- This complaint invokes the functions of the Public Protector under section 182 of the Constitution.
- The complaint is against the National Prosecuting Authority for suspected improper conduct of the NPA which is prejudicial to the public interest. That interest is in having an effective and efficient NPA as is required by section 195(1)(b) of the Constitution read with the rulings made by the Constitutional Court in the Glenister litigation. A dysfunctional NPA is inimical to the realisation of the human rights guaranteed to all in the Bill of Rights which is Chapter Two of the Constitution, in particular section 7(2).
- The complaint is made for the purpose of invoking the powers of the OPP to investigate, report on and to take appropriate remedial action in relation to the subject matter of the complaint.
- At the root of the complaint is the manifest inability of the NPA to counter grand corruption in SA. This inability is well documented in the report of the Zondo Commission of Inquiry into state capture and in the paucity of successful follow-up by the NPA on the recommendations made in that report for prosecution of the corrupt. In the December 2024 edition of The New Agenda, David Lewis usefully sets out in some detail the political history of state capture https://epubs.ac.za/index.php/newagenda/issue/view/175. He does not traverse the legal position post Glenister. This task is the subject matter of Under the Swinging Arch and of Countering the Corrupt, both available on the website below. The website is replete with information germane to this complaint both as regards the unconstitutionality of IDAC and the failure of government properly to implement the rulings in the Glenister litigation.
- For the purposes of this complaint it is sufficient to refer to two media reports in the week ending 18 December 2024 namely: https://www.news24.com/news24/southafrica/news/granting-npa-request-that-outside-judge-decide-magashule-trial-would-be-folly-fs-judge-president-20241218 and https://www.dailymaverick.co.za/article/2024-12-09-watch-tell-no-lies-claim-no-easy-victories-is-the-npa-in-crisis/.
- The focus of the complaint on the handling by the Free State DPP of the Magashule trial is her assault on the independence, dignity and integrity of the Free State High Court Bench in clear breach of Section 165(4) of the Constitution, while the “Tell no lies…” complaint invites a far broader investigation into the standard of conduct of the leadership of the NPA. We refer to the NDPP, who fared atrociously in the interview she gave Amabhungane, and to the recordal of the novel advice of Andrea Johnson, head of IDAC, that her staff in that directorate should “fake it till you make it” when fulfilling their duties to prosecute the corrupt.
- The main source of information underpinning the latter matter seems, from the video, to be Hermione Cronje, a former head of the ID, who, we respectfully suggest, should be interviewed in the investigation as she is a former insider whose personal concern that the NPA is in crisis sparked the interview she gave to Amabhungane and also the filing of this complaint. Adv Cronje’s phone number is 082 498 6050.
- There is no complaint about the decision of the court in the Free State matter. It is the misconduct of the Free State DPP in bringing the ill-fated application that is the focus of the complaint.
- Ever since the majority decision in Glenister Two was handed down in 2011, the law in SA regards corruption as a human rights issue for the reasons set out by the court in para [166] of the majority judgment which is available on page 199 of “Under the Swinging Arch” simply by googling the title of the book. As you know, there are obligations on the state to respect, protect, promote and fulfil human rights. These cannot be fulfilled while grand corruption runs rampant in SA. There is also the matter of complying with treaty obligations which require that independent anti-corruption machinery of state be established and maintained. There would appear to be egregious breaches of these international obligations at every level of governance of the anti-corruption capacity of the state.
- As regards appropriate remedial action, it is respectfully suggested that, in the absence of exculpatory explanations from the NPA leadership that may focus on the failure of government to structure, capacitate and fund the NPA properly and to implement the requirements (an entity outside executive control) and STIRS criteria of the Glenister rulings, the appropriate remedial action may involve directing the appointment of boards of inquiry into such officials in the NPA who are found to be in breach of their duty to conduct the affairs of the NPA in accordance with their constitutional (Chapter 8) and statutory obligations (under the NPA Act) as read with the Glenister rulings. Successive governments since the first Zuma administration have failed to grasp the nettle of an anti-corruption body outside of executive control. The NPA is complicit in this ongoing failure to respect judicial precedent and comply with Section 165(5) of the Constitution. The NPA was a party to the Glenister litigation. Remedial legislation in the form of two private members bills is on the table in parliament https://accountabilitynow.org.za/introducing-the-all-new-chapter-nine-anti-corruption-commission-ch9acc/.
- Kindly treat this complaint as a matter of urgency.
Complaint regarding paralysis of the anti-corruption capacity of the state in SA
Download our handbook:
0 Comments