Better days: National Director of Public Prosecutions’ Shamila Batohi (left) and the Investigating Directorate’s Hermione Cronje. (Phill Magakoe/Gallo Images)
*This article was amended on 18/02/22 to include right of reply.
A year after he was indicted for fraud and corruption, the state’s case against Ace Magashule appears at risk of unravelling and the conviction of a single top flight politician for state capture remains a mirage, much like the extradition of the Gupta brothers for their central role in the scandal.
The prosecution in the asbestos case had earlier this month to concede that Magashule’s former personal assistant, Moroadi Cholota, has refused to turn state witness. Her status was always in doubt.
But the state also admitted flouting a requirement in law when it charged Magashule under the Prevention and Combating of Corrupt Activities Act. Magashule was not approached for an explanation as to why he failed to report an alleged crime, nor was he given proof of an authorisation by the National Prosecuting Authority (NPA) for the institution of a prosecution, as demanded by section 27 of the Act.
At the time, Magashule was the ANC secretary general and his pending arrest was fraught with political suspense or, as prosecutor Johan de Nysschen put it to Free State Judge President Cagney Musi: “My Lord, we did not want to broadcast the intention to arrest certain people.”
The defence has filed an application to have the corruption charges withdrawn, as well as all those faced by Edwin Sodi, the businessman accused of swindling the state of R255-million.
This has added to concern in government that the NPA still falters, three years after Shamila Batohi set out to right an organisation that had been captured by the politics of the day, and despite the suspension of powerful culprits and fresh appointments to her deputy directorate.
“It is not possible to say that there isn’t concern. Where are the convictions?” one source asked, adding that the list of people to prosecute, and the backlog, would get longer once acting Chief Justice Raymond Zondo released the final report of the state capture inquiry.
To give the NPA’s Investigating Directorate (ID) a head start in prosecuting crimes uncovered by the commission, regulation 11 of the inquiry was amended in July last year, allowing it to share evidence and documents with prosecutors before the report is submitted.
It remains slow work. After years of televised testimony at the inquiry showing how far and wide the rot went, critics are asking if the NPA lacks political support or proceeds selectively.
Those with knowledge of individual cases say the more prosaic reality is that Batohi still battles incompetence and internal stonewalling rooted in the past.
NPA spokesperson Mthunzi Mhaga confirmed that on August 2 Batohi sent an affidavit to the Zondo commission again arguing for the entity to be moved away from the justice department, “in law and in fact”, a move that will more strongly insulate it from perceptions of interference.
Answering questions in the national assembly this week, Deputy Justice Minister John Jeffery dismissed suggestions from the opposition benches that the NPA and the commission were sparing senior politicians close to President Cyril Ramaphosa.
“The commission is independent … people in opposition to the commission want to try and tarnish it,” he said in reply to a question from the Economic Freedom Fighters’ Yoliswa Yako.
She asked why, given allegations that Gwede Mantashe, then the ANC secretary general and now the minister of mineral resources and energy, and former environmental affairs minister Nomvula Mokonyane took money from Bosasa, which provided services to the government, the NPA seemed loath to “pursue corruption charges against those closest to the president”.
Jeffery replied: “As far as the NPA investigations, that is up to them, they do not get told by the president or the minister who to prosecute or not to prosecute. A lot of these investigations, or most of the investigations, are still ongoing and results can be expected if people have a case to answer.”
The justice department’s annual report has shown the entity missed its performance targets by a long way, prompting another opposition MP to remark that it was not a case of the NPA faring poorly, but “not faring at all”.
In 2020-21, it deviated by 61% from its yearly target for corruption convictions of government officials. The report attributes this to the Covid-19 pandemic resulting in the completion of fewer investigations and institution of few prosecutions. The same reason was given for the NPA making only half its target on pursuing money-laundering cases.
It attached R661-million in crime proceeds in the past financial year, a quarter of its objective. The stated reason was delays in finalising high-value investigations.
The picture has improved of late, after high-level pressure for the Asset Forfeiture Unit to be taken in hand.
Between June and September, it secured a freezing order worth R1.4-billion against the accused in the Kusile power station corruption case and another for R46-million against former ANC MP Vincent Smith.
The ID also obtained an unlimited restraining order against the Guptas’ Islandsite Investments as part of a tender fraud case linked to the Vrede dairy farm. If that matter sees more charges brought against Magashule this will only be, it is reliably understood, in the distant future.
The commission was in September granted its fifth extension to complete its work, slowing the transfer of its investigators to the ID, but this is only one hardship. The Hawks don’t have a flawless record of running investigations that hold up in court, frustrating prosecutions. And so does the continued political corruption of the Hawks, a source with intimate knowledge of the inner workings of the NPA says.
It means Batohi is still fighting the legacy of former president Jacob Zuma’s politics in pockets of the NPA. “The damage that was inflicted on the institution was immense. Some people were posted to key positions to ensure that certain decisions inconsistent with the prosecution policy are executed. This is why simple investigations and decisions like contempt of court aren’t taken swiftly,” the source said.
“The challenge starts with the Hawks.”
The Hawks said in February they had completed an investigation into the criminal complaint the Zondo commission laid against Zuma, in terms of the Commissions Act, for failing to testify before it and sent the docket to the Johannesburg director of public prosecutions for a decision. To this day, none has been taken, months after the commission secured a contempt conviction against Zuma in the constitutional court that landed him in prison, albeit briefly.
Similarly, nothing has come of the charge the commission laid against his confidante and former SAA chairperson, Dudu Myeni, in May for defying a summons to testify in the state capture inquiry.
“Gauteng has proved to be the last bastion of state capture in the NPA. There is serious fightback there,” the source said, adding that it reached a high point when Batohi suspended senior Johannesburg prosecutor Pumeza Futshane in February.
“This clique has formalised itself into a union but its activities are purely political and their mission is to destabilise Batohi’s programme. They are small but their strongest base is in Gauteng and the Eastern Cape. However, they are contained.”
This has involved circumventing the South Gauteng directorate of public prosecutions on a number of sensitive cases. The perjury case against public protector Busisiwe Mkhwebane was moved to Pretoria, as was that against former minister of social development Bathabile Dlamini. The latter finally got underway on Wednesday.
The Senzo Meyiwa murder case has also been transferred to the director of public prosecutions in Pretoria and last month a trial date was set for April 2022, seven years after the Bafana Bafana goal keeper was shot dead. Sources added that forceful steps had to be taken in the NPA to bring four accused to court in connection with a corrupt Gauteng health tender worth R1.2-billion that dates back 10 years and embroils former MEC Brian Hlongwa. There is still no prosecutorial decision regarding Hlongwa.
Right of reply
With reference to the article, “NPA fights ghosts past and present”, published on 26 November 2021 in print and online by the Mail & Guardian, Phindi Mjonondwane, regional communication manager of the National Prosecuting Authority (NPA) writes the following.
The NPA Johannesburg office dispels the allegations levelled against the office of the director of public prosecutions in the Gauteng local division, advocate Andrew Chauke, by unnamed sources, claiming that he failed to act in high-profile cases against [Jacob] Zuma, Brian Hlongwa and officials from the Gauteng department of health, Bathabile Dlamini [and] Dudu Myeni.
Contrary to what the journalist wrote, the case against Dlamini was never moved to Pretoria. The case was handled by the office of the director of public prosecutions Johannesburg from its inception and was enrolled in September 2021, months before the article was published. The case is about to reach conclusion, as it is set down for closing arguments.
The Hlongwa docket was received back from NPA’s national office in 2019, after the disbandment of the priority crimes and litigation unit and subsequent directive from the national director of public prosecutions that the cases that were seized with that office, be sent back to the respective director of public prosecution offices. It is for this reason that the 10-year delay cannot be attributed to the Johannesburg director of public prosecution’s office.
The decision to prosecute Hlongwa and others was made by the director of prosecution’s office in November 2021, contrary to allegations made in the last paragraph of the article that “there is no prosecutorial decision regarding Hlongwa”. At the time of publishing the article, this case was trial ready and all the accused were served with summons to appear in court on 7 December 2021.
Regarding Myeni, this office received the docket wherein she allegedly named a witness at the Zondo commission of inquiry into state capture. The commission’s docket was received in July 2021 and is still under investigation: once concluded, the NPA will take a decision [on] whether to institute criminal proceedings.
The article further states that “Gauteng has proved to be the last bastion of state capture in the NPA”, which purported, without any evidence whatsoever, that the Gauteng office of the NPA is a stronghold or defender of state capture. The NPA Gauteng office will not be derailed by utterances from concealed sources aimed at tarnishing the name of the director of public prosecutions and that of his office.
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