EDITORIAL | How many more bungles must rape and other victims endure, Batohi?

Another case, another bungle by the National Prosecuting Authority. This, sadly, appears to have become our new way of life.

A major crime is committed, society is up in arms. Then relief sets in as an arrest is effected and therefore, surely, justice is about to be meted out. Court processes get under way, but a presiding officer finds the NPA napping. What follows is exasperation and calls for heads to roll. Surely, many ask, how could it be OK for criminals to be let off the hook simply because someone employed to prosecute just couldn’t — or wouldn’t — do the basics?

In the latest case involving Nigerian televangelist Timothy Omotoso, the senior prosecutors are experienced men and women of the law. But still, the ball was dropped. Gqeberha high court judge Irma Schoeman said she could not find Omotoso and his two co-accused Lusanda Sulani and Zukiswa Sitho guilty of charges including rape, sexual assault and human trafficking because the state failed to prove its case beyond reasonable doubt.

Schoeman said: “Cross-examination lasted less than a morning and was just a synopsis of the accusations. It was shallow and lacked intent to uncover the truth.” Put differently, the victims weren’t worthy of the effort by these prosecutors.

This is damning against the prosecution team. To the prosecutors, this was perhaps just another case. But to those who have been raped, sexually assaulted and trafficked, this was a potentially life-changing case, something that could have helped them regain their dignity and, in this way, their shattered lives. Something taken away simply through the lackadaisical approach to work by prosecutors.

Schoeman told the court she found the accused’s explanations improbable, but her hands were tied by the state’s failure to provide proper cross-examination and its overall handling of the case.

Omotoso’s alleged victim, Cheryl Zondi, wrote to the NPA in March 2020 claiming their appointed prosecutor Adv Ismat Cerfontein was “almost racist” and treated witnesses poorly. Cerfontein, who worked with advocate Nceba Ntelwa, was later replaced by advocates Luvuyo Pomolo and Mduduzi Mzila, who handled the much-maligned cross-examination while Adv Joel Cesar dealt with the state’s closing arguments. These are senior jurists who surely knew they needed to demonstrate Omotoso’s guilt beyond reasonable doubt.

Yet their casual approach to this case has now caused so much pain to the victims and ignited social anger against not only the NPA but the country’s justice system that seems to let criminals off the hook through shallow application of their work.

We may never know why Cerfontein behaved in ways that forced a witness to complain about him to the NPA, but this suggests the witness probably realised much earlier that this case was going nowhere slowly.

Whether those who came after and who handled the criticised cross-examination — Pomolo and Mzila — were simply not invested in the case or perhaps acting in solidarity with their fellow prosecutors who had just been removed from the case may also never be known. What is clear though is that they, too, dropped the ball. Once they wrecked the case, Zondi broke down in front of the cameras. Many others probably did away from cameras.

What is most unfortunate is that many witnessing crimes elsewhere are probably convinced there’s no point risking their lives to seek justice because of the bungle culture that has taken root within the NPA

The country’s prosecutors, the people who must help ordinary people get justice, are themselves standing in the way of justice. This is an indictment. Schoeman is correct to call them out. Unfortunately, though, she is not the first.

In the Nulane Investment case, the Free State High Court granted discharges against five accused in the R24.9m fraud and money laundering case. This was the first state capture case to be taken to trial. The NPA failure was spectacular for the wrong reasons. Documentation relied on by the NPA was not even admissible in court. No-one was held accountable for the bungle.

Elsewhere, the Middelburg specialised commercial crimes court struck the case against former Eskom CEO Matshela Koko off the roll in November 2023 due to unreasonable delays. This related to fraud, corruption and money laundering involving the Kusile power plant. The NPA, slammed by the presiding officer, has not been able to reinstate the case since. It was just another case bungled.

When NPA boss Shamila Batohi accepted responsibility to lead the country’s prosecutors in February 2019, she used these words to correctly characterise the challenge at hand: “I am under no illusion about the challenges and the complexity of the task which lies before us. Our Rainbow Nation is reeling from corruption, violent crime and impunity. I commit to leading an organisation which has the courage and ability to end this damaging state of affairs. Perpetrators of corruption and crime within the state and private sector — regardless of who you are, how rich you are and what position you hold — your days of acting with impunity are numbered.”

Today, with so many cases bungled, with tears from witnesses from the Omotoso trial, these words ring hollow. The shallowness of the NPA has persisted despite Batohi’s beautiful words.

What is most unfortunate is that many witnessing crimes elsewhere are probably convinced there’s no point risking their lives to seek justice because of the bungle culture that has taken root within the NPA. If the NPA could not bring Omotoso to justice relying on senior lawyers, why should anyone believe their cases would be managed differently?

When Batohi vacates her position early next year, some may ask how many more needed to shed their tears before seeing her back. The Omotoso case is another example of how the NPA is crying out for leadership. Another case, another bungle. How many more bungles must rape and other victims endure, Batohi?