Mystery Witnesses N and O Set to Blow NPA's Cover Wide Open

The Madlanga Commission of Inquiry is poised to make a critical decision regarding the secret testimony of two whistleblowers, known as Witness N and Witness O. These witnesses allege widespread corruption within the National Prosecuting Authority (NPA), specifically accusing former National Director of Public Prosecutions (NDPP) Shamila Batohi and Investigating Directorate Against Corruption (IDAC) head Andrea Johnson of obstructing a criminal case against suspended Crime Intelligence boss Feroz Khan. The Commission's ruling on in camera proceedings will significantly impact the balance between the constitutional principle of open justice and the imperative to protect witnesses, setting a precedent for future high-stakes inquiries into state capture and corruption in South Africa.

South Africa's legal landscape is once again gripped by a high-stakes inquiry, as the Madlanga Commission prepares to rule on an application for secret testimony from two key whistleblowers. These individuals, identified only as Witness N and Witness O, claim to possess explosive evidence detailing alleged interference by senior figures within the National Prosecuting Authority (NPA), including former National Director of Public Prosecutions (NDPP) Shamila Batohi and the head of the Investigating Directorate Against Corruption (IDAC), Andrea Johnson. The allegations centre on the purported blocking of a criminal case against suspended Crime Intelligence boss Feroz Khan.

The Commission's decision on whether to allow these witnesses to testify in absolute secrecy carries profound implications. It will test the delicate balance between the constitutional imperative of open justice, which demands transparency in public proceedings, and the critical need to protect whistleblowers who come forward with sensitive information that could expose powerful criminal networks and corrupt officials. The outcome will not only shape the trajectory of the Madlanga Commission's investigations but also establish a significant precedent for how future commissions of inquiry navigate issues of witness safety and public accountability in South Africa's ongoing fight against corruption.

This article will delve into the legal framework governing commissions of inquiry and witness protection in South Africa, analyse the competing principles at play, and consider the potential ramifications of the Commission's impending decision for legal practitioners and the broader criminal justice system.

The Madlanga Commission of Inquiry into Criminality, Political Interference, and Corruption in the Criminal Justice System was established by President Cyril Ramaphosa in July 2025. Chaired by retired Justice Mbuyiseli Madlanga, its broad mandate is to investigate allegations of infiltration by criminal syndicates into various law enforcement, intelligence, prosecution, judicial, and correctional services. Operating under the Commissions Act, 1947 (Act 8 of 1947), the Commission is empowered to summon witnesses and hear evidence, with its proceedings generally expected to be public.

The National Prosecuting Authority (NPA), central to these allegations, derives its mandate from Section 179 of the Constitution of the Republic of South Africa, 1996, and the National Prosecuting Authority Act, 1998 (Act 32 of 1998). It is tasked with instituting criminal proceedings on behalf of the state, exercising its functions "without fear, favour, or prejudice." The National Director of Public Prosecutions (NDPP) holds significant authority, including determining prosecution policy and reviewing decisions to prosecute or not. Shamila Batohi was appointed NDPP in February 2019 for a non-renewable 10-year term, and the allegations against her pertain to actions during her tenure. The Investigating Directorate (ID), also known as IDAC, was established within the NPA in April 2019 to investigate and prosecute high-profile and complex crimes, particularly those under the Prevention of Organised Crime Act and the Prevention and Combatting of Corrupt Activities Act.

While the principle of open justice is a cornerstone of South African constitutional law, ensuring transparency and public oversight of judicial and quasi-judicial processes, it is not absolute. Courts and commissions retain discretion to restrict public access in exceptional circumstances, such as to protect national security, public order, the administration of justice, or the safety and privacy of witnesses. The Commissions Act itself allows for regulations providing for "the preservation of secrecy." This inherent tension between transparency and protection forms the crux of the Madlanga Commission's current deliberation.

The application by Witness N and Witness O for secret testimony before the Madlanga Commission highlights a critical juncture in South African jurisprudence: balancing the constitutional right to open justice against the imperative of witness protection. The Commissions Act, 1947, explicitly states that evidence and addresses heard by a commission shall generally be public. However, it also grants commissions the power to hear evidence in camera for reasons of national security or to protect the identity and personal safety of witnesses. The Commission's own rules, specifically Rules 4.2 and 4.3, likely provide the procedural framework for such applications.

The core of the witnesses' application rests on fears for their safety and potential occupational prejudice, particularly given the high-ranking nature of the individuals implicated – including the former NDPP and the head of IDAC – and the sensitive nature of their evidence concerning alleged interference in a criminal investigation against a senior police official. This is not an unprecedented request; the Madlanga Commission has previously granted similar applications, such as for Witness M, where testimony involved allegations concerning heads of state, drug syndicates, organised crime families, and law enforcement officers, citing concerns for safety, family, and business reputation. Public Interest SA has commended such decisions, acknowledging that in exceptional circumstances, witness protection must take precedence over public access to ensure the integrity of the Commission's work and to encourage whistleblowers to come forward.

South African courts have consistently affirmed the principle of open justice, as articulated in cases like *S v Pistorius* and *Van Breda v Media 24 Limited and Others*, which underscore the public's right to scrutinise judicial proceedings as mandated by Section 16 of the Constitution (freedom of expression) and the principle of open justice. However, these same judgments acknowledge that this right is not absolute and may be limited where necessary to ensure a fair trial or protect other fundamental rights. The Constitutional Court, in *Savoi and Others v National Prosecuting Authority and Another* [2023] ZACC 38, also recognised the possibility of in camera proceedings to balance competing constitutional principles, such as legal professional privilege and open justice, provided a record is kept and made public if the privilege is later found not to apply.

The allegations themselves are grave, suggesting that the very institutions tasked with upholding the law – the NPA and its anti-corruption directorate – may have been compromised. Witness O claims that Andrea Johnson acted improperly in handling charges against Feroz Khan, and both Batohi and Johnson are accused of interfering in the investigation to protect Khan. This is corroborated by earlier testimony from retired Hawks officer Colonel Kobus Roelofse, who stated that Johnson improperly obtained and forwarded police docket information to Khan, and that Batohi allegedly disclosed a complaint to Johnson, which Roelofse found "extremely concerning." The Commission's decision on secret testimony will therefore involve a careful weighing of the public interest in full transparency against the practical necessity of securing crucial evidence from potentially vulnerable witnesses, without whom the truth might never emerge.

The Madlanga Commission's impending decision on the secret testimony of Witness N and Witness O represents a pivotal moment for accountability within South Africa's criminal justice system. Should the Commission grant the application for in camera proceedings, it will underscore the judiciary's commitment to protecting whistleblowers, acknowledging the severe risks they face when exposing high-level corruption. This approach, while seemingly at odds with the principle of open justice, is a pragmatic necessity to ensure that vital evidence is brought before the inquiry, ultimately serving the broader public interest in uncovering truth and fostering accountability.

For legal practitioners, this ruling will provide crucial guidance on the parameters of witness protection in commissions of inquiry, particularly in cases involving sensitive allegations against state officials. It reinforces the importance of robust procedural rules that allow for flexibility in balancing competing constitutional rights. Practitioners should closely monitor the Commission's reasoning and its subsequent findings, as they are likely to inform future legislative or policy reforms aimed at strengthening whistleblower protection mechanisms and enhancing the integrity of state institutions. The ultimate success of the Madlanga Commission, and indeed the broader fight against corruption, hinges on its ability to create an environment where witnesses feel secure enough to expose wrongdoing, even when it implicates the highest echelons of power.