Suspects 1, Sisyphus 0
Winning the battle against corruption will be near impossible unless the staffing crisis in the prosecuting authority is urgently addressed.
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A new decision on a corruption trial that almost collapsed illustrates the enormity of the task waiting for the new director of public prosecutions, Shamila Batohi.
Vuyo Zambodla, formerly a senior official of the Buffalo City Municipality, is facing charges related to corruption and tender fraud. He first appeared in the East London magistrate’s court in 2011 and the trial started the following year.
In March 2014, after the case had been running for a couple of years, the presiding magistrate recused himself, saying he believed the accused were not getting a fair trial because of continued “bickering” between the prosecution and defence counsel. He was also concerned that the lengthy delays in prosecuting the trial could negatively impact on its fairness.
Further, the prosecutor’s cross-examination of Zambodla was so “irregular” that it was impossible for him (the magistrate) to evaluate Zambodla objectively as a witness, and he felt the only option was for him to stand down.
Following the magistrate’s decision in March 2014, the deputy director of public prosecutions in East London was asked by her staff what should be done next: should the magistrate’s decision be challenged at the high court or should the trial start again before a different magistrate?
By the end of May 2018, when he still had no clarity on what was to happen to his trial, Zambodla asked the high court to order a permanent stay of prosecution, saying the extensive delays were causing serious personal and financial prejudice.
Now, virtually five years after the magistrate’s recusal, the high court has ruled that the prosecution must start again with a different presiding officer. It was touch and go, however, and according to the judgment, much of the problem was caused by chaotic conditions at the DPP’s office that made prompt and efficient handling of the matter impossible.
Deneshree Naicker, responsible for deciding whether to reinstitute the prosecution, explained the situation to the court via affidavit. Appointed head of the specialised commercial crimes unit in East London in September 2014, her task seems rapidly to have become almost impossibly fraught.
Five prosecutors reported to her. Their workload was very heavy, with complex fraud and corruption matters from regional courts all over the province. Several had since resigned and their posts are still empty. After her appointment in the Eastern Cape she was still responsible for some matters in KZN where she had previously worked. She had to return there over several months during 2014/5 when she was also working on the Zambodla case and having to decide whether to take the magistrate’s recusal decision on review or start again from scratch.
Then some administrative staff resigned and she had to take over their duties as well – answering calls, taking messages for prosecutors, dealing with the office fleet, submitting statistics – in addition to all her own work on new and existing cases. She also became ill and spent some time on sick leave. By the time she returned, a pile of new cases had pushed Zambodla’s matter far down on the list of issues to be resolved
In her view, Zambodla’s case involved relatively simple facts. Yet the chaotic conditions and understaffing problems in her office was so great that they almost led to his prosecution being permanently stopped.
If conditions like those in Naicker’s office are duplicated around SA – and there is no suggestion that this is an exceptional situation – then there is a clear staffing crisis in regional and local centres tasked with investigating and prosecuting commercial crime.
Zambodla’s case shows how this crisis hampers efficient prosecution of corruption and can even lead to charges being dropped completely. Clearly, without the resources that prosecuting officers need to do their work, the fight against corruption is doomed.
- Financial Mail, 19 February 2019
