When the current National Director of Public Prosecutions (NDPP) Shamila Batohi was appointed in December 2018, the expectation was that she would clean up the National Prosecuting Authority (NPA), restore its capabilities, and fast track the prosecution of major corruption cases. After nearly six years, this has not happened.

Under Batohi’s leadership, the NPA has failed to institute and successfully prosecute a significant number of major corruption cases long identified in the forensic reports into the Passenger Rail Authority of South Africa (2017), Transnet and Eskom (2018), in the reports of the Zondo Commission (2022), and multiple reports by investigative journalists.

In several instances, these reports provided the NPA with a complete or near complete basis to issue an indictment and, where this was not so, more than enough time has elapsed to permit the commencement of prosecutions.

The disappointing performance of the NPA has encouraged impunity among criminals; it has failed to deter the spread of corruption; and it has led to a pervasive sense of despair that the state cannot (or will not) enforce the law.

So why has the NPA struggled to deliver the major prosecutions the country needs to reverse the spread of corruption and restore people’s faith in the rule of law?

Multi-pronged NPA problems

One likely cause of the slow progress is that the NPA has been hamstrung by internal divisions – Batohi has not been able to discharge certain prosecutors from the organisation, some in senior positions, who continue to advance the cause of state capture rather than carry out the constitutional mandate of the NPA.

A lack of internal capacity and funding is another likely cause of the NPA’s difficulties. It is complex and costly to investigate and prosecute corruption and organised crime.

Delays to successful prosecution are also caused by the NPA’s approach of trying to assemble all possible charges against an accused rather than finding one or two charges that are easier to prove and ensuring a successful prosecution.

It is difficult to understand why, in the context of the funding and resource challenges identified, the NPA has until recently not shown greater willingness to take up offers made by the private sector to provide legal and forensic assistance.

A principal structural deficit that has held the NPA back and is only now being addressed, was the disbanding of the Scorpions in 2009. The Scorpions were an independent multidisciplinary unit in the NPA combining investigation and prosecution capacities to successfully tackle high-level priority crimes. Its replacement, the Hawks, was placed outside the NPA under the South African Police Service and lacked capacities, resources and leadership.

The president should appoint a retired judge to conduct an inquiry into the NPA. The country needs a clearer picture of what is holding the NPA back. We are not proposing a formal commission of inquiry, but it is critical to identify the specific causes of the NPA’s lack of performance.

The judge’s inquiry must assess the leadership, performance, structure, and independence of the NPA. Recommendations should be made to the president and justice minister within eight months and tabled in Parliament within three months of receipt by the president, along with a clear plan of action.

To address funding and resource challenges, the NPA and Investigating Directorate Against Corruption (IDAC) should immediately use much greater private legal and forensic assistance to prepare and conduct prosecutions. Carefully constructed entities that ensure the continued independence of the NPA should help channel private funding to pay the legal and forensic practitioners required by the NPA and IDAC. It is essential to ensure public accountability of these entities.

A significant increase in the NPA budget is essential. The NPA is the lynchpin of the entire criminal justice system, so its effective functioning has knock-on effects throughout the system.

An executive that underfunds the NPA undermines the credibility of its commitment to dealing with corruption.

 The National Prosecuting Authority Amendment Act 2024 provides for the establishment of IDAC, which is to be composed of investigators and prosecutors. This potentially lays the foundation for the revival of the “Scorpion model”. This new entity must be made operational as soon as possible. Our support for strengthening IDAC should not, however, be seen as an alternative to a careful review of IDAC’s status as a potential Chapter 9 institution.

What the president and justice minister must do

The justice minister ought to propose to the Judge Presidents in all high courts that they establish special corruption courts, along the lines of the Gauteng commercial crimes court. Our courts are already overloaded, so these special courts should draw on retired and acting judges (senior counsel with criminal and commercial experience) to obviate delays without placing extra pressure on the ordinary work of the other courts.

The president and justice minister must publicly indicate their unconditional support for the work of the NPA – even if those charged are powerful people. This needs to be done repeatedly to remind the public (and the NPA) of their support for the NPA’s vital work.

This support must go beyond words. The president must respond to Batohi’s request made in August 2023 to suspend a director following an inquiry into this director’s fitness to hold office. Similarly, the justice minister should immediately issue an instruction to the Department of Justice to release the full archive of the Zondo Commission into state capture including its witness statements and investigation materials, so that it is available to the NPA.

The NPA’s performance since early 2019 has been disappointing, undermining law enforcement and accountability in a society where the rule of law is hanging by its fingernails.

We urgently need to remedy the NPA’s many serious shortcomings, failing which there is no prospect of turning the tide against corruption and crime.

A state must protect itself and its people from crime, especially the crimes of the powerful. Re-energising the NPA is essential to building a capable state.

Ann Bernstein is executive director of CDE. This article draws on a new CDE report, “Energise the NPA“, which is the fifth report in CDE’s Agenda 2024 series.

This article was published by News24