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It’s now or never for the National Prosecuting Author...

South Africa

ANALYSIS

It’s now or never for the National Prosecuting Authority

From left: President Cyril Ramaphosa. (Photo: Dwayne Senior / Bloomberg via Getty Images) | National Director of Public Prosecutions Shamila Batohi. (Photo: Gallo Images / Netwerk24 / Felix Dlangamandla) | Former president Jacob Zuma. (Photo: Gallo Images / Sharon Seretlo) | Former spy boss Arthur Fraser. (Photo: Gallo Images / Netwerk24 / Jaco Marais)

Many anxieties in our politics are likely to reach a climax over the next few months, especially those about corruption by politicians. Public pressure for prosecutions of these politicians will reach a powerful crescendo unmatched in SA’s democratic history. At the centre of this, the National Prosecuting Authority is likely to come under more intense pressure than ever.

While many people fear what could happen in the upcoming era of coalitions in provinces and the national government, it may in fact be only the National Prosecuting Authority (NPA) and a properly functioning criminal justice system that will stand in the way of patronage and corruption hell-bent on taking over the state completely.

While the scandal around President Cyril Ramaphosa and the US dollars stolen from his farm is likely to test many aspects of our politics, it is almost certainly going to test our criminal justice system to a point close to breaking. The key moment in this scandal may well come when a prosecutor at the NPA has to make a decision about whether to charge Ramaphosa. 

This will be a crucial test for the NPA as an institution at a time when the stakes could not be higher.

If it decides not to prosecute, this will lead to claims that the NPA is biased in favour of Ramaphosa and that it is not able to prosecute “without fear or favour”. The National Director of Public Prosecutions, Shamila Batohi, would be accused of not acting against the person who formally appointed her.

If the NPA does decide to prosecute, Ramaphosa may well have to step aside from his position as President of the country and leader of the ANC, with consequences that are impossible to predict.

But this is only the first of the most pressing of the tasks ahead for the NPA.

Guptas and the Zondo Commission

Atul and Rajesh Gupta are detained in Dubai at the request of SA prosecutors. Most legal experts agree that their extradition to South Africa will be a long and onerous process, with extradition hearings being notoriously complicated. And yet, if the NPA is seen to fail in this, then it will shed more legitimacy in the eyes of the public.

Then there are the other prosecutions that may follow from the release of the final volume of the Zondo Commission report. 

Some of these may lead to excruciating timing.

It is likely, for example, that the commission’s final report will recommend that Arthur Fraser be prosecuted for the State Security Agency’s many illegal actions while he was in charge of it. 

This could place the NPA in a situation where it must make a decision about whether to charge Fraser at the same time as making a decision about charging Ramaphosa, against whom Fraser made damning accusations. It is likely that this was Fraser’s aim in the first place and explains why he laid his “charges” so publicly more than two years after the theft of the US dollars from Ramaphosa’s farm.

It is entirely possible that politicians like EFF leader Julius Malema will claim that the NPA is biased and will use this in court as an argument in cases that they face.

Political ‘persuasion’

Others who face prosecution may well try to bring the power of our politics to bear on the NPA. And politicians facing “stepping aside” from their positions in the ANC would have the incentive to challenge every single step in the prosecutorial process.

For example, ANC chair and Energy and Mineral Resources Minister Gwede Mantashe has already said he will challenge the findings of the Zondo Commission. Many other officials who were recommended for prosecution are likely to do the same — if only to extend the process to a breaking point. These obvious legal manoeuvres mean the NPA will probably have to decide whether to prosecute someone while their court challenge is in process. 

If it charges such a person before a finding in that challenge, then it will be claimed that the NPA’s decision is premature. If it decides not to, then it will be accused of treating some people differently than others. And there will be every incentive to challenge the commission’s findings simply to delay any jail time.

Add the ANC’s electoral conference into the mix, and the NPA will inevitably be accused of playing politics — its decisions could determine who is eligible to run for the top positions in the party.

While all of this could happen in the shorter term, over the next few months there could be a much greater test lying in wait for the NPA.

Prosecutorial reform

There is strong evidence that it is in the process of recapacitating and reforming itself. For the moment, it is seen as more independent than the NPA of former president Jacob Zuma — which, of course, could change if the Phala Phala scandal blows up in its face.

It may be that the NPA turns out to be even more important than ever before in the time of greater trends within our politics, the ones that are leading to an era of coalitions.

While some of the coalitions have performed well, others have been based almost entirely on patronage. As the recent history of the Patriotic Alliance in Nelson Mandela Bay when it held the balance of power there shows, there is a price for their support.

There is also evidence of simple, and sometimes blatant, corruption. 

In Nelson Mandela Bay, the UDM’s former mayor, Mongameli Bobani, died from Covid-19 while under investigation by the Hawks for alleged corruption.

In Joburg, an evidence leader told then mayor, the late Geoff Makhubo, during a hearing: “We will submit that these were ultimately corrupt payments”, relating to a clear conflict of interest. 

Both were crucial figures in the politics of those metros. And while no final court decision was arrived at, there was clearly evidence of corruption against both politicians.

A well-run and independent NPA

However, if we have a properly functioning criminal justice system and a well-run and independent NPA, this could prevent the worst excesses of our politics. It could prevent some of the corruption which is endemic in administrations across the land.

Of course, this would be a huge challenge for the institution. 

It is perhaps one of the most important failings of the ANC that from the start it did not create a properly independent NPA. While Bulelani Ngcuka may have begun his stint as the first National Director of Public Prosecutions with the right intentions, his involvement in the Spy Tapes saga (in which he discussed the timing of the prosecution of Zuma in 2007) raised questions about his conduct.

Zuma’s ability to twist the arm of the then acting NPA head, Mokotedi Mpshe, to withdraw charges against him in 2009, just in time for the national elections (a decision later overturned by a court) was perhaps the ultimate expression of how the ANC used political power to bend the NPA to its will.

It is, arguably, only now that it has the potential to really show that it can be independent and how powerful prosecutorial independence itself can be.

Today, the NPA looks more important than ever for the survival of South Africa’s young democracy. No pressure… DM

Gallery

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All Comments 12

  • Comey and the FBI s pursuit of Hilary Clinton just before the election helped put Trump into the white house. This is a similar moment for SA should Ramaphosa be prosecuted now. Surely it’s time all the well known crooks were jailed.. at the very least on smallanyana charges before SA is lost to crime?

    • Katharine, There are things going on behind the scenes that we, the electorate, will never know about. For one, I have serious doubts that the Guptas will ever be extradited to face the music, they know too much about people in high places.
      We are on the slippery slope.

  • Actually, Stephen, not no pressure but precisely the opposite: immense pressure for all the reasons you have stated. It ought to be a key question political parties answer: what are your intentions with the NPA and will you support both the budget and recruitment to support its improved independence?

  • Very depressing article. The NPA seem to be damned if they do and damned if they don’t. We can’t even wipe the slate clean and start afresh, the same corrupt lot will just keep on looting and that seems to be literally every single ANC cadre in government. Why doesn’t SARS just step-up to the plate? Recover the stolen monies that way otherwise it will just be one court case after the other.

  • Failure to prosecute has brought us to a situation where corruption is rampant in every sphere of government. Perhaps there is a way for courts to stop the delaying tactics used by so many politicians. The NPA should recruit top advocates to help with these prosecutions, hopefullyat reduced rates or pro bono.

  • I no longer hold any torch for Ramaphosa. In fact, I have nothing but contempt for him and his wayward, inept and corrupt to the core party. It has been one disappointment after another, and the last straw was his pathetic, hypocritical, cowardly and treacherous support for that mass-murderer and evil monster that is Putin. Keeping silent and turning a blind eye whilst wholesale mass murder of innocents and total destruction of properties, infrastructure etc is unleashed on a neighbouring country, is unforgivable! Back to this article, those baying for his blood and wanting to fast track his being charged and therefore out of the running as president from 2024, are the vile RET scumbags who are hugely implicated and involved in state capture, bankrupting and bringing this country to its knees. Ramaphosa’s recent case must go to the back of the queue as the NPA has a long and outstanding list for ages now of these RET degenerates that still need to be charged, and who are running around enjoying the fruits of their grand theft with complete impunity.

  • Stephen, you seem to equate the allegations against Ramaphosa as being on the same level as the mountain of evidence already exposed involving Arthur Fraser. Only when an truly independent inquiry into the Phala Phala incident has been carried out will the NPA know whether there are any grounds for prosecution of the President. The NPA should ignore the ‘optics’ of whom they prosecute or not but base their decision solely on the evidence in each situation.

  • First In First Out, Biggest Crime First, or what other method does the NPA use to work through that overflowing Inbox? FIFO would focus on former prisoner zuma’s decade long trial. Scale would put the Guptas and Jooste first in line. Is highest profile a selection criterion? It seems from the outside that many relatively small-time prosecutions presently get to court first. If we had a system where 25 retired judges and prosecutors are brought in for something similar but different to the US Grand Jury it could help. Have a look at the charge and evidence docket, suggest changes and a strategy to start the case fastest.

  • In my view one of the major obstacles in the way of justice is how politicians apply stalingrad tactics while backed by state coffers. The public purse used to defend alleged offenders is seemingly endless in this regard.
    Maybe instead of allowing politicians their choice of defence, there should be an “NDA”, the “National Defence Authority” tasked with defending public officials with a set budget as the NPA has. Or maybe even capping the fees allowed to be charged when defending public officials, this should level the playing field and protect our tax from this type of abuse.
    It would very interesting to what level of parity would be applied to the two bodies.

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