In his State of the Nation Address (SONA) President Cyril Ramaphosa made the welcome announcement that an investigative unit would be created within the National Prosecution Authority (NPA). The idea is that the unit will have as its objective the investigation and prosecution of serious corruption.
As it is currently understood, the idea is to staff this unit, which will fall under the authority of the National Director of Public Prosecutions, Shamila Batohi, with expert personnel from the Hawks, the Financial Intelligence Centre, the Special Investigating Unit and, if necessary, the private sector.
That the President made this announcement at SONA, in front of many from his own party who had enthusiastically supported the disbanding of the Scorpions more than a decade ago, was truly ironic. (In fairness, members of the EEF were also part of this support as they were members of the ANC at that time.)
The replacement unit, the Hawks, has been nothing short of a disaster in the fight against corruption. Indeed, shortly before SONA, the Hawks decided to warm up a cold breakfast and act in terms of an age-old case and arrest members of the now disgraced Bosasa. The charges are linked to a 2009 investigation. Ten years later the Hawks suddenly act. The arrests excluded the CEO of Bosasa, Gavin Watson, Minister Nomvula Mokonyane or Dudu Myeni, all implicated in evidence before the Zondo Commission.
The head of the NPA was reportedly not informed of this decision by the Hawks. One justification can thus be discounted — as Mr Angelo Agrizzi had already implicated many people (obviously all implications have to be properly proved and Agrizzi has not been cross-examined, yet) it could not have been that the Hawks were employing Robert Mueller-type tactics of arresting a person to squeeze him/her for information. Agrizzi has already spoken at length. Hence the implications of the Hawks’ action are disturbing and it emphasises the need for its disbandment.
Within this context, it would be preferable for the new unit to be constituted by legislation that is designed to create a truly independent unit, thus obviating legal challenges of the kind that were brought by businessman Hugh Glenister against the legislation that created the Hawks.
This prudent course of action is preferable, even if it can be argued that the head of the NPA could create a special unit within her organisation. The problem, however, is to find the requisite talent. At present, there are more than 1,000 vacancies in the NPA. There is a dearth of expertise with the requisite financial acumen to deal with serious corruption where money trails are complex. There is a lack of forensic skills to assist the prosecution and, as in the case of the Hawks, far too many personnel are compromised.
Hence while the idea of a fresh anti-corruption unit which integrates investigation with prosecution is clearly an excellent idea, the implementation will obviously be the problem.
It is, of course, possible to inspan some retired judges, counsel, attorneys and accountants who could give of their skill and experience. Then the few who are in the service at present who pass expertise and integrity muster can be bolstered with new appointments who can be groomed.
But even so, the assistance of the private sector will be critical. The large law and accounting firms must second some of their talents to the new unit as part of the national initiative to curb corruption and hold the corruptors and the corrupted accountable to the law. And the skills of the Bar will be needed, for the NPA at present simply does not have enough skilled litigators to prosecute successfully in the face of hugely well-financed legal teams acting for the accused.
Hopefully, these considerations have been taken into account in the decision to staff a much-needed new unit. That unit and indeed the criminal justice system as a whole can only attain credibility and hence legitimacy when some high-profile and politically well-connected people face a criminal trial.
The president asked the nation to watch this space — that space must be filled by significant prosecutions. Talking of significant prosecutions, it would be advisable for the NPA not to overreach; that is not to try to initiate too many prosecutions at the same time. But at the very least within the next six months, at least three cases have to be considered: a Gupta-focused case, a Bosasa case and the prosecution of those who were responsible for the collapse of Steinhoff.
All will be challenging, but if each prosecution team is staffed as suggested in this column, it can be done. Failure to do so will mean that we have entered yet another false dawn. DM
"We live in capitalism. Its power seems inescapable. So did the divine right of kings." ~ Ursula Le Guin