THE GATHERING ESSAY
South Africa must tackle organised crime before it’s too late
State Capture was devastating, and organised crime is rampant. But South Africa is the Comeback Kid. The National Prosecuting Authority is working with its partners to restore the rule of law and regain public confidence that justice can become the norm rather than the exception in our country.
South Africa has a serious crime problem. And it’s getting worse. Violent and commercial crime levels are soaring and criminals are becoming more brazen and sophisticated.
Today, organised crime lies behind and connects most criminality in South Africa, including murder, taxi violence, infrastructure theft and destruction — including at Eskom — wildlife crime, complex corruption, extortion, kidnapping, terrorism and even household robberies.
Despite noble efforts and recent improvements, the criminal justice system is not keeping pace with this growing organised crime threat. And time is running out. Organised criminals are stealing our country and destroying our future. They must be stopped.
Fortunately, South Africa is a resilient nation that has learnt important lessons in tackling serious crime. The battle for justice in our country is still being fought, and it can be won.
Victory will require bold leadership, swift action, smart policy decisions, and — most important — broad collaboration between traditional and non-traditional partners.
Organised crime and corruption flourish when criminal justice systems are weak
State Capture did more than decimate our economy and development prospects. It also nearly ripped the heart out of the rule of law and left our primary criminal justice institutions in a bad state.
Opportunistic organised criminals exploited the weakened criminal justice system to expand their networks and practices at a time law enforcement was on its knees. South Africa has become a bonanza for organised criminals and a broad range of illicit actors.
The Global Initiative Against Transnational Organised Crime, an international NGO headquartered in Geneva, recently released a strategic organised crime risk assessment on South Africa. It makes for sobering and depressing reading.
Based on extensive analyses of the country’s illicit economies and the criminal actors involved in them, the Global Initiative’s report concludes that organised crime poses an existential threat to South Africa’s democratic institutions, economy and people.
The report identifies 15 key organised crime markets. These are categorised into illicit markets (illicit drugs and firearms, human trafficking, and wildlife crimes); violence-related offences (extortion, kidnapping, and organised robbery and violence); and preying on critical services (eg, critical infrastructure, cybercrime, economic and financial crime, mass public transport crime and illegal mining).
South Africa’s organised crime ecosystem impacts the lives of millions.
Entrenched gangs and extortion networks have sought to establish criminalised forms of governance. Its victims can be found across the social and economic spectrum, but — as with State Capture — disproportionately affect the poor and marginalised.
Down, but not out
State Capture was devastating, and organised crime is rampant. But South Africa is the Comeback Kid.
The National Prosecuting Authority (NPA) is working with its partners to restore the rule of law and regain public confidence that justice can become the norm rather than the exception in our country.
Recent arrests of high-profile suspects from the private and public sectors (including senior politicians) demonstrate that impunity for the “untouchables” is a thing of the past.
Companies are also being prosecuted — a clear signal that the NPA is taking a big-picture view of the task at hand. Beyond these seminal matters, the NPA has enrolled hundreds of corruption and serious crime matters across the country and continues to secure convictions in most cases. Our recent annual report provides a detailed overview of the highest-priority cases.
Accountability is not just about criminal prosecutions. The NPA’s Asset Forfeiture Unit (AFU) is hitting suspected criminals where it hurts most and reclaiming billions of rands in stolen assets, including assets used to commit crimes.
Our lead partners dealing with organised crime, the Hawks, recently swooped on a global organised crime kingpin in South Africa. These developments demonstrate that the rule of law remains a force to be reckoned with in South Africa, although a lot more still needs to be done.
Now we are bringing the same focused attention to the fight against organised crime that we brought to the fight against corruption.
The NPA’s resurgence has involved the steady and methodical rebuilding of an organisation that was severely weakened by almost 10 years of State Capture, and that rebuilding has laid the foundation we need to move against organised crime as well as corruption.
We have put defences in place to counter organised criminals as well as State Capture corrupters. And we are getting the basics right, using a framework focusing us all on Independence, Professionalism, Accountability and Credibility.
On this framework, we are building an NPA with the resilience among its people, structures and processes to withstand the inevitable shocks and stresses of debilitating future events: future-proofing the institution.
Can SA’s criminal justice system catch up to organised criminals?
South Africa used to be a global trailblazer when it came to responding to organised crime. We set the pace on prosecution-led investigations, and civil and criminal asset forfeiture. Even our witness protection capacity was the envy of many.
We also played a constructive role in the development of the United Nations Convention Against Transnational Organised Crime. We learnt important lessons along the way, and we are ready to reclaim our good reputation. But we have to act with speed and courage.
To succeed against organised crime, we are rebuilding the NPA’s capacity for prosecution-led investigations. This enables us to deliver proactive and disruptive prosecution strategies that target illicit markets and criminal networks where we will be most effective at disabling organised crime and repairing the ecosystems in which it flourishes today.
We certainly cannot succeed on our own. We are working closely with our partners, especially the Hawks, SARS, the Special Investigating Unit and the Financial Intelligence Centre. The multi-disciplinary approach has always been there, but it has proven not to be as effective as it ought to be.
Across the entire criminal justice value chain, we all need to think differently about the evolving threat facing the country.
Do we need to create a more focused, dedicated and directed capacity, albeit temporarily, to reprioritise the fight against organised crime?
The challenge will be to attract and cultivate the skills the NPA needs to combat complex organised forms of criminality. In this regard, the Pareto principle applies — that for many outcomes, roughly 80% of consequences come from 20% of causes. Also known as the 80/20 rule, the premise is to enhance our existing phalanx of highly skilled specialist prosecutors who can tenaciously pursue South Africa’s most dangerous and harmful criminals.
The NPA will prioritise the prosecution of crime types and criminals that disproportionately undermine South Africa’s safety, economic development and the rule of law.
The objective must be to disrupt the activities of a relatively small number of serial offenders, organised crime kingpins and those involved in grand corruption. This will not be an easy task. Such targeted offenders have deep pockets, wily lawyers and powerful friends.
The NPA’s focused approach to tackling organised crime (including corruption) is being implemented through the following initiatives:
- Empowering the NPA’s permanent Investigative Directorate (ID) on corruption and State Capture. President Cyril Ramaphosa announced this game-changer for the NPA in his recent response to the State Capture Commission reports. The ID will become a permanent prosecution-led agency with requisite investigative powers and capacity to effectively tackle the most complex and serious forms of corruption, including State Capture. The new ID, like the erstwhile Scorpions before it, will become a global leader in investigating and prosecuting the most complex forms of corruption.
- Engaging with the Executive and Parliament to expedite the President’s commitment to bolster the NPA’s independence through legislative amendments.
- The newly restructured Asset Forfeiture Unit (AFU) is ramping up its efforts to deal with high-profile suspects, specifically through the use of its novel civil forfeiture powers to claim back the stolen money, including funds held in foreign jurisdictions. Over the past year, the AFU and partners have frozen assets to the value of R12.9bn. And it’s just getting started. It will also continue targeting assets used to commit crimes, as it did recently when it seized a vehicle allegedly used to loot stolen goods during the July 2021 unrest.
- The NPA’s rebuilt Specialised Commercial Crime Unit has boosted its responsiveness at the provincial level. For the first time, every province has dedicated commercial crime courts, many of which are being modernised to deal with large volumes of electronic evidence and materials.
- The NPA is engaging with the processes to further enhance its Witness Protection Unit to provide expanded services and protection to whistle-blowers. This will require important legislative changes and expanded partnerships, but it’s a priority that cannot be delayed any longer. Courageous whistle-blowers are essential for any effective response to organised crime and corruption, and South Africa has let them down for too long.
- The NPA is drawing on its formal partnership with Business Leadership South Africa to facilitate the transfer of skills and hiring (on contract) of the best legal, forensic and financial minds the private sector can offer. This is part of a broader initiative to leverage the support of the private and nonprofit sectors in support of the NPA without compromising the NPA’s independence.
Beyond these ongoing initiatives, the NPA is developing a new organised crime strategy that will provide a clear plan for how the organisation will respond to organised crime, now and into the future.
The strategy will guide the NPA as it implements a proactive and disruptive prosecution response to organised crime, in collaboration with our JCPS partners, especially the Hawks, who have the core mandate on this.
Our experience with gangs in taxi violence and urban terrorism in the past demonstrates how impactful targeted and strategic responses by the NPA can be.
Is it not time to consider the re-establishment of dedicated NPA Investigating Directorates as permitted by the NPA Act?
In the late 1990s, the Investigating Directorate: Organised Crime & Public Safety, and the Investigating Directorate: Serious Economic Offences, were established as temporary, multidisciplinary and targeted interventions. Combining prosecutors, investigators and analysts under one roof, the Investigating Directorates fostered teamwork focused on streamlined investigations that resulted in successful prosecutions.
The rule of law will once again light our way
Times of crisis call for extraordinary measures.
Given the grave threat of organised crime and the real risk of SA being greylisted by the FATF, the NPA would be remiss not to use the full powers within its mandate to tackle the challenges we face in innovative and bold ways.
The NPA is relatively small and nimble within the context of the larger criminal justice apparatus. It can consequently forge ahead, and using the legal tools at its disposal, significantly enhance its ability to combat organised crime through appropriate dedicated units and other policy and operational innovations. Needless to say, such initiatives must engage with the NPA’s partners and ensure their collaboration and support.
Corrupt officials, politicians, businesspeople, organised criminals and violent thugs know that impunity is no longer a given, and that the NPA is finding its feet again.
That dreaded knock on the door has become a realistic prospect. DM
Advocate Anton du Plessis is the Deputy National Director of Public Prosecutions, NPA.