NPA should have unrestricted access to Zondo’s evidence, says Batohi

Justice minister Thembi Simelane has denied blocking the National Prosecuting Authority (NPA) access to the Zondo Commission database.

The department of justice has also repudiated allegations it was obstructing the NPA’s access to the records of evidence gathered by the state capture inquiry.

However, NPA boss Shamila Batohi insisted the prosecuting authority did not enjoy unhindered access to all the information it needed to successfully prosecute cases referred to it by the commission.

Batohi told the National Assembly’s portfolio committee on justice the NPA has been trying to get the access it needs for close to four years. She said the prosecuting body has been feeling pressure nobody else had, and she hoped after the matter was discussed in parliament there would be urgency to resolve it.

She said for the NPA to fulfil its constitutional mandate and meet the expectations of the public, the Independent Directorate (ID) requires “what we call unhindered access” to the archives of the state capture commission.

“We talk about the Zondo database broadly, but in summary the archive itself is a collection of several electronic databases, hard drives and electronic storage mechanisms, and also includes a large number of hard copy or physical documents,” she said.

“When we talk about unhindered access, we are talking about unhindered access to the archives. But again, I hasten to add, working within the legal and constitutional requirements.”

Batohi said the ID had been provided levels of access but not the access it needed.

“Throughout the four years we’ve been engaging, with the commission initially, and … that regulation 11 in the original government regulations of the commission was amended, but it was amended on the absolute push and drive of the NPA to be able to access information at the time.”

It took a long time to amend the regulation, but it was done eventually, she said.

Batohi said meetings were held between the Treasury, the department of justice and the NPA from around July 2020 to discuss ownership of the evidence as well as the hardware and software of the commission. She said the former justice minister (Ronald Lamola) decided in April 2022 to transfer the digital forensic laboratory from the commission to the department of justice as its custodian.

Batohi said Lamola assured the NPA it would continue to have access and that was what it was asking for and what was required.

Unhindered access for the ID entailed:

• The minimum requirements that its investigators and prosecutors have the necessary authorisation from the investigating director to enter the premises housing the Zondo archive where they will without hindrance and at their own discretion be able to search all hard copy documents as well as electronic data wherever they are situated.
• That the NPA will make sure there are the necessary safeguards put in place to ensure there is a record of what is being taken.
• Should any hard copy documents or data be required for using in formal court proceedings, there are processes in terms of the NPA Act that the NPA can use to secure those items. 
• When conducting searches, investigators and prosecutors may be assisted by IT, and with regard to dealing with particular computers, be assisted by a designated person or people with knowledge of the hard copy documents on the premises and the general categorisation.
• Classified documents may be searched. The NPA said it heard about classified documents and documents obtained under certain conditions and it believed such documents could be searched, examined and removed by investigators with the appropriate security classification, and they could look at how to deal with issues the secretariat of the commission may have with regard to how the information is used in the context of investigations and potential prosecutions. The use of such documents in any prosecution would be dealt with in accordance with relevant legislation.

Batohi said while the department spoke about how it gave the NPA and ID access to the information, the challenge was this should not be on the basis of a request and receipt to conduct a criminal investigation.

“It stands to reason one cannot request what one does not know exists. That’s the challenge.”

Putting in a request means those who assist in obtaining the requested information would be aware of the direction of the ID investigations at any given time, she said.

While there were NPA staff members who were trained and had access and login details to access what they wanted, this was limited to electronic data and did not address physical or hard copy documents.

It limited the trained prosecutors’ access to one specific part of the database while it had different platforms, said Batohi.

Unhindered access would capacitate the ID and would probably result in state capture matters moving more quickly.

News24 reported in August that access to vital state capture evidence had been lost because of a maintenance failure after the NPA struggled to take control of the database for more than two years. The publication said as a result, Simelane was locked in a tense impasse with prosecution bosses. 

On Tuesday, Simelane rejected reports she had blocked the NPA’s access, saying she did not even know about the database as there had been no discussion about it or the alleged disagreements regarding access.

“If you ask me where the state capture information is kept, I haven’t been taken to that room, if it’s a room or if it’s in the sky. I am here because you have called me.

“I can’t block anyone because I don’t know who has access to that or who does not have access. We have not yet had the opportunity to have the matter on the table,” said Simelane.

Justice director-general Doc Mashabane said there were documents and many materials gathered during the course of the four years of the commission.

It was decided administratively to request the head of the secretariat of the commission at the end of its work, realising the magnitude of information collected during the course of the inquiry, to remain in what is called “a residual mechanism”, with some officials who worked for the secretariat becoming officials of the department under the Public Service Act, and they continue to maintain and are supposed to maintain top secret clearances.

During the course of the commission when the ID was proclaimed, there was an issue about its access to some evidence and material the commission would have collected. That led to regulation 11, which regulated how the ID would access some information that would have been ventilated before the commission or the investigators in the commission would have come across.

At the end of the mandate of the commission, when former chief justice Raymond Zondo submitted a final report to President Cyril Ramaphosa, regulation 11 fell away.

Officials from the NPA and the ID were trained on how to access some information in the data centre. As part of the process, the Treasury had to transfer some capabilities linked to the data centre where data was managed digitally.

The centre required a licence and the Treasury in some cases assisted in the procurement of the licences, and the department took responsibility for those that had expired.

Mashabane said it was not true that licences were not renewed.

About R40m was secured for licences and maintenance of the system “so any suggestion that we allowed licences to expire and they have not been renewed cannot be further from the truth”.

Mashabane said from the time they set up the residual mechanism to manage the assets, the NPA and the ID were assisted in terms of access to any information required that was linked to the Zondo Commission.

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