14 May 2023
Shamila Batohi has tried and tried again to get reform of the NPA moving, but there appears to be a lack of political will to do so, probably because too many people in politics would end up in orange onesies if Constitutional Court orders were properly implemented.
There is rich irony in the fact that General Bantu Holomisa, leader of the UDM, has called for the appointment of a board of inquiry into the fitness for office of National Director of Public Prosecutions (NDPP) Shamila Batohi.
The irony derives from his stout defence of the office-worthiness of Public Protector Busisiwe Mkhwebane, a Jacob Zuma-deployed cadre who has stumbled from incompetence to perjury in the course of wreaking a swathe of destruction through the reputation of the office she leads.
The office Batohi occupies is fraught with difficulties at the best of times, but, in the post-Zuma era, the challenges are greater than would be expected in the normal flow of constitutional democracy under the rule of law.
This unfortunately arises from the attempt at State Capture which extended its tentacles into the prosecution service itself. Dysfunction still manifests in the aftermath of the destruction wrought by the presidency of Zuma.
He first tried to appoint mendacious Menzi Simelane to lead the National Prosecuting Authority (NPA) into the ways of the ANC, but the courts put a stop to that.
Then he bribed Mxolisi Nxasana to relinquish his position as NDPP. JZ also deployed what Batohi describes, accurately so, as “saboteurs” in the ranks of the NPA, most of whom still lurk in the organisation to ensure that none of those involved in State Capture ever see the inside of a courtroom or prison cell.
The less said about Shaun Abrahams’s leadership of the NPA the better. The lowlight of his court-truncated term was the failed attempt to charge Pravin Gordhan on trumped-up charges.
The role of the NDPP is described in the relevant legislation, Section 17 of the NPA Act, as follows:
(1) The National Director, as the head of the prosecuting authority, shall have authority over the exercising of all the powers, and the performance of all the duties and functions conferred or imposed on or assigned to any member of the prosecuting authority by the Constitution, this Act or any other law.
(2) In accordance with section 179 of the Constitution, the National Director –
(a) must determine prosecution policy and issue policy directives as contemplated in section 21;
(b) may intervene in any prosecution process when policy directives are not complied with; and
(c) may review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations, within the period specified by the National Director, of the accused person, the complainant and any other person or party whom the National Director considers to be relevant.
These provisions, when read with the provisions of Section 179 of the Constitution, put the NDPP in a unique legal position. Usually, it is the function of civil servants to loyally execute the lawful policies of the government of the day.
Unlike all other civil servants, the NDPP has policy-making powers. Obviously the policies so made must conform with the law and the Constitution itself. In this case the law as laid down in the Glenister litigation is pertinent to the discussion.
The section of the NPA Act quoted above goes on to provide that:
[The NDPP] may make recommendations to the Minister [of Justice] with regard to the prosecuting authority or the administration of justice as a whole.
This power has been under-utilised historically, indeed the NDPP has clashed with the executive serially since the appointment of our first NDPP, Bulelani Ngcuka. He left office prematurely after a commission of inquiry was appointed to investigate scurrilous allegations that he was an apartheid-era spy.
His successor, Vusi Pikoli, was suspended for going after Jackie Selebi (who was later found guilty of corruption) and for charging Zuma who is still (18 years after Schabir Schaik was convicted for corrupting him) facing multiple charges in the KwaZulu-Natal High Court. Evidence has yet to be led in the Stalingrad-stalled JZ trial.
No NDPP in South Africa has ever seen out her or his statutorily limited term of office. As Gilbert and Sullivan might have noted, an NDPP’s lot is not a happy one.
From the inception of her term of office, Batohi has been clear on her need to be independent. That happy state implies that there will be no influence, interference or impedance from the executive, the powerful and those with an interest in seeing to it that the functioning of the NPA is not conducted without fear, favour or prejudice.
It is suggested that this felicitous phrase refers to fear of those who are powerful, favour toward those who are friendly, and prejudice to the public weal.
Batohi was given political assurances that her independence would be respected. It has not been so respected by government, both the executive and the legislature.
This sad state of affairs is attributable to the striving for hegemonic control of all of the levers of power in society. The governing alliance is a proponent of this deeply unconstitutional idea.
The notion of an independent NPA is anathema to those who pursue the tenets of the national democratic revolution. Repeated pleas for enhanced independence, not only from Batohi herself but also from civil society organisations, have fallen on deaf ears and nothing has been done to effect the changes necessary to address the limping status of the NPA.
Holomisa’s attack on Batohi is entirely misdirected. She does not make the laws, she does not reform the criminal justice administration, she does not ensure implementation of legislation and she does not exercise oversight of the executive branch of government. These functions are all within the purview of the legislative branch of government. It has done nothing positive for years in relation to the proper oversight of the criminal justice system and has yet to move any remedial legislation that would address the sorry state of affairs in the NPA and police.
The finger Holomisa has pointing at Batohi can be seen with three fingers pointing back at him in his capacity as a senior member of the national legislature.
Those with long memories will recall that following an urgent resolution of the ANC taken at its December 2007 elective conference in Polokwane, the Scorpions, a crack anti-corruption unit in the NPA, were unceremoniously disbanded in 2009 to be replaced by the Hawks as regards their investigative functions, with the NPA being limited to prosecuting dockets prepared by the Hawks in respect of “priority crimes” including serious corruption and organised crime that accompanies it. The constitutionality of setting up the Hawks was successfully impugned by Bob Glenister in 2011.
Any undergraduate law student will tell you that any prosecution is only as good as the investigation which preceded it. This fact was illustrated graphically in the recent Nulane matter in which the prosecution failed spectacularly to get the case off first base. The case is now on appeal; time will tell if it was the judge who erred.
Parliament was sent back to the drawing board by the Constitutional Court after Glenister’s victory. It was ordered to pass remedial legislation to put effective and efficient anti-corruption machinery in place. This step has never been taken properly.
The criteria set by the court for the parameters of the new legislation are well-known now as the STIRS criteria. Independence, guaranteed resourcing and secure tenure of office are chief among them and these criteria are relevant for present purposes.
Instead of a wholehearted effort to implement the reform required, the Zuma-dominated legislature did as little as possible to tweak the impugned law so as to pass constitutional muster. The Hawks Mark II were legislated into being in 2012 and were again successfully impugned, with the court itself further amending the legislation passed in its 2014 judgment.
Reluctance to address corruption
The unwillingness to address corruption properly was at the heart of enabling State Capture during the Zuma years. That unwillingness persists to this day with, for example, Eskom being bled of over a billion rand a month by those involved in corrupt activities in its sphere of operations. The Hawks Mark III have failed to bring any well-connected corrupt individuals to book. They have not worked as a STIRS-compliant unit and are unlikely ever to do so.
State Capture happened long before the appointment of Batohi as NDPP. Corruption continues unabated because of government’s unwillingness to implement the law properly. The orders of court in the Glenister litigation are binding on government and on the NPA. The NDPP, as a sound and well-schooled lawyer, knows this. On the other hand, government appears to be ignorant of the import of the judicial precedents that bind it.
Holomisa’s main complaint, as explained by him on the Power FM breakfast show, is around the failure of the NPA to successfully prosecute the corrupt, especially those named and shamed in the State Capture Commission report.
It is not the fault of Batohi or the NPA that STIRS-compliant machinery of state up to the task of countering serious corruption does not exist. Batohi has tried and tried again to get reform moving, but there appears to be a lack of political will to do so, probably because too many people who are in politics, or are politically well-connected, would end up in orange onesies if the orders of the Constitutional Court were to be properly implemented, as they should be.
Indeed, government is obliged to do so. Its failure in this regard is constitutionally delinquent.
What is clear is that the Hawks/NPA system currently in place is not working insofar as serious corruption of all kinds is concerned. The NPA seems to be able to function adequately in other respects, but, when it comes to countering serious corruption, there is a gross failure to measure up to the standards prescribed in law. It is irrational to expect the Hawks, who ultimately answer to Minister of Police Bheki Cele, to take any serious interest in tackling the politically connected corrupt.
Batohi herself likes to use the metaphor of rebuilding the NPA “brick by brick”. A cartoonist had some fun with this by turning building bricks into missiles raining on Batohi’s head after recent spectacular failures by the Hawks and NPA.
In the absence of much-needed reform of the criminal justice administration, the straw needed for the baking of those building bricks will not be available. Batohi will not be able to recruit the specialists who have undergone the necessary training to run anti-corruption operations.
Few decent and self-respecting corruption-busters, idealists excluded, would be prepared to take work in the NPA because of its history, its gutting, and because of the presence of “saboteurs” (Batohi’s description of the deployed cadres in her ranks) who are there to thwart the success of big anti-corruption cases.
It’s the legislature, not the NDPP
Holomisa should realise that the current dysfunction in the NPA is the fault of the legislature, not the NDPP. The DA has a private members bill in the works that will address the problems. Accountability Now has made submissions to Parliament on the same topic.
If there is any fault on the side of Batohi, it is that she has not embraced the ideas needed to move the NPA forward positively by creating the independent stand-alone specialist body of corruption-busters that the NEC of the ANC instructed Cabinet to establish back in August 2020.
Her failure to do so is not the subject matter of Holomisa’s complaint. She should engage with serious reform, not pander to the politically bankrupt idea of upgrading the Investigating Directorate of the NPA to so-called, but illusory, permanent status.
Cabinet has plans that will not pass constitutional muster and need to be abandoned without ceremony or delay. Batohi has the right to make recommendations to the Minister of Justice on the administration of justice as a whole. She should do so. General Holomisa, like all good generals, should stage a tactical withdrawal. DM