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Are the wheels of criminal justice turning against the corrupt?

28 July 2019 by Paul Hoffman

Speaking at an event organised in memory of the late Kader Asmal, our new National Director of Public Prosecutions, Shamila Batoyi, pointed out, quite rightly, that those in the prosecution service over the past ten years (since the demise of the Scorpions) have been attempting to ensure that suspects involved in grand corruption were not investigated and prosecuted as they should have been.

While the Scorpions operated as a unit within the National Prosecuting Authority, using the famous troika approach in which crime intelligence, forensic investigation and prosecutorial excellence were combined, the corrupt were in jeopardy of being charged, tried and convicted. Jackie Selebi, despite being chief of police, was successfully convicted of corruption after a thorough, and hotly contested, investigation by the Scorpions. Tony Yengeni, an ANC Chief Whip, and all of the Travelgate fraudsters in parliament went down while the criminal justice system was functioning as it should in terms of the Constitution – ethically, professionally, effectively, independently, efficiently and economically.

When Jacob Zuma swept to power at the Polokwane conference of the ANC in December 2007, an urgent resolution to dissolve the Scorpions was passed and it was acted on, in the face of strong opposition from civil society, the NGO sector and the opposition parties in parliament. Gwede Matashe, then Secretary General of the ANC was blunt enough to admit that the investigation of ANC big-wigs was the motivation for the closure of the Scorpions. Their investigation of Schabir Shaik (who was sentence to 15 years for corrupting Jacob Zuma) and of Zuma himself, is still not complete, as Zuma faces charges currently, arising from the same factual matrix that led to the downfall of Shaik and also investigated by the Scorpions. The only weakness of the Scorpions, their lack of security of tenure of office as mere creatures of an ordinary statute, saw their demise despite the lawfare and the outcry.

The capture of the NPA, partial though it was, led to its decapitation by Zuma, who, in effect, bribed his NDPP Mxolisi Nxcasana to resign after he proved to be sufficiently independent-minded to prosecute Zuma due to his corrupt relationship with Shaik. This move had a chilling effect, so chilling that no big fish of state capture and grand corruption were prosecuted during the Zuma presidency. Prosecutors considered doing so a career-limiting move, based on Nxasana’s experience.

This attitude did not however mean that the wheels of justice stopped turning. Corruption investigations fell onto the broad and competent shoulders of Thuli Madonsela, the Public Protector. Although she protests that the investigation of maladministration (her main function) is a different skill-set to what is required to reap success in corruption cases, she nevertheless wrote reports that brought down the corrupt without criminal trials. She is quite right that the incompetence and negligence that leads to maladministration is a very different creature to the deliberate malfeasance involved in corrupt activities.

The Secure in Comfort report about Nkandla, the Against the Rules reports about the high jinks of Bheki Cele when he was chief of police and the final State of Capture Report prepared by her office are packed full of information of use to any prosecutor who no longer feels the chilling effects of the Zuma presidency. Madonsela’s investigation into the tender irregularities in Limpopo, in which Julius Malema was involved, did form the foundation of a criminal case that was brought to court in a prosecution ready state years ago. As one of the accused was ill, the case was postponed without setting a new date. The matter should be re-enrolled without delay, the excuse now raised by Batoyi does not apply.

A similar situation pertains in relation to Cele’s leases for police headquarters. The Moloi board of inquiry into his fitness for office recommended his corrupt activities be investigated by the authorities. This was not done, but the Against the Rules Reports point to the evidence that would be needed to prosecute Cele successfully. Concluding leases at three times the market rental is a highly suspicious activity. Cele’s charmed life due to his political connections should not be allowed to continue now that the bad eggs in the NPA are either out of office or on the back foot. Prosecuting a sitting police minister would be proof positive that the NPA is prepared to act independently, without fear, favour or prejudice – which is precisely its constitutional remit.

The easiest and most impressive “quick win” for the new NDPP would be to press on with the case of corruption involved in the persecution of her predecessor but one, Nxasana. The case has been investigated by the Hawks since 2015; it has run its course in the civil courts with affidavits from all concerned for the prosecution service to harvest. Better still, it culminated in the Constitutional Court in a manner that found the termination of Nxasana’s services illegal. The docket is lying on the desk of a senior prosecutor in Pretoria, gathering dust. The complainant, Accountability Now, is treated like a mushroom and has not been asked for input for years. Nor have any reports on progress and/or any reasons for not progressing been furnished. All entreaties to get on with the job of prosecuting Zuma and his then Minister of Justice Michael Masutha for their corruption and for defeating the ends of justice have fallen on deaf ears. It has even been pointed out that the NPA would be justified, given that the decapitation of its leadership is involved, in engaging outside counsel to run the trial which would only take a few days in court. The facts are clear, the affidavits damning and the opportunity to secure long sentences for both Zuma and Masutha is available. What can possibly be holding up the service of process? A draft charge sheet accompanied the complaint of July 2015. See: www.accountabilitynow.org.za/s-v-zuma-masuthu-ocean-view-cas-87072015-charges-corruption-defeating-ends-justice-investigation-hawks/.

Zuma’s appetite for endlessly delaying his Shaik corruption case may be dulled if he finds himself behind bars in the Nxasana matter.

A similar process in relation to the Nkandla matter, where the courts and the Public Protector have prepared a roadmap for the prosecution service, is available but not used. There are also numerous SIU reports, such as those concerning Bosasa, where the basic work has been done and the thwarting of progress toward conviction should not be allowed to be used as an excuse any longer.

If the problem is that the skills available within the NPA and Hawks are not up to the task at hand, the solution is to establish an Integrity Commission under Chapter Nine of the Constitution. The Ch9IC would function as the elite investigation and prosecution service in respect of state capture, grand corruption and kleptocracy matters only.

The NPA would be freed up to deal with more conventional and less complex crimes, the Hawks would be relieved of a particularly troublesome “priority crime” or two and could get on with the other tasks already given to them as our “Priority Crime Investigation” specialists. Super-specialists who are fearlessly brave, fearsomely skilled and fully focussed on the eradication of grand corruption in all its manifestations can easily be recruited and carefully vetted to start the Ch9IC. Many of them are former Scorpions who decamped to the private sector; others will recognise how badly the state needs them and will answer the call. There is little appetite to join the dysfunctional teams currently in place. New brooms should be allowed to sweep clean. They have a huge backlog to tackle as well as the fruits of the Zondo, Nugent and Mpati Commissions waiting for them.

The work-around solution the creation of the Ch9IC offers is surely preferable to trying to reform the NPA, repair the Hawks and get moving on the type of cases mentioned above. Their successful prosecution would involve jail time for Zuma, Masutha, Malema and Cele. There is no better way to restore public trust in the criminal justice system, to inspire business confidence and to attract much-needed new investment. These developments could pull the economy out of the doldrums and into an era of job-creation, secure peace, sustainable progress and shared prosperity.

Paul Hoffman SC is a director of Accountability Now

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