If the buck doesn’t stop with Batohi, where does it stop?

An extraordinarily disingenuous opinion piece in last week’s Sunday Times titled “Corruption Cases: The buck doesn’t stop at Shamila Batohi”, by Lawson Naidoo, compelled me to delve deeper into the debate surrounding the underperformance of the National Prosecuting Authority (NPA) and spirited attempts to clothe the metaphorical emperor, Shamila Batohi, its director.

While such attempts are unsurprising, it is the ingenuity — and outright insincerity — permeating the article that warrant scrutiny and cannot go unchallenged.  

The history of the NPA is painted on a canvas imbued with a complex mix of courage, poor decision-making, ineptitude, cronyism, patronage and calculated attempts to undermine our democratic experiment. From the tenure of the founding National Director of Public Prosecutions (NDPP), Bulelani Ngcuka — whose widely criticised decision not to prosecute deputy president Jacob Zuma set a controversial precedent — to Vusi Pikoli, whose remarkable courage under fire in pursuing charges against police commissioner Jackie Selebi led to his dismissal; from Mokotedi Mpshe’s baffling departure from established legal principles to Shaun Abrahams’ shameless pandering to a corrupt patron, never has an NDPP claimed that the buck stops elsewhere. That is, until now, as Naidoo pitifully attempts to counter the criticism levelled at Batohi by veteran journalist Barney Mthombothi a fortnight ago. 

In his pointed diatribe, Naidoo accuses Mthombothi of “[displaying] a remarkable lack of understanding of the system of law enforcement in general and the role of the NPA in particular”. He goes further, delivering a lecture-like rebuttal: “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.”

Accountability in the public sector is not a matter of convenience or selective responsibility but a fundamental tenet of democracy

Naidoo’s visceral and condescending rhetoric is as insincere as it is disappointing for several reasons. First, his critique obscures the legitimate concerns raised about the NPA’s chronic underperformance under Batohi’s leadership, deflecting attention away from its shortcomings by overemphasising the SAPS’s investigatory role. This argument risks oversimplifying the systemic failures plaguing the broader criminal justice system, many of which involve the NPA's inability to prosecute cases effectively, even when investigations are completed. 

Second, Naidoo's tone betrays a lack of intellectual generosity. Instead of engaging Mthombothi’s critique with reasoned arguments, he resorts to ad hominem insinuations that undermine the quality of the discourse.  

Third, Naidoo’s assertion implies an abdication of responsibility on the part of the NPA head, which is troubling. While the SAPS indeed plays a crucial role in the investigative process, the buck ultimately stops with the NPA to ensure cases are prosecuted competently and without undue delay. This interplay between investigation and prosecution is at the heart of justice delivery and cannot be dismissed by placing undue blame on one side. 

The NPA Act of 1998 explicitly empowers the national director to lead and manage the prosecuting authority, thereby placing the onus on Batohi as its head to ensure the efficient and effective functioning of the office. This responsibility includes overseeing the prosecution of cases, ensuring accountability within the organisation and maintaining the integrity of the justice system. 

It is important to remember that the role of the national director is not a passive one but one that demands leadership, decision-making, and oversight. Batohi, as the head of the NPA, is entrusted with the duty to address the chronic challenges faced by the authority, including the systemic delays in prosecuting cases and the perceived inefficacy of the institution under her watch. By attempting to shield her from these responsibilities Naidoo not only misinterprets the legal framework that guides the NPA but also seeks to absolve Batohi from the broader societal and constitutional obligations that come with her position.

Accountability in the public sector is not a matter of convenience or selective responsibility but a fundamental tenet of democracy, as prescribed by our constitution and relevant legislation. Naidoo's attempt to shield Batohi from this accountability thus does a disservice to the public trust, perpetuating a culture of impunity at the highest levels of the prosecuting authority. 

In a baffling attempt to lend some semblance of credibility to the faltering tenure of the elusive Batohi, Naidoo posits, inter alia, that since the NPA’s inception “44% of all recoveries [R5.12bn] have been achieved during the tenure of the current NDPP, in the last five years. That does not look like incompetence.” Really?

 The reality is that while the numbers he presents might seem impressive on the surface, they do not account for the broader inefficiencies and systemic dysfunctions within the NPA. The real question should be: how many cases remain unresolved, and how many opportunities to recover even more funds have been squandered due to a lack of effective prosecution and case management?  

Consider, for instance, the severe fiscal consequences of the NPA’s failure to prosecute Bain & Company, whose enablement of corruption at Sars reversed years of progress in efficiency and effectiveness and impacted revenue collection, with some estimates suggesting a shortfall of up to R100bn.

Or the NPA’s failure — or perhaps reluctance — to pursue corruption cases involving the notorious Gupta family, illicit cigarette smugglers or illegal mining kingpins. The scale of this corruption runs into megabillions of rands, further exacerbating the NPA’s inability to protect the national interest and hold powerful individuals accountable. 

In all these cases, the NPA’s failure to act not only perpetuates a culture of impunity but has dire long-term consequences for the country’s economic and social stability.

While the exact cost of corruption may be impossible to quantify, it is reasonable to estimate that it could amount to hundreds of billions, if not trillions of rand, especially when considering the future value of the losses to the sovereign.

In sum, Naidoo’s diatribe, though sharp and erudite on the surface, falls short of addressing legitimate public criticism of the NPA and the systemic issues raised.

Which begs the question: If the metaphorical prosecutorial buck does not stop with Batohi, then where should it stop — and why?

• Khaas is founder and chair of Public Interest SA