Could private prosecutions realistically ensure accountability for State Capture?
The law may need to change. At present, private prosecutions are only allowed once the National Prosecuting Authority has issued a nolle prosequi certificate, which states that it does not intend to proceed with prosecution.
At a webinar held this week on the first Zondo Commission report, the idea of bringing private prosecutions for State Capture cases was raised – and not for the first time. But is it realistic?
“We need to say to the NPA [National Prosecuting Authority] that if you are not able to prosecute [State Capture cases], if you don’t have the capacity: allow private prosecutions to happen.”
Those were the words of Reverend Frank Chikane this week, addressing a webinar organised by the Defend Our Democracy campaign on the findings of the first instalment of the Zondo Commission report.
Chikane’s suggestion – that in a situation where the NPA appears to lack either the resources or the will to prosecute State Capture, it should allow private bodies to do the job – is not a new one. But the idea is being amplified in the face of acknowledgement from the NPA that it faces a “Herculean” task when it comes to State Capture cases.
DM168 understands that the NPA was meeting with civil society representatives on Friday, 28 January, to discuss the progress of State Capture cases, and that the idea of private prosecutions was likely to be raised. Among the groups participating in this discussion was Defend Our Democracy, though spokesperson Duduetsang Mmeti clarified to DM168 that the campaign “doesn’t have a solid stance as yet on private prosecution”.
Mmeti added: “In principle, we agree with the stance of Outa [Organisation Undoing Tax Abuse] on using civil society organisations to assist the NPA.”
Outa has been one of the most outspoken voices advocating the potential use of private prosecutions in situations like the project to ensure accountability for State Capture. One of the challenges acknowledged by Outa, however, is that this would likely require the amendment of current legislation. The group has called for the Criminal Procedure Act to be amended to allow private entities like NGOs to bring private prosecutions in situations where crimes may have been committed by the state – for instance, involving state-owned entities.
“Outa believes that there is a case to be made for civil society to privately prosecute on an ad hoc basis in instances where the state declines to do so, irrespective [of] whether the refusal to prosecute is based on capacity constraints or political will,” the organisation states on its website.
As things stand, private prosecutions are only legally permissible once the NPA has issued a nolle prosequi certificate stating that it does not intend to proceed with prosecution.
The challenge Outa has identified is that currently a private prosecution may only be brought by an individual – and not an organisation – who needs to show that they have directly suffered as a result of the alleged crime committed.
This was the situation when the parents of murdered Rochelle Naidoo privately engaged an advocate to prosecute Naidoo’s partner, Faizel Hendrick, for her death, after the NPA declined to prosecute in 2006 owing to ambiguous findings about the inquest. In January 2022, this became the first successful private prosecution in South Africa for murder.
As Naidoo’s parents acknowledged after the court ruling, however, the process was both long and expensive. The price tag that accompanies a private prosecution is high in part because, if the prosecution does not succeed, the acquitted individual is entitled to a costs order – which is not the case in a public prosecution.
A number of South African business advocacy groups have already indicated that they might be prepared to throw financial muscle behind such initiatives. After the release of the first Zondo Commission report, Business Unity SA (Busa) CEO Cas Coovadia was quoted in the media as saying that business would engage with the NPA on potentially providing resources, including private prosecutors, to help speed up action on State Capture cases.
For its part, the NPA said in a statement shortly afterwards that it “welcomes the expressions of support from the private sector and will continue to engage with these key partners as appropriate, whilst insulating itself from any perceptions of external influence”.
The caveat expressed by the NPA is one weighing heavily on the mind of Open Secrets’ Hennie van Vuuren, another speaker at this week’s Defend Our Democracy discussion. Van Vuuren pointed out that, in the case of a group like Business Leadership SA (BLSA), many of its board members currently or previously held top positions at banks such as Nedbank and Standard Bank and audit firms such as PwC – all of which have already been, or are likely to be, implicated in State Capture at the Zondo Commission.
Van Vuuren expressed scepticism as to whether the aims of civil society and business lobby groups were truly aligned. He has also questioned whether Judge Raymond Zondo will be sufficiently harsh on big business for the role it played in colluding in State Capture.
While expressing support in principle for the idea of private prosecutions for State Capture driven by civil society, Reverend Chikane also acknowledged the difficulty and expense of this route. He suggested an alternative way in which the NPA could be supported: “Prepare the evidence and give it to them ready-made.”
This appeared to be one of the possibilities being considered by Eskom leadership late last year. News24 reported in November 2021 that leaders at the electricity parastatal were growing so frustrated at the lack of visible progress by the NPA on Eskom-related State Capture cases that it was seriously mooting options including embarking on private prosecutions.
The release of the first Zondo Commission report has increased pressure on the NPA’s top brass to be seen to take swift action on State Capture cases – even while the December 2021 resignation of the head of the corruption-focused Investigating Directorate, Hermione Cronje, fuelled rumours that the body is still beset with structural problems.
In January 2022, New York Law School Professor Penelope Andrews wrote that among the reasons it was imperative for State Capture prosecutions to now move fast were:
“First, there is ample material provided in the Zondo report which is of great evidential value to prosecutors. Second, the evidence is fresh and easy to corroborate. Third, over time memories fade and witnesses disappear, but witnesses who appeared before the commission may now continue to cooperate. And those who do not can be summoned to appear in court.” DM168
This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Woolworths, Exclusive Books and airport bookstores. For your nearest stockist, please click here.