Unaccountable 00031: The National Postponement Authority on High Profile Corruption
by Ra’eesa Pather for Open Secrets
4 April 2021
Questionable decision-making, poor leadership and political interference have collapsed public trust in the National Prosecuting Authority (NPA). The current leadership at the authority, lead by Shamila Batohi, has yet to bring about change to address the wrongdoing that has left it vulnerable to corruption.
This is the first instalment in a series by Open Secrets on the destruction of the NPA, and the prosecutors who failed in their duties to uphold justice.
Over the past decade, the National Prosecuting Authority (NPA) has become better known for its failure to prosecute than for doing its job, particularly when it comes to high-profile corruption cases involving corporations, politicians and state officials. It is the institution that should define accountability in South Africa, but it has become one of the country’s most unaccountable agencies.
When Shamila Batohi became the National Director of Public Prosecutions (NDPP) in December 2018, her arrival promised a disruption of past mistakes and a reckoning for prosecutors accused of wrongdoing by people who had been prosecuted without sufficient evidence to support these cases. These include former KwaZulu-Natal Hawks boss Johan Booysen and former Independent Police Investigative Directorate (Ipid) head Robert McBride. A string of Batohi’s predecessors – which included the then-president Jacob Zuma’s carefully handpicked NDPPs Nomgcobo Jiba and Shaun Abrahams – had allowed questionable prosecutorial conduct within the authority and had been forced out through inquiries and court action. No NDPP has lasted a full 10-year term in office. Before Batohi’s arrival, South Africa had seen six “permanent” NDPPs since the NPA was established in 1998. An NDPP term is supposed to be 10 years. Political meddling has been a defining contributor to the instability within the NPA’s leadership.
Yet, Batohi was meant to be different. She was meant to be the NDPP who would face corruption fearlessly and return the NPA to a force of integrity that would prioritise justice in the public interest. But three years later, the NPA has yet to produce a single successful State Capture-related prosecution under Batohi’s watch.
In February, Justice Minister Ronald Lamola confirmed the NPA was looking into 37 high-profile corruption cases linked to State Capture and that 14 had been enrolled in court. These matters are being undertaken by the Investigating Directorate (ID), a unit inside the NPA that was established by President Cyril Ramaphosa to deal with State Capture cases. But now, the NPA finds itself in further distress as the head of the ID, Hermione Cronje, has officially departed.
In December 2021, Batohi addressed journalists on Cronje’s departure. Cronje had been in the post just 30 months before she resigned and has since been replaced by NPA advocate Andrea Johnson. The NPA has faced budget cuts and Cronje herself has said that a shortage of skilled staff in the authority has made it difficult to proceed with grand corruption cases. While Batohi acknowledged that the authority has fallen short, her belief is that the NPA is on the right track.
“People in South Africa do not feel safe and they do not believe that justice is being delivered swiftly or broadly enough,” Batohi said in a press briefing in December 2021.
“But please be assured that there are a lot of good things happening,” she added. “We are making important progress and we hope to demonstrate that together.”
But not enough has changed inside the authority and Batohi’s contradictions are beginning to show. In the NPA’s 2019/2020 annual report, the NDPP admitted that prosecutors within the NPA had been implicated in “aiding and abetting” State Capture corruption and that there was a dire skills shortage to prosecute financial crime cases. She vowed to implement a turnaround strategy to restore the NPA’s integrity. Yet, in December 2021, Batohi admitted that the NPA was still struggling with a skills shortage.
“The particular complexities of grand corruption require certain specialised skills that we do not have in the NPA,” she said.
Three years after her appointment, Batohi also said that investigations against prosecutors implicated in alleged wrongdoing were not complete, stating that they were at an “advanced stage”. In the meantime, these prosecutors remain employed in senior positions in the NPA despite having acted as bottlenecks to slow down important cases.
While the NPA struggles with allegations of internal wrongdoing and a skills shortage, it has also faced backlash for its delayed progress in prosecuting high-profile corruption cases. A civil society group has threatened legal action against the authority for its failure to authorise State Capture-related prosecutions, while Eskom has indicated it would consider private prosecutions if the NPA would not act on the 54 State Capture cases referred to it by the Special Investigating Unit (SIU) and Bowmans law firm that are linked to corruption at the power utility.
While the NPA faces mounting public pressure and a further loss of public trust, its lacklustre performance in the post-Zuma era illustrates that its current leadership is failing to rebuild the institution. Ultimately, the NPA’s paralysis to make decisions to prosecute State Capture crimes is an indication that the destruction wrought by Zuma still lives on inside the authority.
The Zuma NPA
The NPA was always vulnerable to political interference. Its first and longest-serving NDPP, Bulelani Ngcuka, was accused of being an apartheid spy by a group of supporters of Zuma – primarily former intelligence boss Mo Shaik and Mac Maharaj. Ngcuka was the subject of a gruelling public ordeal as his Struggle credentials were picked apart by a judicial commission of inquiry. While his name was cleared by the commission, Ngcuka resigned as NDPP in 2004 after six years in office.
This smear campaign coincided with the NPA’s investigation into the Arms Deal, which also implicated Zuma. In 2003, Ngcuka said that the NPA had a prima facie case against Zuma but declined to prosecute on the basis that there was a low prospect of successful prosecution. He faced a public outcry and controversy when the statement came to light. Although Ngcuka was cleared of the spy allegation, he still resigned from the authority.
His successor, Vusi Pikoli, also left the NDPP’s office after facing controversy. At the time, Pikoli had issued an arrest warrant for then Police Commissioner Jackie Selebi — a close ally of the then president, Thabo Mbeki. Mbeki appointed the Ginwala inquiry to consider Pikoli’s fitness to hold office, led by Frene Ginwala, after Pikoli had issued the warrant of arrest. Despite the inquiry finding that he was a “person of unimpeachable integrity”, Pikoli still left the NDPP’s office after reaching a R7.5-million settlement with the government to vacate the post. Selebi, who has since died, was later convicted on corruption charges.
The arrival of Zuma as President only accelerated interference at the NPA and posed an even greater danger to its integrity. Zuma made significant decisions to appoint officials within the NPA to seemingly stifle the Arms Deal case building against him. Just seven months after he assumed the presidency in 2009, Zuma made a bold move that ignited widespread criticism. He announced that Menzi Simelane, then director-general (DG) in the Department of Justice, was going to replace Mokotedi Mpshe as the NDPP. Mpshe had been in the post for just two years, from 2007 to 2009, when Simelane took over.
At the time, Simelane was embroiled in allegations of misconduct after the Ginwala inquiry found that he had committed serious misconduct by unduly interfering in the Selebi case during his time as DG in the justice department. A similar finding was made by the Public Service Commission after the then justice minister, Enver Surty, asked the commission to investigate Simelane’s conduct. Yet, despite the evidence and findings against him, Zuma appointed Simelane to the position of NDPP in 2009 – a decision that was found to be invalid by the Constitutional Court in 2012, when it confirmed an earlier judgment made by the Supreme Court of Appeal.
Upon entering the office of the NDPP, Simelane abandoned a preservation order to freeze a bank account held by Arms Deal fixer Fana Hlongwane in Lichtenstein. The decision would have significant ramifications for the investigation into the Arms Deal, which implicated Zuma and a host of powerful politicians and corporations. His predecessor, Mpshe, had also made a decision to drop corruption charges against Zuma and the French arms company Thales because of the alleged “spy tapes” claims, which relate to recorded phone conversations between former Scorpions boss Leonard McCarthy and Ngcuka, who were alleged to have conspired to charge Zuma. Mpshe’s decision to drop the charges was later declared irrational by the Supreme Court of Appeal (SCA), which also found that the authenticity of the “spy tapes” could not be verified and questioned if the tapes had been legally obtained.
A series of similar decisions to seemingly protect Zuma’s interests would follow when Nomgcobo Jiba and Shaun Abrahams were NDPPs. Two sources close to the NPA have said they believe that Jiba’s arrival in the NDPP seat prompted the true collapse of the NPA. Karen van Rensburg, the NPA’s former CEO and current head of administration, also submitted to the Zondo Commission in a 2020 affidavit, which is in Open Secrets’ possession, that the NPA was “utilised and manipulated at the instance of various people”. She listed Jiba and Abrahams among those who “were involved in State Capture”.
As acting NDPP in 2012, Jiba took the decision to authorise a racketeering prosecution in the Cato Manor “death squad” case. The allegations included that a Hawks unit in KwaZulu-Natal had been involved in extrajudicial killings. Then KZN Hawks boss Johan Booysen was Accused Number One, but denied there was any truth to the allegations. In his affidavit to the State Capture Commission, Booysen described Jiba as being “at the heart of all the nefarious activities” that led to law enforcement officers who were investigating State Capture cases to be targeted for dodgy prosecutions by the NPA.
An internal NPA investigation, conducted by NPA Deputy Director of National Prosecutions Rodney de Kock in 2019, agreed that there was no basis for Jiba to authorise the racketeering prosecution as insufficient evidence was found to support the charges.
At the time the prosecution was launched, Booysen had been investigating a R60-million corruption case linked to Thoshan Panday, an alleged associate of Edward Zuma, Jacob Zuma’s son. The former Hawks boss said that the charges against him had been trumped up to stop the Panday investigation, which has since gone to court.
In 2013, Mxolisi Nxasana was appointed NDPP to replace Jiba. He later accepted a R17-million retirement payout to leave the office of the NDPP in 2015, which was declared unlawful by the Pretoria High Court in 2017. At the time, Nxasana had been unwilling to appeal against a Durban High Court judgment that had set aside all charges against Booysen and found that Jiba did not have sufficient evidence on which to authorise the racketeering charges.
The State Capture Commission heard testimony from Terence Joubert, an NPA risk specialist in Durban, that there had been a possible plot to oust Nxasana from office. Joubert had surreptitiously recorded a phone conversation where his office-mate, police Colonel Welcome Mhlongo, had discussed finding information to connect Nxasana to a murder. According to Joubert, Mhlongo had said Jiba was the best candidate for the NDPP job. Mhlongo has since denied the allegations.
Dodgy prosecutorial decisions
Inside the NPA, Jiba also instructed a group of prosecutors who proved willing to prosecute the Booysen case without sufficient evidence. Booysen challenged the charges against him in the Durban High Court and in 2014 Judge Trevor Gorven found that there had been insufficient evidence to prosecute Booysen. An internal NPA investigation led by the NPA’s De Kock also found there was insufficient evidence to prosecute Booysen on racketeering charges.
The NPA’s prosecution policy states that a decision to prosecute should only be taken in cases where there is sufficient evidence to support a reasonable success of prosecution. The NDPP makes this decision, but relies on memorandums summarising the evidence made by the prosecutors. In this case, prosecutors who worked on the Booysen case failed in their duty to ensure that there was enough evidence to prosecute Booysen. The policy also directs prosecutors to consider whether the evidence they gather is reliable and admissible. In the Booysen matter, the De Kock report and the Durban High Court judgment held that evidence from various witnesses was either unreliable or inadmissible, rendering it insufficient to support the NPA’s case on racketeering charges. Significantly, the De Kock report found that prosecutors had also failed to conduct a proper and complete investigation into the racketeering charges before the prosecution went ahead.
Despite prosecutors in the case failing to produce viable evidence, a memorandum was prepared for Jiba by certain prosecutors on the case to motivate for prosecution. In the end, Jiba made the decision to prosecute. She later faced fraud and perjury charges for authorising the Booysen prosecution without sufficient evidence, and for misrepresenting the evidence she had at the time she made the decision to the Pretoria High Court. The fraud and perjury charges were dropped by then NDPP Shaun Abrahams in 2015, but, in a case brought by Freedom Under Law, the Pretoria High Court in 2017 set aside Abrahams’ decision to drop the charges, saying his reasons were “wrong in law”. The NPA, however, has still not yet taken a decision on the matter.
In March 2022, the conservative interest group AfriForum accused the NPA of “unreasonable delays” in the case. AfriForum had previously threatened court action to compel the NPA to make a decision and give effect to the court order. According to AfriForum, the NPA responded, saying the matter had been delegated to the ID, which was finalising its investigation before a decision could be taken by the NDPP. Open Secrets has seen internal NPA documents from 2021 which indicate the NPA has considered reopening fraud and perjury charges against Jiba. Ultimately, however, it has taken almost five years for the NPA to decide on whether or not to charge Jiba. The authority, according to confidential documents seen by Open Secrets, is also considering fraud charges against some prosecutors who worked on the Booysen case.
After the case against Booysen was discredited, Jiba was removed from her post as NDPP and was appointed Deputy National Director of Public Prosecutions. She faced a commission of inquiry – chaired by Justice Yvonne Mokgoro –into her fitness to hold office, which found that she was unfit for the job and recommended her removal.
When Zuma appointed Shaun Abrahams as NDPP in 2015, some of the prosecutors who had worked on the Booysen case were promoted to greater heights. Abrahams took the decision to charge former finance minister Pravin Gordhan with fraud in relation to a pension payout agreement he made for former SARS commissioner Ivan Pillay’s early retirement. Abrahams also authorised prosecutions against former Hawks national boss Anwa Dramat and former Gauteng Hawks head Shadrack Sibiya for the alleged illegal rendition of five Zimbabwean nationals. Each of these cases was alleged to have ulterior motives for prosecution, which the prosecutors denied at the Zondo Commission. During his term as finance minister from 2015 to 2017, Gordhan became a vocal opponent of Zuma, condemning State Capture, while Dramat and Sibiya had been investigating state funding of upgrades to Zuma’s private Nkandla residence, and kidnapping and murder charges against the former Crime Intelligence boss Richard Mdluli, a known Zuma ally. The charges against Gordhan were dropped after the NPA said there was no criminal intent in the matter, while charges against Sibiya and Dramat were provisionally withdrawn after the two made representations to the NPA.
Each of these cases, under Abrahams’ watch, was moved to the Priority Crimes Litigation Unit (PCLU). In a further affidavit submitted to the Zondo Commission last year, which Open Secrets has in its possession, Van Rensburg explained that the PCLU was established by presidential proclamation to prosecute matters generally involving crimes against the state, the state’s international obligations and crimes against state security.
Although the presidential proclamation allowed the PCLU to investigate and prosecute “such other priority crimes” as determined by the NDPP, Abrahams’ predecessors had confined the investigations and prosecutions of the PCLU to matters such as high treason, the Non-Proliferation of Weapons of Mass Destruction Act, the Nuclear Energy Act and the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, and other related cases.
However, once Abrahams came into office, he directed cases to the PCLU which were no longer aimed at the investigation and prosecution of crimes but at individuals, including the McBride matter, the SARS “rogue unit” investigations, the Booysen case, and the Nkandla investigation. Van Rensburg explained that there are restrictions on what “other priority crimes” could be referred to the PCLU, namely they must be of utmost importance and they had to apply to categories of crimes, rather than individual cases.
“Abrahams’ referral of most of the ‘matters’ did not meet any one of these standards,” Van Rensburg submitted to the Zondo Commission.
The work of Jiba and Abrahams was to create an NPA that made decisions to the benefit of Zuma and which eroded the authority’s ability to act in the interests of justice. Under Batohi’s leadership, despite promises that justice will finally happen, the NPA remains struggling to address the legacy left by her predecessors.
Neither Jiba nor Abrahams appeared before the Zondo Commission to respond to allegations made against them. Both former NDPPs have denied that their prosecution decisions were politically motivated.
Time for decisions
In the Zuma era, the NPA became known for making absurd and devastating prosecutorial decisions. Successive NDPPs stopped prosecutions of grand corruption while pursuing politically motivated cases where there was no evidence. There has been one significant change since Batohi was appointed by Ramaphosa: the prosecuting authority is now known for making very few decisions.
In the three years since Batohi has been boss, relatively few high-profile State Capture cases have been launched, and no successful State Capture prosecutions have been completed. Evidence existed long before the Zondo Commission began, of the auditors, banks, individuals and politicians who enabled State Capture, but the NPA has yet to successfully prosecute even one person linked to corruption allegations.
Despite Batohi confirming that she is aware of the allegations against prosecutors who have been accused of wrongdoing, the NDPP has yet to confirm that investigations into their possible misconduct have been concluded. Currently, these prosecutors remain employed at the NPA.
The NPA’s current failure to make strong decisions, and to prosecute fearlessly – as it is guided to do by the Constitution and the NPA Act – means that it has yet to free itself from the destruction paved by Zuma and his cronies who captured the NDPP seat. This is a crisis that not only affects the integrity of the NPA, but also the rights of South Africans to access justice through the agency that is tasked with safeguarding the law through prosecutorial accountability.
While Batohi attempts to reassure South Africans that it’s business as usual at the NPA and that there is “no crisis”, her platitudes are far from encouraging. It should not be business as usual. This is the time for the NPA and its leaders to sit up and disrupt old patterns of corruption. To make the prosecutorial decisions without fear and favour, and to return the NPA to the hands of competent prosecutors. It’s a chance for the NPA to be transparent about the true reasons behind Cronje’s departure and the instability it causes in an institution already undermined by a skills deficit and the risk of future budget cuts.
It’s time for Batohi to deliver on the promises she made in 2019. Deal decisively with corruption and incompetence inside the NPA and put the crooks in jail.