ANALYSIS | No pressure, Batohi - it’s only SA’s credibility at stake
What would be the measure of success of the new National Director of Public Prosecutions (NDPP) Shamila Batohi?
Would it be the ability to blast off her term by marching high-profile crooks into the dock?
Would it be the ability of the National Prosecuting Authority (NPA) to put the perpetrators of state capture, particularly members of the Gupta family and their cohorts, behind bars?
Would it be bringing former president Jacob Zuma’s corruption case to a conclusion?
Is it building capacity to take on massive corporate corruption and fraud cases such as Steinhoff?
How about organised crime? Could the untouchables in the underworld finally be troubled and face real heat? Would arrests in the explosive VBS Bank matter show that Batohi means business and is not afraid to take on cases that result in political backlash?
Or would the ultimate test be her ability to withstand the predictable political pressure that comes with the position?
This is where her predecessors tripped up as the intersection between politics and corruption invited meddling and conflicts of interest in high-profile prosecutions. And this is the reason there had to be judicial intervention in the appointment of the NDPP.
It is a year this week since Judge President Dunstan Mlambo’s judgment that granted Cyril Ramaphosa, then deputy president, the power to appoint the NDPP.
The landmark judgment shifted the power away from the former president because the North Gauteng High Court believed Zuma was conflicted and compromised, and therefore could not be trusted with the responsibility.
In handing down judgment declaring the removal of the former prosecutions head Mxolisi Nxasana invalid, Mlambo said: “In our view President Zuma would be clearly conflicted in appointing an NDPP considering the background of this case and the spectre of allegations against him.”
Mlambo gave Ramaphosa two months to make the appointment.
Now, a year later, following the Constitutional Court’s pronouncement on the matter and a public interview process of 11 candidates, Ramaphosa finally announced Batohi as the new head of the NPA.
More than the appointments in his cabinet and the presidency, Ramaphosa was particularly mindful of the stakes involved in the NDPP position.
Next to the expectations on him when he became president in February, the pressure on the new NDPP is intense.
She has a massive “to-do list” with numerous high-profile criminal cases left untouched. And because the NPA has not been functional for about 10 years, it will be difficult for Batohi to hit the ground running to tackle the backlog of cases.
The danger of pulling the trigger too quickly on complex cases that have not been properly prepared or that were interfered with is that they could collapse when they go to court.
So Batohi must ensure that public pressure to show swift, demonstrable action against crime and corruption be balanced with properly investigated cases that result in successful prosecutions.
But the political pressure on this NDPP is arguably substantially higher now than on others who occupied the post.
The burden of the Zuma prosecution remains prevalent, even with him out of office, with some of his supporters still angling for a political solution to the matter. Zuma’s sympathisers, some of whom are in leadership positions in the ANC and government, believe that he ought to spend his twilight years without the threat of jail time hanging over him, and are therefore rallying behind his application for a permanent stay of prosecution.
The picture of Zuma sitting bent over and forlorn in the dock in the Pietermaritzburg High Court last week has been circulated to evoke sympathy. The longer the case drags on, the more pitiable a figure Zuma will become. The other big test will be the state capture cases, which might already be contaminated by political interference and deliberate sabotage of the investigations.
There is no doubt that the Gupta brothers enjoyed special protection from investigation and prosecution during their heyday of controlling the state.
It has also been alleged that they were tipped off that the Hawks were to raid their Saxonwold compound in February and they were therefore able to flee the country while South Africans were led to believe that the authorities were finally in pursuit of them.
The Guptas’ legal strategy is to paint them as victims of harassment from the law-enforcement agencies, which their lawyers say prohibits their return to SA to defend themselves at the Zondo commission.
As evident from the proceedings of the commission, piecing together the events and mechanisms of state capture is no easy task. This will be even more difficult for prosecutorial purposes.
It would therefore be advisable for the new NDPP to assign special prosecutors on state capture to ensure that there is dedicated and specialised focus to bring the perpetrators to justice and recover the billions looted from the state.
But corruption is not only centred on the Zumas and the Guptas. The NPA cannot be seen to be consumed with these cases, although there is immense pressure to get them right.
A team from the NPA and the Hawks is already working on the VBS Bank case, and should already have cases ready to go to court. There is also evidence of money laundering involving high-profile politicians, which will be highly explosive once they are charged.
There will be robust attempts to direct the focus of attention away from these cases, and it will take resilience from Batohi not to be distracted by the noise. The NPA also has to show that private-sector corruption will be taken seriously, and that top prosecutors will pursue corporate criminals as vigorously as they do the political high fliers.
SA is steeped in criminality and there are many crooked and compromised people who are willing the new NDPP to crash and fail.
Batohi has a massive burden to carry. Her performance will determine the credibility of the criminal justice system and the ability of the country to emerge from an era of lawlessness and disrespect for the rule of law...