National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi. (Photo by Phill Magakoe/Gallo Images/Getty Images)
Shamila Batohi, the national director of public prosecutions, has made representations to the State Security Agency (SSA) to vouch for her deputy, Anton du Plessis, after he was denied top security clearance.
The decision not to grant him clearance because he holds dual South African and British nationality has in recent weeks provided grist for uMkhonto weSizwe (MK) party and its allies who claim it risks foreign influence over prosecuting decisions.
“I have already made a submission,” Batohi said this week, describing the leaking of the decision and the politicking around it as part of a renewed onslaught on the integrity and independence of the National Prosecuting Authority (NPA).
It was inevitably taking the form of personal attacks on its leadership.
“This playbook is well-tried and tested,” Batohi said. “We should be acutely aware of this playbook and the dangers it represents.”
It was predictable, she said, because those who were involved in state capture, including the corruption of the NPA, knew that it had reclaimed itself after a period in which her predecessors were appointed to be pliant, and sidelined if they proved otherwise.
“Those who know that they are on the radar of the NPA, or may be, have every reason to attack us,” she said.
Batohi stressed top security clearance was not a requirement for Du Plessis’s post — he is deputy national director of public prosecutions for strategy, operations and compliance — nor for her own position.
But the NPA decided that it was prudent to apply for clearance for Du Plessis when he left his position as the legal and criminal justice coordinator in the United Nations Security Council’s Counter-Terrorism Executive Directorate in 2021 to rejoin the prosecuting authority.
He was finally denied clearance in October. NPA spokesperson Mthunzi Mhaga said Du Plessis’s dual nationality was the sole basis for the SSA’s decision after an otherwise smooth vetting process that included a polygraph. Du Plessis was born and raised in South Africa and has held British nationality since 2018, after a UK supreme court ruling made it possible for those born outside the UK to British mothers before 1983 to acquire citizenship by descent.
Du Plessis was never formally asked to relinquish his British passport as a precondition to getting clearance, though such a request was expected and it was mentioned during the process that one might follow.
Chapter 5 of the Minimum Information Security Standards (MISS), which sets out guidelines for security vetting, states that every application for clearance for people who hold dual citizenship must be assessed on the merits of the particular case.
It further states that once screening is complete, and a recommendation issued, “this should in no way be seen as a final testimonial as far as the utilisation of the person is concerned”. In other words, an organisation still has a discretion to decide that there is good cause to appoint the person.
“Notwithstanding a negative recommendation from the screening authority, for whatever reason, the head of the institution may still, after careful consideration and with full responsibility, use the person concerned in a post where he/she has access to classified matters if he/she is of the opinion that the use of the person is essential in the interest of the RSA or his/her institution,” it reads.
The same section of the MISS provides for mitigating steps. These include the head of the requesting entity signing a formal declaration regarding the candidate’s suitability, as Batohi has done. If necessary, she said, the NPA would consider taking the SSA’s decision on legal review.
Batohi’s term will end in January 2026. Choosing her successor is the president’s prerogative, but well-placed sources said Du Plessis was all but certain to be considered.
Attempts by the MK party, assisted by the Economic Freedom Fighters (EFF), to discredit him threaten to embroil President Cyril Ramaphosa and his pledge that those who committed state capture will be prosecuted without fear or favour.
Their political intent was plain in a meeting of parliament portfolio committee on justice on 11 September, called to discuss tension between the NPA and the justice department over access to the Zondo state capture commission archives.
MK party MP Mzwanele Manyi, the long-time spokesperson for Jacob Zuma, reminded the room that the findings of the state capture inquiry were not legally binding.
These include that Zuma did the Gupta brothers’ bidding and that former Transnet directors Brian Molefe and Siyabonga Gama, now members of the MK caucus, enabled the family’s looting of state resources.
Manyi questioned the independence of the NPA and its decision to call on advocates Paul Pretorius and Matthew Chaskalson, who had worked with the commission, to assist prosecutors in terms of section 38 of the NPA Act.
After saying sources had passed on information to his party, Manyi asked first whether section 38 counsel were vetted, then whether Du Plessis had top security clearance and whether it was so that he “has not been able to explain his CIA links and moneyflows”?
“These things are intertwined, the credibility of these institutions, the issues around political interference — if any,” he continued.
Batohi responded that security vetting was notoriously slow and that an answer on Du Plessis’s application was still outstanding. She told Manyi that trying to malign him was misplaced.
He shot back that employing someone without the requisite clearance raised questions about her competence.
His insinuations recalled the claim in 2013 by Kebby Maphatsoe, then deputy defence minister and now a member of the MK party, that public protector Thuli Madonsela was a CIA spy after she found that Zuma had misled parliament regarding the Nkandla scandal.
Madonsela in 2016 denied allegations by her successor, Busisiwe Mkhwebane — who recently defected from the EFF to the MK party — that on her watch the public protector’s office had taken $500 000 from the United States Agency for International Development.
Last month, as news spread that Du Plessis had been denied clearance, so did confounding suggestions that the foreign donors of the Institute for Security Studies, where he served as executive manager before joining the UN, were pushing for the NPA to receive private funding.
The NPA is arguably in less financial need than at any point in the recent past.
In the February budget, the treasury increased its mid-term allocation by R1.3 billion. Batohi said this was proof of political will to allow the prosecuting authority to fulfil its mandate.
She insisted she has not had to contend with political meddling but said the organisation should be future-proofed against interference, and recurring suggestions of it, by changing the law on the appointment of the national director of public prosecutions, the deputy director and the provincial directors of public prosecutions.
At present they are appointed by the president, while deputy provincial directors of prosecutions are appointed by the minister of justice.