ANALYSIS: The pressure is on for Shamila Batohi: Why the NPA cannot afford a false dawn
On Tuesday afternoon, at 14:00, senior staff at the National Prosecuting Authority's (NPA) head office in Silverton piled into the waiting room at the national director's office and huddled around the television screen. They were gathering to hear which of the five shortlisted candidates would be announced as the new occupant of that very room, deep in the bowels of the Victoria and Griffiths Mxenge (VGM) building which in a previous incarnation was an SABC broadcast studio.
The national director's office is positioned in a separate wing which requires special security access. Some of the staff perched themselves on the arms of the mustard coloured sofa while others sat back sipping on cooldrinks.
When President Cyril Ramaphosa announced Shamila Batohi as the new National Director of Public Prosecutions (NDPP), there was little surprise in that waiting room. It was as if most already knew it was her. She was the frontrunner from the outset given that she has internal experience as the former director in KwaZulu-Natal and spent ten years at the International Criminal Court (ICC).
The announcement was met by hope from those sitting in Batohi's new office but also from those prosecutors waiting for the news in courtrooms across the country. And hope is what the employees of the NPA need now more than ever. They have watched as five different permanent NDPPs passed through that office in the VGM building since 1994 and not one was able to finish their full term, as politics and meddling intervened. This time seemed different though.
They listened as Adv Batohi spoke directly to them through the TV screen from the Union Buildings across town, stirring up support, reminding her staff why they do what they do.
"Noble is the lot of a civil servant! Prosecutors everywhere – the lawyers for the people that you are – know that today you have the NDPP behind you, as long as you never sacrifice those ideals. Let this support extend to every corridor a prosecutor might tread upon, the turn of every door she might pass through and the creak of benches in courts across the land. Today, your NDPP stands with you, and together we stand for Justice and the Nation."
Batohi and the NPA staff listening to her are under no illusions about the crippling credibility crisis that has beset the organisation – the political interference, the prosecuting with ulterior motives, the pushing out of prosecutors and the failure to seek justice without fear or favour. During her interview for the position, she described the NPA as a house on fire. Others have blatantly said it is a broken organisation that has been captured. This is mostly true.
Prosecutors not being used optimally
At the highest echelons where the hand of politics has been at play in high profile cases around corruption and state capture, the collapse is most evident. But on the coalface, in the courtrooms of the country, the wheels of justice are still turning regardless of how slowly. Prosecutions are happening, between the postponements.
"Personally, I don't think it's broken," says one hardworking senior prosecutor. "The NPA is, after all, primarily constituted by lower ranking officials and those are the people doing the grind and really serving the public day in and day out. It's actually the regional and district court staff who carry the bulk of the case load and interact daily with the people. I think most prosecutors find it insulting that it is said the NPA is broken. Especially because we are working harder than before due to staff shortages. The general public actually has no clue how hard we work. I work many a night at home and we don't get overtime pay. There have been times that I have worked at home till 02:00 and been at work at 08:00 and it has gone on like that for days."
However, there are still fundamental problems. The freezing of posts has had a detrimental knock-on effect on staffing and resources. There is a fortune of vacancies that have not been filled and as a result, there are staff shortages. Compounding that is the fact that those prosecutors who are employed are not necessarily being used to their optimum capacity. Some have been sidelined while others are just in the wrong place. As an example, one of the country's best commercial crimes prosecutors, Billy Downer, spent years on the fringes before being brought back to try Jacob Zuma.
"Those who go to court are exhausted, mentally exhausted. Do I take a decision or not? Will I be called to justify my decision? Will I get 'klapped' by the court if my decision was wrong? People have gotten tired. They have mental fatigue. They're despondent," another senior prosecutor tells me.
Sexual offence cases suffering
The area where citizens are perhaps feeling this most is around sexual offences cases. There are more cases involving sexual crimes than any other crime annually – for this reason there should be two prosecutors in each of these specialised courts but because of understaffing there is usually only one. This means that victims are not properly consulted with or given enough time and the result is that the best possible evidence isn't taken to court.
Prosecutors' performance indicators are also impacted by conviction rates – the practical effect of that is that cases that aren't open and shut winnable aren't even placed on the roll or they are withdrawn before going to trial. According to experts, only 6% of sexual violence cases opened result in convictions. If that is most citizens' experience of the justice system, then it is failing.
Top management needs a reshuffle
Sure, the grindstone is where the general public encounters the NPA, but when it comes to perceptions, it's the conduct of the top management that will require the most attention.
"Upper management just needs a kick in the pants," says a senior prosecutor candidly about the bosses. "She has to reshuffle. Most of us don't even know who does state capture cases, we don't know if anyone even looks at VBS or Bosasa. They're not using the right people. There are people with vast experience in financial crimes and they are not utilised."
Adv Batohi's task is a mammoth one and Ramaphosa would have known that as he made, arguably, his most important appointment as president. Since he has come into the Union Buildings, the new broom has swept clean in the criminal justice system as the effects of state capture have been slowly cleared out. He has attempted to reclaim every law enforcement agency that was eviscerated as part of the state capture project – at SARS he has worked out Tom Moyane, at SAPS he has made solid, permanent appointments at the Hawks and Crime Intelligence, Arthur Fraser has been removed from State Security. But none of that matters if the NPA is not functional and is not prosecuting without fear or favour.
At the end of the day, it is the prosecuting authority that ensures there is law and order, that justice is served and that politicians do not run rampant, abusing their power as they consider themselves above the law.
Batohi articulated this best as she took on the poisoned chalice of NDPP this week: "The National Prosecuting Authority is of vital importance to this country. Together with the judiciary, it is tasked with the defence of the ideals and values that define us as a country and a people; they are instruments by which the state achieves service to the ideal of justice, as represented by the Constitution. The yardstick of our development as a nation is the devotion to these ideals by the organs and arms of state and all who serve in them."
Batohi is the final piece in the puzzle required to start the process of rehabilitating the country's criminal justice system and in turn restoring the ideals and values enshrined in the Constitution. The pressure on her is enormous and we cannot afford for this to be a false dawn.