National director of public prosecutions Shamila Batohi. (Photo by Gallo Images / Netwerk24 / Felix Dlangamandla)
National Director of Public Prosecutions Shamila Batohi has made a public appeal to heads of courts to assign judges with the requisite skills and experience to hear state capture cases.
“I think it is very important, I will say, that when we do have very complex cases in court, that the judges who are allocated are ones that have the necessary experience,” she said after a lecture in Cape Town on Monday evening.
“I would urge judges president, who make the allocations for judges to sit on particular cases, that when these allocations are made, they take into account that these are very complex, highly specialised areas, that judges with the necessary expertise and skills are allocated to deal with these matters.”
Batohi added: “Can you imagine if, as the NPA [National Prosecuting Authority], we put a prosecutor who did not have the experience to deal with a major state capture case, one that was like an acting prosecutor, can you imagine the outcry in this country?
“You need to get your best brains, the people with the skills and experience to deal with this, and we expect the same of the judiciary.”
It was a plain reference to the fact that the Nulane Investments fraud, corruption and money-laundering trial was assigned to an acting judge at the Bloemfontein high court.
In April last year, acting judge Nompumelelo Gusha granted section 174 discharges to two former Free State officials; Nulane Investments and its directors Iqbal Sharma and Dinesh Patel; the Gupta family’s Islandsite Investment and its treasurer Ronica Ragavan for lack of evidence, meaning they did not have to raise a defence.
The eighth accused, former senior Free State official, Limakatso Moorosi, did not file a section 174 application but was also acquitted, with Gusha saying the state had likewise failed to produce a shred of evidence against her.
The NPA argued in its application for leave to appeal that Gusha had mishandled the matter and made nine material errors in law, resulting in a grave miscarriage of justice.
She denied the prosecution leave to appeal. The NPA then petitioned the supreme court of appeal, where it is now waiting for a hearing date.
The charges, along with those in the Estina case, underpinned the state’s application for the extradition of Atul and Rajesh Gupta from the United Arab Emirates, which was rejected in April 2023.
In August, the Bloemfontein high court struck the case against the 16 accused in the Estina case off the roll for unreasonable delay.
The outcome of these trials, along with the striking off the roll of the money-laundering case against former Eskom chief executive Matshela Koko late last year, again for unreasonable delay, has raised doubts about the state’s ability to prosecute state capture corruption.
Batohi on Monday conceded that the state had been tripped up in the Koko case by its lack of specialised skill in data processing. But she has also raised questions about the fact that it subsequently emerged that magistrate Stanley Jacobs, who granted the discharge, had failed to disclose his history of business dealings with Eskom.
“In that particular case, the magistrate could have made one of several orders. Several. He took the most drastic order of striking off and we must ask the question why,” she said in April, departing from the NPA’s usual caution in criticising court rulings.
“It is a fact that various orders could have been made. The most drastic one was made and now there may be an understanding of why that was the case.”
Batohi said the judiciary’s role in state capture cases was critical.
“Addressing state capture is not an NPA priority. It is a government priority,” she said at the lecture, hosted by the University of Stellenbosch and Freedom Under Law.
“As the third arm of government, one has to ask what is the role of the judiciary in implementing this government priority, within its independent mandate.
“We need the firm resolve of an independent judiciary to ensure that cases move swiftly through the court process, while ensuring a fair trial — fair not only for the accused but also for victims and witnesses. Corruption is not a victimless crime. The people of our country are the victims.”
Batohi also took aim at defence lawyers who launch frivolous interlocutory applications to delay corruption trials, in what has become a pervasive application of the Stalingrad defence strategy.
“In complex corruption cases guilty pleas are rare, especially in an adversarial system like ours, with extensive protections, that are often abused by those perfecting the art of delaying justice.”
Batohi said she understood the public pressure for the NPA to secure the conviction of the main culprits in the state capture scandal but stressed that these crimes made up less than 1% of those prosecuted by the entity.
“Over and above state capture and corruption, we are also delivering on the second crisis, the second crisis of all other crimes in South Africa, to ensure justice for thousands of victims every day,” she said.
The prosecuting authority was mindful that South Africans live in constant fear of violent crime, Batohi said, with house invasions being the biggest driver of that fear.
She said prosecutors were maintaining a 77% conviction rate in more than 3 000 murder prosecutions a year, but added that this was a percentage, not of the homicides committed, but those in which the police investigation resulted in a docket ready to be brought before court.
“It is clear that the work of the NPA is not fully understood or appreciated. The NPA has not been sleeping or sitting idle, as one cartoonist saw fit to depict. Rather we have been actively engaged in fighting the twin crises of violent crime and corruption in our country.”
She said the work happened in an often “toxic and dangerous” environment.
“Painting the NPA with one brush of negativity and peddling the perhaps self-fulfilling and false narrative, not based on evidence, that the NPA is failing is a disservice to the battle for the rule of law in our country, at a time when it is diminishing.”