What is going on between administrators in the justice department and the National Prosecuting Authority (NPA)?
President Cyril Ramaphosa agreed last week that the NPA should have unfettered access to the evidence accumulated by the state capture commission, commonly known as the “Zondo archives”, saying for the authority to be effective it “should have access to sources of evidence that they can tap into.
“The nation paid a lot of money to get that information on the table and their files and therefore there is no reason they should not have access. What the people of SA want is to see justice done and they want to see a follow-up on the state capture commission processes. Therefore, we need to empower and enable the national prosecuting agency to be able to have that information and be able to follow up cases.”
The nation paid a lot of money to get that information on the table and their files and therefore there is no reason why they should not have access.
— President Cyril Ramaphosa
Yet NPA head Shamila Batohi recently told parliament that the authority’s access to the archives was being restricted by the justice department.
After Ramaphosa’s briefing, justice director-general Doc Mashabane seemingly contradicted the president in an interview with Sunday Times, implying that the NPA should not have unfettered access to the archive. It was his job “to control their access”, he said. It is clear that administrators in the justice department either did not get the president’s memo, or Ramaphosa is speaking with a forked tongue.
The saga around documentary and electronic archives belonging to the Zondo commission has been running for about four years. Initially it was agreed that the archives would reside with the NPA’s Investigating Directorate (ID). This made sense, since part of its mandate was to bring state capture cases to court and prosecute them.
However, the government changed its mind and the justice department became the repository for these archives under former minister Ronald Lamola. Mashabane told Sunday Times that the ministry has never denied a request for information to the NPA, but Business Day understands that this is untrue.
What the people of SA want is to see justice done.
— President Cyril Ramaphosa
Two requests were denied, one for bank records and another on the basis that the information requested was “not relied on” when Zondo made his final conclusions and recommendations, according to senior sources who wished to remain anonymous.
Another source said the department’s conduct is probably unlawful, specifically when requests are made under Section 71 of the Prevention of Organised Crime Act, which provides the NPA head with far-reaching powers over access to information from government departments.
It is difficult not to conclude that the ID and the NPA’s work is being deliberately managed by the government, and the Sunday Times interview with Mashabane provided a clue as to what could be behind it all. He told Chris Barron that Zondo “mentioned specific names and said ‘go investigate and prosecute these people’. What is strange is they’re not asking for more information about those (names)... They have to be careful not to restart the Zondo commission with millions and millions of pages of documents,” he said.
Complicating matters is a new narrative that is emerging, which appears to suggest that the NPA is pursuing justice minister Thembi Simelane over the VBS Mutual Bank matter, to put pressure on her over the archives. EFF leader Julius Malema said so bluntly in an SABC interview this week, and it is understood that the minister herself has suggested this.
It is a convenient narrative for someone who has been politically compromised and not very original in the context of SA politics. Former president Jacob Zuma turned the persecution argument into a fine art. Still, it is yet another complication in the NPA’s quest for access to the Zondo archive.
Connecting the dots leads one to assume that the ANC component of the government does not want to be taken by surprise by any further scandals, which could be uncovered if the NPA is afforded unfettered access to the archives.
According to the justice ministry’s own account it does not know precisely what is contained in the millions of pages of documents locked behind numerous doors. For prosecutors it is a treasure trove of potential cases; for implicated politicians it is potentially a career-limiting tinder box waiting to explode.
It also poses a stark political risk for the ANC, especially given its electoral vulnerability going into the 2026 local election and the 2029 election beyond that. So much for reform of the state. In the end political survival will always trump true renewal.
• Marrian is Business Day editor at large.
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