Black prosecutors who alleged racism in NPA fend off bid to gag them

Allegations of racism and nepotism at the top of the National Prosecuting Authority in the Eastern Cape have erupted into the public domain in the Grahamstown high court.

But an application by three Indian prosecutors, a coloured colleague and a white administrator for an interdict to stop five black colleagues and their trade union making defamatory statements about them was refused by Judge Nomathamsanqa Beshe on Tuesday.

“In my view, the respondents have succeeded in showing on a balance of probabilities that the defence of truth and public interest is available to them,” Beshe said.

“It provides them with justification for making the statements complained of in the context in which they were made and in respect of the persons to whom they were made.”

The staff who applied for the interdict were led by Indhrambal Goberdan, senior deputy director of public prosecutions in the Eastern Cape.

They also wanted an unconditional retraction and apology for comments their black colleagues made in complaints to the national director of public prosecutions, Shamila Batohi, and others.

The complaints stemmed from Batohi's first meeting with Eastern Cape prosecutors after she started work in 2019. During the November meeting, said Beshe, “wide-ranging complaints were raised including those of alleged racism”.

District court prosecutor Khotso Seithleko told Batohi that Goberdan and other NPA managers in the Eastern Cape should be called to account for racism, nepotism and favouritism.

“According to [Goberdan], a few days after the meeting and without any investigation into these allegations, she was removed as the acting director of public prosecutions in the Eastern Cape,” said Beshe.

Batohi asked aggrieved staff to make formal complaints, and the following month district court prosecutor Siyabulela Sitshetshe wrote to say he was not shortlisted for several senior positions despite meeting the criteria. He accused Goberdan and colleagues Brenhan Sam and Althea Rhodes of favouritism and nepotism.

District court prosecutor Khotso Seithleko wrote to Batohi complaining he was sent to work in Peddie when his colleague, Sarika Chetty, refused to go for religious and dietary reasons. Chetty also refused to fill a vacant post in Alice, he said.

Seithleko also complained about ill-treatment from Sam, the regional court senior public prosecutor, and said other colleagues received preferential treatment.

Part of his letter quoted in Beshe's judgment said: “Ms Indra can stand beside you presenting your visit as if she’s clean? This is what infuriated many people because these people are made to sit in interviews today wanting us to be good people yet we know they are racist.”

Regional court prosecutor Nomsa Mgxwati also complained to Batohi that she had not been shortlisted for vacancies.

Beshe said: “She also complains of being treated badly by her superiors who also formed part of the selection panels. She complains that the appointment process is fraught with victimisation and nepotism as the shortlisting was done by managers who have been victimising prosecutors working under their supervision.”

Goberdan and her colleagues also cited a press release issued in June 2020 by the National Union of Public Service and Allied Workers, making allegations of nepotism and racism against them.

One of Nupsaw's claims was that director of administration Anthony Bean was given preferential treatment “even though he was alleged to have defrauded the NPA of R1m”.

Nupsaw general secretary Success Mataisane, who deposed an affidavit on behalf of the five prosecutors resisting the interdict, said the applicants had acknowledged the NPA was bedevilled by corruption and racism when Batohi took office yet they wanted to gag colleagues who expressed discontent about these issues.

Mataisane said his members were simply “expressing their lived experiences without any intention to defame or besmirch” their colleagues, and their complaints were true, factual and in the public interest.

They told Beshe a system of rotating prosecutors through the regional courts, to give them experience, was stopped when a white prosecutor was made full-time; white, Indian and coloured prosecutors were not sent to rural offices; Chetty was appointed to act as control prosecutor in Zwelitsha ahead of more senior black colleagues; Bean was cleared of fraud on a technicality; and Mgxwati had to use public transport to travel from King William’s Town to Stutterheim while prosecutors from other races were allowed to use state cars.

The applicants responded that these assertions were made without evidence, but Beshe said she was “constrained to disagree”.

She dismissed the application for an interdict and ordered the five staffers who made it to pay the respondents' costs. 

TimesLIVE