To see what’s wrong with the NPA, look at the opposition front bench

The National Prosecuting Authority has been the victim of relentless political interference. It’s in need of a makeover.

Not a single high-profile politician has been successfully prosecuted by the National Prosecuting Authority (NPA) for their involvement in state capture or corruption.

Take a look at the opposition front bench of parliament.

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The newly-formed uMkhonto weSizwe Party (MKP), now the official opposition, welcomed into its ranks:

• Brian Molefe, former CEO of Eskom and Transnet, who featured prominently in the Zondo reports into state capture;
• Siyabonga Gama, who was fired as CEO of Transnet in 2018 for “possible receipt of gratification”, with the Zondo reports recommending an investigation into alleged corruption;
• Lucky Montana, former CEO of Passenger Rail Agency of South Africa (Prasa), who the Zondo reports recommended be investigated for his role in capturing Prasa; and
• Mzwanele Manyi, former director-general of the Government Communications and Information System (GCIS) and now the MKP chief whip. The Zondo Commission likewise recommended that he be investigated for his role in showering the Gupta-owned New Age newspaper with largesse.

Just as problematic is the appointment of Thembi Simelane as minister of justice after she received a “loan” of R575 600 from Gundo Wealth Solutions, whose director, Ralliom Razwinane, was linked to the now defunct (and looted) VBS Bank. Simelane says the loan was repaid with interest.

Read: Prasa corruption investigations get pushback from MKP MPs

NPA track record

A new report from the Centre for Development and Enterprise (CDE) entitled Energise the NPA delves into the causes of the NPA’s poor track record in investigating and prosecuting cases of corruption.

“The slow and erratic prosecution of widely reported cases of corruption undermines democracy and encourages the misappropriation of state resources,” it says.

The NPA is mandated by the Constitution to launch criminal proceedings on behalf of the state but has been systematically hollowed out by political interference from government.

This is the same government, then under the presidency of Jacob Zuma, that in 2009 disbanded the Scorpions – officially the Directorate of Special Operations – as an independent investigating and prosecuting unit of the NPA, which has not fully recovered since then.

Read: ‘Scorpions being disbanded to protect ANC’s own’ Disbanding of Scorpions unconstitutional – ConCourt Selebi wanted Scorpions gone Government mulls revival of Scorpions-like agency

The Scorpions had wide powers to investigate and prosecute crime and achieved a prosecution rate of 90% in its decade-long existence.

What troubled the ruling party was its concentration on high-profile cases, often involving senior ANC politicians.

Potency

The Scorpions raided the homes of Zuma and his business associate Schabir Shaik, as well as former transport minister Mac Maharaj. It rained down justice on some 30 members of parliament, most of them ANC, over the Travelgate scandal involving millions of rands in fictitious travel expenses.

The Scorpions prosecuted Winnie Mandela for fraud and arrested Mark Thatcher, son of the late UK prime minister Margaret Thatcher, over his suspected involvement in a coup attempt in Equatorial Guinea.

The unit also went after mafia don Vito Palazzolo and mining magnate Billy Rautenbach.

The Scorpions were on a roll, and becoming increasingly interested in the political class then gaining a taste for the better things in life.

Which is no doubt why it had to be shut down.

Removing the sting

It was replaced by the Hawks – the Directorate for Priority Crime Investigation – and nestled safely under the purview of the South African Police Service (SAPS) where, presumably, it would do less damage to those on the take.

“Despite its success in investigating and prosecuting such crimes, the Directorate [of Special Operations] was disbanded in 2009 by Parliament at the instigation of the ruling party, almost certainly to avoid the risk of prosecution in contemplation of the wholesale looting of the state that was to follow,” reads the CDE report.

Read:
The Zondo Report on SAA, SAAT and SA ExpressThe looting of Eskom, Transnet and SAA by the Gupta media enterprise
Second Zondo report details rampant corruption at Transnet and Denel

“The ‘Hawks’ was established as an entity within the South African Police Service after lengthy litigation. It has proved an unworthy successor to the Scorpions, not least because it lacks the requisite capacities, resources and leadership.”

New broom, failure to launch

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When the current National Director of Public Prosecutions, Shamila Batohi, was appointed in December 2018, the expectation was that she would clean up the NPA, restore its capabilities, and fast-track the prosecution of major corruption cases. After nearly six years, this has not happened.

The NPA has failed to institute and successfully prosecute a significant number of major corruption cases long identified in the forensic reports into Prasa (2017), Transnet and Eskom (2018), the reports of the Zondo Commission (2022), and multiple reports by investigative journalists, says the CDE.

This prosecutorial apathy encourages criminal behaviour and has done little to curb corruption.

When senior political and business people are hauled before court, they are able to hire expensive legal teams and engage in ‘Stalingrad tactics’ – raising procedural issues to delay judgment or hopefully have the case dismissed.

It has also led to a pervasive sense of despair that the state cannot enforce the law, says CDE executive director Anne Bernstein.

“We need to restore accountability. To do this, we need a clear understanding of the reasons for the failure of the NPA, and its poor record in prosecuting (much less securing convictions) in most of the major corruption cases it has been investigating.”

The ‘horror’ needs to end

There is discussion as to whether the NPA should be recategorised as a Chapter 9 institution, such as the Public Protector, the Electoral Commission and the Auditor-General. These entities enjoy special protections under the Constitution for their role in protecting and supporting democracy.

Speaking at the launch of the CDE report, former Constitutional Court judge Johann Kriegler pointed out that since the inception of the NPA, it’s been a “horror” of political interference.

Read: Billy Downer: Allow more time to bring state capture crooks to book

What’s urgently needed is the reconstruction of the NPA with strong investigative and prosecutorial powers and resources, and completely independent of government control.

Recommendations

The CDE recommends several steps to fix the NPA:

• The president should appoint a retired judge to launch an inquiry into the specific causes of the NPA’s disappointing performance;
• Establish the Independent Directorate Against Corruption, comprising investigators and prosecutors, as a matter of urgency – this would potentially reboot the successful Scorpions model;
• Establish special corruption courts, drawing on retired and acting judges, to speed case throughput.
• Release the full archive of the Zondo Commission of Inquiry to the NPA, including witness statements and investigation materials (bizarrely withheld from the NPA until now);
• The president and minister must publicly back the NPA and its work, even if those charged are powerful people; and
• Establish a timeline of priority prosecutions before the end of 2024.

Another suggestion is for private participation in high-profile investigations and prosecutions, something that has already yielded fruit in cases such as Steinhoff and VBS.

All this is not an attack on the NPA, added Bernstein, given the enormous obstacles thrown in its path and the hobbling of its ability to deliver results.

Increasing funding and resources to this vital institution should yield a generous return, given the World Bank’s estimate that crime and corruption are costing the GDP 10% a year. It’s time to bring back the Scorpions, or something like it.

Access the Zondo report on Transnet here.

Access the Zondo report on Denel here.

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