A long and lonely road awaits new bosses at NPA and SARS

On Tuesday night, the Presidency confirmed that it had begun to call for nominations for the next National Director of Public Prosecutions (NDPP). As Victoria O’Regan explains, there will be a public process before President Cyril Ramaphosa makes a final appointment.

Meanwhile, Bloomberg reported on Tuesday that Finance Minister Enoch Godongwana has decided who he would like to run the SA Revenue Service (SARS) when its current commissioner, Edward Kieswetter, leaves. (The Treasury says no decision has yet been taken, and the appointment will be made by the President.)

That too might see a public process, in the same way that Kieswetter was appointed, before Ramaphosa selects the new commissioner.

Decisions made by the people in these two positions can make or break the country.

Both have the power to institute proceedings that can lead to imprisonment, and play a crucial role — sometimes the crucial role — in fighting criminality, while SARS, uniquely, can access your bank account.

If there is weak leadership at SARS and the National Prosecuting Authority (NPA), the rule of law will not survive.

Battle for control

The manner in which political leaders ranging from Thabo Mbeki to Jacob Zuma to Kgalema Motlanthe have tried to influence these institutions over the years shows their importance.

In particular, Jacob Zuma’s appointment of Tom Moyane as SARS commissioner and his actions in weakening SARS units that investigated politicians and tobacco were among the most important features of the State Capture era.

Zuma’s appointments to the NPA, which deliberately led to a revolving door of personalities, were aimed at weakening the institution. Nomgcobo Jiba and Shaun Abrahams were put there to ensure protection for certain political individuals.

The current season of televised inquiries into the police reveals how intense and complex the battles for control of our criminal justice system have become.

These are likely to culminate in a series of files on the desk of the new NPA head, who will have to decide whom to prosecute (when the pretty obvious answer is: almost everybody involved).

As the current NDPP, Shamila Batohi, has explained many times, even cases where evidence has already been made public can be difficult to prosecute.

Read more: Shamila Batohi leaves behind a divided legacy, with search for NPA successor yet to start

One of the key requirements of the new heads at SARS and the NPA is that they have legitimacy across a wide range of constituencies. Without that, their decisions will be hugely contested — and possibly even ignored.

Also, as they are likely to have to investigate or prosecute politicians, they need to have broad support when they do so.

But universal legitimacy will be impossible.

Tainted by appointment

There are many with political power who have everything to gain from both of these institutions being weakened.

Some, like Zuma and EFF leader Julius Malema, are obvious.

Both are already embroiled in cases brought by the NPA (Zuma on the corruption claims from the bribes paid to him by Schabir Shaik, while Malema has been convicted of unlawfully firing an assault rifle in a public place).

Both also have unanswered questions about their tax. (Zuma received a salary from a security company while he was President; Malema has never explained the R16-million that he owed SARS back in 2014).

This means that the EFF and MK have a vital interest in ensuring that pliable leaders are appointed at these institutions.

They are not alone.

The ANC secretary-general, Fikile Mbalula, almost certainly accepted cash from a sporting goods company to pay for a holiday to Dubai in 2016.

Even Ramaphosa has something to fear.

His explanation about his conduct during the Phala Phala scandal is nonsensical, and while it is unlikely anyone would rake over those coals, he must be loath to give such power to someone who would.

This might well mean that those who do take over these institutions arrive in the office slightly tarnished, through no fault of their own, but simply because of who appoints them.

Death and taxes

There can be no doubt of the challenges that are not linked to politics or politicians that face these two institutions.

The general perception of many South Africans, backed up by the Stats SA Victims of Crime survey, is that they are more likely to be attacked than in the past, and that violent crime is rising.

The high level of vigilante attacks, in which a group of people kill an alleged criminal, shows that many people believe no one will be prosecuted for crimes they commit.

The NPA has to counter this through tough and thorough work, often relying on investigations conducted by the police.

At the same time, a new head will come into an office in which people have lost trust, mainly because of the perceived lack of State Capture investigations. (Batohi strongly denies the NPA was delaying these proceedings, pointing to several cases currently before the courts.)

The new SARS head may be faced with the problem of fulfilling a promise made by Kieswetter.

He said that only about one-third of the money that should be paid to the fiscus is actually captured by SARS. Thus, by his estimate, SARS should be able to increase the amount of money to fund the government by R700-billion a year.

Read more: After the Bell: Edward Kieswetter and the long goodbye

It was almost solely based on his promise that SARS could get this money that the national coalition government was able to pass a Budget; it allowed the National Treasury to climb down from its plan to increase VAT by two percentage points.

This was a big promise to make, and is an even bigger one to keep. Whoever takes over from Kieswetter will probably be judged on whether they can keep this undertaking.

Considering the nature of our society, the sheer number of bad actors, immoral police officers, corrupt corporations and simple criminals, it seems impossible that this can be done.

Security of tenure

With the ANC continuing to fracture, and our politics becoming dominated by parties that represent constituencies largely based on identity politics, there is likely to be a lot more political contestation and no clear centre of power.

This means more claims and disputes involving the NPA and SARS.

While this will make the job of the leaders of those two institutions more difficult, they might be more likely to finish their terms than several of their predecessors.

This is because there is no dominant party in Parliament, which will make removing them difficult, and they might have time to fulfil their agendas.

The new leaders of the NPA and SARS will have a difficult and lonely road to traverse — one that’s likely to last for quite some time. DM