by Renee Moodie
Corruption-busting advocate Paul Hoffman takes a look at recent events surrounding the National Prosecuting Authority (NPA). He concludes that there is only one reasonable inference to be drawn from a sad litany of “inaction, poor leadership, falling around and indifferent accountability”, which is that the NPA is no longer fit for the purpose of prosecuting those involved in grand corruption. He says it is a waste of public money to invest in the anti-corruption capacity of the NPA, which is so hollowed out and so populated with what are internally called “saboteurs” that it will take more years than South Africa has available to address the NPA’s dysfunction. Strangely, he points out, the National Executive Committee of the ANC has come to the same conclusion. The committee has called on cabinet to establish the necessary machinery of state to “deal with” (as the NEC put it) those involved in serious corruption and organised crime. And Hoffman has suggestions as to how South Africa might go about putting in place a body that can actually deal with grand corruption. – Renee Moodie
On corruption: the NEC is right – the NPA is not fit for purpose
By Paul Hoffman*
Any lingering doubts about whether the National Prosecuting Authority (NPA) is capable of addressing grand corruption, State Capture and kleptocracy in SA were put to rest by the underwhelming performance of its spokesperson, Sipho Ngwema, during Karima Brown’s Sunday morning reality check called “The Fix”. The hour long episode is available on eNCA’s Youtube platform for those who have not seen it.
To recap in brief:
- SA came within an Ace of being captured during the two terms of Jacob Zuma’s presidency – 2009 to 2017.
- Thuli Madonsela, outgoing Public Protector, heroically managed, with the help of the courts, to secure the appointment of a commission of inquiry into State Capture as one of her last duties before her retirement in October 2016.
- The capture of the NPA itself began to unravel after the Constitutional Court ordered that Shaun Abrahams had been irregularly appointed and had to be replaced.
- On 1 February 2019 Shamila Batohi took his place.
- In June 2019 Batohi received the De Kock Report on false allegations of racketeering made against General Booysen, KZN Hawks boss, and his detectives. The report details skulduggery and criminality in high places within the NPA, involving Abrahams, his acting predecessor Nomgcobo Jiba, and heavy-weight prosecutors Moipone Noko (a presidentially appointed DPP) and Sello Maema [who famously but unsuccessfully defended the decision of the Chief Justice (then a puisne judge) to allow his wife to argue a criminal appeal in the High Court before him – the sole occasion on which Maema features in either the SA Law Reports or the SA Criminal Law Reports].
- Their criminality against him and his men was meticulously detailed in a criminal complaint filed by the now retired Booysen four years ago. No action of prosecutorial kind has materialised either before or after the appointment of Batohi.
- The National Executive Committee of the ANC, during its meeting over the first weekend of August 2020 expressed contrition and its apologies for the rampant corruption in SA and passed a resolution calling upon national cabinet “urgently” to: “…establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice.”
- Jacques Pauw made De Kock’s confidential report to Batohi public on 5 August 2020 thus exposing the lies told about Booysen by these senior NPA officials, Jiba’s preparedness to commit perjury herself in the quest to spike Booysen’s guns, as well as the passivity of Batohi in dealing with them.
- On Women’s Day 2020 Batohi, during a webinar, explained that she would be doing nothing about Noko and Maema until the Zondo Commission of Inquiry into State Capture reports. This is not an adequate accounting to the public: as Batohi well knows, and knew on Women’s Day, the NPA has full access to the work of the commission. It is not a court of law, merely an instrument of the executive and its findings of fact and recommendations bind no one. It is wholly unnecessary to await its report which in any event will be based on information long in the public domain which has been assembled by the commission in exactly the same way a team of competent prosecutors could do.
- On 16 August 2020 Batohi’s spokesperson, Ngwema, flatly contradicted Batohi during “The Fix” explaining that criminal charges, disciplinary proceedings and a report to the president about his appointee Noko are all in now in the works.
The only reasonable inference to be drawn from this sad litany of inaction, poor leadership, falling around and indifferent accountability, is that the NPA is no longer fit for the purpose of prosecuting those involved in grand corruption. To her credit, Batohi has admitted as much during a presentation she made to parliament in July 2020. She is reported to have conceded that:
“What we found is that, in government, the investigation and prosecution skills have been hollowed out in recent times.”
After Zuma disbanded the Scorpions, an NPA unit, the investigation skills were meant to be transferred to the Hawks, a police unit officially called the DPCI, but as Batohi explained to parliament:
“The DPCI [Directorate for Priority Crime Investigations], which should be the key feeder into the directorate to deal with this, also has a serious lack of skills in terms of the ability to investigate highly complex corruption cases. And in the NPA, we also found that besides one or two cases, the highly complex corruption matters were not really being prosecuted.”
It would appear that the NEC of the ANC has been paying attention to what Batohi told parliament. It is obviously untenable to continue without the necessary capacity to deal with complex corruption cases, hence the urgency of its call to cabinet to establish the necessary machinery of state to “deal with” (as the NEC put it) those involved in serious corruption and organised crime. It is also a waste of public money to invest in the anti-corruption capacity of the NPA. It is so hollowed out and so populated with what are internally called “saboteurs” (put in place to protect Zuma and his henchfolk) that it will take more years than SA has available to address the dysfunction of the NPA as a corruption-busting body.
The issues that need to be addressed now include the fitness for office of Noko, Maema and their fellow travellers inside the NPA. The latter is an NPA employee in respect of whom a disciplinary inquiry, if not a criminal prosecution, beckons. The former is a presidential appointee who will have to be brought before a Board of Inquiry before the president decides on her fate with the help of parliament as occurred with Jiba and Lawrence Mwrebi after the Mokgoro inquiry investigated their probity, integrity and fitness for office.
All of the bloodletting will not, at least in the short term, and probably for many years to come, address the crying need for the state to build the capacity to take the fight to the corrupt urgently.
Sight should not be lost of the binding findings of the Constitutional Court in the Glenister litigation. Like the NEC, it prefers a single anti-corruption unit over the task teams, hubs and fusion centres that the government has used, to no good effect, during the Zuma and Ramaphosa administrations. The late lamented Scorpions were an invention of the Mbeki era. They functioned so well that they had to be closed down because they could not co-exist with the State Capture project of the Zuptoids – that unholy alliance between the Zuma and Gupta families.
The specifications for the single unit the courts require are simple. The entity to investigate and prosecute corruption must be specialised (as conceded by Batohi in her submissions to parliament), its staff must be properly trained and must enjoy secure tenure of office. Sufficient resources must be guaranteed to the entity to do its work independently or, as the NEC put it “without fear, favour or prejudice.” In practice this means freedom from executive influence, control and interference are needed. A body that reports to parliament is able to neatly side-step these challenges. All Chapter Nine Institutions report to parliament.
The most difficult of these criteria to put in place is the secure tenure of office requirement. The Scorpions would still be with us if they had not been a mere creature of statute which could be dissolved at the instance of the simple majority which the Zuma administration held in parliament. Despite strong opposition from civil society, every effort by the main opposition parties then represented in parliament and the Glenister litigation, the Scorpions were dissolved as an instance of the expression of the will of the Zuma-led majority.
This challenge can be cured by locating the new entity required by the NEC in the framework of Chapter Nine of the Constitution. Had the Scorpions been a Chapter Nine institution, the simple majority in the Zuma parliament would have been insufficient to bring about their disbandment.
If proper expression is to be given to the directive of the NEC, then it will be necessary to house the new entity it desires in Chapter Nine so that the protections of that chapter will be made to apply to it. All of our Chapter Nine Institutions are required to act in independent manner or “without fear, favour or prejudice” a phrase used in the NEC resolution. Better still, the Constitution itself expressly requires that the institutions must all “be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.”
“Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.” – Section 181 of the Constitution
In 2012, after the second Glenister case was won, Accountability Now prepared a draft constitutional amendment and draft empowering legislation for the new anti-corruption entity to be housed in Chapter Nine with the Auditor General, the SA Human Rights Commission and the Public Protector. Indeed the mandate of the new entity would fit snugly between those of the Auditor General and the Public Protector. The drafts have been drawn to the attention of the executive and to the parliamentary Constitutional Review Committee.
The task facing the ministry of justice is to come up with a formulation of the new law that satisfies the wishes of the NEC as expressed in their resolution quoted above and meshes with the binding findings of the courts in the Glenister litigation.
Accountability Now finds itself in agreement with the resolution of the NEC, as long as it is implemented in the manner suggested above.
At the time that the drafts were prepared by Accountability Now back in 2012, it was thought that the capacity of the NPA to attend to the prosecution aspect of the work was intact. The revelations above and the concessions made to parliament by Batohi demonstrate that this is no longer the case. The country cannot stagger on without command of the necessary skills. It cannot wait for the NPA to be repaired; that will take years to do properly.
The way in which to bypass the partial capture of the criminal justice administration is to create the new entity for which the NEC has called with due regard to the complementary criteria set by the courts to guide the other branches of government in their legislative work which is now urgently required to address the ravages of corruption by raking back the loot and issuing orange overalls to the looters as envisaged by Archbishop Thabo Makgoba and campaigned for by the Ahmed Kathrada Foundation in alliance with many civil society organisations.
With the co-operation of the loyal opposition it will be possible to pass the necessary laws this year. The recruiting of the appropriate staff should commence immediately using careful vetting techniques.
- Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.