Opinionista Paul Hoffman 7 August 2020

The Snake, the Sheep and the Sham that is the NPA today

This week, the unearthing of the confidential De Kock Report revealed the extent of the rot within the NPA. It coincided with the ANC’s overdue call for the establishment of a ‘multidisciplinary agency’ of properly trained anti-corruption experts who are operationally and structurally independent and adequately resourced.

The National Prosecuting Authority is not an organisation to be trifled with or taken lightly. It has a section in the Constitution devoted entirely to its structure, operations and functioning. Its leader, the National Director of Public Prosecutions, is appointed by the President. She or he is the only public servant with policy-making powers; these powers are constitutionally conferred in respect of prosecution policy. The power to institute criminal proceedings on behalf of the state is reserved to the NPA and it is also empowered to “carry out any necessary functions incidental to instituting criminal proceedings”.

Each of these duties must be done without fear, favour or prejudice, or, in a word, independently. As they are constitutional duties, they are required to be carried out diligently and without delay.

All of which brings us to the report in DM on Wednesday 5 August 2020 by Jacques Pauw in which he takes the soiled dressing off the festering sore that is the NPA of 2020.

It is the story of a snake (the Bosasa nickname of Nomgcobo Jiba, disgraced former acting NDPP), a sheep (Shaun Abrahams, former NDPP, so dubbed by Zapiro) and a sham (Shamila Batohi, current NDPP). The story emerges from a leaked confidential 2019 report whose main author is current deputy NDPP, Rodney de Kock, and it concerns the shenanigans around the false Cato Manor “Death Squad” allegations involving former Hawks KZN boss Johan Booysen. 

The report makes it clear that Jiba has committed perjury, aided and abetted by senior members of the KZN office of the NPA. These lost souls relentlessly persecuted Booysen because he was willing to take on corrupt individuals involved in the Zuma State Capture project and had, on behalf of Zuma and his associates, to be stopped from doing so. There is none of the necessary institutional independence in the actions recorded in the De Kock report; instead, craven dereliction of prosecutorial duties is clearly recorded in detail in the report. The lying and dissembling evident from the report are gobsmacking when one takes into account that the culprits are not common criminals, they are officers of the court who have sworn to uphold the law and the Constitution. As Justice Johann Kriegler has observed, in relation to the hollowing out of the criminal justice administration during the Zuma years:

“Often even the most feisty individual has been driven to exhaustion, physical, emotional and, of course, financial. Examples of broadly the same pattern of administrative abuse are found in a whole range of parastatals: think, for instance of South African Airways, Denel, Eskom and the SABC. And of numerous senior public servants – Vusi Pikoli, Mxolisi Nxasana, Glynnis Breytenbach, Anwa Dramat, Shadrack Sibiya, Johan Booysen and Robert McBride, to speak only of the criminal-justice sector – who’ve been hounded out of office.”

It is not coincidental that the learned judge’s list of victims includes two former NDPPs and one senior prosecutor.

When Batohi, who fled the NPA to take up a cushy job at the ICC in The Hague after Zuma’s political star rose, was approached to become the new NDPP, she insisted, wisely and successfully, that her independence be guaranteed to her by the President. She needed that independence to be able to get the NPA to change course, clean up its act, cut out the dead wood and give the chop to those more loyal to the Zuma State Capture project than to the enforcement of the criminal law. After all, the law requires expressly (in section 32 of the NPA Act) that each and every prosecutor shall:

“… 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.”

For the NPA to function as it should, those “saboteurs” of the rule of law (this accurate description of her current colleagues in the NPA comes from Hermione Cronje, head of its Investigative Directorate) still in the ranks of the NPA have to be cleared out swiftly and surely.

The De Kock report is dated 28 June 2019 and is addressed to Batohi as a confidential report. It contains sickening detail of the perfidy of those who conspired against Booysen and his men for no other reason than to protect the crooks involved in State Capture. Pauw succinctly sums it all up when he says:

“The confidential June 2019 report provides startling evidence of how former NDDP advocate Shaun Abrahams, acting NDPP advocate Nomgcobo Jiba, former Director of Public Prosecutions (DPP) in KwaZulu-Natal, advocate Moipone Noko, and Maema lied and conspired to charge Booysen and his men.”

Jiba clearly lied on oath. That is the crime of perjury. No charges are pending against her. They should be. Maema engaged in forgery but was promoted by Batohi. He was transferred to North West, the “Siberia” of the NPA, with Noko who now heads that office at the same rank she previously occupied. This is a complete lack of what is called “consequence management” by those too shy to talk in public about accountability.

It is a great disappointment and a fundamental breach of her leadership duties that Batohi has sat on the confidential report by De Kock et al for over a year without doing anything in public to address the evidence it reveals. Booysen has laid charges of fraud against Noko and Maema, but nothing has been done to investigate and process those charges, as far as is known. If the NPA is to regain the trust and confidence of the public, it needs to deal with its bad apples in public.

In any society based upon open, accountable and responsive governance of the kind expected in section 1 of the Constitution, it is incumbent upon the chief prosecutors to run a clean ship and to take the public into their confidence when evidence of the kind in the De Kock report is available. It is not enough to supply a commission of inquiry with the report in secret (whence Pauw presumably received it). Nor is transferring culprits accused of the heinous acts set out in the report an adequate response to its revelations. They should instead be charged or at least be made to face disciplinary inquiries to ascertain whether they have any defence to the accusations of skulduggery set out in painstaking detail in the report.

The health, welfare and necessary esprit d’corp of the NPA can be deleteriously affected by the way in which it is led. The leadership necessary in respect of the matters covered in the report is lacking to the point that, in the absence of some explanation that does not present itself in the reports of both Pauw and De Kock, the leader of the NPA is in dereliction of her duties to lead from the front. Batohi obviously has to address the hollowing out of the NPA during the Zuma years by taking proactive steps to stop the rot, not promote the rotters or shift them “sideways” when the direction indicated in “out”.

The matters traversed in the De Kock report should give rise to questions in Parliament and, in the absence of an adequate response to Parliament’s oversight functions, a board of inquiry to establish whether the NDPP is a fit and proper person to hold the high office to which she has been promoted. It is not enough for the NDPP to repeatedly make excuses for not doing what her job description requires of her on the corruption front, certainly not while she shelters the operatives of the Zuma era in her organisation, well knowing them to be crooks on the basis of what is now, belatedly and unofficially, revealed in the De Kock report and in the outstanding investigative journalism of Pauw.

It is doubly infuriating that the apparent dereliction of duty on the part of Batohi should be revealed at the very time that the National Executive Committee of the ANC has announced, per media reports, that:

“The NEC called upon the ANC-led government to urgently establish a permanent multidisciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice,” said Magashule.

He said the NEC fully supported its president, who is also South Africa’s head of state, Cyril Ramaphosa’s decision to refer all allegations linked to the procurement of Covid-19 goods and services to the Special Investigative Unit (SIU).”

Astute observers will notice that the NEC has, somewhat belatedly, made a welcome move in the direction of the proper implementation of the legally binding decisions of the Constitutional Court in the Glenister litigation. The urgent establishment of the single “multi-disciplinary agency” to which the NEC refers could lead to the creation of a specialist body of properly trained experts in countering corruption who are operationally and structurally independent, adequately resourced in guaranteed fashion and who enjoy secure tenure of office. These steps would amount to compliance with the court rulings. They are most welcome.

The current NPA, stunted as it is in the manner described by De Kock and Pauw, is no place in which to house such a body. Cabinet will be well advised to consider, as a best-practice response to the NEC instruction, the establishment of a new Chapter Nine Institution to do the bidding of the NEC as set out in the words quoted above.

It must be noted that the work of the SIU is confined to the civil law aspects of corruption; it is not a criminal law enforcement agency.

Some have called the new multi-disciplinary agency “the new Scorpions”. The structural problem the Scorpions were unable to overcome is that the security of tenure of office that is required (by law since the Glenister rulings) was not available to them as mere creatures of an ordinary statute. Housing the body desired by the NEC in Chapter Nine of the Constitution will afford it  protection against the sad fate suffered by the Scorpions.

It is a pity, given the proud history of its Scorpions unit, that the NPA will not be able to be part of the new set up the NEC of the ANC desires. However, it has, by allowing its members to be captured and misdirected in the Zuma era, and also by not dealing pro-actively with the identified culprits after the Zuma era, forfeited its institutional participation in the NEC’s contemplated new set up which will require a constitutional amendment that is likely to enjoy universal support in parliament. Many good members of the NPA will no doubt be recruited to the staff of the new body envisaged in the NEC announcement. Those named and shamed above will not be among them. There are many likely candidates for the new body in the ranks of all of the nine institutions in the current unconstitutional “hub” or “fusion centre” who can be transferred to the new agency desired by the NEC.

The urgent task given to Cabinet by the NEC is made easier by the existence of draft legislation (including the necessary constitutional amendment) which Accountability Now prepared in 2012 in anticipation of NEC support for the idea. Understandably, given the limitations of the Zuma years, the NEC has taken some time to embrace the ideas it has now announced in the statement quoted above. It is not a moment too soon, given the culture of corruption with impunity that has swamped SA in recent years and has, since March, spawned covidpreneurs. DM

 

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