Pierre de Vos, Constitutionally Speaking – 27 May 2019
When Advocate Shamila Batohi started work four months ago as National Director of Public Prosecutions (NDPP), expectations were high that some of the high-profile politicians and businesspeople would soon be charged with corruption, fraud, money-laundering and other crimes of dishonesty. But it was naïve to expect that corruption prosecutions were imminent. Although the recent establishment of an investigative directorate within the National Prosecuting Authority (NPA) might speed things up, don’t expect to see Brian Molefe, Markus Jooste, Ace Magashule, or Bosasa’s Gavin Watson behind bars in the near future.
The NPA does not normally investigate criminal offences. Instead it normally manages the prosecution of individuals with the aim of securing criminal convictions in court. These prosecutions rely on the evidence gathered by the South African Police Service (SAPS) or the Hawks (who is independent from, but also formally part of, the SAPS).
Once an investigation is completed, the docket is handed over to the NPA for a decision on whether to proceed with the prosecution or not. The relevant prosecutor may of course refer the matter back to the SAPS or the Hawks and may direct the police investigator to do further investigation to help strengthen the case against the accused. But there is normally very little the NPA and its prosecutors can do, if the SAPS and the Hawks are unwilling or unable to do their job.
According to statistics quoted in a Law Reform Commission Report on conviction rates, about 75% of cases in which a crime is reported to the police a suspect is never identified. This number is even more worrying if one considers that many crimes are never reported to the SAPS at all because of the belief that the police will never investigate it. In 16% of cases the complainant is likely to withdraw the complaint, suggesting that the complainant knows the perpetrator and may be in a family or other relationship with him or her.
Only 5.70% of the sampled violent crime cases had resulted in a conviction two years after the report of those cases to the police. Almost as many of the sampled cases of violent crime resulted in acquittal (5.40%) as opposed to conviction. There were almost as many withdrawals of the sampled cases of violent crime in court (9.98%) as convictions and acquittals combined. Forty percent of cases that went to court were withdrawn before trial.
The fact that in about 75% of reported cases the police never identify a suspect, suggests that the SAPS and the Hawks have limited time, resources and the requisite skills to effectively investigate criminal offences, identify suspects, and build a case against that suspect that stands a chance of leading to a conviction. There is also a lack of political will to investigate many of the crimes committed by politically connected or other powerful people – a problem that became worse during the presidency of Jacob Zuma.
There may be a variety of reasons why 40% of cases that make it to court are withdrawn by the NPA before the case goes to trial. Prosecutors withdraw a case when they realise they have an unwinnable case because the investigation by the Police was botched.
Sometimes prosecutors will withdraw the case because they are not certain they will win and worry that an acquittal will make the statistics look bad (as it will lower the conviction rate). We know from the recent Mokgoro report that over the past ten years in high profile political cases, the NDPP, Deputy NDPP and provincial Directors of Public Prosecutions have often dropped charges against some accused (and have prosecuted others) for purely political reasons.
It must therefore be clear that without fixing the SAPS and the Hawks, the new NDPP is unlikely to have long term success in her job. At the same time, she has very limited influence over the SAPS and the Hawks and is not in a position to fix these institutions.
The NPA cannot prosecute cases that have not been investigated or that have been investigated badly. But fixing the SAPS and the Hawks is a gargantuan task because the problem is not “only” that they are politicised but also because – despite some laudable exceptions – many of their staff lack the requisite investigative skills and legal knowledge to do their jobs properly.
The recent announcement that President Cyril Ramaphosa has appointed Advocate Hermione Cronje to head up the National Prosecuting Authority’s investigative directorate in accordance with section 7 of the National Prosecuting Authority Act, and that Geoff Budlender SC Thanda Mngwengwe, former operational head of the defunct Scorpions, would be in the unit, is therefore a welcome development.
Unlike the NPA’s Priority Crimes Litigation Unit (PCLU), which was created in 2003, Cronje’s Directorate has investigative powers. The new Directorate has very broad powers to investigate matters, although it also has a wide discretion on what cases to take on as it will not have the resources to investigate all the alleged criminal offences falling within its jurisdiction. The Hawks and to a lesser extent the ordinary investigators from the SAPS will have to investigate those allegations that Cronje’s Investigative Directorate decides not to focus on.
The new Directorate will investigate common law offences including fraud, forgery, uttering, theft and any offence involving dishonesty. The directorate will also attend to statutory offences like corruption, crime related to organised crime, money laundering and various offences related to corruption in the public service.
In addition, the directorate will investigate any unlawful activities relating to serious, high profile or complex corruption including but not limited to offences or criminal or unlawful activities arising from the following commissions and inquiries: The Zondo Commission of Inquiry; The Nugent Commission of Inquiry into Tax Administration and Governance by SARS; The Mpati Commission of Inquiry into Allegations for Impropriety regarding the Public Investment Corporation; any other serious, high profile or complex corruption case referred to the new directorate by the National Director.
Section 7(4) of the NPA Act makes clear that the Directorate is permitted to bring together prosecutors and other experts from within the public administration and from the private sector to create a unit that will be effective in going after those who perpetrated the most outrageous forms of corruption and subversion of state institutions during the Zuma years.
This Directorate has been widely compared with the Scorpions, which also investigated high profile cases of corruption, but was dismantled after Jacob Zuma became President of the ANC. The Scorpions was dismantled to protect Zuma and his political allies (as well as all their blessers) from criminal prosecution.
But there is one big difference between the two. The new Investigative Directorate is not a creature of statute as it was created by President Cyril Ramaphosa (in terms of section 7(1) of the NPA Act). Section 7(2)(b) further makes clear that:
Any proclamation issued in terms of this section may at any time be amended or rescinded by the President on the recommendation of the Minister, the Cabinet member responsible for policing and the National Director.
Once the Investigative Directorate gets going and once it goes after powerful politicians in the ANC, the EFF or the DA, a campaign will almost certainly begin to discredit the Investigative Directorate. It will be accused of conspiring to derail Radical Economic Transformation, and will be called a handmaiden of White Monopoly Capital; its head will probably be accused of being part of a “coloured cabal”, and President Cyril Ramaphosa will be accused of using the Investigative Directorate to go after his enemies. Pressure will be exerted on Ramaphosa to disband the Unit and his failure to do so will be seen as betrayal.
The fate of the Investigative Directorate is now inextricably linked to the fate of Ramaphosa and his presidency. Those who fear that they may be arrested and prosecuted by the Directorate will work with ever more urgency to get rid of Ramaphosa, or at least to get the upper hand within party structures in order to neutralise him and the investigators and prosecutors coming after them.
Those who fear that they may end up in jail because they stole taxpayers money, will almost certainly play dirty to protect themselves. I might be wrong, but I suspect it is not a matter of when the attack on the new Investigative Directorate will begin, but when.