NPA's series of legal bungles undermines public confidence in SA's justice system

Daily Maverick

3 days ago

There is a well-known, albeit facetious, saying in legal circles in the United States of America that underscores the ease with which prosecutors can obtain indictments from grand juries: 'A grand jury would indict a ham sandwich.'
While one might accuse National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi of a litany of missteps, the one charge that could never justifiably be levelled against her is that she has lived up to the expectations of her office since her appointment six years ago. Let me explain.
Having assumed her role as head of the National Prosecuting Authority (NPA) amid much fanfare and soaring expectations, Batohi's palpable urgency to atone for the prosecutorial authority's past and current failings is unmistakable.
Yet, her tenure has been marked by a series of high-profile and, some would argue, spectacular missteps — ranging from the bungled prosecutions of the Gupta brothers, Matshela Koko and Timothy Omotoso, to the recent handling of allegations against Moroadi Cholota in the ongoing corruption case involving former Free State Premier Ace Magashule.
Collectively, these failings have arguably inflicted greater damage on the credibility of the NPA and the rule of law than the cumulative legacy of all her predecessors.
Were it not for the grave consequences of judicial rebukes in response to the NPA's prosecutorial blunders, one might be forgiven for mistaking the NPA for a travelling act worthy of challenging the Boswell Wilkie Circus. However, unlike a circus — whose purpose is to entertain — the NPA is a constitutionally empowered institution entrusted with the solemn duty of advancing justice, upholding the rule of law and prosecuting crime without fear, favour or prejudice.
That such an institution should repeatedly find itself the subject of judicial reprimand is not merely embarrassing — it undermines public confidence in the justice system itself.
One could hardly blame discerning observers for believing that, under Batohi's tenure, failure is not merely tolerated but has become an aspirational key performance indicator.
Cholota, who stood as a co-accused alongside her former boss, Magashule, and 16 others, challenged the lawfulness of her extradition from the United States last year — and, by extension, the court's jurisdiction to prosecute her.
In its ruling, the court relied on a precedent established by the Supreme Court of Appeal (SCA) in a judgment handed down in 2023.
That judgment held, in essence, that the legal authority to initiate an extradition request resides with the minister of justice — not the NPA — despite the NPA having routinely made such requests over the past three decades.
It was both disheartening and troubling to witness NPA spokesperson Mthunzi Mhaga attributing the institution's prosecutorial failures to the vast financial resources available to State Capture architects and other wealthy criminally accused individuals — resources, he argued, being used strategically to frustrate and delay their prosecution.
While the challenge posed by well-resourced defendants is real, such assertions ring hollow in light of the judiciary's own findings.
In his damning ruling, Justice Phillip Loubser did not merely express concern; he unequivocally excoriated the NPA for its conduct in the matter. He found that the NPA had played fast and loose with the truth in its hasty and procedurally flawed attempt to secure Cholota's extradition.
The judgment laid bare a deeper institutional malaise: not simply a matter of being outgunned by wealthy adversaries, but one of poor preparation, disregard for legal procedure and a troubling erosion of prosecutorial integrity.
If ineptitude is the defining hallmark of the NPA under Batohi's leadership, then profound disappointment has become the enduring emblem for the countless victims of serious crime in our society — victims left disillusioned by a prosecutorial authority seemingly adrift in its constitutional mandate.
With less than a year remaining before Batohi's fixed term as NDPP comes to an end, there is no gainsaying the reality that the unresolved prosecutions of the Guptas, Koko, Omotoso and others — each emblematic of the NPA's faltering pursuit of justice — are likely to persist long after her departure.
These high-profile matters, burdened by delays, procedural missteps and institutional dysfunction, have come to symbolise the authority's inability to translate public expectations into prosecutorial outcomes.
Indeed, a defining feature of Batohi's tenure will not be prosecutorial triumphs, but rather the steady drumbeat of judicial excoriations — pointed and public rebukes that have laid bare the NPA's chronic inefficiencies and, at times, apparent disregard for legal standards.
As the nation reflects on her legacy, what will remain is a prosecuting authority still in search of credibility, and a public whose faith in the justice system has been further eroded by yet another era of unfulfilled promise.
Such prosecutorial recklessness, particularly when juxtaposed with its consistent failure to hold wealthy and politically connected individuals to account, has not only emboldened the accused but has also critically weakened the institution itself.
In medical terms, the result would resemble septicaemia: a toxic, self-inflicted infection coursing through the prosecutorial bloodstream — threatening institutional paralysis and, in extreme cases, death. DM