Pierre de Vos, Constitutionally Speaking – 1 October 2019
Hardly a week passes by without new evidence emerging that many South African politicians and their business benefactors are involved in corruption, money laundering, theft and fraud. Why, then, has there been so little movement from the National Prosecuting Authority (NPA) to charge and prosecute the army of suspects?
When advocate Shamila Batohi started work in February this year as National Director of Public Prosecutions (NDPP), it raised unrealistic expectations with the public that the NPA would soon begin to charge and prosecute the very many corrupt politicians and businesspeople.
This was never going to happen as there are severe constraints on the ability of the NDPP to speed up prosecutions. While it would have been marvellous if it had been different, it is not possible for the NDPP to fix internal NPA problems overnight. Some of the reasons why prosecutions are not happening also has very little to do with the NPA.
On the last point: The NPA cannot prosecute cases unless these cases have been properly investigated and unless investigators have prepared dockets containing sufficient evidence to warrant prosecution. Normally (more about this later) the NPA does not itself conduct criminal investigations. It relies on either the South African Police Service (SAPS) or on the Directorate for Priority Crime Investigation (also called the Hawks) to investigate criminal activity and to collect the evidence which would be used by prosecutors to try and secure criminal convictions in court.
The problem is that political interference in both the SAPS and the Hawks have had a devastating effect on the willingness and ability of those employed by these bodies fearlessly to investigate corruption, money laundering, theft and fraud perpetrated by well-connected politicians and by their business benefactors.
The long list of disastrous political appointees as Commissioner of the SAPS is just the tip of the iceberg as far as the politicisation of the SAPS is concerned. As anyone who has ever attended a protest march will attest, many SAPS members are badly trained and unable to distinguish between their loyalty to the governing party and their duty to uphold the rule of law.
The Hawks has its own problems, having been born in sin. Recall, the Hawks was created to give the impression that the Zuma government was not indifferent about corruption while protecting the Zuma faction from prosecution for corruption. To ensure political control over the Hawks, it could not originally operate independently from the political influence of the government. Most importantly, the minister of Police retained final control over which cases could be investigated by the Hawks.
A few weeks after the Constitutional Court removed the power of the minister of Police to control decisions by the head of the Hawks on which cases to investigate, the minister suspended then head of the Hawks Anwa Dramat from his position.
Eventually the minister relied on trumped-up charges to remove Anwa Dramat from his position as head of the Hawks. Dramat had to be removed because the crooked politicians and their crooked private benefactors believed that he was too honest and too independent to be trusted with their freedom.
Dramat was replaced by the odious General Berning Ntlemeza, whose appointment was later declared invalid by the High Court. In the judgment declaring his appointment invalid, the High Court held that General Ntlemeza had a “contemptuous attitude towards the rule of law and the principle of legality and transparency”. Another court had previously found that Ntlemeza was guilty of dishonesty and of acting in bad faith.
Ntlemeza has now been replaced by Advocate Godfrey Lebeya, while the SAPS is now headed by General Khehla Sithole. But many of the senior people appointed by their less than honest predecessors are still working in the SAPS and the Hawks. Worse, the political interference into the Hawks and the SAPS also led to an exodus of many of the best and most honest investigators employed by these bodies. At best there is now a dire shortage of skilled investigators who can collect the appropriate evidence required for a successful prosecution of complex financial crimes.
Which means that one way to speed up investigations of politically tainted corruption, money laundering, theft and fraud, and to improve the chances of successfully prosecuting the corrupt politicians and their private sector benefactors, one would need to rid the SAPS and the Hawks of a large number of senior officers and would have to replace them with more professional, more honest, more competent and more diligent people.
This has not happened and, for both political and legal reasons, is not likely to happen. Which means that for the time being, it would be naïve to hope that the SAPS and the Hawks will speedily and effectively investigate the large number of priority crimes involving politicians and politically connected businesspeople. If the NPA had to rely on the Hawks to gather sufficient evidence to ensure prosecution, very few of the so-called State Capture culprits would ever see the inside of a court room.
It is true that some of the vacancies within the Hawks have recently been filled and that it has completed some investigations into corruption and is awaiting feedback from the NPA, but I would be very surprised if Hawks investigations will, in the short to medium term, lead to a large number of high profile corruption prosecutions.
I suspect this is exactly why in March this year President Cyril Ramaphosa created a Special Investigative Directorate inside the NPA. The Directorate – headed by advocate Hermione Cronje – is situated within the NPA. This allows the Directorate to conduct investigations in which both prosecutors and other investigators are involved – similar to the method used by the former Scorpions.
The proclamation establishing the Directorate gave it extraordinarily wide jurisdiction to decide which crimes to investigate. Apart from common law offences “including” fraud, forgery, uttering, theft and any offence involving dishonesty, the Directorate also has the power to investigate various statutory offences relating to corruption, money laundering. Organised crime, and various offences committed in terms of Public Finance Management Act; Municipal Management Act; Financial Intelligence Centre Act; and “any other statutory offence involving dishonesty”.
It is also empowered to 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 Zondo Commission of Inquiry; the Nugent Commission of Inquiry into SARS; and the Mpati Commission of Inquiry into the Public Investment Corporation (PIC).
If the Special Investigative Directorate is properly funded and managed, it is most likely to have significant success in bringing the high-profile politicians and their enablers to book.
But this is not the end of the story. The NPA itself is in crisis. Ever since it was created, the NPA has been mired in controversy. While the Constitutional Court has confirmed that the NPA and specifically the NDPP enjoys constitutionally protected independence and that politicians and other powerful role-players are not permitted to interfere in prosecutorial decisions, there has consistently been political interference in the work of the NPA and the NDPP.
Moreover, ever since Vusi Pikoli was unlawfully removed from his post as NDPP, a long line of full-time and acting National Directors of Public Prosecutions contributed to the weakening of the NPA – often with the assistance of then President Jacob Zuma. Many politically motivated senior appointments were made by Zuma and by various NDPP’s. (President Ramaphosa recently moved to nullify the appointment of several senior NPA leaders “appointed” in the dying days of the Zuma regime – but this move is being challenged in court.)
During the era of Menzi Simelane, Shaun Abrahams and Nomgcobo Jiba many skilled and committed prosecutors also left the NPA. NDPP Shamila Batohi inherited a dysfunctional and weak institution and it is going to take years to fix the NPA. Just because the NPA is now headed by an honest and fearless person does not mean that all the institutional problems and weakness of the organisation will magically disappear.
No wonder that Hawks head, Advocate Godfrey Lebeya, complained to Parliament earlier this year that it “still takes months” for the NPA to make decisions on whether to prosecute cases prepared by the Hawks. One outstanding decision was in respect of alleged R11-million fraud over misrepresentations former Eskom CEO Brian Molefe made to the power utility’s pension fund as ventilated at the parliamentary State Capture inquiry in 2017.
The NPA faces another problem not of its own making. This is a problem faced by prosecuting authorities in many parts of the world. By its very nature those who have stolen millions (or even billions) of Rand now have very deep pockets and can spend vast amounts of money on their criminal lawyers. The NPA on the other hand does not have unlimited funds to secure the successful prosecution of the rich culprits. In such cases there is no equality of arms between the defence and the accused which means that the NPA is likely to be legally outwitted unless it takes extraordinary care with the preparation of their cases.
To make things even more difficult, accused persons with deep pockets can – with the assistance of ethically challenged lawyers – exploit the various procedural rules to delay the proceedings and can place extra pressure on the NPA by drawing it into an expensive and time-consuming fight over procedural issues. Jacob Zuma and his lawyers did this brilliantly because Zuma had access to unlimited state funds to pay for it all – dragging out his case for more than 10 years.
When a case is politicised, every small technical victory for the accused against the NPA will also be politically exploited to try and discredit the NPA and the prosecution. (Imagine what would happen if the NPA prosecuted Ace Magashule, Julius Malema or Floyd Shivambu and the court then ruled that the search warrant used to gather evidence in the case was invalid – it would be like Christmas for the accused.)
All this means that if the NPA decides to go after extremely rich or extremely powerful individuals, it would have to make absolutely sure that it has its ducks in a row. It would therefore not be surprising to hear that the NDPP is holding back some high-profile prosecutions because of procedural weaknesses in the various investigations.
It is important to be aware of the reasons (set out above) for the lack of high-profile prosecutions for corruption, theft, money laundering and fraud. But this does not mean that we should not demand that the SAPS, the Hawks and the NPA do better. Patience is running out.