It matters not whether members of the National Prosecuting Authority (NPA) are in fact impartial or whether they are beholden to politicians and business elites. What matters is whether there is a widespread perception that some of them in influential positions are beholden to the dominant faction within the governing party. When a perception takes hold that you will be protected from prosecution by pliant individuals within the NPA as long as you remain loyal to the leader of the dominant faction in the governing party, corruption will flourish among many people who are prepared to show blind loyalty to the leader of the dominant faction of the governing party.
After the end of apartheid South Africa adopted some of the most expansive and comprehensive anti-corruption laws in the world. But if these laws are not vigorously and efficiently enforced (in an impartial and fair manner) by an NPA completely free from interference by powerful politicians and business elites, they will have little or no effect in curbing both public and private sector corruption. It is for this reason that the ongoing instability at the NPA is of concern to every South African.
The drafters of the South African Constitution understood that those who wield political power or financial influence do not like to be held accountable and may well try to abuse their power as politicians or as rich businessmen and women in order to protect themselves against criminal prosecution by the NPA.
It is for this reason that section 179(4) of the Constitution demands that: “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”
Section 32(1) of the NPA Act gives effect to this constitutional command by stating:
(a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.
(b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.
It adds: “Anyone who interferes improperly, hinders or obstructs the NPA in carrying out its duties is guilty of an offence “and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.”
It will not be easy to prove such interference as those who seek to interfere with the NPA to stop a prosecution (or to target an enemy for prosecution) is not likely to do so by sending an e-mail or an SMS that can be traced back to them. Criminals usually do not leave many clues as to their illegal activities.
Any half-clever politician or businessman or woman will seek to interfere in the activities of the NPA informally or indirectly. They will do so either by giving instructions verbally (often through a third party and never over the phone where it can be recorded) or by ensuring that pliant individuals are placed in pivotal positions within the NPA. Such individuals could then be manipulated (or could be relied upon) to protect your interests and the interests of those who are loyal to you, while prosecuting your enemies in an opposing faction of the governing party or in opposition parties, or your competitors in the private sector.
It matters not whether members of the NPA are in fact impartial or whether they are beholden to politicians and business elites. What matters is whether there is a widespread perception that some of them in influential positions are beholden to the dominant faction within the governing party.
When a perception takes hold that you will be protected from prosecution by pliant individuals within the NPA as long as you remain loyal to the leader of the dominant faction within the governing party, corruption will flourish among many people who are prepared to show blind loyalty to the leader of the dominant faction of the governing party. (This is so because most people commit a crime when they believe they will not be caught or prosecuted.)
A second consequence of such a perception taking hold is that it will diminish democratic contestation within the governing party as it will cement the power of the political leader and the dominant faction associated with him or her and will discourage some within the party from contesting internal party elections for fear of losing their perceived protection and being targeted for prosecution.
It is within this context that the announcement yesterday by new National Director of Public Prosecutions (NDPP) Shaun Abrahams that the NPA had decided to drop perjury and fraud charges against Deputy Director of Public Prosecutions Nomgcobo Jiba will not allay widespread perceptions that the NPA may be beholden to the interests of the dominant faction within the governing party.
As Abrahams did not provide a comprehensive legal motivation for the dropping of the charges against Jiba, it is not possible to say with certainty whether the decision was legally sound or not. Abrahams did say that the main reason for the dropping of charges was the clause in the Prevention of Organised Crime Act (Poca), which states that a member of the NPA could not be prosecuted for anything “done in good faith” under the Act.
What was not made clear was on what basis the NPA had decided Jiba had acted “in good faith” when she apparently misled the court when charging Johan Booysen, a major-general in the police, with several offences created by Poca.
Booysen challenged this decision by Jiba in the High Court, which reviewed and set aside her decision in Booysen v Acting National Director of Public Prosecutions and Others. In doing so, the court addressed the argument by Booysen that Jiba had been “mendacious” (in other words, “untruthful” or “dishonest”) when she claimed that she considered particular statements together with the other information in the “docket” before making the impugned decisions.
Although Jiba was invited to explain how she could have taken into account information on oath that objectively did not exist at the time of taking the decision, she did not do so. This led the court to comment harshly on her behaviour in the following terms:
“In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence (from Jiba). In such circumstances, the court is entitled to draw an inference adverse to the NDPP…. Most significantly, the inference must be drawn that none of the information on which she says she relied linked Mr Booysen to the offences in question. This means that the documents on which she says she relied did not provide a rational basis for the decisions.”
In effect, the court said Jiba had lied to the court by claiming to have considered documents (which did not exist) before deciding to charge Booysen. In the absence of comprehensive legal reasons for the decision to drop the charges against Jiba, it is not possible to say whether this dishonest behaviour on her part was indeed a “good faith” mistake or whether it was, in fact, a bad faith mistake made to pursue a political agenda.
However, given the widespread suspicions (true or not) that Jiba is politically conflicted and may not be able to make impartial decisions regarding prosecutions of well-connected politicians and business people, it is regrettable that the NDPP did not provide comprehensive reasons for the dropping of charges.
Although there may well be solid legal reasons for dropping the charges, the fact that such reasons were not shared with the public will fuel speculation that the charges were dropped because Jiba is politically well-connected and because she is being protected since she is beholden to a dominant faction within the governing party and is doing its bidding within the NPA in order to protect corrupt politicians.
This perception might be incorrect. However, the remarks made by the Supreme Court of Appeal (SCA) about Jiba’s actions in the so called “Zuma spy tapes saga” do raise some questions about advocate Jiba’s impartiality and about her possible allegiance to President Jacob Zuma. In Zuma v Democratic Alliance and Others the SCA criticised Jiba’s seeming reluctance to assist the court in dealing with the spy tapes saga as follows:
“In the present case, the then ANDPP, Ms Jiba, provided an ‘opposing’ affidavit in generalised, hearsay and almost meaningless terms. Affidavits from people who had first-hand knowledge of the relevant facts were conspicuously absent. Furthermore, it is to be decried that an important constitutional institution such as the office of the NDPP is loath to take an independent view about confidentiality, or otherwise, of documents and other materials within its possession, particularly in the face of an order of this court. Its lack of interest in being of assistance to either the high court or this court is baffling. It is equally lamentable that the office of the NDPP took no steps before the commencement of litigation in the present case to place the legal representatives of Mr Zuma on terms in a manner that would have ensured either a definitive response by the latter or a decision by the NPA on the release of the documents and material sought by the DA. This conduct is not worthy of the office of the NDPP. Such conduct undermines the esteem in which the office of the NDPP ought to be held by the citizenry of this country.”
The establishment of an NPA that is truly effective and impartial and is perceived to be impartial would create an environment in which far fewer politicians and business people would be prepared to take the chance of a 15-year jail term by engaging in corrupt activities.
This would potentially save billions of rands of public funds that could be used to build schools, pay for the upkeep of roads, ensure that life-saving medicine is delivered to hospitals, increase social grants or otherwise be used to better the lives of those who truly need the assistance of the state to live a dignified life. The question to ask is why more concerted efforts are not being made to address the actual or perceived political bias within the NPA and who benefits from this. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
"Go down this set of stairs and then just run - run as fast as you can." ~ Lt David Brink, 9/11