National Prosecuting Authority (NPA) head Shamila Batohi believes that while most people want the rule of law to succeed, we are living in a world where politicians “with criminal records or [as] suspects can all hide in political office and where populist political leaders do not hesitate to attack institutions, such as the judiciary”.
The National Director of Public Prosecutions was speaking in Cape Town on Monday, 11 November 2024, at the University of Stellenbosch’s Department of Journalism’s annual lecture, held in collaboration with the civil society organisation Freedom Under Law.
Her speech, titled Strengthening the Rule of Law: Challenges and Opportunities for the National Prosecuting Authority, focused on how the NPA could improve not only in tackling corruption cases, but on issues such as housebreakings and stock theft, issues that severely affected South Africans.
Batohi touched on why the rule of law had to be “our collective priority if South Africa is to survive this moment in our young democracy”.
“Sadly, local trends in rule of law and justice do not bode well. South Africa has historically been a trailblazer in the rule of law, a trailblazer in many other areas, and a moral guiding light, particularly under Madiba's leadership.
“We need to take on that role again, especially given the global context. However, in order to accomplish this, we must first organise our own affairs. The NPA is a leading actor in this regard,” she said.
While noting attacks on the judiciary from suspects who now hold political positions, she added, “But we should cherish the fact that we in South Africa have a President and now a Government of National Unity that are explicitly grounded on respect for the rule of law.”
State Capture cases
The NPA has come under fire for its poor record in prosecuting State Capture cases.
Executive director of the Centre for Development and Enterprise (CDE) Ann Bernstein recently lambasted the NPA’s “dismal record when it comes to initiating prosecutions and securing convictions in high-profile corruption cases. It has failed to prosecute a significant number of major corruption cases long identified in forensic reports into the Passenger Rail Agency of South Africa (2017) and Transnet and Eskom (2018) and by the Zondo Commission (2022).”
Bernstein pointed out that these reports had been handed to the NPA and despite containing almost enough information to issue indictments, the NPA had not acted.
“Not one high-profile politician responsible for State Capture has been successfully prosecuted,” said Bernstein.
According to Batohi, the NPA adopted a strategic prioritisation project given the volume of crimes dealt with in South Africa. She said that State Capture cases amounted to 0.01% of the NPA’s work.
The people of South Africa, she added, were rightfully outraged over large-scale State Capture looting.
“We understand and appreciate their demands for accountability of the allegedly culpable perpetrators of State Capture corruption. We also recognise we … received some setbacks in cases.”
She noted the R2.2-billion corruption case against former Eskom boss Matshela Koko and others, which was struck off the roll in November 2023 due to unreasonable delays after prosecutors asked for more time to investigate. She also mentioned the failure to extradite the Guptas, for which she said some people held the NPA responsible.
According to Batohi, the NPA’s Investigative Directorate and digital analysts were working hard to have the Koko matter re-enrolled.
She said the NPA had extradited many people to South Africa, with the most recent being Moroadi Cholota, the former ANC secretary-general Ace Magashule’s personal assistant and co-accused in the R255m Free State asbestos scandal, and Michael Lomas, a former Kusile Power Station contractor who was wanted in connection with a R745-million Eskom deal.
“The United Arab Emirates is another kettle of fish,” she said, referring to the attempt to extradite the Guptas.
The most recent setback was when the corruption case against former minister Zizi Kodwa and his co-accused Jehan Mackay was withdrawn by the NPA. Shortly after this decision, Batohi’s office announced she would review the decision to drop charges.
“The matter is still under review and we have not made a decision. All the roleplayers still need to be engaged with,” Batohi said.
In response to widespread criticism, Batohi said that the Investigating Directorate had approved 117 matters involving 212 accused persons and 68 entities. Of these, 78 were under investigation and 39 had been enrolled.
Towards reform
Apart from high-profile corruption and organised crime cases, Batohi said housebreaking, according to the victims of a crime survey, instilled the greatest fear in South Africans.
“How do we deal with house break-ins and stop stock theft? In many rural areas, the stock of a family is what keeps them together; it is their livelihood,” she said.
Lawson Naidoo, executive secretary at the Council for the Advancement of the South African Constitution (Casac), told Daily Maverick that there was much that needed improvement at the NPA and many institutions that had been affected by State Capture.
“I believe what advocate Batohi did … was to put the NPA’s work in context, looking at the big picture of what their responsibilities are. She repeatedly stated that State Capture and corruption cases account for only 0.01% of their caseload.
“I thought she was also very open about the challenges that the NPA faces, as well as some of the solutions, such as increasing the NPA’s financial and operational independence, which can help in the fight against crime, organised crime and corruption,” Naidoo said. DM