The performance of the National Prosecuting Authority (NPA) had not been as dismal as presented by the Centre for Development and Enterprise (CDE) in a report on how to energise the organisation, Ahmed Kathrada Foundation executive director Neeshan Balton said during a panel discussion on Thursday.
But retired former Constitutional Court judge Johann Kriegler said while the prosecution service did a good job generally it had not performed well in high-profile political cases. CDE executive director Ann Bernstein noted not one high-profile politician responsible for state capture had been successfully prosecuted and questioned whether there was the political will for this.
The CDE report released this week urged President Cyril Ramaphosa to urgently appoint a retired judge to conduct an inquiry into the NPA because of its weaknesses and failure to successfully prosecute major corruption cases.
Bernstein said the NPA national director of public prosecutions Shamila Batohi had failed to restore the capabilities of the organisation and fast track the prosecution of major corruption cases in her six years in office. There was widespread dissatisfaction with the NPA’s performance, she said.
Unless the pervasive corruption was dealt with the state could not be fixed and if this could not be done SA would not be able to get out of its current crisis, Bernstein said.
Kriegler traced the history of destruction of the NPA during the state capture years and the political interference in its operations and said the institution had lost a vital sense of cohesion and joint responsibility for the deliverance of justice.
“It requires not only leadership from within but a great deal of political support from without,” Kriegler said.
Balton called for a more balanced assessment of the NPA. Quoting from the NPA’s 2023/24 annual report, he noted that there had been positive outcomes such as 117 state capture cases against 68 entities involving 212 accused being authorised by the NPA’s Independent Directorate with 78 of them under investigation and 39 cases enrolled.
In her foreword to the report, Batohi said that over the past five years nearly 700 government officials and more than 1,000 private sector individuals had been convicted for corruption. There were more than 900,000 criminal matters finalised last year. All this Balton said indicated progress.
The NPA, he noted, had not backed down in its case against former president Jacob Zuma who is charged with corruption, racketeering, fraud, tax evasion and money laundering and against former speaker of the National Assembly Nosiviwe Mapisa-Nqakula who faced a charge of corruption. “There are high-profile cases,” Balton insisted.
Bernstein said the question was not the volume of prosecutions but the prosecution of the big fish involved in state capture. “The NPA has failed to institute and successfully prosecute a significant number of major corruption cases.”
Balton urged that the process of finding a replacement for Batohi, whose term ends at end-January 2026, should begin now, perhaps replicating the process of appointing a SA Revenue Service commissioner where a panel draws up a shortlist. “We should not get caught up in a rushed process,” he said.
He also believed that the NPA should be in full control of its own budget and human resources rather than falling under the department of justice and should report directly to parliament.
Balton did, however, agree with the CDE recommendation that a review of the NPA be undertaken.
UCT emeritus law professor Halton Cheadle, who co-authored the CDE report, spoke on one of the report’s recommendations that special corruption courts be established to expedite prosecutions, saying that it was within the jurisdiction of judge presidents to set up specialist courts.
He also pointed out that some of the successes in high-profile prosecutions such as Steinhoff and VBS Mutual Bank were the result of public-private participation which the CDE recommended should be pursued further by the NPA. Organised business had already set up entities to financially assist the NPA with forensic and legal expertise, Cheadle said.
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