NPA boss Shamila Batohi was on Tuesday grilled about, among other things, the ineffectiveness of the prosecuting authority to successfully prosecute big fish in financial crimes.
She and her SIU and Hawks counterparts were appearing before the Standing Committee on Public Accounts (Scopa) portfolio committee in parliament.
Batohi hopped from one excuse to the next about why the NPA was failing under her stewardship. She submitted that the body was suffocated by its dependence on the national executive.
Limited independence
According to her, the NPA was among many prosecuting authorities in the world that are accountable to the executive. Thus limiting their independence.
She followed in the footsteps of NPA consultant and former Zondo Commission head of evidence leaders, Advocate Paul Pretorius SC, who this week called for an independent NPA.
The Business Day on Monday reported that Pretorius said: “The law enforcement agencies cannot be controlled by the very executive that might have to be subject to the investigation. And that is the position today.”
Batohi concurs, because she repeated the same sentiments before Scopa. This pushed her against the wall on inefficiencies of the NPA.
“A chapter nine institution does not necessarily guarantee true independence. …In very few countries in the world, a prosecuting authority is not in someway accountable to the executive,” she said.
“The Glenister decision had said that you must have a sufficient degree of independence. Perhaps the one aspect where a chapter nine institution is stronger in terms of independence is … that you can remove its head by a two thirds majority in parliament. [This is] where a head of the NPA is a simple majority after any process that the president wants to put in place.
NDPP appointment processes
“There needs to be a strong focus on the financial and operational independence of the NPA. And look at how the NDPP is appointed but not just the NDPP.”
Batohi said it was problematic that the NDPP, deputy NDDPs and the provincial DPPs were all appointed by the president.
In addition to this being too much power in the hands of the executive, Justice minister appoints deputy directors. This refers to deputy directors of public prosecutions in provinces. Those who are involved in the actual handling of cases, were also appointed by the .
“That must be looked at. There has to be legislative amendments that address the appointment processes. These are things that parliament must look at to strengthen the independence of the NPA.”
Batohi gave another excuse on why NPA was not catching big fish. She said this was because the prima facie case was not good enough to go ahead and prosecute.
In her view, every case had to pass the “reasonable prospects for success” master. And this is the case before the NPA can safely believe that it has a winnable case.
“We will enrol a case when it meets a standard of a reasonable prospect for a successful prosecution. And that is the highest standard than prima facie. Prima facie is when someone says so. For instance, in the Zondo Commission, there is a lot of prima facie evidence. Where someone just comes and says this is what happened. But you then need to make sure you have corroborating evidence that supports that,” said Batohi.
Prima facie evidence
She was adamant that prima facie evidence was too weak for a successful prosecution. This was because mostly it can be hearsay from one individual.
Batohi was further pressed on why the NPA was mostly failing in financial crimes. She said the prosecuting authority did not have enough financial investigators. This as those it had were always looking for greener pastures because of NPA’s poor pay.
As an example, she said eight financial investigators had left NPA for SIU recently. This was because at NPA they were getting paid in the region of R350K per annum. But SIU offered to pay them R1-million per annum.
Many NPA investigators were leaving for the private sector due to poverty in the public sector, she added.
Batohi is under pressure after she was appointed amidst much fanfare. She was the person who was going to jail the so-called state capture perpetrators.
State capture big fish still untouched
But more than five years later, she has little to nothing to show for it. With cases of state-capture big fish such as former Eskom executive Matshela Koko having been thrown out of court.
Recently, the NPA was left with egg on its face. This was after Gauteng DPP director Advocate Andrew Chauke refused to prosecute ANC NEC member Zizi Kodwa. Kodwa was charged with alleged state capture crimes.
