NPA’s failure to convict Timothy Omotoso is the latest in a string of debacles

The latest debacle concerning the National Prosecuting Authority (NPA) concerns the failure to secure a conviction of Timothy Omotoso. As Cosatu stated in a statement of 2 April 2025, “the acquittal of the accused on all 32 charges is a devastating blow to survivors of sexual violence and exploitation, and perpetuates the culture of impunity and emboldens perpetrators to believe they will never be made to account for their crimes”.

On 3 April 2025, under severe public pressure, the NPA issued a statement to the effect that the National Director of Public Prosecutions (NDPP) at the NPA, Advocate Shamila Batohi, had requested a report from the Eastern Cape Director of Public Prosecutions on the judgment delivered by Judge Irma Schoeman. 

The statement noted that the NDPP “will carefully study the judgment as it was made available to the parties ... it will consider it in order to determine whether the criticism of the prosecution team is warranted”. Understandably, the statement noted that “this recent judgment represents a travesty of justice that we cannot accept”.

Were this the only case in which the NPA had been caught legally “offside”, public calls against the NPA might have been somewhat unjustified. But not long before this disaster, the Mamelodi Magistrates’ Court ordered the NPA to pay the costs incurred by AfriForum’s Private Prosecution Unit after that unit had successfully ensured the conviction of a man who had assaulted his female neighbour.  

Counsel in that case had argued that the NPA had failed to monitor the prosecution with the view to joining the case even when the facts became known. And it also failed to take charge of the prosecution for sentencing purposes.  

As Glynnis Breytenbach MP stated (and Ms Breytenbach knows a thing or two about prosecution, having been in the service for many years), “the private prosecution sadly paints a picture of an NPA not only failing to prosecute corruption, but also failing on the simplest of matters. This begs the question of what exactly they are doing, if not to hold criminals to account.”

This column has for some time emphasised the critical importance of independent institutions being the guardrails of constitutional democracy. No institution is more important in this connection than the NPA. South Africa remains awash with corruption, and yet no high-profile corruption case has to date been successfully prosecuted to success.

True, there is a credible legal argument that the evidence placed before a commission does not necessarily ease the evidential burden upon the NPA to successfully prosecute those named by the commission, such as in the Zondo reports.  

And it is equally the case that any country exposed to the level of corruption such as South Africa is, would struggle to meet the burden of prosecutorial expectation.  

But the adverse evidence is not simply to be found in the two cases cited in this column. Some time back, the NPA failed in the Nulane Investments trial. The public continues to await successful prosecutions which emanate from the Zondo Commission, obviously reinforced by further evidence the NPA may require. 

Again, it is true that the NPA has not been assisted by the ineptitude of a police investigating capacity. But the plain fact remains that the scoreboard shows no runs to the credit of the NPA when it comes to these cases.  

The NPA repeatedly speaks of the figures that show successful prosecutions. But they only tell half the picture. For example, the NPA points to numerous tax offences being successfully prosecuted, but a careful examination shows the majority are about failure to file a tax return. The vital cases dealing with egregious tax evasion hardly receive a mention in their statistics.

But even if this criticism is excessively harsh, the reputation of the NPA is hardly regarded as positive in the eyes of the public discourse. There is much scope to improve the NPA and ensure that it is an effective prosecuting agency capable of dealing with corruption, and ensuring that fundamental principles of constitutional accountability in South African society are enforced.  

The public is surely unimpressed with the NPA when it reads carefully detailed accounts of corruption from high-profile politicians, including Cabinet ministers, much of which has been published in Daily Maverick. The only response from the police and prosecuting agencies appears to be stony silence.

Advocate Batohi’s term of office shortly comes to an end. It is absolutely essential by the time she retires in January 2026 that a replacement be appointed who is capable of resurrecting the reputation of the NPA to be a core guardrail of constitutional democracy in South Africa; hence an independent process of appointment should be constituted by the president within the next couple of months at the very latest. 

That process must seek to encourage applications by people who have clear experience of management of an organisation such as the NPA and, if not, certainly the ability to so manage; a clear knowledge of prosecution; and an unblemished record of independence. 

This process will take some time, hence it is essential that the president initiates it forthwith. This is not a time to kick for touch as has characterised the presidency in so many issues over the past few years.  

The NPA in significant part holds the future of constitutional democracy for South Africa. It must be headed by a person who will steer it into an overall effective organisation. 

Appointments matter: look at how the South African Revenue Service under Edward Kieswetter was reformed after the disastrous years of Tom Moyane. DM