Supreme Court of Appeal's verdict on Nulane case exposes flaws in prosecution and judicial oversight

Daily Maverick

4 hours ago

The performance of the National Prosecuting Authority (NPA) has been a longstanding point of concern, with criticisms focusing particularly on the lack of successful prosecutions in cases arising from the era of State Capture.
The implications of failings in the NPA, and the resultant lack of public confidence in the justice system, have serious implications for the rule of law. Political parties have frequently made calls for the resignation of the National Director of Public Prosecutions, advocate Shamila Batohi, despite her tenure coming to an end in 2026.
One of the headline cases cited to demonstrate the shortcomings of the NPA is the so-called Nulane case. Multiple accused were tried in the Free State Division of the High Court but were discharged under section 174 of the Criminal Procedure Act. This provision allows for an accused to be found not guilty if there is no evidence at the end of the State's case on which the accused could be convicted.
The State reserved several questions of law (a procedure that provides for the very limited circumstances under which the State may effectively appeal in criminal cases), and the Supreme Court of Appeal (SCA) has now handed down a judgment that has significant implications for the justice system in general.
The case arose from a public-private partnership that had been intended to generate income through farming, manufacturing, and infrastructure expansion in rural areas of the Free State. Prosecutors alleged that a process followed where public funds were fraudulently extracted from the Free State Department of Agriculture and Rural Development, with funds being laundered through various Gupta-associated companies.
No tender process
Nulane Investments was appointed, without a tender process, to conduct due diligence and feasibility studies relating to the scheme. But the evidence was that it did not render services to the department, instead subcontracting the services at a cost of just over R1-million, while receiving almost R25-million.
Several accused were charged with offences of contravening the Public Finance Management Act, fraud, and money laundering, only to be discharged by the high court.
The SCA, however, decided most of the reserved questions of law in favour of the State. It found that the judge in the high court had made the 'disturbing finding' that had been 'central to the entire case' that the State's case had been 'abortive from the start' due to shortcomings in the authentication of key documents.
The judge, the SCA found, had failed to look at the totality of the evidence, and had 'closed her mind to the evidence adduced by the State'.
The shortcomings in the high court's judgment continued. The SCA found that the judge had applied the wrong legal test in applying the common purpose doctrine; admitted documents into evidence and then ruled them inadmissible; misapplied the rules on the admission of documentary evidence; and misinterpreted and misapplied key provisions of the Criminal Procedure Act.
The SCA found the acquittal on one of the counts of fraud 'baffling' and was unequivocal in concluding that the high court had 'made numerous errors of law that resulted in the acquittal of the respondents'.
As the SCA points out, the offences in question involved the misuse of public funds that subverted the aims of the project, which undermined 'the functionality of democratic institutions' and endangered the rule of law.
The trial in the high court constituted 'a failure of justice' that 'erodes public confidence in the criminal justice system'. The SCA ordered that the accused could be retried for the offences of which the high court had acquitted them.
The case provides some degree of vindication for the embattled NPA, although there remain several other cases where questions have been raised about the effectiveness of its prosecutions.
Just one example is the recent decision, again from the Free State, where the high court ruled that the extradition of former Free State premier Ace Magashule's former personal assistant, Moroadi Cholota, from the United States was unlawful. Cholota and Magashule are among those accused of fraud and corruption relating to a R255-million contract for the removal of asbestos roofs in the townships in the Free State.
And it of course remains to be seen how the State's case will fare as and when the Nulane trial resumes.
Role of the judiciary
But the SCA's findings do shift attention on to the role of the judiciary. Thus far, judges have largely escaped criticism for prosecutorial failures, which have largely been attributed to failures by the NPA and the police.
The SCA's scathing findings about the high court judgment raise serious questions about the judge's handling of the case, and invite scrutiny of the role of judges in these cases.
An intriguing element of the context to these cases was a previous request by the Free State Director of Public Prosecutions for the asbestos case to be heard by a judge from outside the province. The request was rejected by the leadership of the Free State High Court, but the SCA decision in the Nulane case may reawaken questions about the allocation of judges to hear these cases.
This is particularly so since the high court judge in Nulane, who came in for such criticism by the SCA, was an acting judge. The SCA's finding revives concerns that such a high profile case should rather have been presided over by a permanent, and, by implication, more experienced judge.
The use of acting judges is a regular feature of the South African judicial system, and many of our high courts would be unable to deal with their vast caseloads without the support of acting judges.
But the Nulane decision provides a salutary reminder that the allocation of judges to such cases is a highly consequential decision, and one that will no doubt be carefully considered as and when the case resumes. DM