Bungling of graft cases ‘reflective of deeper systemic issues’

Shamilla Batohi. High expectations from the public and political leaders create pressure on the NPA, particularly Batohi, who must continuously conjure an image of a reformist leader. Picture: File

By Sethulego Matebesi

The holders of high-profile public appointments – often made by the President – follow the same script. As soon as the Presidency has made an announcement, the holder of the public appointment will be showcased to the South African public via the media with great aplomb.

President Cyril Ramaphosa’s well-received announcement of the appointment of Advocate Shamila Batohi as the new National Director of Public Prosecutions (NDPP) on 4 December 2018 was no different.

Her appointment came at the height of state capture and a long standing problem: the National Prosecuting Authority’s (NPA) ability to effect high-profile corruption prosecutions. She exuded so much confidence that the public believed she would deal with the frustrations of the South African public regarding the NPA’s failures regarding state capture cases.

Ironically, the Vrede Diary Project case against Nulane Investments and the Kusile corruption case involving R2.2 billion against former Eskom CEO – the NPA’s first significant state capture prosecutions – were struck off the roll.

The precise number of cases bungled, though, is less important than understanding the factors that hinder the pursuit of justice in state capture cases.

When will the NPA learn to do right?

It is generally understandable that prosecutorial teams like the NPA’s Investigating Directorate (ID) will face failures from time to time. Resource constraints are one of the reasons for asking for several postponements in the Kusile corruption case, and this may appear to shed light on the significant resources, including skilled investigators and sufficient funding, the NPA requires.

That impression is misleading.

The problem with resource constraints highlights how institutional limitations and expectations can force prosecutorial teams to deviate from proven practice and focus on symbolic action because of high public and political scrutiny. High expectations from the public and political leaders create pressure on the NPA, particularly Batohi, who must continuously conjure an image of a reformist leader.

This performative aspect of holding high office often forces the NPA to make bold promises and high-profile actions that are only sometimes practical. For example, the recent charges against high-profile politicians, including the former speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, and former sports, arts & culture minister Zizi Kodwa, is indicative that the wheel of justice is turning in the right direction.

The charges also demonstrate the relentless efforts of law enforcement agencies, the media, and whistle-blowers.

What has become a familiar scene is that, as time progresses – it is Batohi’s fifth year at the helm of NPA – the enthusiasm wanes, the promises linger unfulfilled, and the optimism gives way to disillusionment.

Why does this cycle repeat?

The initial enthusiasm often stems from a genuine belief in Batohi’s capability and vision. She boasts an impressive résumé, broad expertise, and a commitment to public service. For example, she served as an adviser to the Prosecutor of the International Criminal Court for a decade. As a result, she was seen as a panacea for the systemic problems plaguing the NPA.

However, the systemic and structural challenges Batohi faces are significant and complex. Institutions like the NPA face deep-seated issues such as bureaucratic inertia, political interference, and, at times, corruption. The entrenched nature of the challenges within the NPA means that initial reforms may stall or meet resistance from within.

Possible remedies

The NPA has been justifiably criticised for delays in launching prosecutions in high-profile cases for too long. While the scales are shifting in favour of the NPA overall, there should be less room for complacency or error in the cases brought to court than in the past.

For South Africa, it seems that the solution to the failures of the NPA solely lies in changing leadership. However, the shortcomings of the NPA are reflective of deeper systemic issues. This tells us that the solution lies more in creating a supportive and resourceful environment that empowers the National Director of Prosecutions to execute meaningful reforms. This requires a collective effort from the public, politicians, and the NPA to break the cycle and instil enduring trust and efficiency in this critical pillar of justice.

Only in that way will we hope to construct a genuinely 21st-century prosecutorial institution that is effective, independent, and the pride of all South Africans.

* Prof Sethulego Matebesi is an Associate Professor and Academic Head of Department of Sociology, University of Free State.

** The views expressed in this article are the writer’s and do not necessarily reflect the views of The African