain why there have been no steps to clear up who should not be eligible.

Henry Henry Oct 12, 2024, 10:20 AM

She's afraid.....

Anil Maharaj Oct 12, 2024, 03:38 PM

Of whom it what?

pa Oct 13, 2024, 09:05 AM

I support a private prosecution in this case 100%, but ideally not by MK, because Dali Mpofu will be heading it. I don't think he has ever won anything.