Advocate Shamila Batohi speaks at a private sector symposium against gender-based violence and femicide. file photo
The Center for Development and Enterprise (CDE) on Thursday called on President Cyril Ramaphosa to appoint a retired judge to head an urgent independent inquiry into the National Prosecuting Authority (NPA).
The investigation aims to confront the devastating effects of poor performance and state capture that have crippled prosecutorial institutions and stalled high-profile corruption cases.
Anne Bernstein, executive director of the CDE, said the investigation should not take the form of a “formal commission of inquiry” but rather a focused investigation to uncover the specific reasons behind the NPA's poor performance. said it should be.
Bernstein was speaking at the launch of the CDE's “Reinvigorating the NPA'' report, part 5 of a series on the new government's priorities for national unity in South Africa, and said the study strengthens the agency's effectiveness. It said it aims to provide recommendations on how to do so.
“The investigation must assess the NPA's leadership, structure, and independence,” Bernstein said, adding that it is important to pinpoint the obstacles that impede prosecutors' work, especially in high-profile corruption cases. He added.
He said an important aspect of the investigation is to provide guidance to courts on dealing with “Stalingrad tactics,” or legal methods used by high-profile defendants to delay trials.
Bernstein said the slow and erratic prosecution of widely publicized corruption cases is undermining democracy and facilitating the diversion of state resources.
The NPA's “disappointing'' track record fostered impunity for criminals and failed to stem widespread corruption.
Bernstein said there was constant talk of “rebuilding the nation”, including input from Ramaphosa. “But we cannot fix the country until we prosecute the corrupt.”
Ramaphosa signed the National Prosecuting Authority Amendment Bill in May.
The bill was gazetted in August, and the then five-year Directorate of Inquiry, established by presidential decree to investigate the Zondo commission case, was a prosecutor-led agency focused on complex, high-profile corruption cases. permission to become a permanent institution.
Currently, the Anti-Corruption Investigation Department (IDAC) is based within the NPA. IDAC is seen as an effort to revive the organization, which was successful in fighting corruption after it was disbanded by the ANC in 2009, and pick up where the Scorpions left off.
However, IDAC is not yet fully operational, and concerns remain about its independence and effectiveness. Although the Scorpions were staffed with experienced senior prosecutors and investigators, it remains to be seen what the skill and experience level of IDAC staff will be.
Bernstein said the CDE report recommended that the immediate focus be on IDAC's operations and “effectively staffing it with the best possible personnel.”
IDAC's status as a potential Chapter 9 institution also required careful consideration by the Minister of Justice and Congress.
When Shamila Batohi was appointed NPA chief in 2018, there were “huge expectations for revitalization,” Bernstein said. However, the NPA's performance was “overall disappointing” when the number of prosecutions in priority areas was judged against the scale of looting revealed by the Zondo commission and media investigations.
Batohi's term ends in January 2026, along with his two deputy members.
Bernstein said possible reasons for NPA's poor performance from 2019 to 2024 include internal divisions, lack of capacity and funding.
Batohi himself said that the National Police Agency's investigative and prosecution capabilities have been hollowed out, with a lack of experienced prosecutors and forensic technology.
Asked about the slow progress in prosecuting corrupt NPA officials, former ID chief Hermione Cronje said that, while it was happening, it was happening “while the ship was being repaired”. said.
Mr Cronje said at the time: “This is a tough job because the ship is so broken down. It's not just broken down, it's rotten in places and there are saboteurs around to undo the work we're doing. ”
Bernstein said it was easy to blame the NPA leadership and questioned whether there was enough political support for the group.
Former Constitutional Court judge Johan Kriegler, who was also a member of Thursday's committee, said the country's prosecutorial service is crucial to the administration of justice and that state prosecutors are part of a professional body that is extremely sensitive to internal and external influences. He said that there is. “It's a responsible profession, but it's also a vulnerable profession,” he said.
“Unless IDAC is able to cope with political pressure, the agency will not function.”
Regarding making IDAC a Chapter 9 institution, Kriegler said it would be a “great idea, ideal and desirable,” but not required.
“Ultimately, the independence of a facility depends on the people who can create it, maintain it, and staff it.”
The Judiciary Committee is the best example of this, he said. “The courts should be, can be, and have very independent functions, but they have been subject to all kinds of political whims for many years, and their ultimate goal of appointing and removing judges is It’s dysfunctional.”
He said whether the institution is set on the right or wrong track depends on the quality of the person who leads it.
Regarding the Stalingrad tactic used by high-profile defendants, he said the term Stalingrad was a misnomer and was simply an abuse of the court process. It was up to individual judges to make clear that the rules were there to be exploited, not abused.
“The entire judicial system is meant to uphold the decisions of individual justices to say, “We're not going to play games in this courtroom, let's get down to business, and we're not going to get involved in this petty nonsense.''