10 top priorities in new NDPP Shamila Batohi's inbox

2019-02-02 20:14
National director of public prosecutions Shamila Batohi. (Photo by Gallo Images, Sunday Times, Alaister Russell)

National director of public prosecutions Shamila Batohi. (Photo by Gallo Images, Sunday Times, Alaister Russell)

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Advocate Shamila Batohi on Friday began her term as Director of Public Prosecutions (NDPP). Batohi will have a tough time ahead restoring the National Prosecuting Authority (NPA) to its former capacity to prosecute without fear or favour. Here are ten top priorities that she should tackle.

1. Rebuilding the credibility of the NPA

There is no doubt that the NPA is a broken organisation, particularly in the eyes of the public.

The new NDPP will have to restore the country's faith in the institution and this will come with restoring credibility. Justice has to be seen to be done.

Advocate Shamila Batohi will have to lead by example. She should start work at 06:00 on the first day she can and get to grips with the intricacies of her new job. She should also continue that work ethic throughout her term to justify the salary she will earn but more importantly, to earn the respect of the employees of the NPA. Each of the candidates acknowledged in their interviews that they would have to fix a broken organisation and that is now Batohi's obligation – to rebuild it and turn it around.

READ: Introducing Shamila Batohi - the country's first female NPA boss

The new NPA boss must strengthen the independence of the organisation by moving to have it defined as a constitutional entity with its own accounting officer, so it does not have to report to the Minister of Justice. 

2. Healing the rifts 

One of the most critical jobs of the new NDPP will be to unify the organisation and rid it of those individuals who are toxic. She needed to make a speedy, public declaration that the NPA is an independent organisation, free of influence, and acknowledge and own the problems that have damaged the institution – and she did so.

She will also have to make it very clear that there is no room for politicking within the NPA and that it will not be tolerated. Public servants should be apolitical and if any prosecutors feel differently, they should leave.

The new NDPP should go on a roadshow to the various DPP offices around the country to reassure those people who are trying to do their jobs that they can do so, and to build morale.

She will also have to try and attract all those qualified, capable prosecutors who were squeezed out over the past few years, back in to the NPA. This means offering jobs to all those experienced prosecutors who went into private practice or to auditing firms. 

3. Improve investigations by working with the police

The relationship between the NPA, the Hawks, Crime Intelligence and other law enforcement agencies has been damaged over the past few years as a result of abuse and in-fighting.

Batohi will have to be an active leader in the police and security cluster and must have a good relationship with the heads of the SA Police Service and the Hawks etc.

It is only with a strong working relationship between prosecutors and investigators that there will be successful prosecutions in court. The leadership must meet regularly to deal with the blockages in the system and the NDPP will have to get the others on board. 

4. Quick wins in state capture cases

In the wake of the announcement that the Estina dairy farm charges are being withdrawn, it is absolutely crucial that the NPA is seen to act on state capture cases. This means going after the low-hanging fruit and getting some quick wins.

Batohi must attend the Zondo commission of inquiry into state capture and look at what is coming out of the Nugent inquiry into the South African Revenue Service. Plenty of evidence is tumbling out at both hearings that can be converted into prima facie cases following quick investigations. Now is the time to show results, not to throw the book at individuals with protracted, drawn-out technicalities.

If the NPA goes after the low-hanging fruit, they could have successful prosecutions by February or March. Those individuals will start to sing like canaries and sell out the bigger players in exchange for Section 105A plea deals.

The NPA Act also allows outsourcing to private counsel. If necessary, the NPA should pull in top advocates to ensure these cases are watertight rather than overburdening the few prosecutors that have the capability to try these complex, commercial crimes. All of this would require a new, strong leader of the Specialised Commercial Crimes Unit. 

5. The Zuma case

The prosecution of former president Jacob Zuma has been one of the most controversial and divisive cases in the NPA's history. It is arguably the case that has most damaged the organisation which makes it absolutely crucial that it is handled properly now.

The prosecuting team must be properly resourced and must have the full support and protection of the new NDPP. The prosecution must be done by the book and to the very best standards so that it cannot be questioned. 

6. Review controversial cases - Ivan Pillay, Johann van Loggerenberg prosecution, Cato Manor

Batohi is inheriting a pile of controversial cases that will have to be reviewed because the original decisions to either prosecute or not to do so, were taken by former NDPPs whose credibility is in question. This means that she must look at these cases again to ensure that decisions were not taken with ulterior motives or with undue influence.

For example, she should reconsider the prosecution of former SARS executives Ivan Pillay and Johann van Loggerenberg to determine whether there is indeed a solid case against them. Similarly, she should also review the racketeering charges in the contentious Cato Manor case.

Those decisions were taken by former deputy prosecutions boss Nomgcobo Jiba and Batohi's predecessor Shaun Abrahams and there must be clarity on whether they were done for political expediency. 

7. The Jiba factor 

Jiba's shadow has long loomed large over the NPA and the new NDPP has to rid the organisation of that influence.

Batohi must carefully watch the Mokgoro inquiry into Jiba's fitness to hold office, as well as the General Council of the Bar's bid to have her struck off of the roll of advocates.

She will have to closely examine the influence Jiba has had on the institution and the factionalism that has permeated throughout the NPA. The NDPP must also seriously reconsider reinstated charges of perjury against Jiba which Abrahams curiously withdrew.

Batohi must also urge the president to shake up the top leadership layer of the NPA, which has become too complacent and too tainted by internal shenanigans. 

8. Organised crime 

The NPA has to get a proper handle on organised crime and convicting the responsible kingpins. It's not good enough for low-ranking lieutenants to be found guilty and sent to jail – the bosses need to face justice and that can only happen with strong evidence and clever, committed prosecutors.

It is a veritable war zone in Cape Town at the moment with gang violence and hits being carried out left, right and centre, and there has to be a strong message that those responsible will be held accountable. No more greasing of palms for dockets to disappear.  

9. A skills audit 

The new NDPP must immediately order a full skills audit within the NPA to find out what qualifications and capabilities reside within the institution.

She also has to establish what vacancies there are, and people must be moved to where they are most needed. At rural courts, there must be enough qualified prosecutors to upskill the juniors and mentor them and the aspirant prosecutors training course must be pushed again, with an emphasis on ethics and integrity.

Top junior candidates must also be recruited so that it becomes prestigious to join the prosecuting authority rather than private law firms. 

10. Specialised areas of focus 

One of the biggest victims of the capture of the NPA over the past few years has been around specialised skill areas, such as extraditions and sexual offences. These require the ability to understand technical nuances in the law and constitutionality, and the competency on various levels just isn't there anymore.

According to experts, there is a shocking inability to understand the intricacies involved, particularly in cases of mutual legal assistance which could be crucial in state capture cases, specifically relating to the Guptas. The new NDPP should consider putting an outside counsel on retainer for specialised cases, or developing specific units to deal with these.

The NPA's approach to sexual violence cases and crimes against women needs a full review and Batohi is perfectly placed to give this serious attention.

Read more on:    npa  |  shamila batohi  |  cyril ramaphosa  |  justice  |  state capture  |  ndpp

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