Taking stock and keeping the NPA and its NDPP [Batohi] accountable for its disastrous ‘State Capture’ case prosecution record

By: Clyde N.S Ramalaine & Paul M. Ngobeni

The National Prosecuting Authority of South Africa (NPA) prides itself on its website and official documentation having as its mission directed by the Constitution, to ensure justice for the victims of crime by prosecuting without fear, favour, and prejudice and, by working with their partners and the public, to solve and prevent crime. Its strategic intent in its mission statement articulates the following: ‘We seek to serve the public through an effective, efficient, and equitable administration of justice.’

When a South African society in this season demands accountability from the NPA under its current leader, NDPP Advocate Shamila Batohi on a litany of its acclaimed high-profile cases tagged with the infamous ‘state capture’ frame, in which it has shown itself as bumbling it registers a justified call for scrutiny borne from the undeniable and rightful frustration with the abysmal court performance of the NPA. Too often in the SA discourse entities such as the NPA attempts to hide behind and play victimhood claiming unjustified attacks, when the issue it seeks to evade is and remains accountability. So when the NPA comes under increasing fire and scrutiny it is a South African society that demands what is standard for its institutions such as the NPA.

That standard expectation is borne out by the articulated and published values of the NPA which has as first the subject of accountability, second credibility, and third integrity followed by professionalism and service excellence. “At the NPA we are driven by our core values of Accountability, Credibility, Integrity, Professionalism, and Service Excellence in all our organizational activities and transactions. these core values determine our organizational culture and reflect and support our commitment to live up to our vision.”

Nowhere in any of the NPA’s mandate, and functionary role as constitutionally enshrined is any accommodation made for it to fulfill any political player  role or distinguish itself as associated with playing such role while cognisant of its functioning in spaces that permeates the political sphere.

The National Prosecuting Authority’s (NPA’s) recent disastrous performance in its self-identifying ‘State-capture’ related cases brings into sharp focus a plethora of political, structural, and skills issues that hamper and affect the NPA’s performance. The NPA’s denialist National director of public prosecutions, Shamila Batohi, responded to widespread criticism by saying that said the narrative that the NPA was failing was a “dangerous and flawed one”. She asserted that the NPA was making significant progress despite glaring setbacks, like the failed Gupta extradition and the Nulane fraud and money laundering case. Batohi defended the NPA’s performance over the last few years despite what she calls “negative reporting”. Batohi admitted that the Gupta extradition and the Nulane trial were setbacks, but claiming that the NPA was failing was not entirely correct. She claimed the NPA is “making significant progress and you know it’s in a very difficult and sometimes toxic environment.”

There is increasing evidence that the National Prosecuting Authority attests to bumbling on a number of its advanced high-profile cases that it categorically claimed it had wrapped up. The notion of a high profile is directly borrowed from the combination of a crafted lexicon borne from the hype of political players that the NPA itself extends to these cases.

It is important to appreciate that this article does not purport to deal exhaustively with the failings and weaknesses of the NPA’s prosecution strategy. Instead, it consciously brings attention to and seeks to highlight in analysis the flaws in the prosecution’s theory and tactics on the cases it chooses to litigate. With this as a cardinal intention, we seek to do five things in this paper.

• First to centralise the overarching issue of a politicised environment and how the NPA and its leadership wilfully allowed its approach and theory of cases to be influenced by political choice and factional battles within the ruling ANC. At the hand of the State of Capture Commission’s final report, we highlight the role of President Ramaphosa for his now historic record of repurposing the report for political vantage interest.
• Secondly, it engages the NPA and NDPP’s indebtedness to the political construct of ‘state capture’ as its fundamental axis for its legal pursuits, theory, and tactics. Furthermore how such tactics have in fundamental aim the objective of blanketing cases as originating from the same bedrock, and thus to prove state capture as a legal construct.
• Thirdly, it highlights specific weaknesses in the NPA’s approach to each of the cases litigated so far – the ongoing Optimum Coal Asset forfeiture case, the failed asset forfeiture cases against the Guptas, the Gupta extradition request, the Nulane trial, the Mabuyakhulu case, and the Optimum Coal Forfeiture bid. We will in this musing engage at least four such high-profile cases in various expressions of a claim on the part of the NPA of having it wrapped only to unravel as dismally failing to convince a due court of such wild claims.
• In the fourth instance and premised on the third aim, it attempts to anticipate a few other cases such as the Thoshan Panday et.al case as presenting fertile soil for the NPA to repeat the errors of its theory and tactics, thus stumble as it did with the earlier mentioned cases.
• Lastly it contextualises and advocates the SA populace’s rightful task and the quest to keep the NPA and NDPP directly accountable and responsible for its articulated strategic ethos. In this instance, the call is to let that accountability stand in both moral, legal, and fiduciary frames – suggesting it is time we know what these failed cases have cost the South African taxpayers since frivolous and wasteful expenditure is outlawed in state legislation. It will ask what role consequence management defines in the instance of the NPA and NDPP for their grotesque failure to account.

Fitting the scripted metanarrative these cases are often paraded, reported, and communicated by the NPA as vibrating in ease of comfort the political construct of ‘state capture’ as its centrifugal force. State Capture, is now in the SA lexicon and will not leave anytime soon, yet it exists as an intentional reference to the 4th and 5th Administrations of Jacob G Zuma era.

As elsewhere pointed out by Ramalaine in several published articles, The construct of state capture entered our South African lexicon through the womb of a Democratic Alliance 2009 Political campaign. This campaign otherwise known as the 3C’s campaign comprised three staged dimensions explained in words of Cadre Deployment, Corruption, and Capture. It had as its fundamental aim to prove problematic the ANC in its cadre deployment, from there to show the ANC as corrupt and ultimately as captured. The target of the campaign was to show an ANC president and head of the executive Jacob G Zuma as representing its notion of capture.

However the DA’s campaign would not remotely have had such success.  It in a calculated sense needed a Chapter 9 Institution to buy into such. That  buy-in was obtained aided by the  now known political interest of former Public Protector Thuli Madonsela. Madonsela with October 2016 ‘State of Capture Report’ perhaps immortalised this political campaign in cloaks of the law. This historical context for the notion of state capture though bandied around by all and sundry including a deputy chief justice remains the genesis for the notion of state capture as a South African lexicon item. We state this here to reaffirm that state capture the crime is in essence a political campaign that had become a useful means to deal with political foes as we have seen from the actions and inactions of President Ramaphosa among others.

The success of the DA’s 2009 political campaign reverberates in this that the NPA had adopted it as a means to investigate, and accuse those guilty of state capture. The DA’s political campaign, Madonsela’s capricious choice selection and ignoring information report, Ramaphosa’s insidious hand, and the Zondo Commission’s one-dimensional biased report in toxic combination define the unfortunate preoccupation of the NPA to with ease of comfort lump its cases and individuals accuse with a specific description of state capture while the construct does not exist in law.

Politicised Environment and NPA’s Subservience to Politicians and ANC Factional Agenda

An astute and conscious NPA would know that there is no crime known as “state capture” in our law or any country’s criminal jurisprudence. The World Development Report 2017: Governance and the Law argue that decision-makers may have the right objectives and yet may still be unable to implement the right policies because doing so would challenge the current balance of power (World Bank 2017). It highlights that policy making and implementation involve bargaining among different influential groups with different interests (e.g., civil society, business groups, labor unions), while the relative power of these groups to influence others in such bargaining process determines the policy outcomes. The negative implications of the unequal distribution of power — power asymmetries — are manifested in clientelism,(clientelism is a political strategy characterized by giving material goods in return for electoral support) exclusion,(Exclusion means that powerful actors lack access to state institutions, resources, or services, and consequently cannot participate in the policy process) and capture.

The latter is based on Stigler’s 1971 concept of regulatory capture, in which the regulator gives priority to the special interests of private groups over the public interest, as private groups can exert greater political pressure. The notion of capture has evolved since then. Hellman, Jones, and Kaufmann (2000) distinguish between state capture, influence, and administrative corruption. They define state capture as firms shaping the “formulation of the rules of the game through private payments to public officials and politicians,” while influence is the same without recourse to payments, and administrative corruption involves “petty forms of bribery in connection with the implementation of laws, rules, and regulations.” Yet, in reality, public-private interactions cannot always be so neatly deciphered.

In this regard, The World Development Report 2017 provides a broader definition of state capture as the exercise of power by private actors — through control over resources, the threat of violence, or other forms of influence — to shape policies or implementation in service of their narrow interest. Further, the World Development Report 2017 provides a framework of how a better design of public agencies can expand the set of implementable policies.

Firstly, improved selection processes and incentive structures in bureaucracies can make officials less susceptible to undue influence by captors. This may include tools such as pay-for-performance schemes to weaken the incentives of officials to engage in capture if that means failing performance targets; monitoring mechanisms to discipline implementation; the election of regulators instead of direct appointment so they are more likely to respond to voters than political elites; promoting intrinsic motivation of officials through appropriate selection and work environment; or disrupting and improving accepted norms of behaviour.

Secondly, mechanisms of horizontal and vertical accountability in public agencies help level the playing field in the policy arena. For example, general-purpose oversight agencies can act as a check on the capture of agencies responsible for specific policy areas, as proven effective in South Korea during its industrial transition (see Schiffbauer et al. 2015). Dividing power among public agencies reduces the monopoly over information and increases the ability to contest opportunistic behavior. See the World Development Report 2017 (chapter 5) for a more detailed discussion on how state capture can be addressed.

It is significant that although economic groups and organized crime have a great ability to influence the government’s decisions through bribes and other criminal activities, the World Bank does not recognize criminal prosecution alone as an effective instrument in fighting state capture. Crimes such as bribery, money laundering, prize-fixing, and other economic crimes can be prosecuted without being tagged with the politically loaded label of “state capture.” We postulate that NPA prosecutors who approach criminal cases with the preconceived notion that they represent “state capture” would be adopting a tunnel vision that blinds them and prevents them from separating the political rhetoric from the admissible evidence to prove their cases. Inevitably that would yield a very high failure rate.

Another area in which the NPA has obsequiously lent an ear to ANC politicians and allowed ANC factional battles to influence its evidence-gathering methods. Regarding the Zondo State Capture Commission, President Ramaphosa took an unprecedented step and committed himself to accepting and implementing the report of a commission before it was even drafted, published, and before he even knew of its contents. How would he know in advance whether the report is riddled with manifest a set of errors of law, a clear failure to test evidence of key witnesses, a refusal to take account of documentary evidence which contained the most serious allegations which were relevant to its inquiry before such drafting and publication of the report? Arguably, such conduct was not consistent with Section 84 of the Constitution and the principle of legality and does render the President’s acceptance of the Zondi report and implementation a nullity. That itself would not be relevant to the NPA’s execution of its duties if the President had not sought to commingle the Zondo Commission’s duties with those of the NPA, a supposedly independent prosecutorial body.

Ramaphosa’s insidious role of weaponizing the State of Capture Commission as a selective political tool targeting political foes.

After the Commission was established President Ramaphosa took another insidious step to weaponize the Commission as a political tool to be used selectively against his political enemies. Following loud criticism of the NPA for its alleged failure to prosecute high-profile state capture cases, Ramaphosa amended the Commission’s regulations to allow the Zondo Commission to be used as a Trojan horse for the unwary.

In November 2019, NDPP Shamila Batohi said while there was good cooperation with the inquiry chaired by DCJ Zondo, accessing information was difficult. She stated:

“The Zondo commission cannot share [information] with us unless it has been  made public or if the chairperson has otherwise authorised the release of information, and obviously there’s an unwillingness to do that because there’s much to be gained from people coming forward and giving evidence. We are in dialogue on how to manage challenges on both sides of the fence”.

In response to the importuning of the NPA, Ramaphosa published in a gazette notice of 28 July 2020 an amendment that effectively allows South Africa’s law enforcement agencies to have access to information gathered by the state capture commission of Inquiry, making it easier to build cases against implicated individuals. The gazette notice introduces sub-regulation 5 in regulation 11 which reads,

“Sub-regulation (1) (2) and (3) shall not apply to the sharing of information, records or documents with any state law enforcement agency.”

This raises very serious questions about whether Ramaphosa has effectively forced DCJ Zondo to operate as an appendage to the NPA’s criminal prosecution and investigations which appears to be unlawful and unconstitutional.

From where we stand, the pivotal question is whether changing the rules more than two years after the Zondo Commission had commenced its investigations posed a defining threat to the fairness of the process, unfairly prejudiced the rights of implicated persons, and threatens to undermine the legitimacy of the Zondo Commission itself. Persons had already given and completed evidence under the rules as they existed and implicated persons were under the impression that the investigators and members employed by the Commission would operate professionally and not labour under a conflict of interest. That changed as the SIU has now used the very information given to the Zondo Commission to arrest persons implicated in corruption and other offenses.

This unfortunate and disturbing meddling by President Ramaphosa in the work of the State of Capture Commission has also raised the spectre that the Zondo Commission is hopelessly compromised and is transformed into an instrument to fight factional battles within the ANC. It would be interesting to see how Ramaphosa uses his political clout to influence the NPA’s prosecution of his hitherto untouchable allies such as Mantashe, Thabang Makwetla, Zizi Kodwa, and a slew of others. The constitutionality of rules compelling witnesses to appear before a Commission set by the executive, coercing them to testify about certain matters, and then using that compelled testimony to build criminal cases against them will be seriously litigated in the coming months and years. Our prediction is that these cases flowing from Ramaphosa’s influence on the NPA’s “State Capture” prosecutions will be the prosecuting authorities’ Achilles heel and will prove difficult to win.

In the process, the NPA’s obsession with sabre-rattling and recent public pronouncements have caused it to lose whatever little credibility it had remaining. On 10 May 2022, the National Director of Public Prosecutions Shamila Batohi announced before the Portfolio Committee on Justice and Correctional Services that the NPA’s Investigating Directorate (ID) intends to prosecute nine “seminal” corruption cases related to state capture within six months.

This raised eyebrows as it appeared to be both a publicity stunt and naked political opportunism designed to assist Ramaphosa politically. It was no coincidence that the ANC watershed elective conference was due to be held in December 2022 and the prosecutions of individuals deemed a political threat to Ramaphosa were calibrated to assist Ramaphosa’s re-election bid. Batohi said the nine once prioritised were “seminal cases that will talk to the heart of state capture”.

As stated above, there is no such crime known as “state capture and the announcement of the NDPP appears to have been premature as the final instalment of the state capture commission of Inquiry’s findings was finally submitted to the president in mid-June 2022. Batohi naively said: “The reality is that, right now, our response to the findings and recommendations of the Judicial Commission of Inquiry into State Capture is what will be defining for the NPA and South Africa.” We consider Batohi’s view to be naïve in the extreme for several reasons.

It is accepted almost universally that Commissions are not courts of law and evidence adduced during a commission’s inquiry is not automatically admissible in civil or criminal proceedings. In New Zealand, the judiciary has long made it pellucid that commissions of inquiries are not courts of law, nor administrative tribunals. See, for example, Peters v Davison [1999] 2 NZLR 164, 181 (CA). Such Commissions do not have the power of determination, and their recommendations and findings bind no one. They can be ignored or rejected by the executive willy-nilly or at least subject to the legality principle. Batohi committed herself to implementing the recommendations of the Zondo Commission before she or the President had received the final report. Is it then not logical to argue that those selected for prosecutions on matters connected to the State Capture Commission can argue that their prosecution was pre-determined based on political criteria untethered to any evidence of the crime they committed?

Batohi’s stance is contrary to the Davison Court cited In Re the Royal Commission to Inquire into and Report upon State Services in New Zealand [1962] NZLR 96 at p 109 where North J said:

”A Commission of Inquiry is certainly not a Court of law. . . . Nor is a Commission of Inquiry to be likened to an administrative tribunal entrusted with the duty of deciding questions between parties. There is nothing approaching a lis, a Commission has no general power of adjudication, it determines nobody’s rights, its report is binding on no one.”

The Davison court also made the following observation:

“In opposition are basic characteristics of a commission of inquiry. Its report is merely an expression of its opinion. A commission of inquiry is not to be likened to a Court of law nor to an administrative tribunal entrusted with the duty of deciding questions between parties; nothing is approaching a lis and the commission has no general power of adjudication (North J in Re the Royal Commission to Inquire into and Report upon State Services in New Zealand at p 109). It follows that the reports of commissions of inquiry have no immediate legal effect. Because the reports of commissions of inquiry are, in the end, only expressions of opinion, “in themselves they do not alter the legal rights of the persons to whom they refer”

NDPP Batohi’s bizarre statement that “our response to the findings and recommendations of the Judicial Commission of Inquiry into State Capture is what will really be defining for the NPA and South Africa” suggests she lacks an understanding of basic rules of evidence.

The Court, in another New Zealand case, Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618, made important observations as follows:

”This is not an appeal. Parties to hearings by Commissions of Inquiry have no rights of appeal against the reports. The reason is partly that the reports are, in a sense, inevitably inconclusive. Findings made by Commissioners are in the end only expressions of opinion. They would not even be admissible in evidence in legal proceedings as to the cause of a disaster. In themselves, they do not alter the legal rights of the persons to whom they refer. Nevertheless, they may greatly influence public and Government opinion and have a devastating effect on personal reputations; in our judgment these are the major reasons why in appropriate proceedings the Courts must be ready if necessary, in relation to Commissions of Inquiry just as to other public bodies and officials, to ensure that they keep within the limits of their lawful powers and comply with any applicable rules of natural justice.”

What the foregoing admonition should have suggested to Batohi is that she cannot enthusiastically embrace findings of any Commission which are not “admissible in evidence in legal proceedings” and which were still subject to possible legal challenges by those claiming the Commission exceeded its lawful powers and failed to comply with any applicable rules of natural justice. Canadian courts have also accepted the well-established principle that a Commission of Inquiry may not draw conclusions, or make recommendations regarding the civil or criminal responsibility of any person or organization. They are generally prohibited from making any findings of criminal or civil responsibility, and no such finding may be inferred from any of a Commissioner’s remarks. Such a prohibition is necessary because a commission may admit evidence not given under oath, and the ordinary rules of evidence which provide protection against such matters as hearsay do not apply to public inquiries.

Justice Cory of the Canadian Supreme Court stated in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System) (1997), 151 D.L.R. (4th) 1, the following about the history, nature, and role of inquiry commissions in that country:

29 Commissions of inquiry have a long history in Canada and have become a significant and useful part of our tradition. They have frequently played a key role in the investigation of tragedies and made a great many helpful recommendations aimed at rectifying dangerous situations.

34 A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event, or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure that is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter. Thus, although the findings of a commissioner may affect public opinion, they cannot have either penal or civil consequences. To put it another way, even if a commissioner’s findings could be seen as determinations of responsibility by members of the public, they are not and cannot be findings of civil or criminal responsibility.

Very interesting insights are also contained in the judgments of the High Court and the Supreme Court of Ireland in the leading case of Goodman International and Lawrence Goodman v. The Honourable Mr. Justice Liam Hamilton, Ireland, and the Attorney General [1992] 2 IR 542. This decision is now the foundation, in Irish law, of the constitutionality of the Tribunal of Inquiry (Commissions), as known in Irish law. In Goodman, the former Chief Justice said on p.590:

“With regard to the suggestion that the findings of the Tribunal if not an impermissible administration of justice by a body other than a court, is a usurpation of the activities of courts in cases where either civil cases are pending or may be instituted, it seems to me that again this submission arises from a total misunderstanding of the function of the Tribunal. A finding by this Tribunal, either of the truth or of the falsity of any particular allegation which may be the subject matter of existing or potential litigation, forms no part of the material which a court which has to decide that litigation could rely upon. It cannot either be used as a weapon of attack or defence by a litigant who in relation to the same matter is disputing with another party rights arising from some allegation of breach of contract or illegal conduct or malpractice. I am, therefore, satisfied that the submission under Article 34 must fail.” (Emphasis added)

Commissions of inquiry all seem to have several things in common – such tribunals operate “in vacuo” and are “sterile of legal effect” in that their reports are simply opinions and “devoid of legal consequences”.

In this context, the NPA and Batohi should have realized that they are headed for a very bumpy ride and the Zondo Commission’s report simply constitutes opinions and is “devoid of legal consequences”. The said report is not automatically admissible in court and cannot be used as a weapon or a shield in the hands of NPA at any stage in a judicial forum. The Courts must regard the Zondo report as “devoid of legal consequences” or “sterile of legal effect”. Even though the Commission was headed by a Deputy Chief Justice, its report cannot be elevated improperly to assume the status of a court judgment. That would be purely wrong and inconsistent with Section 165 of the Constitution which states unequivocally that judicial authority lies in the courts. A matter of fact requiring to be established before a court must be established by admissible evidence which is open to cross-examination and contradiction and is given publicly before the Court. It is not normally an admissible form of proof to produce a statement by a third party whether a policeman, a government minister, or a Commission of Inquiry and to claim that that has evidential effect, prima facie or otherwise.

The State of Capture Commission also in local SA colloquial lexicon understood as the ‘Zondo Commission’ and its processes are woefully inadequate and the members of the public who have been misled to believe that Deputy Chief Justice Zondo has adjudged certain persons guilty are bound to be sorely disappointed in the inevitable acquittals of these persons. The NPA appears to be effectively claiming that DCJ Zondo operated as an appendage to the NPA’s criminal prosecution and investigations which appears to be unlawful and unconstitutional. Viewing the NPA cases with this prism, it should not surprise anyone that most of the NPA’s much-vaunted “state capture” cases will prove to be very rich in political rhetoric but thin on admissible evidence required to win in court.

Ongoing Optimum Coal Asset Forfeiture Bid 

While the former Gupta-owned Optimum Coal asset forfeiture details an ongoing and current case therefore not yet finalised it perhaps presents the best springboard to juxtapose the actions, tactics, and statements of the NPA and its NDPP on the case against Liberty Coal and its articulated strategic intent measurable in communicated values.

Let us not forget the Guptas originally outfoxed the President Cyril Ramaphosa-linked Glencore entity to take the mine over in 2016. OCM came under voluntary business rescue in 2018, and the approval of a business rescue plan was a key condition in finalising the sale of the mine to Liberty Energy, the owner of Liberty Coal. Other OCM creditors had agreed to the plan, including Eskom, which suddenly changed tack when Batohi stepped in.

Thus to appreciate our contention of ‘state capture as a political construct versus a legal construct, we only have to appreciate the words contained in the affidavit before the Pretoria High Court, of Optimum Coal Mine (OCM) Creditor Daniel McGowan, when he categorically asserts,

The National Prosecuting Authority’s Optimum Coal Mine (OCM) forfeiture bid relies heavily on untested statements provided to the state [of ] capture commission of inquiry that merely constitute hearsay, with no evidence of facts. Liberty Coal, was on the verge of taking full control of the running of the lucrative mine in Mpumalanga when the National Director of Public Prosecutions (NDPP) Shamila Batohi suddenly accused him of being a Gupta stooge and approached the court to attach the mine as proceeds of crime. McGowan told the court that in the forfeiture dispute, Batohi’s version was a scheme to discredit him and his company linking them to the Guptas- who owed his holding company, Templar Capital, about R1,3 billion.

Reading slowly and dispassionately the advanced claims McGowan raises in his court papers against the NDPP and the NPA confronts us to accept that the values of the NPA may be compromised in the proverbial tumble-dryer state-capture politics of our day. To accuse the NDPP of being involved in schemes to discredit and hang everyone with the distasteful Gupta label compels consideration in asking if the NPA is not increasingly decidedly Gupta intoxicated to hide its own evidencing failures.

These are very strong accusations levelled against the NPA and NDPP by McGowan. In the instance of Liberty Coal and McGowan’s displeasure with the behaviour of the NPA, some critics claim NDPP Batohi’s interest in the case has not had any legal or justice context instead they argue her interest to place the coal mine on auction to the highest bidder, has as an intention to give the mine back to politically connected big miners. McGowan said in an answering affidavit at the Pretoria High Court, dated June 20, that,

Batohi’s alleged evidence was not properly tested, and several people implicated in her forfeiture applications had never been afforded a proper opportunity to be heard, even before the commission led by Chief Justice Raymond Zondo. McGowan’s legal contention further contends,

The oral and written evidence (statements, affidavits, or documents) that was tendered before the Zondo Commission was not subjected to interrogation or cross-examination. Where it was, that was not to defend the allegations, accusations, and contentions that the NDPP posits or prosecutes in the present applications,” McGowan said. He went on to say, the evidence before the Zondo Commission, and the commission’s conclusions and recommendations were hearsay in these proceedings, and [NDPP] Batohi did not even suggest that the evidence was procured in the course of the NPA’s Independent Directorate’s investigations.

As his rebuttal, McGowan contends,

I thus never had a meaningful opportunity to test or challenge the evidence placed before the Zondo Commission. The Zondo Commission also did not call me to answer questions or testify before it – so it had no insight into my version of events at all.” McGowan said he voluntarily approached the NPA in August 2021 to address any inquiries in relation to Liberty’s proposed acquisition of the business of OCM.

He said “Batohi was selective in her use of the information provided to the NPA and misused or mischaracterised it to imply a greater relationship between him and the Gupta family than it existed.” A fundamental aspect McGowan highlights is shown  when he reminded the Pretoria court:

That some of the persons Batohi directly implicated, gave evidence before the Zondo Commission, but she [Batohi] failed to disclose their version to the court, citing as examples former Eskom executives Brian Molefe, Matshela Koko and Anoj Singh.

In the simplicity of a basic legal principle he contends, the NDPP, Batohi did not have to accept the veracity of the evidence she excluded, but she was obliged, at a minimum, to fairly disclose and engage with it in her papers, to allow for the case, as a whole, to be properly considered and assessed. Let us hear, McGowan in his submission to the court,

The NDPP ought at least to have given an account of the countervailing evidence disclosed during the Zondo Commission and its further investigations, and explained why such evidence was so unbelievable as to be dismissed out of hand, and without interrogation by this court.”

McGowan said the approach was critical, particularly where the court was obliged to determine a case for forfeiture by relying heavily on inferences that NDPP Batohi drew from her partial version of events. The NDPP asks the court to make the same inferences that she does – but without also disclosing to the court all of the relevant facts that weigh against those imputations.”

The material relevance of the Optimum Coal asset forfeiture case as brought by the NPA and its counter response from Liberty Coal perhaps points to a classic example of how the NPA under its NDPP, Shamila Batohi, in careless roughshod appears motivated by external to law motive and in the misunderstanding of its mandate while deftly violating its cardinal values and thus confirm an entity in repurpose of design. It is the violation of cardinal values where the law appears to take a second seat that concerns our challenge of an NPA failing itself and SA in being accountable.

The Bungled Gupta Asset Forfeiture Cases

Around early January 2018, the NPA’s Asset Forfeiture Unit announced it was going after the Gupta family and their associates, and was poised to serve a summons on them to preserve assets of their worth in the region of R1.6 billion. This move was the first time the State had taken action against the Guptas who were alleged to have been at the forefront of capturing the South African state. Earlier in December 2017 the Asset Forfeiture Unit applied for three separate orders at the high court in Pretoria as well as the high court in Bloemfontein by way of ex parte applications seeking orders to preserve the Guptas’ assets which were granted. The application was brought in terms of the Prevention of Organised Crime Act (POCA), which allows assets of defendants in criminal cases – or people who have yet to be criminally charged – to be preserved pending the outcome of their prosecution. After they have been successfully prosecuted, the assets are then permanently forfeited to the state. Under the act, the assets in question are alleged to have been acquired with the proceeds of crime. The aim of the application against the Guptas was “to preserve the assets while the criminal process unfolds”. “The assets targeted include money in the banks, and movable and immovable assets worth the amount paid unduly to the Guptas. [It also includes] money in bank accounts both in South Africa and abroad, as well as property,” the NPA said.

According to a report in City Press, “the application for a preservation order had taken this long because the Asset Forfeiture Unit had to secure cooperation from foreign governments in countries in which the Guptas have interests.” Senior prosecutors also told City Press that the “NPA waited for the outcome of the ANC’s leadership conference at Nasrec for a more conducive political environment in which to launch the application.” This confirms the assertions above that the NPA makes prosecutorial decisions based on political calculations and not clear constitutionally defined criteria.

When it was all said and done, 14 Gupta-linked companies and individuals had their assets frozen. The 14 December 2017 order, obtained in the North Gauteng High Court in Pretoria, sought to “recoup assets worth an estimated R1.6 billion as the State finally goes after those identified in probes into state capture, by the family linked to President Jacob Zuma.” It was reported that the “AFU is going after the big shots at Trillian and McKinsey. The people named in the court order include Eric Wood who is Trillian’s CEO, Trillian CFO Tebogo Leballo and Prakash Parbhoo, a partner at McKinsey, and Jean Pierre Goerges Desvaux, who is a senior partner and managing partner at McKinsey.” A Durban-based curator, Medwin Madoda Sifiso Nxumalo, was appointed and was vested with powers, duties, and authority to “assume control of the property and do any things necessary to preserve the property while the order is in force”, the order states. The AFU went to court for an order against the global company as well as the Gupta-linked Trillian Capital Partners for allegedly scoring an invalid contract from Eskom.

In March 2018 The Free State High Court ruled in favour of Atul Gupta in his application to have a preservation order, obtained against him by the NPA’s Asset Forfeiture Unit (AFU), set aside. It ordered that Atul Gupta’s R10-million be returned to him. Gupta claimed that the AFU had misled the court with the evidence they presented to secure the initial preservation order. In his affidavit, Gupta denied that he had unduly benefited from the Estina dairy farm project, but added that he had not had an opportunity to read the papers as he was in Dubai. “The affidavit is prepared in extreme haste as I was only able to give factual instructions on February 7,” he said in his papers.

He also submitted that he did not take issue with the part of the order which related to the preservation of immovable property. He restricted his challenge to the cash amount. The NPA seized control of a dairy farm in the Free State, the Guptas’ bank accounts, companies co-owned by Duduzane Zuma, and other entities in the Gupta empire. In an answering affidavit filed, prosecuting authorities set out precisely why they say that R10m in Gupta’s personal bank account constituted the proceeds of corruption, fraud, and money laundering.

The AFU said the money was paid from the Estina dairy project, which received it from the Department of Agriculture in the Free State. Special director of public prosecutions Motlalekhotso Knorx Molelle said in the affidavit, that evidence obtained by financial investigators Samson Schalkwyk and Nkosiphendule Mradla revealed that there was a series of alleged unlawful and criminal activities that led to the money being paid. Molelle referred to a separate affidavit by Mradla, who said that the Free State agriculture department paid the money to Estina as a result of an unlawful contract. The money was then “mingled” with other money in the account, which then constituted money laundering, Molelle submitted.

A few days later an amount of [R4.5m] was withdrawn and /or transferred from this account to [Oakbay Investments] therefore constituting proceeds of unlawful activities.” Molelle said Mradla’s affidavit was supported by bank statements that identified Oakbay Investments as a recipient of proceeds of “corruption, fraud, theft, and money laundering committed against the Free State Department of Agriculture”. “The fourth applicant [Oakbay Investments] received proceeds of unlawful activities as it has not rendered any services either to the Free State Department of Agriculture and to Estina.

Judge Fouche Jordaan ruled that the R10m in Gupta’s accounts be unfrozen. He however amended his previous order pertaining to Gupta-linked companies and the Bank of Baroda. About R40m in the Bank of Baroda which comes from the Estina dairy project remains preserved. The AFU had wanted R220m preserved. The bank and Gupta-linked companies were listed as applicants in the case. Effectively‚ the court found that although the transactions may be suspicious‚ it was not shown that Atul Gupta or any Gupta entities got money directly from the Estina project in the Free State. AFU claimed that Estina made two R5-million payments to the Bank of Baroda’s Nedbank pool account on December 20, 2013. An AFU investigator alleged that the R10-million formed part of R38-million then paid to Atul Gupta.

Judge Fouche Jordaan pointed out that multiple other deposits had been made into the Bank of Baroda clearing account at the time and it was “not clear why [the AFU] comes to that conclusion”. The judge further referred to the Estina project’s bank accounts supplied by the Bank of Baroda‚ which did not show any money being paid to Atul Gupta or any Gupta entities. Simply put, there was no direct evidence that the Gupta companies had received money from the Estina project. The Bank of Baroda also sought to reverse the AFU’s freezing of its current account with Nedbank‚ which it used to serve 800 clients – 750 of whom are not Gupta-linked. Judge Jordaan said he could not fault the Bank of Baroda for objecting to its Nedbank pool account being frozen. He said the AFU’s conclusions regarding this account were based on selective reading and‚ in some instances‚ were “demonstrably unsubstantiated.” He also rejected the AFU’s claims that certain payments to Gupta companies Oakbay and Aerohaven were linked to the Estina project. He stated:

There’s no rationale and rational basis for concluding that the amounts paid to Oakbay and Aerohaven stem from the Estina deposit‚ and not other deposits.

Things quickly unravelled again around May 2018 when the State was dealt a significant blow in another state capture case against the Guptas. The High Court in Bloemfontein freed assets such as luxury cars, aircraft, and properties seized by the Asset Forfeiture Unit (AFU). The assets worth at least R250m were seized in April after the AFU obtained a provisional restraint order concerning the Estina dairy farm matter. The High Court set aside the R250 million preservation order after finding that the evidence presented by prosecution boss Shaun Abrahams revealed many shortcomings which were not explained. Simply put, the State had failed to show how the movement of funds into and out of the Gupta-linked accounts could be the proceeds of criminal activities. The judge ruled that on the evidence presented, there are no reasonable grounds to believe that the accused may be successfully convicted. The court further expressed its displeasure at the State for not fully disclosing the details of an earlier ruling, which also found a lack of evidence to support a preservation order.

Once again, the case illustrated the difficult tasks awaiting the NPA which loudly proclaimed that its mission was to retrieve the proceeds of state capture and to bring those implicated to book. The NPA called the ruling a devastating blow to the fight against organised crime. It also was a warning sign of further NPA bungling of state capture cases.

The NPA’s Failed Guptas Extradition Fiasco 

The country learned from Justice and Correctional Services Minister Lamola’s shocking revelations that the United Emirates Arabs (UAE) have rejected South Africa’s request to have the Gupta brothers extradited to South Africa to face charges of money laundering and fraud. A flustered and incoherent Lamola stated:

“We learned with shock and dismay that the extradition has been concluded in the Dubai courts … on the 13th of February 2023, and our extradition request was unsuccessful…The court found that on the charge of money laundering, the crime in question is alleged to have been committed in the United Arab Emirates and South Africa. In terms of the federal laws of the United Arab Emirates, extradition can be denied because the United Arab Emirates has the jurisdiction to prosecute the crime.”

Lamola further continued to misrepresent the substantive ruling of the Dubai court as follows:

“On the charge of fraud, the court found that the arrest warrant relating to this charge was cancelled…The reasons for denying our request are of a technical nature.” He claimed there was no reason to dismiss the extradition request. Lamola said they intend to appeal the decision as they believe that the matter was wrongly handled by the Arab nation’s courts. “We still intend to engage with our counterparts in the UAE as requested in March to ensure the decision of the court is properly appealed as well devise other mechanisms to deal with the matter,” he said. Lamola’s statements unwittingly expose the gross incompetence of the NPA and South African government in several ways.

Lamola’s claim that he learned with “shock and dismay” the Dubai court verdict almost two months after it was rendered suggests that the. RSA government was not represented in court during the proceedings. It means that the Justice Department, which had full knowledge of the impending court hearing elected not to have counsel on the ground in Dubai acting properly in vigorously advancing South Africa’s case. One would expect a serious-minded government to have counsel on the ground when South Africa makes an unprecedented extradition request on matters of national importance it claims involved state capture.

The fact that the Minister is left fulminating and incoherently arguing the merits of the case at a press conference instead of his duly appointed counsel in the matter is emblematic of the NPA’s incompetence and mishandling of the Gupta cases. Without the participation of counsel on the ground in Dubai there was no responsible advocate in court to assure the Dubai court that South Africa has adopted policies and procedures that promote both fairness and efficiencies in extradition proceedings and that the Guptas would indeed receive a fair trial in our country. It is unclear when the NPA learned of the Dubai court’s concerns and what if anything the NPA did to allay that court’s concerns.

The substantive law issues involved in the Guptas’ extradition exposed the shortcomings of the “state capture” narrative in prosecutorial decision-making. The much-hyped accusations against the Guptas were based on the rhetoric that they were guilty of “state capture”. As one can imagine, this falls woefully short of the “Dual Criminality” standard required in extradition proceedings. The principle of double criminality holds that an act is not extraditable unless it constitutes a crime in both the requesting (South Africa) and requested (UAE) countries. South Africa’s overly expansive definition of criminal offenses to cover political jargon such as “state capture” will be rejected by sober-minded judiciaries around the world. As the crime of “state capture” is not recognized as punishable in foreign countries, it cannot satisfy the double criminality principle and hence cannot be an extraditable offense. Even when South Africa disingenuously tries to characterize such offenses as common law fraud or corruption, most astute jurists would see through that deception and toss out the cases. That is exactly what happened in the Gupta case.

The extradition request from the South African authorities alleged charges of fraud. The extradition treaty between South Africa and the UAE contains a statute of limitations clause. That means that there could be no viable fraud case against the Guptas because according to the terms of the treaty with the UAE, no extradition shall happen if a statute of limitation exists for the alleged crime under UAE law. Article 20 of the UAE Criminal Procedures Law stipulates charges of fraud that are considered a misdemeanour expire five years after the incident is alleged to have occurred. The Estina dairy crimes allegedly occurred at least before the Gupta wedding in 2013 and more than five years before the UAE –South Africa extradition treaty was concluded in 2021.

It is thus our contention that, ironically the politically inspired state capture narrative may give the Guptas more ammunition to argue that the criminal case is politically driven and has nothing to do with the alleged crimes. The UAE will not allow the extradition of a person if, under Article 9 of the Extradition Law:

• the crime charged is of a political nature. Terrorist crimes, war crimes, and genocides are not considered as political crimes;
• the extradition is aimed at penalising or prosecuting a person for his religious, nationality, or ethnic affiliations;
• there is a time-lapse or.
• he may be subjected to inhuman, degrading treatment or torture in the requesting country if he is extradited.

One must carefully study the UAE court’s ruling on the money laundering charge, the crime which was alleged to have been committed in the United Arab Emirates and South Africa. In terms of the federal laws of the United Arab Emirates, extradition can be denied because the United Arab Emirates itself has the jurisdiction to prosecute the crime. Accordingly, it makes perfectly good sense to insist that the South African authorities must give UAE prosecutors all the evidence supporting their allegations of criminal money laundering to enable them to prosecute the Guptas in Dubai. This beggars the question – if South Africa failed to produce coherent and reliable evidence in the asset forfeiture cases discussed herein, what are the prospects of the NPA being able to provide the UAE courts with solid and reliable evidence?

According to Article 3 of the extradition treaty between UAE and South Africa, extradition will be granted in specified cases that include if the action is an offense in both countries punishable with imprisonment for a year or more if the offence relates to taxation, exchange control, customs or similar revenue matters. Further, under Article 15 of the said extradition treaty, the UAE is entitled to seize all property, articles, or documents that are found in the territory of the UAE which is connected with the offence for which extradition is sought. If the Guptas have stashed their loot in Dubai as we have repeatedly been told, why has the NPA not utilized the vehicle provided by the Treaty to seize the proceeds of the crime in the UAE?

As Professor André Thomashausen, professor emeritus of International Law at the University of South Africa said, South Africa had to fulfil the requirements of UAE’s extradition requirements, because as long as it did not fulfil them, the Guptas would not be returned to South Africa. Thomashausen said: “The requirements of extradition legislation are more or less the same as in any other country. There must be a very clear and precise indication of the crimes that the Guptas are supposed to have committed.”

He said the South African government had simply said the Guptas were guilty by association. The Department of Justice called it Common Purpose because they were close with managers of certain companies that had been guilty. “Common Purpose is an old apartheid era construct which was used in the apartheid days where if you are standing on the road next to a demonstration the police could arrest you because you were standing next to a demonstration and you weren’t signalling that you disagree with the people doing a demonstration,” Thomashausen said.

Most damning, he said the problem with Lamola’s department was that they did not do their jobs and were lazy instead of showing what the Guptas had done. “They simply said the Guptas were associated with such-and-such a company and therefore we want them. The UAE has a problem with this and they are waiting for South Africa to furnish all details and explain a little better what the Guptas are actually charged with, and that is the delay,” said Thomashausen.

The Gupta linked Nulane trial fiasco – President Ramaphosa Devious Hand:

The NPA’s disastrous performance in the Nulane trial debacle is a clear indication that politically driven prosecutions are going to produce similar outcomes.

On 21 April 2023, Acting Judge Gusha delivered a devastating blow to the National Prosecuting Authority by acquitting all the Nulane trial accused and dismissing all fraud and money laundering charges against them. She found that the state failed to tie alleged Gupta-linked Iqbal Sharma and his co-accused to any of the crimes related to the Nulane case. She also ruled there wasn’t a shred of evidence that pointed to one accused Moorosi being implicated in the crimes. The cases were allegedly linked to state capture in that the fraud and money laundering charges were for allegedly colluding with Free State officials to defraud the state of close to R25 million after Nulane secured a contract to conduct a feasibility study for a rural development project in the province.

Gusha slammed the state’s investigation, labelling it “lackadaisical”. She ruled that the State had failed to produce enough evidence to show that the Gupta family and their associates were implicated in the alleged laundering of R24.9 million of the proceeds of the alleged Nulane fraud. She accurately predicted that her decision would “invoke a sense of loss, if not dejection, to the citizenry of this country”. Justice Gusha also added that the State’s financial expert witnesses had sounded the “death knell” for its case when they admitted that they had made mistakes in their assessment of the Gupta network’s finances and conceded that there was nothing untoward about its money transfers. In short, both the police and prosecution had been woefully inept in their handling of the Nulane fraud and money-laundering case. Gusha granted a section 174 release to Gupta associate Ronica Ragavan and the Gupta family’s Islandsite Investment, two former Free State government officials and the directors of Nulane Investments, former Transnet board member Iqbal Sharma and his brother-in-law Dinesh Patel.

Section 174 of the Criminal Procedure Act, provides for the discharge of the accused at the close of a trial, and states if the court is of the view that “there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty’’. Why would the NPA prosecute a case where it fails utterly to provide a shred of evidence pointing to the guilt of the accused?

The prosecution relied on a far-flung conspiracy theory that the Gupta brothers were part of a conspiracy to defraud the Free State government and intended to add them to the list of accused if they were surrendered to South Africa. That also proved disastrous as the UAE refused the NPA’s incompetent extradition request. Incredibly, the NPA also relied on the apartheid-era doctrine of common purpose to prove that all the accused colluded to commit fraud and ensure most of the money made its way to a United Arab Emirates Standard Chartered Bank account linked to the Gupta family. As Professor Thomashausen predicted, that simply did not wash. The court found that NPA had failed to prove a common purpose to defraud the state.

Gusha ruled that the prosecution had not produced evidence as to the identity of the persons who changed the Deloitte Report and had failed to counter the doubt the defence had raised about the authenticity of the letter sent to the department, which led to the contract with Nulane. Of the evidence of Simphiwe Mahlangu, a forensic auditor at the national treasury, Gusha said: “The fact is that in the course of his investigations, he did not consult with and afford any of the accused an opportunity to be heard…His evidence is based on copies of documents he was favoured with. His [evidence] does not take the state anywhere, save only to confirm that the amount of R24 948 240 somehow made its way [out] of the coffers of the department and into the banking accounts of Nulane Investments.”

Humiliated by the outcome of the case, the NPA was forced to issue a pathetic statement that the “outcome of this case has no bearing on our ability to prosecute other state capture cases. We remain resolute in our commitment and ability to vigorously prosecute those responsible for state capture and corruption.”

The Independent Directorate announced that it filed an application for leave to appeal the 21 April 2023 judgement that granted 7 accused discharge in terms of Section 174 of the Criminal Procedure Act 51 of 1977(Act) as well as the acquittal of Dr. Limakatso Moorosi. The application is also based on the 23 February 2023 verdict that rendered key documents and exhibits provided by the state inadmissible as evidence against the accused. The grounds for appeal are as follows:

• The learned judge erred by discharging the 7 accused in terms of Section 174 of the Act in circumstances where the State had presented prima facie evidence upon which a reasonable court might convict. There are reasonable prospects that another Court would come to a different conclusion and or find that granting the discharge was a misdirection that was contrary to legal precedent, constituted a gross irregularity in the trial, and was prejudicial to the State.
• That the learned judge erred by deviating so drastically from the parameters of the test for a discharge in terms of Section 174 of the Act that a miscarriage of justice occurred in that the Accused persons against whom a prima facie case had been made were acquitted without having been put to their defence.
• It is submitted to be trite law that the Section 174 inquiry does not entail a finding being made as to whether or not the evidence of the State at this stage is plausible or constituted proof of guilt beyond a reasonable doubt.
• The learned judge erred by concluding in her judgment that the State failed to pass even the barest of threshold and that an application for discharge cannot be refused in the hope that the accused persons will incriminate themselves when they give evidence, thereby closing material defects in the State’s case. There are reasonable prospects that another Court would find that the evidence presented before the Court by the State called for a reply and that the accused ought to have been called upon to discharge their evidential burden.
• The learned judge erred in her interpretation and application of the ‘best evidence rule’.
• The learned judge erred in her interpretation and application of the law relating to the cautionary rule, Section 204 of the Act, the assessment of the evidence of the Section 204 witness, and in the credibility findings made against the Section 204 witness.
• The learned judge further erred in her interpretation and application of the doctrine of common purpose (collusion and conspiracy).
• In ruling that the State had failed to pass the barest evidentiary threshold, the learned judge found that “Lastly and perhaps more importantly, the state did not prove any common purpose between the accused.” As respectfully submitted below, there are reasonable prospects that another Court would find that Accused 1, 2, and 3 were acting in furtherance of a common purpose with the other Accused and Cezula.
• The learned judge erred during the Section 174 judgment in finding that Mr Mahlangu’s evidence did not serve as authentication on the disputed documents since he was neither the author thereof nor was, he present when same were either authored or had signatures appended thereto.
• There are reasonable prospects that another Court would find that the learned judge erred by making contradictory rulings that prejudiced the State when dealing with the issue of the admissibility of documentary evidence.

The lessons gleaned from the NPA’s major loss in the first state capture prosecution vindicates the views of those who have warned that the NPA cannot win cases by blindly pursuing a state capture narrative, and ignoring applicable rules of evidence. The charges of state capture against any person should never be brought by the prosecutors against anyone because there is no such crime known as “state capture” in our statute books.

Based on politically driven propaganda, there has always been loud criticism of the NPA for its alleged failure to prosecute what it deems high-profile state capture cases. In November 2019, NPA boss Shamila Batohi said while there was good cooperation with the inquiry chaired by DCJ Raymond Zondo, accessing information was difficult. She complained that “The Zondo commission cannot share [information] with us unless it has been made public or if the chairperson has otherwise authorised the release of information, and obviously there’s an unwillingness to do that because there’s much to be gained from people coming forward and giving evidence. We are in dialogue on how to manage challenges on both sides of the fence”.

On 28 July 2020 President Ramaphosa published in a government gazette notice, an amendment that effectively allows our law enforcement agencies to access information gathered by the Zondo state capture commission, making it easier to build cases against implicated individuals. Previously, the inquiry’s regulations prohibited people employed by the inquiry from sharing information, even with law enforcement agencies.

It should have been intuitively obvious to any lawyer that changing the rules more than two years after the Zondo Commission commenced its investigations posed a threat to the fairness of the process, unfairly prejudices the rights of implicated persons, and threaten to undermine the legitimacy of both the Zondo Commission and any prosecution based on its report. It is true that a commission of inquiry is not a court of law. It does not have the power to prosecute or convict any person – that power belongs to the NPA.

The procedural rules that apply in criminal cases are also not applicable and witnesses or implicated people do not enjoy the same procedural rights as an accused person in a criminal trial. While a commission may establish wrongdoing or misconduct, it does not find anyone guilty of a crime, nor does it establish civil liability for monetary damages. Here the prosecutors became “lackadaisical” and instead of serving as impartial and objective investigators of alleged unlawful acts, they sought to advance their own career interests at the expense of the accused. Acting Judge Gusha saw through this and called them out clearly.

Ramaphosa took a calculated risk when he changed the rules for the Zondo Commission to use it as a conduit of information to the NPA. Ramaphosa increased the likelihood that prosecutions based on the Zondo report[s] would be hotly contested and disastrous for the NPA. The NPA allowed its prosecutors to rely on the inadmissible and most often hearsay evidence to build a criminal case that carries a heavy burden of proof “beyond reasonable doubt.” That was a very risky proposition from the very beginning.

The harsh court judgment in the Nulane case proves that NDPP Batohi has ignored the admonition of the court in Berger v. United States, that a prosecutor’s overarching duty is “not that [she] shall win a case, but that justice shall be done.” Our prosecutors are not ordinary lawyers for a party to a dispute. They are the guardians of the constitutional and legal rights of everyone who crosses their paths and of our constitutional system of administering justice. The law prohibits a prosecutor from pursuing an investigation or prosecution that is – or even appears to be – politically motivated, or that violates the accused’s right to fundamental fairness in the administration of justice. Batohi made a deal with the devil – she found herself being used as Ramaphosa’s Trojan horse where she agreed to recklessly charge persons with sundry crimes just to advance the “state capture narrative.”

Experts have warned about the danger of relying on the Zondo reports formulating legal charges as the Zondo Commission’s reports are simply opinions and “devoid of legal consequences”. The said report is not automatically admissible in court and cannot be used as a weapon or a shield in the hands of NPA at any stage in a judicial forum. It cannot be elevated improperly to assume the status of a court judgment.

Mike Mabuyakhulu et. al case 

On May 28, The KwaZulu-Natal High Court in Durban acquitted the ANC’s former provincial deputy chairperson, Mike Mabuyakhulu, and his 15 co-accused in an R28 million corruption case. The money was meant to host the North Sea Jazz Festival in 2012, which never happened. Mabuyakhulu, who was MEC for economic development, tourism, and environmental affairs at the time, and his co-accused faced charges of corruption, theft, and money laundering. They denied any wrongdoing.

His co-accused included that were acquitted include Desmond Khalid Golding, Ceaser Walter Mkhize – who also represented accused companies Soft skills communications 100 CC, and Shaka Holdings – Zandile Nonjabulo Mbongwe, who together with Ceaser Mkhize, represented Maqhoboza Traders CC, Nothando Zungu who also represented accused company Ishashalazi Productions CC, Mabheleni Leewas Ntuli who also represented accused company Super-Size Investment 20 CC, Nonhlanhla Brenda Ninela, Mzwandile Basil Ninela. Both Ninela’s represented the accused company Ishinga Holdings. The 15th accused was Ntokozo Ndlovu, representing the company DMD Capital (PTY) LTD. The State alleged while the event failed to kick off, service providers were still paid and government officials as well as politicians received kickbacks.

Withdrawal of “Amigos” Case Against Mike Mabuyakhulu Acquittal

The recent acquittal of Mike Mabuyakhulu on corruption charges is the culmination of the  NPA’s failed theory and strategy on cases tagged with the “state capture” label. It must be remembered that Mabuyakhulu was initially charged along with Peggy Nkonyeni (former speaker of KZN legislature) and Mike Savoi in what was known as the “Amigos” case. During interviews that were being conducted in November 2018 by the selection panel, appointed to advise President Cyril Ramaphosa on suitable candidates for the office of NDPP, advocate Simphiwe Mlotshwa alleged that former acting NDPP Jiba had convened a meeting at which she put pressure on him to drop the corruption- related charges against Mabuyakhulu and Legislature speaker Peggy Nkonyeni in the ‘Amigos’ case. At the time, in early 2012, Mlotshwa was Acting Director of Public Prosecutions in KwaZulu-Natal. He alleged that because of his refusal to submit to pressure from Jiba that he was removed from the position of Acting DPP for KwaZulu-Natal in July 2012. Advocate Moipone Noko was then, in July 2012, appointed as Acting KZN DPP in Mlotshwa’s place. Within roughly a month, in August 2012, Noko then withdrew the charges against Mabuyakhulu and Nkonyeni. A year later, as from 1 September 2013, Noko was appointed as the KZN DPP.  The narrative pursued here was consistent with the conclusion that Mlotshwa was removed as Acting DPP because he was unwilling to comply with political manipulation of prosecutorial decision making. The implication is therefore that if Jiba played a role in the removal of Mlotshwa from the position of Acting DPP, this was through the input that she provided to the minister.

It is also remarkable that the factional battles that took place within the ANC appear to have been replicated in the NPA itself.  Press reports in July 2012, shortly before Noko replaced Mlotshwa as Acting DPP, also indicated that Mrwebi had been actively involved in efforts to ensure that the charges against Mabuyakhulu and Nkonyeni were dropped.) Allegations that political connections were used to benefit Mabuyakhulu and Nkonyeni continued unabated. See, Savoi and Others v National Prosecuting Authority and Another (5867/2013) [2018] ZAKZPHC 77 (23 February 2018) where Savoi identified the alleged abuses in the permanent stay application to include:

“(c)       adopting an impermissible “convict-at-all-costs” approach in the State’s dealings with the applicants; and

(d)       the unlawful, irrational and inexplicable refusal by Advocate Noko, who is the Director of Public Prosecutions in KwaZulu-Natal, to withdraw the charges against the applicants, in circumstances where charges have been withdrawn against certain of the applicants’ co-accused who are alleged to be politically connected on the ground that the evidence against them was unconvincing, unsubstantiated and insufficient to ground a conviction beyond a reasonable doubt.”

The permanent stay application was opposed by the State.  The applicants brought the interlocutory application in terms of Uniform rule 35(11) seeking an order directing the NPA to produce certain documents which they contend go to the heart of what they are alleging in the permanent stay application and relate to the conduct of the prosecuting authority in regard to the decision to withdraw charges against the alleged politically connected Nkonyeni and Mabuyakhulu. They contended that the respondents would be seeking to rely on the same evidence against the applicants which the respondents have concluded would be insufficient to sustain a successful prosecution against Nkonyeni and Mabuyakhulu, but have refused to withdraw charges against the applicants. The applicants contended that these documents are relevant to assess the prosecutorial conduct and motive in conducting the criminal case against them and that the documents will assist them in the exercise of their rights and in placing before the court hearing the permanent stay application with all the information relevant to the determination of whether the alleged abuses justify the permanent stay of prosecution.

Acquittal of Mabuyakhulu in the North Sea Jazz Festival Case

On 31 May 2023 Mike Mabuyakhulu and 15 others were acquitted of  fraud, money-laundering and corruption, among others,in the case involving R28.5 million which was meant for the North Sea Jazz Festival that failed to take off in 2012.  The court’s ruling came after lawyers acting for all the accused applied for their discharge in terms of Section 174 of the Criminal Procedure Act which allowed them  to do so without having to put up a defence.

At the heart of the matter was the much-publicized music festival in 2012, where the state had brought the charges alleging that the provincial department of economic development, tourism and environmental affairs paid millions of rands for the event that did not take place. The allegations further asserted that Mabuyakhulu, who was the MEC at the time, received kickbacks. Also implicated was former head of department Desmond Khalid Golding, who was accused number one.

A disturbing aspect of the case is that it smacks of NPA’s abuse of court processes to fight ANC factional battles.  The case against Mabuyakhulu and others had been on the roll since 2018.  Mabuyakhulu, who was elected ANC deputy chairperson during the ANC 2018 provincial elective conference, excused himself from all party duties in May 2021 as dictated by the ruling party’s step-aside rule. He could not participate in his party’s activities and could not be elected or re-elected as long as the criminal case was pending against him.  At some point in 2021 Mabuyakhulu and his co-accused challenged the NPA’s dilatory tactics and filed an application to dismiss his case. The Pietermaritzburg High Court dismissed the application on 13 May 2022 and the matter proceeded to trial.

The state alleged that service providers were irregularly paid while the politicians and government officials involved received kickbacks. Mabuyakhulu was KwaZulu-Natal’s MEC for economic development, tourism and environmental affairs at the time. The State claimed that he received R300 000 as a bribe.

The weaknesses in the NPA’s case were laid bare in the 100-page judgment of Judge Mahendra Chetty.  Amongst other things he stated: “The leading of evidence of financial transactions is critical to the outcome of cases of corruption and money laundering. “The state is obliged to join the dots. It is not for this court to do so or to speculate.” Further, Judge Chetty specified that some allegations against the accused were a “stretch too far” and that “mere suspicions” were insufficient for a criminal trial.

Judge Mahendra Chetty was unrepentant, saying the prosecution team had done a shoddy job.“There was no clear evidence that was able to connect the dots on the charges against the accused, as it relates to the transgression of the rules of the Public Finance Management Act,” said Chetty. He stressed that: “Such crucial evidence of fraud and corruption cannot be left to the court to prove, but the onus is on the state to present a compelling case.”

Regarding the accusation against Mabuyakhulu of taking a bribe of R300 000 in return for the award of the contract to what became a joint venture, Chetty said that at the end of the state’s case there was no evidence to support this allegation or the dozens of others contained in the charge sheet against Mabuyakhulu and his co-accused. Although R300 000 had been paid into Mabuyakhulu’s account, Chetty said the state had not produced evidence to gainsay his version that he believed the money had come from a friend who was assisting him to pay off a SARS debt. He also noted evidence that Mabuyakhulu had been the one to finally pull the plug on the project, and was the plaintiff in civil proceedings, which were still pending, to recover the R28.5m. This was inconsistent with Mabuyakhulu being a beneficiary to an alleged corrupt deal. ‘In the final result, the state has not lived up to the promise set out in its opening address and in the indictment. The state’s case was plagued by not calling several key witnesses who I understood to be in the Netherlands,’ Chetty said.

Chetty also noted the jazz festival project had been approved by a Ministerial subcommittee and by the provincial Cabinet, so it could not be said there had been unlawful expenditure and there were no indications of corruption at that level. The evidence was that it had failed, ultimately, because of infighting between the service providers.

Of allegations the former DG in the department, Desmond Khalid Golding, who was accused number one in the trial, took a ‘gratification’ of R1m to facilitate the appointment of one of the contractors, Soft Skills, Chetty said there was no evidence of this at all. While cash deposits had been made to a local attorney for a property, this could have been winnings from a local casino. Chetty said of the witnesses who were available, the evidence given was limited to a rudimentary narration of the documents. The forensic investigators were not qualified as such and not much weight could be placed on their evidence.

Chetty concluded that to require the accused to be placed on their defence would be an infringement of their constitutional right to be presumed innocent and would not be in the interests of justice.

Thoshan Panday et al. Case

The State versus Panday, a case which had been stopped twice, dates back to 2010 and effectively has been running for the better part of 13 years.  It is expected to return to court on 25 August. The primary crimes the accused face concerns fraud, corruption, forgery, bribery, and money laundering charges.

On April 23, 2023, The Asset Forfeiture Unit (AFU) and Investigating Directorate (ID) obtained a provisional restraint order, in value of R165 million against KwaZulu-Natal businessman Thoshan Panday; his ex-wife, Privisha Panday; former provincial commissioner, Lieutenant General Mmamonnye Ngobeni; and six others, according to the National Prosecuting Authority (NPA). The other six are former police members Colonel Navin Madhoe and Captain Ashwin Narainpershad; as well Panday’s mother, Arvenda Panday; his brother-in-law, Seevesh Maharaj Ishwarkumar; his sister, Kajal Ishwarkumar; and his assistant, Tasleem Rahiman.

The sought and granted order is linked to a criminal case in the KwaZulu-Natal High Court in Durban, in which an alleged criminal syndicate with a central character is accused of defrauding the South African Police Service (SAPS) of more than R47 million before and during the 2010 FIFA Soccer World Cup. The State alleges that the three former police officers manipulated the process to allow them to procure accommodation for SAPS members “on an urgent basis and at inflated rates” only days before the World Cup was due to start, said Seboka. Panday’s company, Goldcoast Trading CC, was allegedly awarded the orders for accommodation for police members deployed in the province during times of unrest from October 2009 at inflated rates.

Central to the State’s case is its claim that the five entities alleged to have been controlled by and associated with Panday were paid more than R47 million by SAPS between October 2009 and August 2010.

The NPA explains its case against Panday as follows: 

Panday misrepresented that Goldcoast had secured block bookings in 2008 for the 2010 [Soccer World Cup], which was false. Panday then had to place police members in venues, paid them a low rate, and claimed inflated rates from SAPS. In addition, Goldcoast and four other entities associated with him through family member ownership received orders approved by Madhoe and Narainpershad for miscellaneous goods required by SAPS members for the 2010 Soccer World Cup, through fraud, including cover quoting and forgery.

We understand the state’s case better as communicated by its spokesperson,

In the application to the court, the NPA alleged that Panday was the mastermind of the criminal enterprise. By the end of 2009 he managed to get control of the public order policing unit: operational response service (ORS) deployment accommodation contracts with the help of Madhoe and Narainpershad.

In proverbially ringing its own bell the NPA considers this forfeiture success as explained by its ID spokesperson Sindiswe Seboka in the following way:

The NPA, with this court order, is hard at work attempting to take the profits out of crime. The court granted the NPA the order in chambers on 29 March 2023. The curator was then issued with letters of curatorship by the Master of the High Court on 11 April 2023 and execution took place [on Monday],”

Seboka went on to say,

His [Panday’s] company was also awarded around 80% of the accommodation order for the World Cup at higher rates than other bidders. It is the state’s case that, Therefore, said Seboka.

Panday’s legal representatives have brought several requests to the court seeking full disclosure of the information that defines the state’s case.

While the asset forfeiture act on the part of the State details its most recent attempt to nail Panday and co-accused it becomes important to appreciate the contextual background to this case.

The case as alluded to is a 13-year-old one, which had no less than two stoppages with a more recent date of 2021

The Accused has brought an application in terms of section 35(3) of the Bill of Rights in the Constitution which vests Panday with the following rights:

4.1 The right in section 35(3)(a) to be informed of the charge with sufficient detail to answer it. This right entitles me to information and particularity on the essential allegations made in the charges.

4.2 The right in section 35(3)(b) to have adequate facilities to prepare a defence. In practical terms, this means that the State must provide me with all of the information in its possession or which is accessible to it whether it is detrimental to the State case or not.

4.3 The right in section 35(3)(i) to adduce and challenge evidence. In this regard, Panday is entitled to all of the information in the State’s possession and the information accessible to the State in order to adduce and challenge the evidence in Panday’s defence.

Panday’s version is already public knowledge since he shared this in his submitted statements. The rationale for sharing these aspects here is firstly to contextualise his version of a narrative of events the same as in the NPA’s case against McGowan as earlier shared from his court papers. Secondly, to underscore the troublesome actions of police and the NPA as prosecutorial structure immanent in role players saturated in politics of personal interest of replacing one for the other with shady deals made with witnesses.

According to Panday, on 4 September 2011, he was called in by Inspector Shamlin Moodley as summoned by the Head of Crime Intelligence of KZN General Deena Moodley. In such a gathering then, Col Brian Padayachee was also in attendance. Upon arrival as Panday’s version leads, Brian Moodley tried to convince him to be a witness against General Ngobeni whom they advised was to be replaced by the then Head of Hawks Major General Booysen. Upon this, some tapes were played which included conversations between Panday and others including his attorney and also with General Ngobeni.

Subsequent to listening to the portion of tapes played, Panday was again offered no prosecution for his alleged role. Panday was told if he complies no cases will be opened against him for what was dubbed ‘fraudulent’ dealings in the World Cup 2010 contracts.  It was requested of Panday to provide an affidavit against Ngobeni, an affidavit he was told that will not even be used but just shown to Ngobeni to force her to resign.  Panday claims he was shaken at the thought that the State was listening to all his conversations even with his attorney. He nevertheless, left telling them he will go and think about their request when he already knew he was not going to cooperate with the ill- intentions of those in the meeting.

The next day Panday was scheduled to leave for the Democratic Republic of the Congo. He returned from the DRC six days later and was arrested. When he applied for bail it was denied leading him to spend 16-17 days locked up,  essentially because of what he deems drummed-up allegations of him having put out a hit on Booysen. This allegation blocked his bail. The case however against Panday was withdrawn. This was followed by another case in 2012.  Case:122, alleged Panday as having fabricated invoices for the SAPS. This case for lack of evidence and witnesses was thrown out of court in 2013, since on the trial date there were no witnesses and  the state was compelled to withdraw.   He contends that both Padayachee and Moodley were at one point suspended for illegal interceptions.

In his [Panday’s] most recent affidavit supported by a slew of annexures to be argued on August 26, Panday and other accused detail their frustration with the State for its elongated reluctance and wilful choices not to avail all necessary information that constitutes the State’s case against them. This matter was first enrolled in the High Court on 21 May 2021. Yet before this, on 28 April 2021, a request for further information on behalf of Accused 5 to 9 (Panday’s co-Accused) and him was served on the State. The state’s response dated 21 June 2021 inadvertently details a concession that it has not provided the accused with all relevant information. This resulted in a second request for further and better information dated 8 July 2021 filed by the co-accused. The details of the request incorporate and underscore the information requested in the first instance on 28 April 2021.

When the State in its second response marked 10 August 2021, proved inadequate Panday’s legal team changed tact and solicited a meeting with the State’s counsel and members of the investigation team. Such a meeting was agreed to and convened on 13 October 2021. The agenda as led by the legal representation of the Panday, was the outstanding information and verified documentation fell short of its commitment.

Following this meeting, on 15 October 2021, the legal team of Panday set out the issues discussed at the meeting, which congregates the content of the accused in the description of further information required. The matter was adjourned and placed for hearing on 30 November 2021. The matter came before Honourable Madam Justice Henriques. Panday’s counsel duly informed the presiding judge of the meeting of 13 October 2021 and also submitted the subsequent letter dated 15 October 2021. Having studied the application, Judge Henriques ordered that the State is obligated to by 29 March 2022 provide all the information and documentation outstanding as explained per the 15 October 2021 letter. Such a transcript of the ordering is part of the annexures detailed in the application.

Panday and his co-accused appeared as warned on 4 May 2022, this time the matter would be in the court of Honourable Madam Justice Daya Pillay. Prior to the matter being called, Panday’s counsel pointed out to State’s counsel that the letter by Advocate Manyathi dated 25 April 2022 did not comply with the order of Henriques J dated 30 November 2021. State’s counsel correctly agreed that the order by Henriques J was binding and Pillay J ordered the State to supply all of the outstanding information and documentation by 8 July 2022 (the transcript of proceedings on 4 May 2022 is annexed marked TP 8). This would now mean a second court has obligated the state to comply with the provision of the said information detailing its evidence against the accused. The matter was adjourned for 15 July 2022 and marked final for the State to supply the requested information and documentation with the first date of 28 April 2023.

Panday’s affidavit argues the practicalities of this situation with the following words:

“It would have taken days to listen to the recordings which were voluminous and comprised recordings of every phone call over a lengthy period of time. This alone made it impractical to sit and listen to the recordings and to determine what was relevant for trial purposes without having proper access to the recordings. It was further unconscionable to have to listen to each and every recording in the presence of a SAPS officer from Crime Intelligence. In that environment, it was impossible for my co-Accused and I to give instructions to our legal representatives or for our legal representatives to advise us. The very notion of a police officer sitting in during the pretrial preparation of an accused is foreign to a fair trial.”

On 17 July 2022, the matter came before the Honourable Mr Justice Nkosi. The accused’s legal representatives placed on record that they are still not satisfied with the discovery of information by the State. It was then agreed that the accused’s legal representatives would prepare a supplementary request for further information setting out the information which we still required. The matter was adjourned to 2 December 2022 for this purpose.

On 30 August 2022, Panday’s legal representatives prepared a request for supplementary information which addressed mainly the applications for interception and monitoring, the interception orders issued by the designated Judge, and the recorded conversations made in terms of the interception orders. The State responded on 24 November 2022 and provided some of the supplementary information requested but not all. On 2 December 2022, the matter again served before the Honourable Mr Justice Nkosi. Panday’s legal representatives indicated that the State had not made full and satisfactory discovery. The State’s counsel requested a further document from his legal representatives setting out exactly what had not been provided. Nkosi J set timelines as follows: 1. The accused’s request for outstanding information had to be filed by 5 December 2022 which was duly done.  The State was ordered to respond by 28 February 2023 which was duly done.  The matter was adjourned to 30 March 2023.

On 28 March 2023 shortly before the appearance in Court, Panday and his co-Accused were informed that the Investigating Directorate of the National Prosecuting Authority had issued a subpoena to certain witnesses for further documents. This led to the accused’s 28 March 2023 legal representatives preparing a joint request for further particulars which also applies to Accused 1 to 3 requesting the information obtained pursuant to the subpoena.

On 30 March 2023, the matter again came before Nkosi J. The State was ordered to respond to the joint request for further information on or before 3 July 2023. The State duly responded and the information obtained pursuant to the subpoena was provided. This information does not feature in this application.

Panday’s legal team informed Nkosi J that inadequate discovery was made by the State in relation to the information requested in our preceding applications for information. The same sentiment was expressed by the legal representative of Accused 1 and 3. It was agreed that the correct procedure in the circumstances was to bring an application to compel the delivery of further information which had not been provided. In this instance Nkosi J fixed the following timelines: 1 The Accused were to prepare their application/s to compel by 21 July 2023. 2 The State was ordered to respond by 18 August 2023. 3 The matter was adjourned to 26 August 2023 for the hearing of the compelling application.

We, unfortunately, cannot engage the merits of the case since it is before the court it is not our objective to at this stage engage but rather to draw the lines of the NPA as truant to its articulated values.

In the matter set down for hearing on 25 August, in which the State must show that it provided all necessary information supporting its claim against the accused, we have learned that the NPA is currently looking for witnesses to corroborate the tape recordings. This opens another very interesting subject of how the tape recordings that constitutes a fundamental part of the state’s case against the accused were obtained.

In a September 2012 – September 2014 Parliamentary Joint Standing Committee on Intelligence, report prepared by Justice Yvonne Mokgoro, titled: Report on Interception of Private Communications we read:

Section: 4 South African Legislative Framework: 

To deal with the question of finding better mechanisms in addressing this challenge, the South African Law Reform Commission ( SALRC) felt it was important to undertake a review of the effectiveness of the then Interception and Monitoring Prohibition Act, 1992 ( ACT No. 127 of 1992). The investigation had shown that the Interception and Monitoring Prohibition Act, was outdated in that did not adequately deal with new developments in the field of electronic technology and the use thereof in the commission of crimes.

4.1 prohibition of interception of communication. The regulations prohibit any person to intentionally intercept or attempt to intercept, or otherwise procure any other person to intercept or attempt to intercept, at any place n the republic any communication in the course of its occurrence or transmission unless it is done in terms of the provisions of RICA.

As a result of the recommendations of the SALRC the Interception and Monitoring Prohibition Act, was replaced by the RICA. The aims of RICA are, inter alia to:

1. Protect the subject of the Republic against the unlawful interception of communications;
2. Oblige all electronic communications service providers (ECSPS) to provide a service which is interceptable and which is able to store communication-related information;
3. Provide a structure which is responsible for the interception of communications;
4. Oblige ECSPS to record and store information which can be used to identify their customers;
5. Prohibit the possession and manufacturing of interception devises;
6. Provide for the interception of communications in emergency situations must unless RICA provides otherwise, be approved by a judge

We also know that:

an interception direction or entry warrant can only be granted after the law enforcement agencies make a formal application to the designated judge. In considering such an application, the RICA imposes various factors that must be considered by the designated judge before he or she may grant a direction or entry warrant.

With regard to an interception direction,

the Act compels any person who is authorised to intercept the communication, to complete an application and submit it to the designated judge for consideration. The application should clearly indicate inter alia, the identity of the applicant, the identity of the law enforcement officer, the person whose communication is required, and the telecommunication service provider to whom the direction must be addressed”

Without engaging the merits of the case the interesting facts are that we have case law that delineates instances where the state failed to uphold the laws as we see from the conviction.

You will recall that on 6 May 2016, EWN journalist Barry Bateman published the details of a case of a former crime intelligence officer who stands accused of illegally intercepting journalists, Mzilikazi wa Afrika and Stephan Hofstatter both senior investigative journalists at the time attached to the Sunday Times, as well as former police commissioner Bheki Cele cellphones. Former captain, Bongani Cele, was appearing in the Specialised Commercial Crimes Court. He stood accused of contravening provisions of the Regulation of Interception of Communications Act. Cele, who was based in the KwaZulu-Natal covert and general intelligence collection section, has pleaded not guilty to the charges.

He has, however, admitted that he filed a telephone interception application containing a list of five suspects and seven telephone numbers in November 2010. First witness, senior detective major general Charles Johnson says the investigation started in 2012 when a crime intelligence counter-intelligence operation picked up that the former police chief’s cellphone had been intercepted. He told the court that after studying the interception application, he established that fake names had been used. Johnson says that Cele’s cellphone number, as well as those of two Sunday Times journalists, were listed under these false names.

The role of Cele as a member of the KZN covert and general intelligence unit is central in the Panday et al case since it is the claim of the accused that hundreds of lines of third-party people they interacted with were also illegally and for an elongated period of more than three years intercepted in what appears to be an illegal exercise. The question is can the state rely on the evidence of Bongani Cele who is now a convicted felon, why will he not stifle the NPA’s case against the accused? will add or hurt the state’s case.

A 28 July IOL report suggests the Pretoria court will on 1 August hear whether an affidavit submitted in a case where former intelligence officer Bongani Cele is being accused of falsifying information will be evidence enough during the trial. Cele, 49, is on trial in the Pretoria Specialised Commercial Crimes Court facing two charges relating to contravening the Regulation of Communication and Provision of Communication-Related Information Act (Rica). He is being accused of falsifying information to spy on two journalists. The matter commenced as a trial-within-a-trial as Cele, through his defence attorney, disputed the submission of statements and affidavits he had allegedly made four years ago. This affidavit, Cele’s defence attorney argues, should not be submitted as evidence despite the investigating officer saying that the accused confirmed the accuracy of its contents.

Cele’s attorney said while his client admits to having taken part in signing a warning statement on March 16, 2012, as well as an affidavit, there is a dispute between the State and the accused as to which statement was being referred to at the time. The accused alleges he was referring to one statement and the State is saying he was referring to another. But the State is having none of this, saying that the accused confirmed the accuracy of its contents.

He allegedly lied to a judge to get an interception warrant by matching the two journalists’ phone numbers and that of the then national police commissioner Bheki Cele with fictional names in an affidavit. He apparently pretended it was required for a probe into a criminal syndicate.

Another disturbing trend is the cross-pollination and crossing of floors of some members of intelligence that leave their jobs and join up with ID where the potential exists for them to cover the possible wrong perpetrated in the earlier positions. It is perhaps noteworthy to appreciate that according to Panday, Padayachee in his new ID role and function is the head investigator in the Panday case. This if allowed would suggest members can do something in a previous job wrong and fix it in their new roles at the expense of those they target.

It is important to separate the matter of this application set down for hearing on 26 August which concerns the State as obligated to provide the necessary information for the accused to prepare adequately their defence, from the issue of the more recent and much-publicised asset forfeiture exercise. The latter perhaps gives credence and details the claim that the Hawks are often all about Hollywood arrest drama when it concerns particular individuals. South Africans were told that the AFU seized assets of R165m from the accused. The better truth is that the State sought an ex parte order meaning the accused was not part of the state’s seeking and thus were able to do their public relations exercise of asset forfeiture. What we know now is that the accused brought its counter and won the cost order which saw to their bank accounts be reopened. No assets were seized all that has happened so far is an inventory was compiled. The actual order that the state originally sought in the ex parte description will also be heard before the end of August 2023.

The State’s appointed curator recently submitted his invoice, totalling fees of R4.2 million for two months. The curator instead of sending it to the State alone as his client, copied the accused. Alarmed by the potentiality that the accused would have to pay this ever incremental invoice which if the issue drags to one year will total in excess of R40 million, the accused enquired and was told the State will pay this until the order was made permanent. It is here that the question of accountability naturally resurfaces again in questions of who makes up the curators. Can the NPA share with South Africa the identity marking in the racial classification of those it entrusts in an overarching sense with its curator role needs? Secondly, if the order is never made permanent and it drags as earlier alluded to a year why will this not be a fruitless expenditure on the part of the NPA? Beyond the length of time that this case details, if the NPA is soliciting witnesses for its case, does it have a sound case that will stand legal scrutiny?

Panday, who like Liberty Coal’s McGowan, is nowhere mentioned in the Zondo ‘State Capture’ report, case also in the failed case against Mike Mayabakhulu is premised on a Provincial – National diaphragm. We therefore shall ask will the NPA in eventuality of the final outcome be read as a similar riot act. If so can the NPA honestly objectively claim it has respect for its articulated values as a custodian for prosecutions in a democratic South Africa?

We are cognisant that the cases herewith alluded to in no way constitute all those any researcher can further pursue, here we can even include the State vs Zandile Gumede. What we observe is a tendency on the part of the NPA swayed by political interest appears to link in a blanket sense link these independent cases in its strawman state capture kaftans. It also shows how the NPA yielded to its choice self-inflicted temptation of dramatizing these cases to extract publicity and sympathy from a South African society when it has dismally failed to bring evidence to corroborate its cases.

Permit us to again assert as at the beginning of this article, when a South African society in this season demands accountability from the NPA under its current leader, NDPP Advocate Shamila Batohi on a litany of its high profile cases tagged with the infamous state capture frame, in which it has shown itself as bumbling it registers justified call for scrutiny borne from the undeniable and rightful frustration with the abysmal court performance of the NPA. Too often in the SA discourse entities such as the NPA attempts to hide behind and play victimhood claiming unjustified attacks, when the issue it seeks to evade is and remains accountability.

When the NPA comes under increasing fire and scrutiny it is a South African society that demands what is standard for its institutions such as the NPA. If we take stock of the NPA and its advanced state capture cases cloaks for some cases shall we not also ask if the NDPP Advocate Shamila Batohi ought to be trusted any further to lead the NPA? We intended to point out the flaws in the prosecution’s theory and tactics on the cases [State Capture assumed] it chooses to litigate.

Is the NPA  under NDPP Batohi’s leadership not evidencing a glaring and costly in both integrity and capital spend blindspot wholly pregnant to prove the crime of ‘state capture’, a political construct, as a legal reality thus making its prosecution theory and tactics questionable and vulnerable to politics instead of law?

Dr. Clyde N.S. Ramalaine

Political Analyst, Theologian & Strategy Design & Communications Consultant. He is also a SARChi & CADL [Centre for African Leadership Development] Post-Doctoral Research Fellow.

BTh. (Hons).UWC, MA [Systematic] Theology (cum laude) NWU, PhD. Politics & International Affairs, UJ

Paul M. Ngobeni

Legal Scholar, Analyst and Strategic Advisor

BA (magna cum laude) Hamilton College, New York  & Doctor of Jurisprudence New York University School of Law.