Opinionista Professor Balthazar 12 March 2020

Time is not on the side of the NPA to prosecute State Capture culprits

Advocate Shamila Batohi has been in the NPA office for 13 months. The longer the delay in decisive NPA  action, the more the ‘fightback’ will be against reinstating the rule of law and the principle of accountability.  

The Director of the National Prosecuting Authority (NPA), Advocate Shamila Batohi, has been in the news, both in the presentation she made before Parliament and in an interview at The Gathering. 

Judging from the press reports of both events and the advantage of streaming (of the Gathering), it appears that Advocate Batohi kept strictly to her script: the public need to give her office time, notwithstanding that she has been in that office for some 13 months, there is no quick fix to the institution of the NPA which was weakened deliberately over time and which, from inference, one can conclude was left in a dreadful mess by her predecessor Shaun Abrahams. His bequest to the institution was a lack of confidence, incoherent internal structures and a clear lack of requisite skills to perform complicated prosecutions.  “Absolute chaos of the past decade” was one of the fundamental challenges with which Advocate Batohi was confronted. Thus her priority is to rebuild the institution. As she said “we are trying to fix a plane while flying we can’t land… it’s extremely difficult”.   

Batohi made two further points, the primary one being that progress has been made, pointing to the Special Investigating Unit which has investigated municipal malfeasance and in which 18 cases had been finalised, 24 are before the court and 25 more under investigation.  She also pointed to the difficulty of prosecuting complex corruption cases when the NPA did not have the requisite forensic, data collection or financial skills to ensure successful prosecutions. Correctly she observed, the NPA cannot afford to bring high-profile prosecutions before a court, only to find that they have inadequately investigated and prosecuted so that the accused walks free.  

There is obvious justification in all of these arguments.   The NPA, battling to resurrect itself and gain legitimacy in the eyes of the public, must ensure that, when it charges high-profile politicians with acts of corruption, it does so with maximum efficiency and, ultimately, the achievement of convictions. But, at least for this columnist, there was much which was disquieting about these two presentations. In the first place, when asked about the possibility of using private sector and forensic data collection capacity to reinforce the forensic capacity  of the NPA, Advocate Batohi spoke about the difficulty of employing this strategy because there would be accusations that a public institution such as the NPA could then be captured.  

It is difficult to see how a secondment for no charge of a group of forensic accountants and data collections experts from large accounting and law firms would capture the NPA.  Inevitably, accusations would be made by those in the prosecution firing line but they would hardly have any credibility, given their clear vested interest in ensuring a weakened NPA.  And, since there is very little spare capacity in these critical areas within the NPA, it is to the private sector and possibly the universities that the National Director must turn to ensure adequate skills.  It is to the Bar that the NPA would have to turn if it has any chance of successfully prosecuting complex financial crimes such as that which involve Steinhoff or the myriad cases which had been documented and to which the Guptas are connected. 

There appears to no plausible explanation why by now, 13 months into her tenure, this essential capacity has not been sourced in order to ensure that prosecutions can be brought as expeditiously as possible. While the country waits anxiously, the political context in which prosecutions might take place may also change.  Those who could be brought before a criminal court will doubtless use every political mechanism to ensure that the criminal law does not reach them. The longer the delay in decisive NPA action, the more those who should be charged will feel confident in their attempts at “fighting back” against any concrete move designed to reinstate the rule of law and the principle of accountability.  Time is simply not on the side of the NPA or democratic-loving South Africans.  

Then, there is the question of the vacancies, in particular three deputy national directors. Understandably, Advocate Batohi has often pointed to the difficulty of leading an organisation where many of those responsible for its degradation are still in office. Hence, as was the case with the South African Revenue Service, there is a need to cleanse the organisation of these influences. In this connection, the appointment of three new deputy directors, all of whom would have the same commendable commitment to the rule of law as does Advocate Batohi, is critical for the success of the NPA. A section (11) of of the National Prosecuting Authority Act of 1998 provides that the President, after consultation with the Minister of Justice and the National Director, makes these appointments. The problem: the public does not know the extent to which Advocate Batohi has been pressing the President to make these appointments. This is surely an imperative.

There was also some exchange regarding the question of amnesty for alleged criminals.  One was not entirely certain whether the issue of amnesty and indemnity were conflated in this discussion.   One can express the hope that this was not the case, even though it appeared to be so. The sharp point is the following:  while granting amnesty to those responsible for crippling the financial affairs of this country is antithetical to any commitment to the principles of accountability and the rule of law, indemnity is a tool which is used by prosecutors the world over.  It is an obvious mechanism that is available to the NPA in this country. Instead of prosecuting low and middle ranking state employees and even some might have held senior executive officers in state owned enterprises for example, the utility of indemnity should  be used. This cohort can be faced with an alternative: prosecution followed by a long term of imprisonment or turn state evidence against those who made the critical decisions and profited to a greater extent from the myriad acts of State Capture.   

To date, the public has been subjected to many excuses as to why this will take a very long time and a further problem of budgetary constraints has been raised.  This, surely, has changed with the additional R 1.3-billion over the next three years which the NPA will receive following the Budget.  

 The further disquiet from the presentations of the National Director is the seeming lack of imagination in solving the obvious difficulties she has raised: why, for example, can a designated unit in the NPA with SAPS and outside assistance not be formed to employ the Al Capone strategy, that is use tax as a weapon against those who benefited from corruption. 

 In summary, the obstacles described by Advocate Batohi are understandable. The NPA is faced, however, with a context specific to South Africa. The longer there are no significant prosecutions of powerful politicians responsible or involved in State Capture, the stronger this constituency becomes. Manifestly,  the scope for the NPA to restore the rule of law is dependent on the present political situation. Were this to change, Advocate Batohi would probably be out of a job and the NPA would revert to its Abrahams position. Time is now of the essence. Sadly, nothing that was presented by the NPA over the past week gives rise to much optimism. DM

 

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