Moroadi Cholota (37), former assistant to Ace Magashule appears at Bloemfontein Magistrate's Court for bail application on August 13, 2024 in Bloemfontein, South Africa. It is reported that Cholota faces four counts of fraud and five cases of corruption in the Free State asbestos scandal. (Photo: Gallo Images / Volksblad/Mlungisi Louw) 
There will, no doubt, be several legal examinations of Tuesday’s decision, in which Judge Phillip Loubser said his court had no authority to try former Free State premier Ace Magashule’s former assistant, Moroadi Cholota, because the NPA had instituted her extradition from the US, while legally it should have been the Justice Ministry.
While the legal correctness of this decision might be examined by higher courts, the public perception is likely to be dominated by a question of why legal technicalities matter so much.
Moroadi Cholota (37), former assistant to Ace Magashule appears at Bloemfontein Magistrate's Court for bail application on August 13, 2024 in Bloemfontein, South Africa. (Photo: Gallo Images / Volksblad/Mlungisi Louw)
Of course, to lawyers, judges and the rule of law, they absolutely matter. But to many people, they are simply a way for people to avoid justice.
The best example of this is former president Jacob Zuma, who has been able to avoid a fair trial since 2003.
No accountability for the powerful
The message this sends is that there is no accountability for those in power. But it also suggests that despite the reams of evidence heard at the Zondo commission, and the findings that it made, no convictions will come from it.
Read more: Hawks present State Capture progress – MPs question token convictions and Gupta extradition failures
For the moment, it seems that there is no big desire by voters to change our legal system, to remove some of the rights of those accused of wrongdoing. Considering our past, this is entirely legitimate.
But if those in power continue to be able to avoid accountability, it is likely that first, trust in the justice system will continue to decline, and second, parties that propose limiting the rights of the accused will grow stronger.
One of the important lessons from the NPA is that despite having independent leadership that appears determined to deliver justice, the institution itself is still very weak.
The history of how the NPA was captured was being written almost in real time.
People like Lawrence Mrwebi or Nomgcobo Jiba were in leadership positions there for many months. Both were found by the courts to be “not fit and proper” for their positions.
During the time they were there, it is likely that they packed the NPA with people who either supported their views or would never challenge their views.
Read more: Methodical rebuild of National Prosecuting Authority critical for SA justice and democracy
Ramaphosa
But politicians have played an important role in keeping the NPA weak, too. Perhaps the person who has played the biggest role in weakening the NPA is President Cyril Ramaphosa.
One of the important figures in the NPA during the State Capture period was the head of prosecutions in Johannesburg, Andrew Chauke.
He was involved in delaying cases against former Gauteng Health MEC Brian Hlongwe and helped to bring a now debunked case against former KwaZulu-Natal Hawks Head Johann Booysen (Chauke has delivered a robust response to the claims against him, including in a TV interview with this writer).
In 2023, National Director of Public Prosecutions Shamila Batohi formally asked Ramaphosa to suspend him from his position (under the law, only the President can suspend someone in this job). Two years later, Justice Minister Mmamoloko Kubayi said that the matter was at an “advanced stage”.
This is nonsense. If Ramaphosa really believed in the rule of law, and if he wanted a properly independent NPA, he would have suspended Chauke the moment he could.
Worse for the NPA has been the Justice Ministry’s refusal to share the Zondo commission database with it.
Again, this must be deliberate. Even if there is some legal reason to make this difficult for the NPA, this would be for the courts hearing State Capture prosecutions to determine, not the Justice Ministry.
However, it must be remembered that the situation at the NPA is repeated in many other institutions.
Culture of resistance
On Monday, the chair of the National Lotteries Commission, Barney Pityana, told 702’s Bongani Bingwa about the difficulties he is facing in fixing the organisation, after the incredible corruption that happened there.
Pityana appeared to be particularly critical of former Department of Trade, Industry and Competition minister Ebrahim Patel.
One of his problems is that only the minister can appoint distributing agents to distribute funds, and the commission only had two or three when it should have had 11.
As Pityana put it, “For a long time, minister Patel was stuck with this appointment for reasons best known to him.”
Pityana also said that within the organisation, “There’s internal resistance to some of the changes being made in the organisation, therefore compliance, we admit, has been a very difficult issue.”
Pityana is almost pointing to a culture of people in important organisations that resist change.
In some cases, it may simply be that they do not believe there is any reason for change. Or that workers in many government institutions feel that there is no reason for them to work, because it seems virtually impossible for them to be fired.
The Sunday Times published an important report last weekend about the situation in Gauteng metros. It would appear that many permanently employed workers tell bosses that they can’t be fired, and thus can’t be forced to work.
Read more: SA municipalities don’t have a funding crisis; they have a spending and leadership crisis
This culture has been evident in councils for many years. It could explain why services do not improve, whether it is a DA-led coalition taking over from an ANC-led coalition or the other way round.
This toxic mix of a refusal by workers to change, and political interference (or so often just a refusal to act), may help to explain why so many institutions are not improving.
Unfortunately, coalition politics is unlikely to make major changes.
In institutions where this culture exists, workers may feel they can just outlast a new boss, knowing that they will still be there after she becomes frustrated and leaves.
Ministers and others with political authority are likely to continue interfering or just doing nothing. This means that we can continue to expect the NPA, and so many institutions like it, to simply keep stumbling. DM