By More Matshediso
The National Prosecuting Authority (NPA) is committed to increasing efforts to fight against corruption in South Africa, not only in terms of prosecutions but also in ensuring that earnings of crime are recovered.
Recently, law-enforcement agencies had to reflect and assess the effectiveness of the fight against corruption.
This outcome says the National Director of Public Prosecutions (NDPP), Advocate Shamila Batohi, has improved planning and co-ordination of the National Anti-Corruption Strategy that binds all law enforcement agencies, government and civil society.
The organisation has a duty to ensure that crime, including corruption, is significantly reduced through effective prosecution.
“The NPA is an institution with its foundations in Section 179 of the Constitution. Section 179(2) expressly empowers the NPA to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental thereto. Furthermore, section 179(4) requires that the NPA must exercise its functions without fear, favour or prejudice,” she says, unpacking the body’s mandate.
“The NPA’s key mandate to prosecute crime is mainly fulfilled by the National Prosecutions Service (NPS), which focuses on general and specialised prosecutions and in all the criminal courts in the land,” she says in an interview with the Government Communication and Information System (GCIS).
Specialised prosecutions units include the Sexual Offences and Community Affairs (SOCA) unit, the Specialised Commercial Crime Unit (SCCU) and the Priority Crimes Litigation Unit (PCLU).
The specialised units were established by Presidential Proclamation to have a focus and capacity in their respective specific priority crime areas.
The Asset Forfeiture Unit (AFU) is a critical part of the NPA that has powers to seize criminal assets and the proceeds of crime.
The Investigating Directorate (ID) was proclaimed by President Cyril Ramaphosa in 2019 to focus specifically on corruption cases that emanate from the Judicial Commissions of Inquiry, which includes the Zondo Commission on State Capture, Commission of Inquiry into Tax Administration and Governance by the South African Revenue Service (SARS), and the Commission of Inquiry into Allegations of Impropriety regarding Public Investment Corporation (PIC).
“The SCCU, AFU and the ID are positioned to work collaboratively within the NPA to deal with corruption, along with other law enforcement partners,” she explains.
Furthermore, the Office for Witness Protection (OWP), provides support to the criminal justice system by protecting threatened or intimidated witnesses and by placing them under the witness protection programme.
Batohi who addressed the media on her first day in office on 1 February 2019, adds that there is a single national prosecuting authority for South Africa.
The NDPP is responsible for ensuring delivery on the NPA’s constitutional obligations, together with the Deputy National Directors of Public Prosecutions (DNDPPs), the Directors of Public Prosecutions (DPPs), as the NPA heads at various seats of the High courts, the Investigating Director, and the Special Directors of Public Prosecutions (SDPPs).
Stabilising the NPA
Her appointment to the top post, came at a time of instability at the NPA.
“I was appointed at a time of turmoil and instability at the NPA. The rapid turnover of leadership undermined the organisation’s strategic focus and staff morale. The NPA’s public credibility suffered from accusations of succumbing to political interference in its prosecutorial decision-making due to controversy surrounding the (non) prosecution of high-profile cases,” she says.
She recalls how the NPA was starved of resources and lost critical skills and capacity.
“The NPA was starved of resources and had the highest vacancy rate ever, at around 21%, as there had been no recruitment for over four years due to budget constraints, which led to low staff morale.
“Combined with an exodus of skilled staff, a hiring freeze, and a virtual end of the NPA’s professional development and training programmes, this culminated in a significant decline in the NPA’s performance. For close to a decade, the NPA and related criminal justice institutions were systematically undermined and experienced a loss of critical capacity and skills” she says.
Serving the nation
Batohi is suitable for the job given her impressive career in law.
She holds a Bachelor Degree in Law from the University of Durban Westville and post-graduate Degree in Law from the University of Natal.
She started working as a public servant as a junior prosecutor in the Chatsworth Magistrates’ Court in 1986.
“In 1995, I was one of two prosecutors seconded to the Investigating Task Unit – a multi-disciplinary Task Team set up to investigate state sponsored atrocities committed by so-called “hit squads” in the old KwaZulu Police, during the apartheid regime,” she says.
She served as the first KwaZulu-Natal regional head of the erstwhile Directorate for Special Operations (DSO), commonly known as the Scorpions, in the NPA.
The Advocate served as the Director of Public Prosecutions (DPP) in KwaZulu-Natal from 2002 to 2009. In 2009, she was appointed as the Senior Legal Advisor to the Prosecutor at the International Criminal Court (ICC) at The Hague.
She returned to South Africa in February 2019 to serve as the NDPP.
Strides made through the Investigating Directorate
The NPA has made strides to fight corruption through its Investigating Directorate (ID).
According to Batohi, the directorate has identified priority cases to investigate and prosecute; and recover assets identified where possible, in a number of sectors, including State-owned entities (SOEs), the security sector and high-profile public and private cases.
A number of the cases before court have been reported in the media.
“For example, Bosasa former Chief Operations Officer Angelo Agrizzi, former National Commission of the Department of Correctional Services Linda Mti and the former Chairperson of the department’s portfolio committee Vincent Smith have been charged in court for the R1.8 billion corruption related to tenders in the department,” she says.
On 26 February 2021, the court granted the ID a forfeiture order of R46 million against Vincent Smith’s assets, his family trust and a portion of his daughter’s assets for suspected tax liability, fraud and unauthorised gratifications.
In SOE related matters, Batohi says the directorate focused on charges in relation to R745 million corruption against former senior executives and businessmen with whom they colluded to defraud Eskom’s Kusile Power Station through corrupt means.
With regard to Transnet, the directorate has been granted a final restraint on the sum of R232 million, a total of the benefit derived from Regiments/Transnet.
In the security sector, some of the prominent cases before court include the R47 million Soccer World Cup fraud and corruption matter involving Kwa-Zulu Natal businessman Toshan Panday and eight others.
“The matter was recently transferred to the Durban High Court and a racketeering indictment produced alleging that the acts were more than just corruption but a syndicate to defraud the State.
“Richard Mdluli and his co- accused face corruption and fraud charges for defrauding the State Security slush fund to aid in covert missions and house state witnesses. The R191 million SAPS ‘Blue Lights’ case, with former Acting Police Commissioner Khomotso Phahlane as one of the accused, is also before court,” she adds.
In the asbestos housing project, the former Premier of the Free State Ace Magashule and others are facing charges of corruption and the case is also before court.
“This demonstrates that a lot of work on cases related to the Commissions is happening, but it must be borne in mind that these cases are complex in nature and they take time,” Batohi explains.
In order to rebuild and strengthen the NPA, Batohi says restoring public confidence and trust are a central focus.
“In our Constitutional framework, prosecutors play a central role in the machinery of criminal justice, and in maintaining a civic culture of integrity and respect for the rule of law.
“As prosecutors, we must act in a manner that demonstrates our independence from any form of external interference or influence and is reflective of the highest standards of integrity,” she says.
She adds that it is important for the organisation to prevent any form of interference and promote a culture of integrity and excellence throughout its structures.
“It is important that the NPA is, and is seen to be, upholding and defending the rule of law, fearlessly prosecuting society’s most powerful and defending its most vulnerable. Only then can we rightfully be called lawyers for the people,” she says.