National prosecuting authority look ahead

At this time, and before reviewing the perceived current position, it is appropriate to express condolences on the recent passing away of two high profile members of the State judicial and investigative mechanism.

Colonel Christelle Stemmet worked for the South African Directorate of Priority Crime Investigation as a detective and was immediately prior to her death on 10 November 2019 involved in investigating allegations of corruption and fraud at the Public Investment Corporation. Stemmet was one of a small number of members of the Directorate of Special Operations who transferred from the Scorpions to the Hawks in in 2009.

Senior State Prosecutor Addelaid Ferreira-Watts died on 19 November as a result of being shot by an accidentally discharged shotgun that was a State exhibit in a trial she was prosecuting in the Ixopo Regional Court. The presence of a loaded weapon in court and it being handled without being cleared and made safe clearly require clarification and investigation. The loss on both sides of the State prosecution service will be keenly felt and condolences are extended to the families of both the deceased.

Against this background, the stance and situation of the NPA needs to be reviewed and discussed. As a starting point, public frustration has been expressed at the lack of prosecutions flowing from evidence led at the Zondo Commission.

As has been stated previously, although the Commission seems to be a gift that continues giving from an information perspective, the evidence led cannot be transferred directly into a criminal prosecution, but needs to be investigated and dockets prepared for processing by the NPA in accordance with the requirements of the criminal legal system.

In a press conference held on 21 November, National Director of Public Prosecutions Advocate Shamila Batohi outlined the staffing difficulties within the NPA subsequent to the loss of some 800 staff members over a period of time prior to Advocate Batohi’s appointment.

Advocate Batohi also made it clear that the prime function of the NPA remained the preparation for and prosecution of crimes in general, and despite the profile of State Capture and corruption offences they are only a subset of the activities of the National Prosecuting Authority.

Arising from this it was also clearly stated that credibility, integrity and accountability, within and of the NPA to Parliament and the public was a priority that she was establishing as part of a new culture within the NPA.

During the press conference, Investigative Directorate Head Advocate Hermione Cronje announced that some state capture related cases would be reinstated as the Investigative Directorate unit had gathered sufficient evidence pending further input from the United Arab Emirates, presumably for this to take place with a reasonable prospect of success.

In addition, it appears that National Police Commissioner General Khehla Sitole has agreed to declassify information relating to the investigation of former Crime Intelligence head Richard Mdluli.

It has also been announced that the NPA is ready to prosecute those implicated in the controversial Gupta-linked Estina dairy farm project. This can be seen as a litmus test for the NPA after charges were earlier withdrawn in this matter as the State was not, at that time, ready to proceed. The credibility of the NPA was drawn into clear question and focus at that stage.

On the date of writing, a number of arrests took place and were covered in the press. African National Congress Member of Parliament and former State Security Minister Bongani Bongo appeared in the Cape Town Magistrate’s Court in connection with allegations of corruption relating to the attempted bribery of the evidence leader of the Parliamentary Inquiry into Eskom in 2017. Bongo was released on bail subsequent to his appearance.

On the same day, the Hawks arrested the Chief Executive Officer of Cooperative Governance and Traditional Affairs’ Municipal Infrastructure Support Agency Goodman Ntandazo Vimba and 9 other suspects in relation to an investigation regarding a complaint by the National Treasury following the flaunting of procurement processes at the Amathole District Municipality, resulting in the illegal awarding of a contract of R600 million for the supply of toilets funds.

Against the positive actions listed above, one aspect of the administration and operational challenge faced by Advocate Batohi relates to the team in place within the NPA at the time that she assumed her current role. Reference has been made previously to the loss of staff at all levels from junior to senior posts within the NPA. She recently made the point that she wants to take the unit back to the position of being the employer of choice within its sphere of operation which requires attracting quality staff who want to function within the NPA. A clear indication of the current position (and an area that carries operational challenges) is that of the four Deputy National Directors – only Advocate Nomvula Mokhatla, Head of Legal Affairs, is a permanent appointment.

Willie Hofmeyr, Acting Head of the the Assets Forfeiture Unit, will likely be retiring shortly; Advocate Sibingile Mzinyathi serves as Acting Head of National Prosecutions Service; while Advocate Silas Ramaite, Acting Head of Administration, is taking early retirement. On a provincial level, only 6 of the 11 Provincial Directors of Public Prosecutions are permanent appointments, and the three Special Directors of Public Prosecutions are all appointed in an acting role.

Compounding this are the probable splits and loyalties that are a carry-over from previous November National Directors of Public Prosecutions and the legacy of the roles played by Advocates Nomgcobo Jiba and Lawrence Mrwebi within the organisation.

The split of Jiba and Mrwebi from their posts, the Presidential Inquiry and action of the State President subsequent to Jiba abandoning her action for reinstatement have precluded Advocate Batohi from being able to cement her vision and appointments until recently further contracting her ability to appoint persons into roles that further her vision for the future of the NPA.

Despite this, the recent annual report shows that for the 2018/2019 reporting period the NPA secured, in all criminal courts, 260 456 convictions with a remarkable 94.3 per cent conviction. Broken down further, the High Courts collectively retained a 90 per cent conviction rate and the regional courts achieved an 81.7 per cent conviction rate.

These figures are encouraging and, given the cases that are expected to come before the superior counts in 2020, (including the probable hearings on the Zuma and Thales matter), the expertise and cohesive operation on the NPA will be required and watched closely.