Paul Hoffman SC, Director Accountability Now
2 April 2019
Sunday press reports are notorious for their inaccuracy. One in the Sunday Times suggests that the National Prosecuting Authority is going to play possum when it comes to countering grand corruption in the pre-election period. Hopefully the rumour spread in the media is dead wrong.
Quite apart from the applicability of the old saw that “justice delayed is justice denied” (which is constitutionally recognised in the right of accused persons to have their trials “begin and conclude without unreasonable delay”), there are a number of constitutional obligations that preclude the hands-off approach that Peter Bruce would have us all believe is a rumour worthy of credence.
In the first place, the National Prosecuting Authority has a duty to act without fear, favour or prejudice. By holding off on prosecution of manifest malfeasance on the part of candidates and parties involved in the forthcoming election, the NPA is in effect favouring the corrupt among them. Instead of removing the rotten apples, they remain in play in the competition for the power and privilege (and scarce job) which election will bring them. Successful convictions of questionable candidates will certainly disqualify aspirants for political office unless the farcical suspended sentences that the “Travelgate” fraudsters had imposed on them are repeated.
Secondly, the state is obliged to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights. The NPA is an institution of state that is well placed to see to it that human rights are protected. It is the poor who, through the non-delivery of the services needed to promote their rights, are the main victims of grand corruption. It is funding intended for uplifting their health, education, housing and wealth that is diverted to the corrupt. Since the Glenister Trilogy of judgments in the Constitutional Court, it is plain that the law regards corruption as a burning human rights issue, a malady “in danger of becoming something terminal”, as the Chief Justice put it in the last of the three cases. Corruption is not something to leave on the back burner because of the omnipresence of political party posturing at election time.
Countering the corrupt was the joint responsibility of the Hawks (investigation) and the NPA (prosecution) in the Zuma era. The Hawks are a dismal failure and cannot be relied upon, in the field of grand corruption, to take a dog for a walk successfully, let alone corral the corrupt. Without a proper investigation of the facts, the prosecution service (semi-captured or not) was at a huge disadvantage because a good solid investigation of crime usually precedes a successful prosecution.
The new investigative unit for state capture which has been created, whatever its constitutionality, affords the NPA the opportunity of cultivating its in-house investigative capacity and of by-passing the Hawks on matters of grand corruption.
The third constitutional principal that is relevant to getting on with the corruption trials is in section 237 of the Constitution which insists that constitutional obligations (of the kind set out above) “must be performed diligently and without delay.”
Not after the dust of the elections has settled.
To assist the NPA and its Serious Commercial Crimes Unit, here is a preliminary list of matters that should attract urgent attention.
Gavin Watson and Cyril Ramaphosa have a questionable relationship that prompted the former to support the latter’s CR17 election campaign with a convolutedly delivered donation of R500,000. Knowing Watson as we do from what has emerged at the Zondo Commission, a corrupt intention in making the donation is a racing certainty. Professor Pierre de Vos has thoughtfully provided published guidance to the NPA for what it needs to, and need not, prove in order to secure a corrupt activities conviction. Statements from the presidency trying, somewhat lamely, to explain the situation provide virtually all the evidential material necessary. So, just do it.
Mysteriously, and for no apparent contractual reason, the rate at which AGO (previously Bosasa) paid Blue Crane Capital (the business of the president’s son Andile) jumped from R150,000 to R230,000 per month for consultancy services which may amount to nothing more that the grease of political connectivity. The matter cries out for urgent criminal investigation: what did Blue Crane actually do for all that money? We cannot afford to let another Duduzane Zuma situation develop, the fiscal cupboard is already too bare. Andile’s first stabs at furnishing an explanation are woefully underwhelming.
Moving on swiftly to the Deputy President: The new investigation unit in the NPA would do well to interview Fred Daniel and to read the affidavits he has filed not only in the Constitutional Court (when his attempt at getting a commission appointed was rebuffed on technical grounds unrelated to the merits of his complaints) but also in the High Court more recently. There is amply prima facie proof of malfeasance on the part of DD Mabuza, he ought to be prosecuted.
In the national cabinet there is a lot of low hanging fruit against whom court findings in civil proceedings or disciplinary hearings have been made:
- Bheki Cele was found to be incompetent and dishonest by the Moloi Board of Inquiry into his fitness for office as National Commissioner of Police. The Board recommended he be investigated for corruption in the negotiation of leases. Roux Shabangu will sing louder than Agrizzi if the matter is correctly handled. No investigation has taken place in a matter that cries out for proper investigation.
- Malusi Gigaba has lied under oath according to the Gauteng High Court, confirmed on appeal. This exposes him to a simple charge of perjury.
- Bathabile Dlamini is in the same boat as Gigaba, in her case the Concourt made the finding that should form the basis of a short sharp perjury prosecution. Why not?
Then there are a host of cabinet ministers and members of parliament who have been identified as corrupt in the Zondo Commission evidence. Act on that evidence now, do not allow cases to go cold, witnesses to disappear and justice to suffer unnecessary delay.
A good example of this category of miscreant is Adv. Michael Masutha, our minister of justice in the Ramaphosa cabinet. He signed off on the illegal termination of the services of NDPP Mxolisi Nxasana in a manner that amounts to a corrupt activity and defeating the ends of justice. Charges were promptly laid in July 2015 when the terms of the settlement became public knowledge. Civil proceedings have been successfully concluded, they cost Shaun Abrahams his job, but the criminal case languishes in a becalmed state on a desk of a senior prosecutor. This has been allowed to drag despite the fact that two senior members of the Cape Bar have opined that there is a criminal case to answer. A draft charge sheet, settled by them, has been presented to the criminal justice administration, but no progress in charging the culprits has been made. Why not?
Details of the matter are available to the public.
A bonus in this case is that Jacob Zuma is a co-accused. It is surely preferable to have a short trial on two simple charges arising from a single factual matrix that is easily proved than to pursue the 783 ancient transactions involving Zuma currently stutteringly on the roll in KZN. The likely sentence in both matters is the same – fifteen years imprisonment. The NPA has scarce resources; tying them up interminably in the long trial when the same result is possible in a short trial is not “efficient, effective and economic use of resources” as required by section 195(1)(b) of the Constitution. Yet another obligation the NPA needs to consider as it ponders the future of its activities.
The ANC appears to be in a generally corrupt relationship with AGO. A search and seizure warrant in respect of its cash takings and its donation receipts is indicated as a preliminary to fingering those involved in the racketeering, money laundering and misappropriation. Remember, the AGO/Bosasa money is actually public money built into tenders as “administration fees” and other creative bookkeeping items. The arms deals and the Hitachi Power Africa deal are long overdue for prosecution.
No fair election is possible in SA while the ANC is allowed to fund-raise in the unorthodox ways it does so. The electoral playing field cannot be even as no other political party raises funding via deals in State Owned Enterprises, tenderpreneurship and commissions of the magnitude attested by Andrew Feinstein, a former ANC SCOPA member who should know.
A new book by investigative journalist Pieter-Louis Myburgh about the ins and outs of the political career of the Secretary General of the ANC, Ace Magashule, requires investigation and prosecution. If Myburgh is making it all up, he should be prosecuted, if he is not, Magashule has a lot of answering to do.
The Guptas have apparently flown the coop. The funds that they have misappropriated are partly still here (invested in Saxonwold, local companies, land and fancy cars) and partly overseas (questioned transfers set out clearly in the litigation between the Guptas and Pravin Gordhan in his ministerial capacity). It is probable that it would be better to “box smart” in the civil courts offshore, but there is no reason why the Assets Forfeiture Unit should not back up the work of the SIU on recovering the loot of Gupta inspired state capture.
If the NPA is to live up to its constitutional mandate it has to move on these and many other matters with urgency and with all the help that the organised legal professions can bring to bear in the spirit of Thuma Mina. Acting without fear, favour or prejudice very often denotes “fear” of the powerful, “favour” to the friendly and “prejudice” to the public. The election is not a pretext for favouring those in politics who actually belong in orange overalls. May the long-suffering citizens of SA be spared yet another political chief prosecutor.