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Justice Minister Ronald Lamola has ordered an official inquiry into the National Prosecuting Authority’s (NPA’s) handling of the Nulane State Capture case, Daily Maverick can reveal.
Spokesperson Chrispin Phiri said on 11 May that Lamola “has directed a Section 33 inquiry to the NPA”, in light of the “concerns and very strong criticism directed at the NPA in the Nulane case”.
The NPA Act allows the Minister of Justice to “exercise his or her final responsibility over the prosecuting authority” and ask to be furnished with a report on any case. The fact that this has been pursued after the scathing Nulane judgment is an indication of the consternation surrounding the state’s handling of the case.
Justice Minister Ronald Lamola. (Photo: Ntswe Mokoena / GCIS)
The Nulane no-brainer
It was supposed to be the ultimate winnable State Capture case: one in which R25-million of public money made its way out of the bank account of the Free State Department of Agriculture and Rural Development and into the accounts of Gupta companies. But the judge presiding over the Nulane case threw it out with contempt in late April.
The NPA this week indicated its intention to appeal – but if it couldn’t get that case right, many are asking what hope there is for real criminal justice reform in South Africa.
“The Nulane case raises questions in relation to the performance of the NPA currently,” Gareth Newham from the Institute for Security Studies (ISS) told Daily Maverick this week.
The judgment handed down by Acting Judge Nompumelelo Gusha lambasted the state for “the lackadaisical manner in which this matter was investigated”, the poor quality of state witnesses, the “fundamental errors” committed by investigators, the “comedy of errors” that was the police’s search-and-seizure process, and the general ineptitude of the prosecution: the state “did not lead a single witness and/or evidence who successfully authenticated” crucial documents showing the movement of money.
As the fallout from that judgment continues to rage, accusations and counteraccusations are flying back and forth. A number of legal analysts have said that the state’s handling of the matter was clearly shambolic. Former state prosecutor Glynnis Breytenbach told the Sunday Times that she was at a loss to explain the collapse of the case because “there isn’t a prosecutor in a specialist unit who doesn’t know that you cannot just hand in documents without proving their authenticity”.
A senior legal expert who spoke to Daily Maverick this week on condition of anonymity insisted, however, that questions needed to be raised about the acting judge in the case, which was heard at the Bloemfontein High Court in the Free State.
Gusha has reportedly not presided over a criminal matter before, and some are asking how she was entrusted with such a high-profile matter under the circumstances.
Some eyebrows were also raised by the tone used by the acting judge, which included the phrase “the understatement of the millennium” – in reference to poor police performance – and the word “zilch” (in reference to the utility of the evidence presented).
The legal expert told Daily Maverick that the way the acting judge treated evidence “was palpably wrong”.
He asked: “How could the [Free State] Judge President have given this case to an acting judge?”
Yet Andrea Johnson, the head of the Investigating Directorate (ID) – the NPA unit tasked specifically with State Capture cases – acknowledged in a TV interview this week that there appeared to be “investigative shortcomings”.
The NPA this week declined to elaborate to Daily Maverick, citing the fact that the matter was going on appeal.
National Director of Public Prosecutions of the National Prosecuting Authority Advocate Shamila Batohi and President Cyril Ramaphosa during the announcement of her appointment at the Union Buildings on 4 November 2018 in Pretoria, South Africa. (Photo: Gallo Images / Netwerk24 / Felix Dlangamandla)
What’s really going on at the NPA?
When NPA head Shamila Batohi appeared before Parliament on 12 May to present the body’s performance plan, she would have expected a grilling.
With Batohi halfway through her tenure, the shine of the “New Dawn” NPA is rapidly fading. In addition to the Nulane debacle, the NPA is still licking its wounds after the Gupta extradition failure, and its recent announcement that it will not be pursuing a murder charge in the Thabo Bester case at this time has done little to allay concerns.
But Batohi was bullish before the MPs, insisting that “the narrative that the NPA is failing” was “dangerous and flawed”.
She asked: “From the acknowledgment last year that the NPA is doing very good work, overnight there is a growing narrative that the NPA is failing, and what is the basis for this about-turn?”
Batohi maintained that the NPA’s general performance cannot be judged on the failed Gupta extradition and the Nulane matter, saying: “We remain confident that the strategy of the NPA has placed us on the right path and we are seeing positive results with each passing year.”
Professor Lukas Muntingh and Dr Jean Redpath have been tracking the NPA’s performance, and remain unconvinced by its supposed regeneration. Speaking to Daily Maverick this week, Redpath said the latest available conviction numbers showed that matters had barely improved since 2019 – suggesting “systemic problems not just in the NPA but in the court system” as well.
The ISS’s Newham said that the chances of the NPA being able to play an improved role in promoting the rule of law in South Africa remained slim as long as the performance of the South African Police Service (SAPS) remained poor.
“Since 2012, despite its budget growing by 82%, [police] ability to solve murders has dropped by 55% and armed robberies by 53%,” Newham said.
“Even if we had the best-performing, most effective NPA in the world, its impact would be severely limited by a substantially underperforming SAPS and severely undercapacitated Hawks.”
In interviews with Daily Maverick this week, NPA insiders painted a picture of an organisation constantly frustrated by its lack of autonomy and resources. One noted that the NPA had “zero” capacity to do its own criminal investigations, borrowing all its investigators from the Hawks.
NPA spokesperson Bulelwa Makeke was frank about some of the challenges, telling Daily Maverick: “The bottom line is that we still don’t have all the required specialised skills we need for complex organised crime and corruption. Beyond capacity and expertise enhancement of prosecutors, we need additional resources and specialised skills to tackle State Capture cases: forensic analysts, cyber experts, etc.”
Lack of resources a familiar tune
The issues cited by Makeke are not new. The narrative of the “New Dawn” NPA has been consistently that of an organisation hollowed out by State Capture, which saw a further exodus of talented staff to the private sector.
Since taking up the reins, Batohi has sought to rebuild capacity, but has been further stymied by the Covid-19 pandemic, general lack of resources, and some tussles with the Department of Justice and the Presidency over autonomy and permanence.
The question of whether, and when, the ID will be made permanent is ongoing. President Cyril Ramaphosa promised as much in October 2022, and NPA staff seem convinced that this change of status and law could make all the difference.
“We need to strengthen the ID, expand its mandate and make it permanent. Specifically, it needs expanded investigative powers so that we can give full effect to the prosecution-led model that’s needed to succeed against complex corruption and organised crime. Similar to the erstwhile Scorpions, but with important differences based on lessons learnt,” Makeke told Daily Maverick.
The Department of Justice’s Phiri said this week that “consultative processes” on the matter were ongoing.
He added that the ID had been assigned “peace officer powers”, which enable arrest and search-and-seizure operations.
An NPA insider told Daily Maverick this week that the ID’s impermanent status made it very hard to recruit the best staff, knowing that their tenure could be limited. But the issue of staff shortages remains a big problem NPA-wide. Figures submitted to Daily Maverick show that the NPA has 994 current vacancies, of which 573 are for prosecutors and investigators, and 421 are for support staff.
Makeke said
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