Subverted by corrupt politicians who sought to capture the state, the National Prosecuting Authority now has a new director, specially chosen by President Cyril Ramaphosa. But what will it take for Shamila Batohi to arrest, prosecute and jail those behind the looting that has brought SA to the brink of economic disaster?

BL PREMIUM 14 March 2019 – 05:00 Natasha Marrian, Karyn Maughan and Claudi Mailovich

National Director of Public Prosecutions, advocate Shamila Batohi. Picture: ALON SKUY

If you’re looking for a moment when the dismantling of SA’s crime-fighting apparatus kicked into high gear, you’ll need to cast your mind back to December 2007. It was back then, in a sprawling tent erected at the University of Limpopo for the ANC’s Polokwane elective conference, that the ecstatic delegates celebrated the far-reaching resolutions that had just been adopted.

Emotions were frayed. The ANC had just fired incumbent president Thabo Mbeki and elected Jacob Zuma as party leader. While the leadership race had grabbed the headlines, few focused on the resolution that would unleash an attempt to grab SA by the throat and bring the country to the edge of economic ruin.

That resolution called for the creation of a “single police force” — a decision that would seal the fate of the Scorpions (or, as the unit was formally known, the Directorate of Special Operations, or DSO). The crack independent, multidisciplinary agency’s mandate was to prosecute those involved in organised crime and corruption.

The delegates insisted the move was a “constitutional imperative”. But its true motive was glaringly obvious: the Scorpions, created by Mbeki in 1999 under the National Prosecuting Authority (NPA), were closing in on Zuma, whom they had charged with corruption just days after his election as ANC president at Polokwane.

The Scorpions were officially disbanded by the new Zuma administration in 2009 and replaced by the Hawks (the Directorate for Priority Crime Investigation) as a unit within the SA Police Service. The Hawks and the NPA were now neutered — or “captured”, to use a word that came to dominate our politics.

So began the slow but deliberate redesign of state prosecution institutions that would enable larceny on a grand scale and shield those responsible from investigation. The fight against corruption was sacrificed on the altar of political expediency.

Justice Sisi Khampepe.

A few years before that, the Scorpions had already become a lightning rod for anger among certain ANC factions, thanks to their investigations into individuals including Tony Yengeni, Zuma and ANC Women’s League president Winnie Madikizela-Mandela. In 2005, Justice Sisi Khampepe was asked to head a commission exploring the future of the Scorpions.

In her final report Khampepe crisply laid out the justification for creating the unit. Its establishment, she said, stemmed from the “need to curb rampant organised crime which was threatening the political and economic integrity of the country”. The existence of corrupt elements in the police, the judge said, necessitated the creation of a new entity designed to pursue the “elusive elements” of organised crime. The DSO was given the investigative capacity to focus on priority crimes in terms of the NPA Act.

However, armed with the requisite infrastructure and resources, the DSO’s investigations and prosecutions proved too effective for some in high places. Besides Yengeni, it had landed former police commissioner Jackie Selebi behind bars, and famously raided Zuma’s house in the course of its investigations. (Today, more than a decade later, there is a chance that Zuma will stand trial on 16 charges of fraud, corruption, money laundering and racketeering.)

In 2008 the Scorpions, according to a briefing to parliament by former head Leonard McCarthy, had an 80% conviction rate. This was precisely why the ANC rent-seekers tied to Zuma had already decided to draw the Scorpions’ sting. The corruption-busters would have to be disbanded, and this became ANC policy at Polokwane.

In their place came the Hawks. They weren’t a patch on the Scorpions. To cynics, the Hawks’ mission seemed to be to swoop on those in the way of their political masters.

While former crime intelligence boss Richard Mdluli has still not faced charges of fraud and corruption which originated more than a decade ago, other prominent officials — including former Hawks boss Anwa Dramat, former Gauteng Hawks head Shadrack Sibiya, his KwaZulu-Natal counterpart Johan Booysen, former senior state prosecutor Glynnis Breytenbach and public enterprises minister Pravin Gordhan — have all faced charges, perceived as trumped-up and politically motivated.

Paul Hoffman, the executive director of Accountability Now, says corruption won’t be stemmed as long as the governing party places its political aim of a “national democratic revolution” above the SA constitution and the rule of law.

Hoffman points to examples in which the ANC’s “revolutionary agenda” is at odds with the constitution.

The most recent example is on land policy, where the party has committed itself to amending the constitution to allow for expropriation without compensation.

Hoffman, author of the book Confronting the Corrupt, says the Hawks have a dismal track record — by intention and design — in the fight against corruption.

The current commissions of inquiry — into state capture, the SA Revenue Service (Sars), the Public Investment Corp and the probe into the fitness to hold office of senior NPA officials Lawrence Mrwebi and Nomgcobo Jiba — all illustrate how the criminal justice administration is part of the problem. It hasn’t been part of the solution for years.

Fast-forward to 2019 and the beast to be tackled is now called state capture.

It led to President Cyril Ramaphosa’s announcement, in his February state of the nation address, of a new investigative directorate within the NPA.

This unit, headed by national director of public prosecutions (NDPP) Shamila Batohi, will hopefully have the teeth to go after the corrupt and actually secure convictions.

Cyril Ramaphosa

Officially, the NPA’s prosecution statistics for corruption don’t look awful. In 2017/2018, 213 government officials were convicted for corruption. This is more than double the 104 officials convicted for corruption in 2012/2013.

In all, since 2012, 950 officials have been convicted on this score.

But it is hard to shake the sense that these are juniors, carrying the can for seemingly untouchable politicians and senior officials. For example, that list of convicted officials includes two policemen, Pumla Kwali and Leon Crafford, who swindled a combined R70,000: Kwali defrauded the police out of R60,000 and Crafford took a R10,000 bribe.

Yet the Gupta family, businessman Salim Essa and Bosasa officials have yet to face any sort of trial. High-profile corruption prosecutions have been few and far between.

As deputy national director of public prosecutions Willie Hofmeyr put it, the brutal reality is that if you ask which significant corruption cases have been prosecuted in the past seven years, “I think the answer is zero”.

This is a damning indictment. When a senior NPA leader effectively casts aspersions on the actions of his colleagues, it suggests leadership of the institution is a shambles. And it has been like that for years, as the organisation has been led by the likes of Shaun Abrahams and Menzi Simelane.

When the Scorpions were a force, Bulelani Ngcuka and Vusi Pikoli headed the NPA. But the prosecution of Selebi paved the way for Pikoli to be axed before his 10-year term had expired — another sacrifice on the altar of political expediency.

Since then, the NPA has had four permanent NDPPs, with Batohi having taken up the reins last month.

The question is: can Batohi restore the NPA to an institution feared by the corrupt, and not seen as a plaything of the politicians?

Batohi has been in the job for just over a month, but she shot to prominence as lead prosecutor in the King commission of inquiry into match-fixing that involved Proteas captain Hansie Cronje in 2000.

During the King commission, her demeanour was on full display: calm, organised and uncompromising. She looked every inch what you’d want from an NPA boss.

After the King commission, she became director of public prosecutions in KwaZulu-Natal, a post she held from 2000 to 2009. She was then picked to be a senior legal adviser to the International Criminal Court’s prosecutor, a post she held from 2009 to 2018.

Clearly, she is a prosecutor’s prosecutor.

In her interview for the post of NPA boss, Batohi said she would aim to establish an investigative directorate to focus on corruption — if the president approved. That was no problem, it turned out, as Ramaphosa swiftly announced that he would establish an investigative directorate to focus on the evidence that emerged from the Zondo and other commissions and disciplinary inquiries. The terms of reference for this new investigative directorate have not yet been promulgated — more than a month after he announced that the diretorate would be established. And time is of the essence.

Ramaphosa is correct when he says it would not be the Scorpions 2.0. For one thing, just in technical terms, the establishing of a DSO in the same format is no longer provided for in the NPA Act, which was subsequently changed.

But there are similarities. The current NPA Act provides that an investigating director can answer directly to the NDPP, now Batohi. It also allows for that director to be assisted by one or more deputies, prosecutors, or officers of any state department seconded to the investigative directorate.

The advantage of an investigative directorate is that it ends up with a single chain of command, with investigators and prosecutors sharing a single objective.

Since investigations would then be prosecution-led, they could be steered towards avenues in which a prosecution could be secured.

However, the issue of secondment of investigators and others presents an interesting dilemma for the coming directorate.

The FM was told it would depend on the goodwill of the police, as investigators can technically be pulled off cases.

The format of an investigative directorate is the key, as was seen with the way the Scorpions functioned in prosecuting intricate cases, such as organised crime, where foot soldiers could be forced to give testimony without being prosecuted. This could assist in the prosecution of big fish.

Corruption Watch executive director David Lewis tells the FM that the new directorate could, in a sense, replicate the work of the Scorpions in that it appears to be a “prosecution-led” investigation unit. What would be interesting is if it were given the leeway to staff itself from “outside” the public service. This would mean bringing in legal minds untainted by the factional fights raging inside the NPA at present.

“There is a lot of hope in that unit; it is a positive sign,” says Lewis. It is vital that the unit be completely ring-fenced from the rest of the NPA to escape the rot inside it.

Another problem could arise: the unit might be accused of “cherry-picking” cases to bolster its profile. A further concern raised by Lewis is that the public has lost trust in anything the government touches. Conspiracy theories abound about every move the government makes, he says, the latest example being talk of sabotage at Eskom. “The public now believes that every government decision is a product of a conspiracy and that someone stands to benefit financially or politically,” he says.

Though Ramaphosa has put the right foot forward, he has to regain public trust and prove he genuinely intends to fight corruption. State capture, as can be seen from the evidence so far in the public domain, is almost analogous to organised crime, as it also had its foot soldiers doing the work for higher operatives.

Angelo Agrizzi

Recent experience illustrates just how long a road the country faces before these cases can be successfully prosecuted.

On February 7, the Hawks arrested seven men — including state capture inquiry witness Angelo Agrizzi — on charges linked to alleged multibillion-rand Bosasa tender fraud committed more than a decade ago.

The arrests were signed off by the NPA’s Specialised Commercial Crime Unit (SCCU) and were, in the words of one investigator, “a really big deal”.

Overwhelmed by the unending evidence of state and corporate corruption, many South Africans celebrated the arrests as a new era for the NPA, a sign that the newly appointed Batohi was getting tough on what she identified as “the cancer of impunity”.

There was one problem: Batohi had no idea the arrests were even happening. Impeccable NPA sources said she heard about them from media reports.

Batohi is awaiting a proclamation by Ramaphosa that, she hopes, will enable her to build an NPA investigative directorate to tackle corruption. But she had not been briefed about a case that could, and should, lead to the prosecution of some high-profile business people and government officials.

The FM has established that notice of the Bosasa arrests was given, by the prosecutors involved, in a two-line e-mail sent to her late the previous afternoon. Batohi apparently never saw the e-mail.

In a terse statement after the arrests, NPA communications chief Bulelwa Makeke told the FM: “The NDPP was not consulted or briefed before the prosecutors took the decision. She has requested an urgent briefing from the prosecutors.”

Vincent Smith

Makeke later confirmed that the briefing had taken place, but declined to provide any details about it. Her reticence, as will become apparent, is understandable.

Far from being a cause for celebration, the arrests of Agrizzi and his fellow ex-Bosasa colleagues and state capture inquiry witnesses Andries van Tonder and Frans Vorster have quickly become mired in controversy. At best the arrests show a deep lack of strategic thinking. At worst, they demonstrate that certain NPA factions continue to use criminal charges as a form of legal or political warfare.

The Bosasa-charges episode illustrates all too well the NPA’s greatest challenges if it is to be an effective agent of accountability and restore public faith in it.

If Batohi is to succeed it urgently needs to address these challenges.

The man that Agrizzi and his fellow witnesses implicated at the Zondo inquiry as pivotal in Bosasa’s corruption — company CEO Gavin Watson — was not among those arrested in connection with the NPA’s tender-rigging case. Neither were other high-ranking Bosasa officials, identified by a 2009 Special Investigating Unit (SIU) report as criminal suspects. Things got murkier when the Hawks confirmed that Agrizzi, through his lawyers, had been co-operating with its investigators on other unnamed cases when he was arrested.

These corruption investigations are understood to be against environmental affairs minister Nomvula Mokonyane and ANC MP Vincent Smith. Agrizzi says he saw both getting bribes from Bosasa.

Nomvula Mokonyane

The FM has also established that Agrizzi’s former lawyers attempted, unsuccessfully, to negotiate a plea deal with the NPA for him to turn state witness.

So the decision to charge him, mere hours after his lawyers had handed over evidence against Smith and Mokonyane, seems odd at best. Why potentially alienate a witness with extraordinary insight into the alleged Bosasa corruption through a surprise arrest? If the NPA is intent on pursuing those at the top of the corruption food chain, these arrests don’t appear to make any sense.

The NPA needs to demonstrate that it is competent enough to build cases that result in corruption kingpins going to jail. That requires the kind of strategy so effectively employed by the Scorpions in securing the corruption conviction of former police boss Selebi — by getting co-operation from the players integrally involved in that corruption.

The state has the power to conclude so-called section 105A plea and sentence deals with witnesses like Agrizzi — where he would be convicted but would receive a lesser sentence in exchange for testimony against Watson and high-ranking officials. Or it can agree to a section 204 witness deal, where a self-admitted criminal avoids conviction by giving honest testimony to the court about his or her crimes, and the kingpins behind them.

The NPA’s decision to go after the low-hanging Bosasa fruit, without trying to do such deals with them, suggests it is still focused on catching small fish, not sharks.

Agrizzi was due to testify against Jiba and Mrwebi just days after he was arrested. He claimed in testimony before the Zondo inquiry that the pair had received monthly bribes from Bosasa, through former prisons boss Linda Mti, to ensure that the SIU report on the company’s tender rigging never resulted in actual prosecutions.

The public
has lost trust in
anything the
government does.
Conspiracy
theories abound
about every move
the government
makes

Because the inquiry into Jiba and Mrwebi’s fitness is being conducted according to the provisions of the NPA Act, Agrizzi would not be given immunity from prosecution if he gave such evidence (which relates directly to the case against him) at the inquiry. His arrest in effect ensured he could not testify.

“It’s a hot mess,” one NPA insider tells the FM, “a very hot mess.” Add to that the fact that the SCCU, which signed off on Agrizzi’s arrest, was formerly headed by Mrwebi, and this saga gets even murkier.

Of course, it is always possible that there may genuinely have been no impure motives in the SCCU’s decision to act on the evidence in the Bosasa docket in the middle of the state capture evidence.

The NPA has told the FM that the investigation into that evidence was completed in mid-January and handed to prosecutors for a decision. That may be so, but it looks ham-handed at best — and, given the NPA’s record of strategically launched, politically motivated prosecutions, it may well create the impression that Batohi is leading an NPA that she, like many South Africans, cannot trust.

Another complication is that the NPA is broke and — for now — dependent on the Hawks to fund expensive forensic financial investigations. In the Bosasa case, this translated into extraordinarily long delays in completing the docket because the Hawks reportedly did not have the money to fund a crucial forensic investigation. The cold reality is this: the Hawks have almost no forensic capacity, and that has significant consequences for the level of evidence that the NPA builds its cases on.

For the NPA to develop this kind of evidence, it needs to engage far more deeply with institutions like Sars, the Financial Intelligence Centre and the auditor-general — as well as the private law and auditing firms that have driven the forensic probes into state-owned enterprises like the Passenger Rail Agency of SA. The NPA also needs to establish how it can use the evidence gathered by these firms and NGOs to build forensically strong cases.

What it means

Law enforcement must be left to do its job. That will be easier said than done: Ramaphosa will have to be just an onlooker

Lawson Naidoo, executive secretary of the Council for the Advancement of the SA Constitution, says the big issue for the NPA centres on staffing and resources. While investigative capacity could be brought in from the Hawks, it would be harder finding sufficiently qualified prosecutors, given the brain drain from the NPA in recent years.

The capacity of the courts is another concern, says Lawson, given the already high volume of cases. He proposes setting up specialised courts to prosecute these matters, and roping in retired judges with the required knowledge to hear the matters.

However, given how much politics has tainted the NPA and its abuse for political ends for more than a decade, it is not only the skills but the integrity of those appointed that will be crucial. Here the old saying, that the fish rots from the head, is relevant. A strong and brave NDPP is necessary for this entire unit to really work.

“If you get someone willing to abuse their powers, it can become a very powerful tool for the bad rather than the good,” says a senior law enforcement official who wishes to remain anonymous.

The FM was told that to avoid these critical institutions being used as politicians’ dogs of war, law enforcement should be left to do its job. That may be easier said than done: it didn’t happen under Mbeki and was perverted under Zuma.

Ramaphosa has to get comfortable with the idea of merely being an onlooker as the net tightens around comrades and colleagues implicated in looting the state.

But will the party, in whose name he governs, allow the new unit under Batohi to do its work unhindered?