South Africa


The nation is hungry for State Capture arrests

National Director of Public Prosecutions Shamila Batohi (right) and head of the new anti-corruption investigative directorate at the NPA Hermione Cronje. (Photos: Gallo Images / Phill Magakoe)

While the immediate political stakes involved in any decisions made by the NPA are immensely high, they are easily as high for the longer-term future of our criminal justice system.

When the commentariat casts its eyes over the general political scenery, much of the debate tends to centre on the balance of power in the ANC. This precarious balance could be tipped at any time. And yet, the precise event that could make the difference is hard to predict.

Meanwhile, public pressure is growing on the National Prosecuting Authority (NPA) to take action. Day after day there is more damning testimony at the State Capture commission. Many of the people implicated in that wrongdoing are still in government, or in the ANC, or in Parliament, some as powerful as ever.

In such a poisonous environment, it seems that only a decisive set of actions by the NPA, the arrest of people implicated in State Capture, is what could change this balance. For now, there are few visible signs of action.

Recent events in Parliament — and the nomination of the Parliamentary committees’ chairs — has exposed the fault lines in the ANC. People accused of criminal wrongdoing, such as Mosebenzi Zwane and Faith Muthambi, are suspected of being placed in these positions specifically to undermine the agenda of President Cyril Ramaphosa’s government.

Also, there is clear evidence against them and against the man who is seen to be responsible for their appointment, Ace Magashule. The ANC secretary-general himself is seen by most as having a criminal case to answer, much of it contained in Pieter-Louis Myburgh’s book, Gangster State.

All of this points to NPA action against them being the only event powerful enough to break the stalemate.

Supporters of Ramaphosa might well have feverish dreams of what would happen if, in a series of raids all linked to State Capture people such as Magashule, most of his parliamentary committee chair nominees and others implicated in wrongdoing were all arrested and charged within the space of, say, a week.

They would imagine the emergency National Executive Committee meeting that would accept the resignation of Magashule from his position, the statements from Parliament as Zwane, Muthambi and others resigned their positions. They would believe, as would much of the urban middle class, that finally Nasrec was won, and Ramaphosa was in charge.

At the same time, there is some evidence, from the voices on social networks and talk radio, that some are beginning to give up hope that those implicated in State Capture will ever face the music. The continuing outrageous testimony from the Zondo Commission is still being followed by most media organisations. People are now very much aware of what happened and who did what.

But they also know that nothing has happened to any of them, so far, a silence from the justice cluster putting the credibility of the entire commission in question. If there is evidence that two former ministers received R10-million each, and yet no prosecution follows, then people are rightfully asking what is the point of bringing that evidence forward anyway; the Zondo commission and the Truth and Reconciliation Commission are looking exactly the same to some: You don’t even have to appear and you can still get off scot-free.

The lawyers, of course, will explain with growing impatience that procedures have to be followed, that the case has to be entirely watertight and so on. That is all probably true. But in the court of exasperated public opinion, it doesn’t matter much. What matters here is that there is action, and now.

The importance of continuing inaction cannot be overstated. Should this situation go on for much longer, the people of South Africa might give up hope. Worse, in some cases, some will believe they themselves can get away with wrongdoing too.

The recent corporate scandals at Steinhoff and Tongaat Hulett suggest that some in the white-collar space believe they can get away with criminality. The fact that former Steinhoff CEO Markus Jooste has still not been arrested is proof that they could be right.

Those in charge of the NPA appear to be well aware of this.

On Saturday night the head of the new anti-corruption investigative directorate at the NPA, advocate Hermione Cronjé, spoke at the SA National Editors Forum’s Nat Nakasa Award Ceremony. Just her presence there sends a signal.

Between praising journalists for their role during the State Capture era she said they do have the resources to prosecute those responsible for what happened. And that this could all be done, and that she was confident that “we will get there”.

Her boss, advocate Shamila Batohi, has made similar comments in the past, while explaining that the situation at the NPA is grim. Cronjé has echoed this, saying that it’s “worse than expected” at the institution.

It is exactly here that the presidency of Jacob Zuma inflicted its worst damage on the state. It was he who weakened this critical building block of the state, a functioning prosecution system.

For some, the worst aspect of this was that it happened in front of the entire nation, and that it was entirely foreseeable. It was obvious to many, from the moment Zuma ascended to the Union Buildings, that this would happen. And yet those who predicted this (including many sections of the media) were lambasted for being too cynical and unforgiving.

Now, of course, this building block has to be recast almost from scratch. This time, there is the issue of trust. It would be entirely in keeping with the strategies Zuma has exhibited so far to have ensured the appointment of people in various positions within the NPA who have not revealed themselves, almost the Zuma equivalent of “sleepers”. And this is what might make it so difficult for Batohi and Cronjé. They literally might not know who to trust.

While in some ways this won’t matter, because they have the power to legally overrule bad decisions, in other ways it will matter greatly. Nothing would be worse for the legitimacy of the NPA now than for a high-profile criminal prosecution of a senior politician to be derailed because of a legal technicality. And there are dozens of ways that traps can be laid to ensure that this happens.

Significantly, the roots of the current disenchantment with our legal system are much deeper than the State Capture era. It is well known that none of the people who did not seek amnesty or were denied amnesty during the Truth Commission were prosecuted. Only one person ever went to jail for crimes committed during apartheid (Eugene de Kock). The Arms Deal, which is generally seen as corrupt by many people, also only led to convictions of Tony Yengeni and, partially, Schabir Shaik.

It would probably be the final blow to the legitimacy of our criminal justice system if no one, or only the foot soldiers, was ever held accountable for what happened during the State Capture era. DM


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