EFF leader Julius Malema. (Delwyn Verasamy/M&G)
Prosecutorial accountability in the Eastern Cape may mean different strokes for different folks. One prosecutor had to resign over an assignment she did not want for fear of being victimised, while another still has his job, despite being booted off a high profile case because a judge found him to be untrustworthy.
National Prosecution Authority (NPA) bosses in the Eastern Cape forced state prosecutor Elna Smit to resign because she did not want to prosecute Julius Malema for discharging a weapon in public, fearing she may be subjected to race-fuelled jibes by the Economic Freedom Fighters (EFF) leader.
Smit resigned earlier this year after her pleas to her NPA bosses to replace her with a person of colour to lead the state’s case against Malema fell on deaf ears.
On Thursday, the director of public prosecutions in the Eastern Cape, Barry Madolo, admitted that the agency did not adequately support Smit at the time.
“The lady resigned. Resigning is a personal choice — we can’t stop a person from resigning … there’s nothing much we can do.
“But I must admit that we could and should have done better in dealing with her, alright.”
Malema and his bodyguard, Adriaan Snyman, have been in the East London magistrate’s court regularly since a July 2018 incident involving the discharging of an automatic assault rifle in the Sisa Dukashe Stadium in Mdantsane during the EFF’s fifth birthday celebrations. The trial is to continue in September.
Smit’s fears that she would be targeted for race-based jibes when the trial against Malema and Snyman resumed on February 28 this year were not unwarranted.
Just 11 days before, Malema had no qualms about castigating advocate Mark Oppenheimer, representing civil rights group AfriForum in an equality court matter about the continued singing of “Dubul’ibhunu (Shoot the boer)”.
The EFF leader told the judge in the AfriForum case that it was unfair to be cross-examined by someone who promoted racism.
On Thursday, during a media briefing Madodo called to discuss the performance of Eastern Cape prosecutors in the past financial year, he initially tried to avoid accepting full responsibility for Smit’s departure.
He said that, as the newly-appointed director of public prosecutions, he had entered the fray “when the whole thing was unfolding”.
But, pressed on whether he was aware at an earlier stage than late February that Smit was not willing to continue to appear in the Malema matter, and what steps the NPA took to avoid or mitigate the effect of her withdrawal in court, Madolo said: “I became aware of it at what I would call the eleventh hour. Hence I engaged the lady. She gave me the history of her discomfort.
“But I must admit that, maybe we — as an organisation — could have done better in dealing with that particular issue. Because she had raised this issue over a period of time, and her main complaint was no one listens to her.
“But I came in at a very late stage. All I did was damage control.”
Contrasting Smit’s experience, fellow prosecutor Nceba Ntelwa’s job is still secure despite claims he withheld crucial evidence and coached complainants to lie in the witness box in the Gqeberha rape trial of the accused, Pastor Timothy Omotoso.
Ntelwa’s actions in the trial saw him dropped from the prosecution team after Judge Irma Schoeman said late last year that she could no longer trust him.
Omotoso and two co-accused face 63 charges and 34 alternative charges including counts of human trafficking, rape and racketeering.
Defence lawyers sought a mistrial based on Ntelwa’s behaviour, and also applied for Schoeman to recuse herself. When she dismissed arguments on both points, they unsuccessfully appealed to the supreme court of appeal.
The matter is now before the constitutional court.
Madolo said on Thursday that Ntelwa remained in the employ of the NPA and no disciplinary action had been taken against him “yet”.
“I won’t say why he has not been disciplined. I will look into it and make a decision. I haven’t applied my mind but I will.”
He declined to disclose the details of his discussions with Smit at the time, although he stated he had tried to dissuade her “but she had made up her mind”.
He said it was his responsibility for “bringing in” advocate Joel Cesar “to save the situation” in the case.
Madolo said that one of his team’s tasks in realigning the work of the NPA in the province was to look at the work ethic of prosecutors.
Realigning court boundaries to ensure that managers were within easy reach of the courts would also aid the daily output of the courts.
On the province’s conviction rate of 79% for the regional court, 84% for the district court and 96% for the high court, Madolo said there was always room for improvement.
Although the prosecutors strived for convictions, their job was to “do justice”, he added.
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