Those implicated in State Capture should be offered amnesty in exchange for full disclosure and the return of public funds, Webber Wentzel partner and corporate lawyer Robert Appelbaum suggested on Friday, as a way to relieve pressure on the National Prosecuting Authority and find a different way of dealing with extensive corruption in South Africa.

The panel’s moderator, Anton du Plessis, from the Institute for Security Studies, said that when discussing the restoration of justice, failure is not an option. “Without justice there can be no rule of law; without accountability there can be no social contract,” Du Plessis said. “We have to start by bringing back justice. Corrupt crooks almost stole our future and almost got away,” he said. “All is not lost. I have a renewed sense of hope. Justice is going to win. Slowly, but surely,” he said.

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Robert McBride, former Independent Police Investigative Directorate boss, said the criminal justice system has been systematically hollowed out and eroded. “It is in a difficult position to rebuild itself. This erosion took place over a long period of time – at least 15 years. I fear that there are insufficient nuts and bolts put in place to fight corruption. Very few people know what to do. You can’t build up the justice system with the same corrupt bricks you had before,” he said.

Attorney and writer Lwando Xaso argued that justice must stand a chance.

“What is the alternative? If you ask if justice will stand a chance, it is the same as asking if the country stands a chance? I don’t want to find out what it looks like if the answer is no. Justice stands a chance because we do not have an alternative. We are invested in it working. If it doesn’t work it will leave us in a very insecure position,” she added. “I judge the state of the country by the conduct of taxi drivers. Success to me looks like taxi drivers abiding by the three colours of a robot.”

Live cartoon by N.D. Mazin (Andy Mason), seated on the sidelines in the Ballroom, Cape Town International Convention Centre, at The Gathering 2020, 6 March 2020.

Appelbaum, argued that at this stage, justice will be best served in South Africa by providing amnesty for those involved in the corrupt acts that lead to State Capture. He co-authored a paper that will be published by Daily Maverick later today. 

He said that the main reason for making this suggestion is not because mercy must be shown. “We think instead it will be a game changer,” he said. 

He said there were solid precedents in South African law for providing amnesty for certain crimes, referring to the work of the Truth and Reconciliation Commission and the tax amnesties provided in the 1990s.

Appelbaum added that their proposal draws on what happened in Hong Kong when corruption was pervasive and amnesty was provided in exchange for full disclosures. 

“It will be controversial,” Appelbaum said. “But it is not a get-out-of-jail free card. Amnesty will require full disclosure, the return of ill-gotten gains and records being made available to the prosecuting authorities. 

“It will give the NPA some breathing space to vigorously pursue those who did not qualify for amnesty,” he said.

McBride said the first question he had about the proposal was who would qualify for it. “Which crimes are you going to give amnesty for? Will it be for R1-million or R100-million? 

He said the current situation should be distinguished from the amnesty proposed by the TRC. “The TRC’s amnesty was established following a war for liberation. We were rebuilding a new society. It was about burying the hatchet and moving forward. It was also a deal struck during negotiations. The rule of law is a key element of the new democracy. Until when do you propose we offer this amnesty? Until the next round of stealing?”

He said he believed South Africa should rather gear up for a long fight. “You are dealing with a conspiracy. We need to be prepared for a long fight. It is going to be a 10-year battle,” McBride added.

“I think offering amnesty is premature. I want to ask a cynical question: Who is lobbying for this? I think it is a fair question to ask,” he added.

Xaso said she believed the starting point to discuss something like amnesty must be the public interest. 

“Unfairness is a concept that even children understand,” she added. “If the public sentiment is against amnesty it is never going to hold. Do we want to live in a country where amnesty is the norm and jail time is not? I am not interested in living in a country with amnesty,” she added. “I am a proponent of accountability.”

Journalist and talk show host, Stephen Grootes, said the public anger at the failure to prosecute people after the Truth and Reconciliation Commission shows what can happen when people are not brought before court. “Will it be seen as acceptable and legitimate?” he asked. “It is a different time right now. There will be such a big fight about this. Then there is the political reaction. Nothing will save the DA more quickly than the ANC proposing amnesty for State Capture,” he said. 

“But I think it is a brave suggestion. It is an important issue,” he said. 

Answering a question from McBride, Appelbaum said he wasn’t proposing amnesty because he “is being paid for it”. 

McBride said the tax amnesty in the 1990s worked because it started with people being arrested. “Suddenly there were long lines of people applying for amnesty,” he said. “How many years must we wait for prosecutions to be finalised? I see nothing happening and the country going backwards – we don’t need another commission.”

McBride said the starting point for him would be to consult South African citizens about it. Amnesty would have to have a punitive component. “What will be on offer? A few years off? A few years and a fine? We have to ask what is the question this will send to the guy who is battling to pay his electricity. [Those alleged to be involved in State Capture] are spending millions of rand challenging a search warrant – even if they don’t have a snowballs’ chance in hell. Surely that is a case of anti-amnesty,” he added.

He also questioned how offering amnesty to those implicated in State Capture would impact South Africa’s international obligations to fight corruption. “How will the ratings agencies view this?” he asked. “I don’t think it will be favourable.”

Grootes added that he believes justice must be seen to be done. “Nobody realistically expects everybody to be prosecuted but I can tell you this: This country will feel a lot better if Jacob Zuma gets prosecuted.”

Du Plessis said he believed that the country indeed needs out-of-the-box thinking and innovative ideas to rehabilitate the justice system. “We need to get back to days we were proudly speaking of justice and democracy.” DM