The Bloemfontein High Court found that Moroadi Cholota's extradition to South Africa from the US was illegal.
Image: Dimpho Maja / Independent Newspapers
The National Prosecuting Authority (NPA) is facing a crisis of credibility, with a string of failed cases and allegations of incompetence and corruption.
The recent decision by the Free State High Court to withdraw charges against Moroadi Cholota, the former assistant to former ANC secretary-general Ace Magashule, has highlighted the NPA's struggles.
According to legal experts and political commentators, the NPA's challenges are deep-seated and multifaceted.
According to Richard Spoor, a legal expert, the NPA's problems are rooted in a lack of leadership, inadequate resources, and a failure to retain skilled personnel.
In the Cholota case, the NPA failed to follow the correct procedure for extraditing her from the US, leading to the charges being withdrawn. In other cases, such as the Koko and Nulane cases, the NPA has been accused of failing to secure cooperation from key witnesses.
In October 2022, Matshela Koko and seven other people, including members of his family, were arrested on corruption charges relating to an Eskom contract.
He was accused of soliciting bribes from Eskom contractors, who received lucrative contracts at Kusile Power Station. He was released a year later, and the court ruled that there was an unreasonable delay on the part of the State to proceed with the trial.
Iqbal Sharma, the head of Nulane Investments, was also acquitted by Bloemfontein High Court Judge Nompumelelo Gusha, who said both the police and the NPA had been inept in their handling of the Nulane Investments fraud and money laundering case they had been facing.
The NPA's failures have also been highlighted in several high-profile cases.
In the case of former president Jacob Zuma, the authority has been accused of delaying and hindering prosecution.
In Duduzane Zuma's case, the NPA's case collapsed due to a lack of evidence.
The authority is currently pursuing an appeal against Nigerian pastor Tim Omotoso, who faced trial for approximately eight years on allegations of rape. Omotoso was acquitted after the NPA could not prove beyond a reasonable doubt that he was complicit, leaving the South African public outraged.
NPA national spokesperson Mthunzi Mhaga did not respond to questions on what challenges the authority had or whether there was a lack of political support.
However, responding to questions from journalists after the Cholota case, he said the NPA was "taken aback by the judgment" because the NPA believed Cholota and her lawyers were effectively appealing against the United States judgment, which permitted her extradition from there.
Experts believe the NPA's problems are exacerbated by a lack of political will to support the institution.
Spoor said the ruling by the Free State High Court on Cholota's extradition highlighted a consistent pattern of failure on the NPA to prosecute high-level corruption cases effectively.
"The underlying reason for the ruling is that her extradition from the US was not done in accordance with international law in that the wrong procedure was followed because the request should have been made by the national Department of International Relations and Cooperation, not by the provincial authorities as has happened in this case," Spoor said.
He added that the National Director of Public Prosecutions charged Cholota with offences other than the offence for which she was extradited.
"This violates the so-called 'speciality principle' which is designed to protect the rights of the extradited person and to uphold the integrity of the extradition process. There are also suggestions that the NDPP lied when it made representations to the US authorities," Spoor said.
Political analyst Professor Sipho Seepe said the NPA's failures have given the impression that the institution has been weaponised against certain individuals.
"The NPA has not displayed the same appetite for prosecuting cases where a prima facie case has been established," Seepe said.
"Bungling the NPA undermines the entire criminal justice system. This has given the impression that the institution has been weaponised against individuals who are regarded as a problem by the current political administration.
"Former Chief Justice Zondo is the latest to express himself on Phala Phala, pointing out that Ramaphosa should have resigned. Advocate Ngalwana SC has pronounced himself much earlier on the subject.
"The same NPA was eager to frivolously charge the likes of Carl Niehaus for violating the Covid-19 regulations… We know for a fact that it did the same when it targeted Duduzane Zuma. The case against him collapsed," Seepe said.
He added: "The Koko case, the Nulane case, and that of Cholota give credence to an institution that has allowed itself to be embroiled in the factional battles of the ANC… Ordinarily, such repeated bungling should have led to the resignation of the individuals involved. Alternatively, they should have been fired."
Experts contend that the NPA's problems are systemic and require a comprehensive solution.
Sandile Swana, a political analyst, said the NPA's problems are rooted in corruption and incompetence.
"The NPA, province by province, a significant number of prosecutors are corrupt," Swana said.
"In other words, they are easily manipulated by powerful professionals, well-managed criminals, and criminal syndicates."
He added that coordination between detectives and the NPA is substandard.
"The engagement between the SAPS and the NPA prosecutors long before anybody is charged should test the quality of charges, the quality of any submissions that should be made," he said.
He added that the quality of personnel the NPA possesses, including its leader, Shamila Batohi, was below the standard that is required to prosecute crime successfully in South Africa.
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