Publications
The pressure on National Director of Public Prosecutions Shamila Batohi is increasing daily.
The National Prosecuting Authority (NPA) has yet to act on any of the big state capture-related cases, which include Estina, Eskom, the Passenger Rail Agency of SA and Transnet.
It has been unable to make decisions around Julius Malema and On-Point Engineering, nor has a decision been taken on Malema's seeming discharge of a firearm at a political rally.
This, despite the large amounts of evidence in the public domain and in possession of investigators and forensic law firms about how money was funnelled from the Free State provincial government to the Guptas, the looting at Eskom, the billions lost through the corrupt train tender process and how Transnet was repurposed to serve the capture network. And, despite a report by the Public Protector into On-Point and Malema as well as footage of him allegedly firing off a live round into the sky.
Adriaan Basson: Connecting the dots of the Zupta fightback
The public is getting restless, investors are skittish and diplomats' questions are more pressing. And some believe Batohi is becoming increasingly frustrated, if not despondent.
What is happening?
Part of Batohi's problem is her disjointed and disfigured senior leadership and management team.
Besides the host of vacant positions and the various senior managers in acting positions, she is dealing with the remnants of the years of divide and rule under former NPA boss Shaun Abrahams. Nomgcobo Jiba and Lawrence Mrwebi – who governed the institution almost by decree – have left an ugly mark.
The national director has been struggling to unite the fractured organisation and has travelled the length and breadth of the country to sell her vision for the NPA. But there has been notable opposition to her efforts, with a number of senior staff maintaining their loyalty to Jiba, who some believe has been unfairly targeted and has been made a scapegoat for the organisation's struggles.
She's also started to decentralise the functions of unit, such as the specialised commercial crimes unit to regional offices, which has had the effect of breaking up "monopolies" on power which was so prevalent in the Abrahams/Jiba years.
This has also led to dissent, with resistance from those who once wielded enormous influence at the NPA's Silverton headquarters.
Batohi is battling to establish a "kitchen cabinet" of sorts, a close circle of confidantes consisting of senior managers or deputies that she can use for professional support.
She's appointed advocate Hermione Cronje as the head of the new Investigative Directorate, and Cronje is clearly someone the national director trusts implicitly, but she has her own battles to fight – and probably realises how much Batohi is relying on her crack unit to break open the first case. The pressure on her, therefore, is also immense.
Of the four deputy national directors, only advocate Nomvula Mokhatla (legal affairs) is permanent. Willie Hofmeyr (the Asset Forfeiture Unit) will be retiring within weeks, advocate Sibingile Mzinyathi is acting head of the national prosecutions service and advocate Silas Ramaite (head of administration and the witness protection programme) has agreed to take early leave.
All three special directors of public prosecutions, which include the heads of the special commercial crime unit, priority crimes litigation unit and the sexual offences unit, are acting.
Of the 11 provincial directors of public prosecutions (Gauteng and the Eastern Cape both have two), six are acting.
Apart from Cronje, Batohi has not yet appointed anyone that she wants or trusts in any of those senior and crucially important positions. Among her immediate supports – the deputies – she has three vacancies and one incumbent she doesn't know very well. And there are some notable Jiba loyalists among the cohort of provincial DPPs.
READ: Less talk and more action, vows NPA boss Batohi
But while South Africans are waiting for the first major announcement from the NPA about high-profile investigations or arrests, it's not as if there hasn't been notable changes. Both Jiba and Mrwebi have been dismissed on the strength of the Mokgoro inquiry into their fitness for office, and it is understood Ramaite was made to understand that his future was limited.
That has opened up the deputies to a total reconfiguration of which the appointment of a head of the national prosecutions service (NPS) is the most pressing.
The NPS is by far the most crucial appointment she will make because whoever runs that division is in charge of the prosecutions service – basically all public prosecutors. Mzinyathi, although seemingly well regarded by Batohi, comes with enormous baggage from his years under Mrwebi, who was involved in the quashing of a number of high-profile cases, including the dropping of murder charges against former Crime Intelligence head Richard Mdluli.
It is absolutely crucial that Batohi expedites the appointment of the NPS head because it will signal that tangible progress is being made in the absence of major prosecutions.
She is also in dire need of someone to run the operations and logistics side of the NPA. If she is freed from having to concern herself with budgeting, human resources and other pieces of administration, it will enable her to focus on case management – who to prosecute, how to conduct investigations and when to lay charges. That should be Batohi's beat.
If she can manage to appoint a respected and efficient head of the NPS and a chief executive, she'll be able to move on to other similarly crucial appointments, like the six vacant provincial DPPs.
Among the six permanent DPPs two might prove to be problematic: advocates Andrew Chauke (South Gauteng) and Moipone Noko (North West). Both are considered staunch Jiba loyalists and questions have been asked of both over seemingly political motivated decisions.
Chauke decided not to prosecute politically connected Mdluli on a charge of murder and a number of related charges in 2012, and only later reinstated some charges after intervention from Freedom Under Law. Mdluli's eventual conviction recently, on a range of charges (but not murder), was hailed by the NPA as a victory for justice. Chauke's name also cropped up in the state capture commission of inquiry in a recording in which former Bosasa boss Gavin Watson identifies him and Jiba as possible replacements for then NDPP Mxolisi Nxasana – which raises questions about his proximity to someone as corrupted as Watson.
Noko's reputation was tarnished with Batohi's decision to drop racketeering charges against former Hawks general Johan Booysen. She insisted on charging him and others with, among other things racketeering and murder. The murder charges have now been referred back to the acting DPP in Pietermaritzburg. Her name also came up at the Mokgoro inquiry while questions have also been asked about decisions to drop charges against powerful regional ANC politicians in KwaZulu-Natal, Peggy Nkonyeni and Mike Mabuyakhulu.
Removing them from their positions through an inquiry into their fitness for office, while simultaneously making senior appointments, will be difficult. But it will signal an intent from Batohi to remove politically tainted individuals and replace them with career prosecutors whose only interest is the administration of justice.
It will be difficult to move on individuals entrenched in their positions and holding to power. But Batohi came back from The Hague to repair the NPA and to restore the integrity of the prosecutions service.
She didn't come back to win a popularity contest.
