/ 21 September 2023

Batohi says SA rule of law is ‘on life support’

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National director of public prosecutions Shamila Batohi. (Photo by Gallo Images / Netwerk24 / Felix Dlangamandla)

South Africa’s rule of law is “on life support” after state capture “ripped out its heart”, but the narrative that the National Prosecuting Authority is doing nothing to prosecute corrupt leaders, officials and private individuals who enabled the corruption is “factually wrong and dangerous”.   

This was according to Public Prosecutions head Shamila Batohi, speaking at the Anti-Corruption Enforcement in SA conference in Umhlanga on Thursday.

“South Africa is facing a broad range of state capture-induced crises, including a fully-fledged crime crisis. We face a dangerous inflection point where we must choose a path towards rule of law or rule of anarchy. And while the rule of law remains in ICU, it’s not dead yet.  Luckily, the rule of law is part of our DNA and most of us cherish it. And we are prepared to fight for it,” Batohi said.

She said the NPA recognised the “devastating” impact state capture had on the economy and development prospects, but “more importantly, it ripped the heart out of the rule of law, the central ingredient of the social contract holding us together”. 

“One of the more pernicious aspects of SA’s version of state capture, is that it was an attack from the inside – a stealthy and lethal war waged on the rule of law, by the very people whose job it was, and who swore an oath, to protect and promote it – including the past leadership of the NPA and critical parts of the police. Our prosecutorial independence was undermined,” she said.

She said the NPA’s loss of the Nulane case had cast a “gloomy shadow” on the prosecuting authority’s work recently on state capture matters.

“Prosecutors do lose cases, and sometimes these losses are justifiable. We are appealing Nulane, and we never theoretically lost the Gupta extradition – it’s a complex legal and political battle that we continue to fight,” Batohi said.

She said the NPA understood the public’s frustrations at the slow pace of justice.

“We are frustrated as well. Some cases are taking long to finalise.  For cases to move swiftly through the court process, we need to have a fast lane for state capture cases.  The Estina matter has been postponed for trial to a year from now, and we need swift, and sometimes tough case management by the judiciary.  We can’t allow unnecessary delays and abuse of process.”

Batohi said her team was “acutely aware” that a lot more still needs to be done, “but the impression or narrative that NPA is not doing anything about state capture is both factually wrong and dangerous”.

“We are one of the few democracies in the world that is prosecuting the former secretary general of the ruling party; a former president, and also some of the most powerful CEOs and private sector actors in the country,” Batohi said.

“These cannot by any measure be regarded as small fish, although we appreciate that too many architects of state capture still remain unaccountable. Impunity is no longer a given, as it was during the state capture years, and those with dirty hands know that now it is not a matter of ‘if’ but ‘when’ the dreaded knock on their door will come.”

However, she said the NPA could not “prosecute” the country out of the corruption crisis, or win the battle alone.

“We need a societal response – what must be done upstream to enhance ethics and integrity, especially in leadership positions, and good governance.  And we need strong collaboration with our law enforcement partners. 

She added that the country was facing the enormous challenge of entrenched organised crime.

“The same is true as we prepare to fight the next battle in the war against crime – and here I refer to the growing threat of organised crime that is engulfing our country as we speak. The NPA has collaborated with Gi-TOC (Global Initiative against Transnational Organised Crime) to develop a precise and focused organised crime strategy,” she said.

Batohi said the prosecuting authority was making progress tackling complex current corruption matters. She said the Investigating Directorate (a division of the NPA)  has so far declared 99 investigations, and enrolled 34 cases involving 205 suspects.

The Specialised Commercial Crime Unit and Directorate of Public Prosecutions have enrolled 78 cases involving 363 accused identified by the Anti-Corruption Task Team’s priority case list.

“We are actively revitalising the Asset Forfeiture Unit (AFU) for proactive and enhanced impact. We are placing AFU at the centre of our prosecution work, through the adoption of a new strategy and implementation plan which prioritise innovative interventions such as non-conviction based forfeiture, a focus on organised crime, international asset recovery, and corporate ADRM. 

She said the AFU and its partners have secured freezing/preservation orders to the value of R14 billion, and recoveries to the value of R5.4 billion, including the ABB landmark case.

“The reality is that even though the wheels of justice turn slowly, they are turning. The NPA is making progress in tackling complex corruption,” she said.

National Treasury Deputy Director General Ismail Momoniat said there needs to be more criminal prosecution of private sector “enablers” who facilitated corruption and state capture.

He said the anti-money laundering tools can be used to make all ministers and senior public officials account for the funds in their bank accounts, and there was a need to create an environment to make it easy for honest accountants to do their work.

“When [chief justice Raymond Zondo] warned that we can have state capture again, I think he is right, unless we fix our politics which has become so toxic, we need to fix our accounting systems,” he said.