National Director of Public Prosecutions Shamila Batohi.
The National Prosecuting Authority’s (NPA’s) Investigating Directorate Against Corruption (IDAC) has refused to disclose how much senior advocates Paul Pretorius and Matthew Chaskalson, appointed as consultants, will cost the public purse.
It has also emerged that the two former evidence leaders to the Zondo Commission, who will assist with “specialised aspects” relating to the investigation and prosecution of “complex crimes”, have not obtained security clearance certificates.
Their appointment was thrust into the spotlight after a source told this publication that it was part of an attempt to allegedly capture the NPA. Questions were also asked about whether these could not be the responsibility of permanently employed staff.
The matter once again came up in the National Assembly this week when uMkhonto weSizwe Party chief whip Mzwanele Manyi asked the NPA and Investigating Directorate (ID) top brass to shed light on whether the two, including Deputy National Director of Prosecutions Anton du Plessis, have security clearance certificates.
“What is the state of play there so that we know what is happening?” Manyi asked.
He also raised a question of conflict of interest in the appointment of Pretorius and Chaskalson being “evidence leaders on one side and now on this side of prosecution”.
“It is like someone is given an opportunity to mark their own homework.
Why and how did this happen? I think it is blatant conflict,” he charged, adding that it was bizarre for evidence leaders to now be prosecuting.
In reference to Pretorius and Chaskalson, NPA head Shamila Batohi said section 38 appointments in terms of the NPA Act were not a new thing.
“It is in the act and we have been appointing section 38 counsels as long as the NPA existed,” she said.
Batohi also said the NPA was not the only law enforcement agency that used such a provision.
“All use external counsel to deal with various matters to support their work.”
ID head advocate Andrea Johnson said Pretorius was appointed for six months.
“He does not conduct any prosecution in the ID space,” she said.
When Manyi complained that his question on security clearance was not answered, Batohi said they have many members of the NPA without top security clearance.
“This is a challenge throughout the government. The State Security Agency (SSA) has to do its work.” She also said the NPA has done everything needed to submit the application forms and all other required documents in order to get the top clearance certificates.
“The fact is that there is a backlog in the SSA, I do think this question should be put to the SSA, how quickly they can finalise the matter. This committee will do us a favour if they raise the issue,” Batohi said, before indicating steps they had taken to have the security clearance finalised.
They were not involved in prosecuting matters, but provided some consultancy work, said the entity.
Approached for comment on the cost of this consultancy work, IDAC spokesperson Henry Mamothame said they would not comment further. SSA spokesperson Sipho Mbele said: “We don’t comment on operational issues. We liaise with the relevant department.”
For any top (government) structure including NPA investigators, senior prosecutors, among others, security clearance was compulsory, according to forensic crime expert Calvin Rafadi.
“It (security clearance) comes in different levels, like level 1, top security etc.
“When you are going to speak to any investigation report or intelligence report, especially at national key point areas (eg, state-owned enterprise), you cannot go to Parliament and speak of the investigation, but you don’t have security clearance.
“It is a very crucial compulsory requirement. Within 21 days it must have been completed and awarded.
It involves putting a person under a lie detector, interviewing their next of kin, following their movements, then also conducting a lifestyle audit (to do with ITC, how you spend your money, credit etc) and vetting.
It expires every five years, so you cannot use the clearance you applied for six years ago when you apply for a new job, for example. It has to be renewed.
“The risk of not having a security clearance is that every document you present in the legislature would not be worth the white paper it is written on – it can easily be challenged.
Every finding could be taken on review and the applicants could win at court.”
Cape Times