The National Prosecuting Authority (NPA) finds itself in the crosshairs once again, this time the target of Barney Mthombothi’s mighty pen: “Batohi has become the poster child of the failure to combat scourge of corruption.” (Sunday Times November 24).
Criticism of state institutions is necessary in a healthy democracy, which we aspire to be. The principles of accountability, responsiveness and openness are the bulwarks of our constitutional state. But to strengthen democracy such critiques must be fair, based on facts and constructive. Mthombothi's piece on Shamila Batohi, national director of public prosecutions (NDPP), falls far short of that standard.
He displays a remarkable lack of understanding of the system of law enforcement in general and the role of the NPA in particular. The South African Police Service (SAPS) sits at the fulcrum of the criminal justice system, as the body primarily charged with investigating criminal conduct, before referring dockets to the NPA for prosecution. When considering corruption more broadly the Hawks, the Special Investigating Unit (SIU) and now the Investigating Directorate Against Corruption (Idac), located within the NPA, also have some authority.
Outside Idac, the NPA’s role is to prosecute criminal conduct on behalf of the state (not the government). It does so in terms of a prosecution policy determined by the NDPP in consultation with the minister of justice. To take a case to court the NPA must believe that on the evidence it has reasonable prospects of securing a conviction.
And here’s the nub of the issue: the decision to prosecute is taken by the directors of public prosecutions (DPPs) in each of the nine provinces. These decisions are not taken by the NDPP, though she may be consulted in certain cases.
The NPA is directed by the constitution to prosecute without fear, favour or prejudice, yet is far from being an independent organ of state. While the NDPP is the head of the prosecuting authority and may appear to have extensive powers under the NPA Act, the constitution posits that the minister of justice has “final responsibility” over the NPA Act. This responsibility has not been defined but it serves to circumscribe the effective functioning of the NPA. The NPA reports to parliament, but it must account to the minister. Its funding comes via the department of justice, and not directly from parliament.
In a detailed affidavit to the Zondo commission the NDPP highlighted these constraints, including the fact that she has a limited say in the appointment of deputy NDPPs and DPPs as well as in dealing with disciplinary matters against them. To illustrate this point, in August 2023 the NDPP requested the president to institute an inquiry into the fitness of the DPP in Johannesburg, Andrew Chauke, to hold office. The president has yet to take any action. This is the same Chauke who recently withdrew corruption charges against former minister Zizi Kodwa, a decision that is now being reviewed by the NDDP.
There are no easy cases when it comes to corruption — contrary to widespread belief, the NPA cannot simply take what was presented to Zondo or unearthed by investigative journalists and present it before a court and hope to secure a conviction
Regrettably, Zondo did not deal with the impact of state capture on the functioning of the NPA, which was in disarray. But that is no excuse for Mthombothi to not be aware of the systemic challenges that confront it. He also conflates the deficiencies of government and the president with those of the NPA.
Mthombothi says the NDPP is as “useless as the politicians who appointed her”. While the constitution provides that the NDPP is appointed by the president, the incumbent was appointed following a rigorous selection process conducted in public that included representatives from the legal fraternity and chapter nine institutions. The NDPP in her affidavit to Zondo called for that process to be formalised to ensure that an open, competitive process is entrenched in law. Casac and other organisations have made a similar call to parliament. Nothing has been done as yet.
There are no easy cases when it comes to corruption — contrary to widespread belief, the NPA cannot simply take what was presented to Zondo or unearthed by investigative journalists and present it before a court and hope to secure a conviction. The NPA has a responsibility to verify and corroborate that evidence, ensure that it will be admissible and be confident of the credibility of its witnesses.
Since its inception in 1999, the NPA's Asset Forfeiture Unit has frozen R30.38bn, confiscated and forfeited R12.98bn and recovered R11.7bn. Almost half (46%) of all freezing orders, 37% of all confiscations and forfeiture orders and 44% of all recoveries have been attained in the tenure of the current NDPP, in the last five years. That does not look like incompetence.
While the NPA is certainly not beyond reproach, such an unbridled attack on the person of the NDPP also denigrates the work of thousands of dedicated prosecutors in the NPA.
• Naidoo is executive secretary at Casac
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