ANTHONY BUTLER: Zuma likely to share blame for collapse of state capture prosecutions

Rather than chiding the NPA’s head, the focus should be on former president’s decision about the timing of commission of inquiry

First published in Business Day and BUsinessLive

20 June 2025

SA citizens like to blame the national director of public prosecutions for the collapse of state capture prosecutions. They should rather take on the politicians who deliberately brought about this predictable outcome. 

Critics stridently insist National Prosecuting Authority (NPA) head Shamila Batohi must stop making excuses and immediately prosecute potential miscreants flagged by the Zondo state capture commission. On Tuesday she even had to listen to demands for her resignation from an MK MP, Sibonelo Nomvalo, who called her “incompetent” at a parliamentary justice committee meeting. 

This comes on top of a Centre for Development & Enterprise (CDE) report last week that called for a new NPA appointment mechanism. The CDE’s executive director, Ann Bernstein, pointedly observed that “without the right appointment process … the country risks repeating past mistakes”. 

But rather than castigating the NPA’s head it might be more instructive to focus, as the British media have done this week, on political leaders’ decisions about the timing of statutory commissions of inquiry.

Immediately after scandals involving “grooming gangs” — groups of men who targeted vulnerable children for sexual abuse in Rotherham and other English towns a decade ago — there was a circumscribed independent inquiry (the Alexis Jay Report).

Authorities were concerned that a judicial inquiry would interfere with outstanding or possible prosecutions. Only this week did Prime Minister Keir Starmer — himself a former prosecuting agency head — institute a full public inquiry into the scandal. 

In contrast, former president Jacob Zuma set up a commission to proceed in parallel with ongoing investigations, in full knowledge that statutory inquiries have legal powers that sit uncomfortably with criminal law. Zondo witnesses often received “Section 3(4)” undertakings under the Commissions Act, meaning they could claim privilege against self-incrimination during their testimony. Their compelled answers were generally inadmissible against them in a later criminal trial. 

Zondo’s final report predictably created headaches for prosecutors around what lawyers call derivative use of evidence and tainted investigations. Defence lawyers can argue that prosecutors only discovered evidence because the accused was compelled to testify, which can be challenged as a violation of the constitutional right to a fair trial.

They can also argue that evidence was gathered in a process that would not have satisfied the requirements for criminal investigations, potentially opening the door to constitutional challenges. The Constitutional Court has not yet had an opportunity to clarify when derivative use of inquiry evidence is permissible and under what conditions compelled evidence contaminates a criminal case.

Judicial inquiries can certainly run alongside criminal investigations in a well-resourced justice system. Police and prosecution teams can be embedded alongside commissions, actively involved in separating out evidence safe to use in court. But the NPA had no resources or capacity to do this. 

This means the NPA has to reconstruct criminal cases. Gathering fresh evidence independently of the commission’s work depends on new witness interviews, independent forensic audits, fresh financial records, and lawfully obtained search and seizure material, all of which requires human and financial resources the NPA still lacks.

This all illustrates a well-known “sequencing” finding from comparative law and politics: public inquiries, without strong prosecutorial institutions working in parallel from the start, make successful criminal prosecution harder rather than easier. This is why countries typically avoid running full public inquiries in parallel with criminal investigations.

When Zuma appointed the Zondo commission — albeit under heavy legal and political constraints over its terms of reference — we can assume he was fully aware how events would unfold. After all, he had the best possible legal advice — we were paying for it.

• Butler teaches public policy at the University of Cape Town.