The national director of public prosecutions, Shamila Batohi, on Tuesday reiterated a call for the National Prosecuting Authority (NPA) to be given full, unfettered access to the database of evidence collected by the commission of inquiry into state capture.
“In order to fulfil its constitutional mandate, and to meet the expectations of the public, the ID [Investigating Directorate] requires what we call unhindered access to the archives of the state capture commission, including electronic databases,” Batohi said.
“The ID has been provided levels of access but not the access that it needs.”
Batohi told parliament’s portfolio committee on justice that while the entity’s frustration became public thanks only to a question at a media briefing in April, it had been trying to resolve the problem with the department of justice, which serves as the custodian of the information, and with the commission itself.
The commission officially completed its work and ceased to be in June 2022 when then chief justice Raymond Zondo handed the final volumes of the report on state capture to President Cyril Ramaphosa.
But the ID became entitled to access to the information it garnered two years earlier, in July 2020, when the commission amended regulation 11 to allow it insight into evidence with a view to allowing criminal investigations to commence while the inquiry unfolded.
“It was amended at the absolute push and drive of the NPA,” Batohi recalled.
She said former justice minister Ronald Lamola reassured the prosecuting authority two years ago when he decided to place the digital forensic laboratory of the Zondo commission in the custody of his department, that it would continue to have unhindered access to the information.
“So that is what we are asking for and requiring,” Batohi said.
Batohi defined this as allowing investigators from the ID to “enter the premises housing the Zondo archive where they will without hindrance and at their own discretion be able to search all hard copy documents as well as electronic data, wherever they are situated”.
She said this included access to classified documents, as well as evidence such as bank account statements that were obtained by the commission — subject to certain conditions.
“In our view these documents may be searched and examined and removed by investigators with the appropriate security classification and then we can look at how we deal with the issues that the secretariat of the commission may have with regard to how this information is utilised in the context of investigations and potential prosecutions.”
Doc Mashabane, the director general of justice, said managing and safeguarding a trove of information was a complex endeavour and protocols had been agreed in terms of which all agencies within the criminal justice system could request specific information.
“We have never gotten to a situation where specific information can be said to have been denied, for whatever reason. Information is always provided,” Mashabane said.
But Batohi stressed that investigators should be allowed to browse the archive to locate evidence they may not know exists, instead of being asked to pinpoint what they wanted.
“The challenge we have is that, firstly, it cannot be upon the basis of a request and a receipt. In order to conduct a criminal investigation it stands to reason that one cannot request what one does not know exists.”
Batohi said although it was true that the now all but defunct secretariat of the commission had given NPA staff login details to a database, this hardly solved the problem.
It pertained to only one database, the so-called “relativity platform”, and investigators discovered that although they were able to log into the system, the information remained inaccessible. It excluded physical documents investigators needed to peruse.
“It does not include physical, hard copy documents that we want to be able to search and take what we want, while protecting the integrity of the information.”
She said these difficulties were not helpful in terms of prosecuting state capture crimes and needed to be resolved so that prosecutors had access to “all of the information” — of which there was more than a million gigabytes.
Batohi said she wanted to move forward in a manner that addressed the security and legality concerns of the department and what remained of the secretariat but limited access would never be a satisfactory option.
“We want to deal with this in a responsible manner but it cannot be that ‘you are not entitled to certain aspects of it because it was not used by the commission’,” Batohi said.
She added that this included the Gupta leaks database, a reclaimed hard-drive with information that revealed the extent to which corruption had infiltrated the state.
The fact that these issues persisted, Batohi suggested, left her wondering whether there was a shared will to solve the problem definitively.
“When things take weeks and months and there are no responses, then you begin to wonder whether there is a real sense of urgency that is understood by everybody that is meant to be working together on this.”
Itumeleng Mosala, the former secretary of the Zondo commission, said the archive comprised more than a million gigabytes, which translates into 500 billion pages in print, and there had been difficulties with a transition of software guarantees.
Democratic Alliance MP Glynnis Breytenbach said it was exasperating that it had taken years for the to and fro about full access to the archive to become public knowledge because the prosecuting authority had every reason and opportunity to alert parliament.
“We would have helped you,” Breytenbach added.
Batohi replied that she had hoped to settle the issue “within the family” but conceded to some relief that it had come into the public domain because the NPA alone has had to face pressure over the slow pace of state capture prosecutions.
To date, there has not been a single high-level conviction for state capture crimes, and the NPA has suffered a number of humiliating setbacks in the cases it has brought before court so far.
Justice Minister Thembi Simelane said it was unfair that she was blamed for stalling access to the archive because she has only been in the portfolio for three months and was not exhaustively briefed by Lamola about the problem.
“I have met with the national director of public prosecution after being entrusted with the responsibility as the minister of justice and constitutional development to take the NPA into my confidence that I am going to give the authority and other law enforcement agencies my support on any matter,” Simelane said after the meeting.