Writing under the headline “It’s now or never for the National Prosecuting Authority” (Daily Maverick 20 June 2022) Stephen Grootes holds out hope that the NPA will be able to rise to the occasion as the Guptas’ extradition, the avalanche of work from the State Capture Commission and the “farmgate” fallout — not to mention KZN insurrection redux — hits it more or less simultaneously in the months ahead.
“Hope springs eternal in the human breast,” wrote Alexander Pope, and it is a sentiment well worth cultivating, especially in troubled times. More recently the late Archbishop Desmond Tutu remarked that:
“To choose hope is to step firmly forward into the howling wind, baring one’s chest to the elements, knowing that, in time, the storm will pass.”
There is no doubt that the howling wind is blowing around our benighted prosecutors as they face the challenges arising from the capture of their institutional home, the National Prosecuting Authority (NPA), both during the Zuma era, by brute force, and latterly by the current president with more guile.
Zuma effectively castrated the corruption-busting capacity of the state by dissolving the Scorpions immediately after he came to power. He then carefully placed cadres loyal to him, first, and the National Democratic Revolution, second, in key positions in the NPA.
He later decapitated the NPA by handsomely bribing the then national director, Adv Mxolisi Nxasana, to relinquish his post when it turned out that the latter was prepared to prosecute Zuma without fear or favour. This step, in the event of the review proceedings brought by the DA, succeeding in overturning the craven decision of Acting NDPP, Mokotedi Mpshe, not to prosecute Zuma on the charges he is now, belatedly, facing.
The castration is irreversible within the NPA. Here’s why: while the Scorpions functioned well (too well for their own good, it seems) in the anti-corruption space, they lacked the institutional security of tenure to survive the displeasure of the ANC and the many politicians they prosecuted for the Travelgate frauds, the Tony Yengeni saga and other corrupt dealings like the Amigos and the John Block case. The Scorpions were doomed the minute that Zuma won the ANC presidential election at Polokwane in 2007.
The Scorpions were allowed by law to both investigate and prosecute. They applied a troika approach, harnessing the expertise of forensic experts to good effect to work alongside their investigators and prosecutors. They had esprit de corps. Called themselves “the people’s advocates” with pride, and they had a work ethic of enviable stature.
In complex corruption matters, the quality and speed of the investigation are everything; quality to ensure a conviction and speed to recoup the loot through freezing and forfeiture orders swiftly obtained before the corrupt hide or spend it.
Between the demise of the Scorpions in 2009 and the proclamation of the Investigating Directorate (ID) of the NPA in 2019, the NPA had no investigating capacity. That task was assigned by Parliament to the Hawks or Directorate for Priority Crime Investigation, a mere police unit. They have never been equal to their anti-corruption task, lacking the necessary sapiential authority, independence and expertise. No one suggests today that the Hawks are the answer to the several challenges now facing the criminal justice administration in the wake of its capture. The Hawks do good work, but not in the anti-corruption space.
As a work-around solution to the lack of capacity of the Hawks, President Cyril Ramaphosa set up the ID to investigate crimes on a menu he designed. This step not only ignores the legislative scheme created by Parliament, it is also of questionable constitutionality due to the lack of independence and secure tenure of the ID personnel. They serve at his pleasure, a tiny unit in a stormy ocean of corruption. They lack all of the attributes that they are required by law to have and they have yet to actually finalise a single prosecution. Their first head, Hermione Cronjé, was asked to quit and did. So much for secure tenure of office.
There is a promise from the NDPP of nine corruption-related cases starting in the next six months. The difficulty with this is that the first three tranches of the Zondo report reveal 1,438 names of suspects in State Capture-related matters. At the rate of 18 a year (nobody has promised a further nine prosecutions within a year, but let’s be charitable) it will take 80 years to work off the State Capture backlog of cases.
Even if one assumes an average of eight accused per case, the time period is still 10 years, which is a vivid illustration of the maxim that justice delayed is justice denied. And the balance of the Zondo report (volumes 4 to 6) will doubtless have a long list of names to add to the 1,438 already identified in the DA’s dashboard of malfeasance.
As to the decapitation of the NPA by Zuma: the bribe paid with taxpayers’ money has been declared unlawful and void in civil proceedings, but the current NPA leadership shows no interest in prosecuting Zuma for arranging the bribe. Instead, he leads them a merry dance through the Pietermaritzburg high court with Stalingrad strategies that stretch even the most vivid of legal imaginations.
Before she quit to take up a position with Open Secrets, Hermione Cronjé often complained that the NPA is infested with saboteurs inserted into the system to ensure that no kleptocrat and no State Capturer is ever brought to book by the NPA. In the Gupta case started by her, it took the SAPS and NPA 81 days to answer a simple query from the UAE. So much for “diligently and without delay” — the standard applicable.
The NPA is not a working environment that is attractive to the senior, highly experienced and skilful corruption busters who once populated the Scorpions. They have fled to the private sector, the Special Investigations Unit (which has no criminal jurisdiction) and to other departments of state. Some, like the current NDPP, even left the country. Most will not return to the saboteur-infested environment of the NPA, why should they?
As for the supposed institutional independence of the NPA, it is a chimera. Here’s why: section 179(6) of the Constitution prescribes that the justice minister “must exercise final responsibility over the prosecuting authority”. Worse than that, the accounting officer of the NPA happens also to be the director-general in the Department of Justice. Executive control could hardly be more comprehensive.
The ANC track record on the supposed independence of the NPA is illuminating. Vusi Pikoli was NDPP at the time of the transition from the Mbeki era to the Zuma era. He was determined to prosecute Chief of Police Jackie Selebi on corruption charges. The president and justice minister did not want him to do so. In the ensuing showdown, he found himself suspended for going after Selebi, exonerated by an inquiry into his fitness for office and then dismissed by Parliament because he was also on the trail (the still unfinished business) of Jacob Zuma, then a private citizen, soon to be a two-term president. Pikoli settled favourably in his damages action, but he did not get his job back.
The shelf life of NDPPs in the Zuma era was short. His appointment of Menzi Simelane ended when the courts described the decision to appoint a known perjurious witness to be irrational. It served no legitimate purpose of government to appoint Simelane, who announced, on arriving at the NPA from his post as Director General of Justice, that his mission was to impose the vision of the ANC on the NPA. So much for independence.
Simelani’s successor, Mxolisi Nxasana was short-lived in office for 22 months with a sticky ending as we have seen already. Then came Shaun “the Sheep” Abrahams whose appointment was ruled invalid before Zapiro had time to exploit his missteps in enough cartoons.
The NPA of today does not have the specialist skills needed to counter corruption. It does not have adequately trained and experienced personnel in sufficient numbers to do so. Its resources are limited and especially minuscule when it comes to the artificial intelligence and forensic accounting expertise needed. Its independence is questionable and the track record shows that secure tenure of office is not its forte.
There is however good cause to be hopeful, just hope for the right reforms and the storm will pass. The political parties know this. Grootes has overlooked the emerging consensus in Parliament that reform of the criminal justice administration to deal with serious corruption is indeed in the air.
The Constitutional Review Committee of the National Assembly unanimously resolved in June 2022 to invite Accountability Now to make a comprehensive presentation to it on the suggestion that serious corruption should be the subject of the mandate of a new Chapter Nine Institution.
Dubbed the “Integrity Commission” or Ch9IC, this new body will have the secure tenure of office that all Chapter Nine Institutions enjoy (just compare the lot of Busisiwe Mkhwebane with that of Pikoli). The Ch9IC will prevent, combat, investigate and prosecute serious corruption cases and will report to Parliament, not the executive. The reforms suggested also include an improvement of the current lot of the NPA, with changes designed to enhance its independence.
The suggestions by Accountability Now align with the resolution of the NEC of the ANC announced on 4 August 2020. It resolved to instruct Cabinet, as a matter of urgency, to establish a stand-alone, permanent, specialised and independent entity to deal with corruption.
The IFP has long been a fan of the Ch9IC and the DA has recently also embraced the suggestion.
It is urgent that the reform should take place in time to deal with the gathering storm outlined by Grootes. The Chief Justice believes that an army of prosecutors will have to be mustered. Behind that army will be at least twice as many investigators and a good cohort of forensic experts too.
How soon can the necessary constitutional amendment be passed? An experienced member of Parliament from a small party pointed out last year in correspondence with the writer that “a constitutional amendment, as we saw with the floor-crossing amendment, can be passed quite quickly if there is the broad support required — possibly even within a three to six month period, on your assumptions.
“A legislative amendment to allow for a Scorpions Mark II body seems to be the course that the ANC is following. While this will be quicker, such an amendment, as you point out, can be more easily undone.”
The relevant assumptions are that cross-party cooperation will be possible (it is currently) and that the need for a constitutional amendment will be recognised.
If parliamentarians take their duty to exercise oversight over the executive seriously and see to the proper implementation of legislation they pass, then the Ch9IC could be operational sooner than most think.
The hope for the future of corruption-busting in SA is that the movement toward a Ch9IC, overlooked completely and somewhat puzzlingly in the article by Grootes, will become a unanimous call by all self-respecting political parties represented in Parliament.
The prospects of the NPA in the field of serious corruption busting are not as bright as those of the new Ch9IC. Its personnel will be objectively hand-picked and integrity tested. Leadership will be from the top drawer. The people’s advocates will ride again. DM