Shamila Batohi dives into the NPA ‘shark tank’
On February 1, Shamila Batohi becomes head of the National Prosecuting Authority — an organisation riven by factionalism and corruption, compromised by politics, and hamstrung by a shortage of resources
In October 2016, then national director of public prosecutions (NDPP) Shaun Abrahams sent the markets into a tailspin when he announced that then finance minister Pravin Gordhan and former senior SA Revenue Service officials Oupa Magashula and Ivan Pillay would be charged with fraud.
Abrahams was confident about the charges, which he announced after attending a meeting at the ANC’s headquarters, Luthuli House.
Two weeks later — a day before Gordhan and his co-accused were due to appear in the dock — that confidence had evaporated. There Abrahams was, flanked by deputy NDPP Silas Ramaite and Torie Pretorius, head of the priority crimes litigation unit and the man who had officially made the decision to charge Gordhan. Abrahams announced that the charges were being withdrawn, as it was clear there had been no intention to commit a crime in paying out Pillay’s pension.
But the damage was done. Thousands of South Africans had already planned to hit the streets of Pretoria to protest against the charges, which were believed to be politically motivated.
Public trust in the National Prosecuting Authority (NPA) has been slowly eroding over more than a decade — but charging Gordhan, Magashula and Pillay, and then dropping those charges, was a step too far. Calls for Abrahams’s head grew.
It would only be about two years later that the Constitutional Court effectively axed Abrahams by declaring his position vacant — a decision that opened space for President Cyril Ramaphosa’s "new dawn" in the prosecuting authority.
The NPA now has the chance to shed its political skin — used, it is said, to protect various political players from prosecution, including former president Jacob Zuma — and act without fear or favour, as required by its mandate and the constitution.
The top officials who paid bore witness to — and participated in — the prosecuting authority’s destruction are still there
When advocate Shamila Batohi walks into the NPA’s Pretoria head office as the sixth NDPP on February 1, she will dive head-first into the maelstrom. In her interview for the top post last year, she likened it to jumping into a shark tank.
Abrahams may no longer be in the employ of the NPA, but the top officials who bore witness to — and participated in — the prosecuting authority’s destruction are still there.
The sharks could be circling when Batohi enters the Victoria & Griffiths Mxenge Building, given that the factionalism that has riven the NPA is said to have its roots in the authority’s head office.
On arrival, Batohi is expected to meet with her deputies, after which she is likely to meet with the directors of public prosecutions (DPPs) and then the NPA staff. They’ll be looking to her to guide the authority back into a space of integrity, and away from the sway of politics and politicians.
Batohi, a former DPP in KwaZulu-Natal, said in her interview for the top post that the NPA needs a new vision — one that will restore public confidence in the authority.
She said it is crucial that the NDPP not only pay lip service to independence, but show commitment to this through independent decision-making. The principles of good governance and respect for the rule of law should underpin the work of the authority. "If we do not respect the rule of law," she said, "the country is on a slippery slope."
But kicking the NPA back into gear will be no easy task: Batohi will have to navigate factionalism, manage budgetary and capacity constraints, and rebuild the morale of prosecutors.
What must be done and what will she come up against?
Batohi takes up her position in the midst of the inquiry into suspended deputy NDPP Nomgcobo Jiba and suspended special director of public prosecutions Lawrence Mrwebi’s fitness to hold office. The inquiry will consider, among others, the decision to shelve the prosecution of former crime intelligence boss Richard Mdluli and the decision to charge former KwaZulu-Natal Hawks head Johan Booysen with racketeering.
Jiba and Mrwebi were initially struck from the roll of advocates for the decision to drop the charges against Mdluli. But that high court decision was overturned by the Supreme Court of Appeal (SCA).
The Constitutional Court will be the final arbiter in the matter. In March, it will hear the General Council of the Bar’s application for leave to appeal the SCA judgment; the body maintains that Jiba and Mrwebi are not fit to be members of the bar.
More pressing at this stage is the question of whether the NPA will prosecute Jiba on charges of fraud and perjury related to the Booysen matter. The high court reviewed the matter and set aside the decision to drop charges against her. But Jiba’s lawyer, Zola Majavu, told the inquiry that the North West DPP had declined to proceed with prosecution. Formal confirmation from acting NDPP Ramaite has not been forthcoming.
It’s a situation that will put Batohi under pressure: either to announce a decision around Jiba or to manage the fallout if Ramaite has confirmed a controversial decision.
Jiba, who is one of four deputy NDPPs, was placed at the heart of NPA factionalism during the NDPP interview process. But regardless of whether Jiba remains in the NPA after the inquiry, Batohi will still be an outsider leading a team of insiders who have all been overlooked for the post. Though they will hopefully support her endeavours, this is not a given.
An NPA insider believes the NPA Act should be tweaked to align the terms of the deputies with that of the NDPP.
This would ensure the prosecutions boss has a say in the top leadership team he or she will head up. This is essential for success as the NDPP needs to be able to trust the deputies with crucial tasks.
Internal politics aside, Batohi will also have the challenge of finding more funds for the organisation, which is largely undercapacitated in terms of personnel and resources.
In the NPA’s 2017/2018 annual report, Abrahams revealed the large number of vacancies in the prosecuting authority. The division with the most empty posts was prosecutions itself: 3,084 of 3,626 posts were filled, leaving 542 posts in the division vacant and unfunded.
What it means
Batohi brings with her the promise of a new dawn for the beleaguered prosecuting authority
There has also been an exodus of prosecutors. And the FM understands that the aspirant prosecutor programme, under which LLB graduates undergo training for a year to become prosecutors, has largely stalled. The most recent intake is said to have been in 2014.
This means the NPA has not been training new prosecutors, despite the toll being taken on its overburdened staff.
The Society of State Advocates & Prosecutors of SA, which represents 510 members who prosecute in the higher and lower courts, says it is critical for Batohi to fill the vacant posts.
"Our prosecutors are under the immense stress of a high workload. Resources to create an enabling working environment should be addressed urgently," says society secretary Rolene Bester.
The society also points to the elephant in the room — the so-called state capture cases — saying Batohi’s swift action is needed on this front.
The NPA has received two bloody noses in state capture matters: it had to provisionally drop corruption charges against Zuma’s son Duduzane, and the prosecution in the Estina dairy farm matter was also provisionally withdrawn.
"This [action on the state capture cases] will help to restore the morale of the prosecutors, which is at an all-time low," says the prosecutors’ society.
The NPA source says the authority will have to dedicate prosecutors to the state capture matter so they don’t have to juggle this with other cases.
Then there are the other high-profile matters — Steinhoff and VBS Mutual Bank. Dealing with these decisively will be critical to restoring public trust in the prosecuting authority.
Batohi herself has said the NPA should look at establishing a dedicated investigative directorate to deal with corruption. This would require buy-in from the president.
One can only hope that, after going to unheard-of measures in appointing the NDPP, Ramaphosa will offer this support. And that — unlike his predecessors — he’ll leave the NDPP and the NPA to do their jobs without political interference.
Only then will SA truly get the new dawn it so desperately needs.