Like a ship without a captain, the National Prosecuting Authority (NPA) appeared stranded in the deep blue. No strategic direction. Sailors satisfied with ephemeral victories. Headwinds loomed.
The arrival in the summer of 2018 of Shamila Batohi at Victoria and Griffiths Mxenge House, the home of prosecutions, signalled the end of aimlessness and perfunctory service.
A brave, independent, neutral champion of justice was in the capital of a nation haunted by years of state capture. Rejoice. The new dawn, we believed, was upon us.
Batohi’s ascent to stardom during her prosecution of the fallen cricket hero Hansie Cronje, and her subsequent term at the International Criminal Court (ICC) where she unleashed her wrath on powerful wrongdoers from around the globe, gave us hope that she was the answer to the political crooks looting our fiscus.
She may have hit the ground running, but she then ran into a bruising battle with her head of investigations, Hermione Cronje.
The long-suffering nation wanted to know why there were no arrests of known champions of state capture. Murmurs of incompetence surfaced. Cronje was quickly felled.
Batohi sought to assure the nation that the war on corruption and the prosecutions of those who brought our country to the precipice through state capture were firmly under way.
“I came back from the Netherlands [headquarters of the ICC] and took on this job not to resign when the going gets tough,” said Batohi, referring to it as a “tough job in a tough environment”.
Her return to the country was celebrated as a big victory for the war on lawlessness. She became a central cog in President Cyril Ramaphosa’s promise to the nation: a return to constitutional order underpinned by a vigorous fight against the overlords who looted billions from the state in what was referred to as the nine wasted years under former president Jacob Zuma.
The monumental failure in this case has made a mockery of the so-called New Dawn
Speaking at the Kader Asmal annual lecture in Sandton on July 25 2019, Batohi, until then very reticent, was bold and, with a crowd to please, spoke matter-of-factly: “People will be arrested for state capture.”
That is what the nation wanted to hear. “Public confidence in government and criminal justice institutions is at dangerously low levels.
We have a small window of opportunity to turn things around before all credibility is lost ... We need to show people that the wheels of justice are turning, and that will happen.”
Three years later, with a few arrests in the bag, the NPA appeared ready to start prosecuting those involved in state capture. The New Dawn, the leitmotif for Ramaphosa’s first term in office, was truly in action.
Excitement abounded. It was time to show that crime does not pay. In her words, the wheels of justice were turning.
The Nulane case, which involved a slew of power players accused of stealing more than R24.9m in the Free State, was treated as a test case for what to expect when other state capture accused appear in court.
What has shocked many is the fact that the Nulane case is not the kind of complex financial crime that, according to Batohi and justice minister Ronald Lamola, required legal and accounting expertise to prosecute
Within weeks the case came apart. The evisceration of the prosecution wasn’t so much due to the strength of the defence but to woeful lack of preparation by the state.
The prosecutor did not even try to argue why certain key documents should be admitted as evidence. Rookie errors. Or sabotage.
Free State High Court acting judge Nompumelelo Gusha characterised the state’s case thus: “To say that the manner in which the investigation was concluded is a comedy of errors would be the understatement of the millennium.”
She noted it was clear R24.9m had been stolen but the state could not prove who did it.
All hope for justice was destroyed. If Batohi’s view was that “public confidence in government and criminal justice institutions is at dangerously low levels,” the amateurish handling of the case by the NPA obliterated whatever confidence was left.
The metaphor of a hare caught in a car’s headlights was used. The NPA, in the wake of the failure, has, either out of arrogance or shame, refused to answer questions, noting there will be a media conference this week.
What has shocked many is the fact that the Nulane case is not the kind of complex financial crime that, according to Batohi and justice minister Ronald Lamola, required legal and accounting expertise to prosecute.
It came down to basic law. You simply can’t introduce photocopies in court and pretend these are original documents and, when challenged, make no attempt to show they are genuine. What’s so complex? The question has been asked whether Batohi is a great prosecutor but not a great leader of prosecutors.
In a Harvard Business Review article titled “Crucibles of Leadership”, Warren Bennis and Robert Thomas ask: “What enables one leader to inspire confidence, loyalty, and hard work while others — with equal vision and intelligence — stumble?” Extraordinary leaders, they say, find meaning in — and learn from — the most negative events. Their crucibles.
Batohi came highly recommended. But her reputation as a leader is now on the floor. The question is whether she’s capable of learning from the rudimentary errors her prosecutors are making.
Is the NPA capable of being a torchbearer for justice or is it yet to recover from how it too was affected by state capture? Was the charging of the suspects a knee jerk, public-pleasing reaction to cries of impatience?
A year ago, Batohi acknowledged the NPA was under pressure, but not in a crisis.
“I can fully understand South Africa's impatience with the slow movement of prosecutions, but we have to remember where the Investigating Directorate started. It started at zero.” Still, does this explain the Nulane farce?
It came hard on the heels of another monumental flop in the Dubai Court of Appeal to secure the extradition of the Gupta brothers, Atul and Rajesh Gupta, considered the kingpins of state capture.
If Batohi’s arrival at the NPA was meant to reinvigorate the country’s prosecuting machinery, it seems to have come to nought. This has a direct bearing on Ramaphosa, who staked his first term on fighting crime and corruption.
Surviving the run-up to the elections next year with zero convictions for state capture under its belt will be tricky for the ANC. Arrests are a good initial step, but failing to secure convictions engenders impunity.
This is why the Nulane comedy of errors is not so funny for an ANC already weakened by rolling power outages, joblessness, rampant criminality and other failures.
It isn’t so much that the NPA lost the Nulane case, it is how it lost it and what the loss means in the bigger political scheme of things.
The case was meant to set the temperature ahead of the next polls, to communicate that those who messed up our country are now being held accountable and, importantly, that Ramaphosa is (despite his Phala Phala saga) responsible for restoring law and order.
Now this monumental fail has made a mockery of the so-called new dawn.
If we understand leadership to be the ability to influence others to achieve set goals, Batohi, with her great reputation, is not quite a failure, but seems lost at sea, the NPA rudderless. Those who appointed her are gnashing their teeth, hoping she survives her crucible.
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