Advocate Shamila Batohi addresses the Private Sector Symposium against Gender-Based Violence and Femicide. File photo
The Centre for Development and Enterprise (CDE) on Thursday called on President Cyril Ramaphosa to appoint a retired judge to spearhead an urgent independent inquiry into the National Prosecuting Authority (NPA).
The inquiry aims to confront underperformance and the devastating effect of state capture, which crippled the prosecuting agency, leaving high-profile corruption cases languishing.
CDE executive director Ann Bernstein said the inquiry should not take the form of a “formal commission of inquiry”, but rather a focused investigation to uncover the specific reasons behind the NPA’s underperformance.
The inquiry would seek to provide recommendations to bolster the authority’s effectiveness, said Bernstein, who was speaking at the launch of CDE’s Energise the NPA report, part five of its series on priorities for South Africa’s new government of national unity.
“The inquiry must assess the leadership, structure and independence of the NPA,” Bernstein said, adding that it was crucial to pinpoint the obstacles hindering the prosecuting authority’s mandate, particularly in high-profile corruption cases.
A key aspect of the inquiry, she said, would be providing the courts with guidance on handling “Stalingrad tactics” — the legal manoeuvres used by high-profile defendants to delay trials.
Bernstein said the slow and erratic prosecution of widely reported cases of corruption undermined democracy and encouraged the misappropriation of state resources.
The NPA’s “disappointing” performance had encouraged impunity among criminals and failed to deter the spread of corruption.
There was constant talk about “fixing the state”, said Bernstein, including from Ramaphosa. “But you can’t fix the state until you prosecute the corrupt”.
Ramaphosa signed the National Prosecuting Authority Amendment Bill into law in May.
It was gazetted in August, allowing the then five-year-old Investigating Directorate — established by presidential proclamation to investigate Zondo commission cases — to be made into a permanent, prosecution-led agency with a focus on complex and high-profile corruption cases.
Now the Investigating Directorate Against Corruption (IDAC), the directorate is based within the NPA. The IDAC is viewed as an effort to revive a successful corruption busting entity to pick up where the Scorpions left off, after being disbanded by the ANC in 2009.
Concerns remain, however, about the independence and efficacy of the IDAC, which is still not fully operational. While the Scorpions were staffed with skilled, senior prosecutors and investigators, it remains to be seen what the skill and experience level of IDAC staff will be.
Bernstein said the CDE report recommended that immediate focus should be given to operationalising the IDAC and “staffing it effectively with the best people possible”.
There was also the need for a careful review by the minister of justice and parliament of the IDAC’s status as a potential Chapter 9 institution.
When Shamila Batohi was appointed to lead the NPA in 2018, there were “high hopes for revitalisation”, said Bernstein, but when the number of prosecutions in priority areas were judged against the scale of looting uncovered by the Zondo commission and media investigations, the NPA’s performance had been “overall disappointing”.
Batohi’s term will end in January 2026, along with two of her deputies.
Bernstein said that possible explanations for why the NPA had performed poorly from 2019 to 2024 included internal divisions, lack of capacity and lack of funding.
Batohi has herself said that the investigative and prosecution skills at the NPA had been hollowed out, and that there was a shortage of experienced prosecutors and forensic skills.
Former ID head Hermione Cronje, when asked about the slow progress in prosecuting corrupt officials in the NPA, said it was happening, but it was happening “while we are fixing the ship”.
Said Cronje at the time: “The ship is so broken that it is a consuming exercise, it is not just broken, but rotten in some places, and there are saboteurs around undoing the work we are doing.”
Bernstein said it was easy to blame the leadership of the NPA and questioned whether there was sufficient political support for the agency.
Former constitutional court judge Johann Kriegler, who also formed part of Thursday’s panel, said the country’s prosecution service was vital to the administration of justice, and that state prosecutors were part of a professional body that was extremely sensitive to influence from within and outside. “It is a responsible but also vulnerable occupation,” he said.
“Unless IDAC is capable of dealing with political pressure, the institution cannot work.”
On making the IDAC a Chapter 9 institution, Kriegler said it was “a nice thought, ideal and desirable”, but not a necessity.
“Ultimately, the independence of an institution depends upon the human beings that can create, maintain and staff it.”
The Judicial Service Commission was the best possible example of this, he said. “It should be independent, it can be independent, it has a vitally independent function, and yet over the years it has been subject to every political whim and to be dysfunctional in its ultimate purpose of appointing and firing judges.”
It was the quality of the person leading the institution that could place it on the right or wrong track, he said.
As for Stalingrad tactics being used by high-profile accused, he said the word Stalingrad was a misnomer, it was simply an abuse of the processes of the court. It was up to individual judges to make plain that the rules were there to be used, not abused.
“It is for the judicial system as a whole to back up decisions by individual judicial officers to say ‘I will not let you play games in this court, let’s get on with the substance, I am not going to engage in that trivial nonsense’.”