Mr MC Ramaphosa
President of the Republic of South Africa
Private Bag X1000
Pretoria
0001
Dear Mr President
Request for establishment of a commission of inquiry into fitness to hold office of National Director for Public Prosecution, Advocate Shamila Batohi, and her provisional suspension
1. The public outcry and the international embarrassment that South Africa has suffered due to incompetence, incapacity and inefficiency of the National Prosecuting Authority of South Africa (NPA) reflects the same on the National Director of Public Prosecutions, Advocate Shamila Batohi.
2. Advocate Batohi has dismally failed to execute her duties and responsibilities as outlined in the Constitution in terms of Section 179(5), in particular paragraphs (b), (c), and (d) (i)(ii)(iii) which states that:
“5. The National Director of Public Prosecutions ¬
b. must issue policy directives which must be observed in the prosecution process;
c. may intervene in the prosecution process when policy directives are not complied with; and
d. may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
i. The accused person.
ii. The complainant.
iii. Any other person or party whom the National Director considers to be relevant.”
3. There is no evidence that Advocate Batohi has done anything to fulfil her obligations as directed by the Constitution. The two recent judgments, one at the United Arab Emirates (UAE) Court and the other at the Bloemfontein High Court provide overwhelming evidence that Advocate Batohi did not comply with her constitutional obligations and failed to make the required interventions to ensure that policy directives are complied with.
4. It is common cause that at the public hearing held at the headquarters of Dubai Court on Monday 13 February 2023, Case no 72 of 2022, a unanimous judgment by a full bench declined the application to extradite the two Gupta brothers, Atul Kumar Gupta and Rajesh Kumar Gupta.
5. The UAE Court noted that “Whereas regarding the Extradition Request for the fraud charge, Article no. (3/9) of the Extradition Agreement stipulates that the extradition request must be supported by a copy of the arrest warrant. Whereas in accordance with the submitted documents the attached warrant issued for the fraud crime is cancelled. Accordingly, the extradition conditions for this crime were not fulfilled.”
6. The UAE Court further said “Whereas regarding the Extradition Request for the corruption charge, Article (3/9) of the Extradition Agreement stipulates that the extradition request must be supported by a copy of the arrest warrant. Whereas the submitted documents did not include any arrest warrant against the persons to be extradited for the corruption crime. Accordingly, the extraditions conditions for this crime were not fulfilled.”
7. The fact that it appears that both the responsible Minister and the National Director of Public Prosecutions only got to know about this far-reaching verdict in the middle of April 2023 is the clearest demonstration of dereliction of duty by Advocate Batohi, who should have regularly kept the NPA and the Minister informed of every move of the UAE authorities, long before the Court date.
8. It is even more embarrassing for South Africa to learn that it appears that Advocate Batohi did not even know the date of the hearing in February 2023 until rudely awoken by Minister Lamola a couple of months after the judgment was handed down. In a normal democracy she would have been summarily dismissed.
9. To add insult to injury on the 21 April 2023 in a very pivotal case, S v Thabethe and others (08/2022) [2023] ZAFSHC 126 which in fact was the basis for the extradition request to the UAE, the NPA again due to its shoddy work, suffered another humiliating judgment handed down by Gusha AJ who concluded as follows:
CONCLUSION
[114] The state with regards to accused 1 in argument conceded that they did not pass muster of the threshold referred to elsewhere in this judgment, it follows therefore that in respect of count 1 he is entitled to his discharge.
[115] With regards to count 2, as per their indictment, what the state had to prove was misrepresentation on the part of the accused as well as that they acted in concert. Count 2 primarily was premised on the evidence of Mr. Cezula, the deviation submission he compiled, as well the World Window letter. In a previous ruling, I ruled the letter and other documents inadmissible as they remained copies even after the state closed its case. The state contrary to the application to have the documents provisionally admitted into the record, did not lead a single witness and or evidence who successfully authenticated the disputed documents. What this court instead heard was the ineptitude of the investigators and indeed the lackadaisical manner in which evidence and disputed documents was handled and a government department who seemingly evinced a willful disregard to the manner in which official documents were to be kept and archived. Just on these aspects only, the state’s case as presented was still born.
[116] However even if it could somehow be successfully argued that I misdirected myself on the admissibility of the disputed documents, the fact still remains, if admitted, what was the court expected to do with same, in the face of the evidence it was presented with. The answer is zilch. With the findings I made in respect of Mr. Cezula, what weight, if any, could I attach thereto? Secondly the fact that Accused 3 appended her signature on the submission is still not corroboration for the veracity of Mr. Cezula’s evidence. If regard is had to the Gentle decision supra, corroboration is other evidence which supports the evidence of the complainant, and which, on the issues in dispute, renders the evidence of the accused less probable. Accused 3 does not dispute her signature she disputes the circumstances under which it was appended. The state did not lead evidence to fortify Mr. Cezula’s evidence on this aspect.
[117] Furthermore save for the computer printouts of the BAS and Sundry documents, the other Finance documents remained copies too, and to add salt to injury, even those in the form they were presented in before the court, on the State’s version, were altered. Again, no evidence was proffered to this court with regards to when, why and by whom the documents were altered. Lastly and perhaps more importantly, the state did not prove any common purpose between the accused.
[118] On Count 2 the State regrettably failed to pass even the barest of threshold; prima facie proof. 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.
[119] On Count 3 the state had to prove that accused 4, 5, 7 and 8 unlawfully colluded and conspired with one another and with a common purpose to launder the proceeds of unlawful activities whilst they knew or reasonably ought to have known that the funds form the Department paid to Nulane Investments were proceeds from unlawful activities. Having had regard to the evidence led, this count and the decision I reach is probably the single most count that will invoke a sense of loss, if not dejection, to the citizenry of this country. It is an inescapable fact that almost R25 million rand of tax payers’ money left the fiscus. The question that remains is why and who facilitated this. Regrettably, in casu, the institutions responsible to answer those questions failed. With their concessions Messrs. Rankuoatsana and lama put the death knell on the state’s case.
[120] The state regrettably failed to pass even the barest of threshold. At the risk of repetition; 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.
[121] With regards to the fourth and final count, the State fared no better. The state was, amongst others, required to prove the elements of misrepresentation to the Bank of Baroda, National Treasury and the Reserve bank and that in misrepresenting as they did, the accused acted in concert with each other. Needless to say, no evidence from the Bank of Baroda, National Treasury and the Reserve bank was led in this court.
[122] I have already bemoaned the lackadaisical manner in which this case was investigated and approached, I can therefore not take this aspect any further than I have save to conclude with the following African Proverb; “Haste and hurry can only bear children with many regrets along the way”.
[123] In the circumstances I make the following order:
123.1 The application in terms of section 174 of the Criminal Procedure Act for the discharge of accused 1, 3-8 is granted as follows;
123.1.1. Accused 1 is found not guilty and discharged in respect of counts 1 and 2.
123.1.2. Accused 3 and 6 are found not guilty and discharged in respect of count 2
123.1.3. Accused 4, 5, 7-8 are found not guilty and discharged in respect of counts 2, 3 and 4.
123.1.4. Mr. Cezula is not indemnified.
10. A no-guilty verdict although on its own does not mean the accused is innocent, but a no-guilty verdict coupled with a discharge verdict removes all doubt that the state had no basis to compile an indictment sheet. The NPA through its incompetence has provided credence to allegations that the NPA follows people instead of evidence.
11. The court has effectively given the Gupta brothers a clean bill of health in that at the close of the case for the prosecution at the trial, the court declared that there is no evidence that the accused committed the offence referred to in the indictment sheet and a no-guilty and discharge verdict was handed down. This devastating court verdict has reduced the much-publicised alleged fraud, money laundering and corruption by the Gupta brothers into street gossip.
12. Furthermore, Advocate Batohi has been dragging her feet in prosecuting those named in the Zondo Commission’s findings. This and the two judgements cited above (UAE Court and Bloemfontein High Court) call into question the fitness of Advocate Batohi to hold office.
13. We call on you, as the President of the Republic of South Africa, to invoke the relevant provisions of section 12(6) of the NPA Act and implement the following two recommendations, that you:
13.1. Appoint a commission of inquiry to establish the fitness of Advocate Batohi to hold office.
13.2. Provisionally suspend Advocate Batohi pending the outcome of such an inquiry.
14. We reserve our rights to seek other legal remedies should the President not accede to this reasonable request in 21 days after receipt of this letter.
Yours sincerely
Mr Bantu Holomisa, MP
President of the United Democratic Movement
