NPA’s Batohi cautions MK Party on plans to bring private prosecution of Ramaphosa over Phala Phala

11 Oct 2024

National Prosecuting Authority head Shamila Batohi cautioned against the abuse of private prosecutions to ‘further certain agendas’. She was appearing before Parliament’s justice portfolio committee on Friday 11 October.

uMkhonto Wesizwe (MK) party’s chief whip Mzwanele Manyi suggested a private prosecution is looming in relation to Phala Phala, requesting when a nolle prosequi certificate will be issued from the National Prosecuting Authority (NPA).

In a meeting of Parliament’s justice committee on Friday morning, Manyi questioned the “bizarre” decision taken by the prosecuting authority not to prosecute President Cyril Ramaphosa — or anyone — in the Phala Phala matter.

He asked when a nolle prosequi certificate would be issued “so that the private prosecution can kick in”.

A nolle prosequi certificate is issued by the NPA to a party that has an interest in pursuing private prosecution when the prosecuting authority has declined to prosecute in that particular case. The certificate must be explicitly requested from the relevant Director of Public Prosecutions (DPP) by a person who wishes to institute private prosecution proceedings.

Read more in Daily Maverick: A visual timeline of Ramaphosa's Phala Phala

The issuing of a nolle prosequi from the NPA would open the door for MK leader Jacob Zuma to potentially pursue a private prosecution of Ramaphosa in relation to Phala Phala.

The NPA was presenting its annual report to the parliamentary committee on Friday.

Batohi hits back

Appearing before the committee, NPA National Director of Public Prosecutions Batohi hit back at Manyi’s statements, which suggested that a private prosecution would soon be instituted, cautioning against the abuse of private prosecutions to further agendas.

“Firstly, there must be a formal request to the DPP for this certificate. And secondly, the words used ‘to kick in the private prosecution’ would seem to suggest that the decision has already been made to in fact institute a private prosecution,” said Batohi.

“And this actually highlights the dangers of private prosecutions… We need to ensure that — like the NPA that works within a particular legal framework and has a constitutional obligation to ensure that we prosecute without fear, favour or prejudice — that private prosecutions are not utilised to further certain agendas,” she added.

“There are processes — review processes — that can be utilised for interested parties who are dissatisfied with the decision.”

The NPA on Thursday decided not to prosecute President Ramaphosa in relation to the Phala Phala case stemming from the criminal complaint laid by the former director-general of the State Security Agency, Arthur Fraser, in June 2022.

The complaint, laid against Ramaphosa, related to the theft of forex from the President’s Phala Phala farm in Limpopo, in February 2020. Fraser alleged that Ramaphosa had concealed the multimillon-dollar heist from the SAPS and Sars.

Read more: Ramaphosa off the hook in Phala Phala case after NPA declines to prosecute

The Director of Public Prosecutions in Limpopo, advocate Mukhali Ivy Thenga, made the decision not to prosecute anyone in the case after a “comprehensive investigation process” was conducted by the Directorate for Priority Crime Investigation, NPA spokesperson Mthunzi Mhaga said in a statement.

According to Mhaga, Thenga concluded that there was no reasonable prospect of a successful prosecution based on evidence contained in the docket.

Read more: Money laundering and housebreaking charges brought against Phala Phala farm theft suspects

The criminal case against the alleged burglars, Imanuwela David and Froliana Joseph, who stole the forex, continues.

NPA declines to Prosecute on Phala Phala Case pic.twitter.com/KY5ooWsKCl

— NPASouthAfrica (@NPA_Prosecutes) October 10, 2024

MK’s Hlophe calls decision ‘shocking’

At a press conference in Johannesburg on Friday, MK party deputy president John Hlophe said the decision by the NPA not to prosecute Ramaphosa was “shocking, to say the least”, and made a reference to the NPA as being “captured”.

“The suggestion by the NPA that there are no reasonable prospects of success, that it doesn’t make sense to prosecute the President, is nonsensical to say the least. It does show, in my view, that these institutions are controlled, are being monitored… by those who support the President,” he said.

Hlophe did not confirm whether the party was indeed pursuing the private prosecution route, but said MK would be dealing with the issue of Phala Phala in its own way. DM

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Batohi hits back

MK’s Hlophe calls decision ‘shocking’