The NPA still has a very long walk to redemption

1 Apr 2024

With the Gauteng Division of the High Court in Pretoria due to rule on Tuesday, 2 April, whether National Assembly Speaker Nosiviwe Mapisa-Nqakula can be arrested on corruption charges, this is a good time to assess whether the NPA is making progress in restoring the rule of law in South Africa.

In her first public appearance upon taking office in 2019, the National Director of Public Prosecutions, Shamila Batohi, promised wrongdoers that “your days of acting with impunity are numbered”.

This was her consistent message, which she repeated to audience after audience.

At the time, the Zondo Commission was just beginning to hear testimony of widespread corruption in government and state-owned enterprises. It was widely expected that criminal charges would be lodged against those who were implicated.

But, despite the massively revealing testimonies and the Zondo Commission’s 2022 final findings, the National Prosecuting Authority (NPA) has appeared asleep.

Three years after Batohi took office, it was clear that frustration at the lack of movement was building. At the same time, the problems facing the NPA were growing. It was under pressure to act not only against those implicated in corruption during the State Capture era but also against President Cyril Ramaphosa over the Phala Phala scandal.

There was worse to come.

In 2023, the NPA suffered major setbacks in court.

First, the Nulane case, described by the Investigating Directorate as the “blueprint” for State Capture prosecutions, fell apart when the presiding officer ruled the case could not continue.

Then, the case against former Eskom CEO Matshela Koko was struck off the roll, on the grounds that prosecutors were not ready to proceed.

Former president Jacob Zuma’s corruption trial has still not started, 20 years later, and despite the fact that Schabir Shaik was convicted for making corrupt payments to him.

And, of course, those implicated in corruption by the Zondo Commission — Malusi Gigaba, David Mahlobo and Zizi Kodwa, to name but a few — have still not faced criminal charges.

This has allowed them to continue with their political careers, a public reminder of the NPA’s apparent failure.

Meanwhile, in the private sector, cases against Markus Jooste and Steinhoff showed little progress, with no charges being laid.

Change is coming

The claims that the NPA had not properly reformed and that Batohi’s promises were hollow may now be tempered by signs that things are about to change.

First, in a rare example of a judicial ruling being re-examined, News24 reported that the magistrate in the Koko case had not declared his interest in the matter — magistrate Stanley Jacobs is the director of a company that received money from Eskom while Koko was working there.

It is surely concerning that a magistrate felt he could preside over this case despite knowing that there must be a conflict of interest.

It also raises questions about how cases are allocated and whether those who allocated this case to him knew about the conflict of interest.

It is worth noting that the Nulane case was heard by an acting judge. It is not clear why a matter of such significance was given to an acting judge, who may have lacked the experience to preside over such an important matter (the NPA is also appealing against this decision).

At the same time, questions have been raised about how judges have dealt with the cases before them.

As Daily Maverick’s Professor Balthazar has noted, the Stalingrad defence could be completely dismantled if judges simply disallowed frivolous arguments.

However, what may definitively change the perception of the NPA are some of the actions it is taking.

Foremost among these has been its handling of the prosecution of National Assembly Speaker Nosiviwe Mapisa-Nqakula.

It is clear that the NPA is determined to proceed with her arrest. As has been pointed out, the importance of this cannot be overstated. The NPA is following the law in arresting the head of one of the three branches of government. There appears to be no political attempt to prevent this from happening.

The fact that the NPA put up a robust legal argument against her application to stop her arrest shows the institution is serious in its intent.

If the NPA wins this case, and then arrests her this week, that intent would be publicly confirmed.

At the same time, it is now clear the NPA had made progress in the case of Jooste and Steinhoff, and that Jooste’s suicide pre-empted his arrest by a day.

It was clear that when Batohi and her team took over at the NPA that they would face concerted opposition to reform from within. Zuma’s control over appointments at the NPA brought his lieutenants into important positions where they could make decisions in his favour.

One of those people was the head of prosecutions in Joburg, Andrew Chauke. In July 2022, Open Secrets reported how Chauke had been involved in some of the major decisions during that time that allowed wrongdoing to continue.

Chauke was so aggrieved at a conversation about this on Newzroom Afrika that he demanded a right of reply. It was clear from that conversation that he believed he had done nothing wrong.

He is now facing action over his role during that time, although he is still in office and making decisions.

Some political parties may now argue that justice is taking too long and that procedures need to change. They will say that it is too easy for suspects to delay cases against them and that our justice system favours the guilty.

While the NPA may be making progress, for many people, the only thing that matters is “orange overalls” — convictions of those implicated in State Capture. As long as those against whom evidence was heard at the Zondo Commission are free to campaign for office in the ANC, or are able to live freely, the NPA will be under pressure.

This could see the NPA and the entire criminal justice system becoming the focus of a major political debate. DM

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Change is coming