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After Zondo, the National Prosecuting Authority dare no...

Defend Truth

Opinionista

After Zondo, the National Prosecuting Authority dare not fail the nation

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

The ultimate success of the Zondo Commission will depend in large part upon the ability of the National Prosecuting Authority to use the welter of evidence provided in the commission’s records and institute criminal proceedings against key implicated persons, many of whom continue to exercise considerable influence in the political affairs of the country.

Barrels of ink have already been used to analyse, comment upon and critique the final reports of the Zondo Commission on State Capture. In essence, the exhaustive record of the Zondo Commission can be divided into two parts: an examination of the history of State Capture throughout Jacob Zuma’s presidency and important proposals to curb a repeat performance. 

Suffice to say: the exposure by Chief Justice Raymond Zondo of the alleged nefarious activities of an army of implicated persons, not exclusively connected to the ruling party, constitutes an important national exercise in the restoration of accountable government. Agreed, it is extremely disappointing that after all of the sturm und drang of the hearings and the analysis thereof, only one recommendation was forthcoming with regard to the prosecution of Zuma. But the extent of State Capture, the plundering of precious public resources and even the ineptitude of the current President — or at least his passive conduct — during his deputy presidency, have been exposed by the commission.

The ultimate success of the commission will depend in large part on the ability of the National Prosecuting Authority (NPA) to use the welter of evidence provided in the commission’s records and institute criminal proceedings against key implicated persons, many of whom continue to exercise considerable influence in the political affairs of the country. 

This presents a formidable test for the NPA. If it fails to do its duty with efficiency, swiftness and rigour, it places the constitutional model upon which our governance system is based in dire jeopardy. Simply put, either the present leadership of the NPA can, within a reasonably short period of time, institute compelling charges against some of the implicated persons or the leadership should resign and be replaced by those who can do the job.

The time for promises and pleas for patience has long passed.

The principle of accountability

But, these observations notwithstanding, it remains important to carefully assess the recommendations of the commission that are designed to strengthen the principle of accountability of public power. 

This principle is honoured far more in the breach than in compliance. A few examples must suffice. The President appears averse to holding any press conference during which he could be subjected to questions that could hold him accountable in respect of the general affairs of the state. Most recently, he has kicked for touch with regard to the “farmgate” scandal and has remained ominously silent. 

Notwithstanding a few earlier attempts by his spokesperson to admit that a robbery had taken place at the President’s game farm, that the President was aware thereof shortly after it had been committed and that a significant amount of funds had been stolen, the people of South Africa have not been told anything to assuage their anxiety.

The Public Protector continues to litigate on the basis of the exponential growth of ever-more tenuous arguments. Western Cape Judge President John Hlophe will doubtless exhaust every possible legal avenue to continue as Judge President of an important division of the high court, notwithstanding that the Judicial Service Commission (JSC) has found him guilty of impeachable conduct. An appeal against his unsuccessful review application before the Johannesburg High Court is to be heard by the Supreme Court of Appeal. If that fails, the Constitutional Court will be the next forum to be entreated to set aside the JSC decision and if that fails, a rescission application and then a rescission of the failed rescission application. 

We should remind ourselves that it is a standard labour law practice in the case of an employee found guilty of misconduct pending an appeal, for that employee to be placed on garden leave. That standard is obviously far too onerous for the JSC when it comes to the custodians of our judicial system!

For these reasons, that Chief Justice Zondo sought to strengthen the principle of public accountability is of great importance. These recommendations are designed to ensure that State Capture will not be repeated. 

In particular, the commission focused on the lamentable failure of Parliament to hold the executive to account. It found, all too often, that loyalty to a political party replaces MPs’ duty to comply with the terms of the oath or affirmation of office to “be faithful to the Republic of South Africa” and to “obey, respect and uphold the Constitution and all other laws of the Republic”.

It recommends that Parliament should consider establishing a committee whose function is or includes oversight over acts or omissions of the President and executive which are not overseen by existing portfolio committees. 

It also suggests that the system whereby “members of Parliament are accountable and beholden to their party bosses is not well suited to securing parliamentary oversight of the executive”.

Change to electoral system

For this reason, the commission referenced the majority report of the Electoral Task Team chaired by Dr Frederik van Zyl Slabbert in 2003, which recommended a change to the electoral system to introduce, in part, a constituency-based electoral system. 

Accordingly, the Zondo Commission has recommended that Parliament should consider elements of parliamentary representation based on constituencies as well as proportional representation. It further suggests that Parliament should consider the possibility of legislation to protect members of Parliament from losing their party membership merely for exercising their oversight duties and thus acting in good faith.

The commission posed an important question as to whether Parliament is impotent and not able to ensure the scrutiny and oversight of executive action. To strengthen its oversight role, it recommends the passing of an Accountability Standards Act which could serve the purpose of partially fulfilling Parliament’s constitutional obligations of establishing accountability mechanisms, setting the broad framework and minimum requirements for accountability, and providing an authoritative and mandatory framework within which committee members can perform their oversight tasks. 

It also suggests the direct election of the President, which would reinforce the concept of separation of powers between an executive being totally separate from Parliament and hence directly elected by the people.

Regrettably, this recommendation appears almost as an afterthought, with little examination as to whether it will improve governance and how it might best work.

The broader problem with all of these recommendations is an observation made by the commission itself, namely, a lack of political will to address foundational problems of governance. The commission suggests that “leaders of political parties should provide the political space for individual MPs to ask difficult questions without prejudice to themselves with the assurance that their concerns would be taken seriously and properly answered”.

It is commendable that the commission sought to address the foundational failures of parliamentary accountability and hence the almost unfettered exercise of power by the executive. None of the recommendations made by the commission is novel, but that does not diminish their importance.

However, it is doubtful in the present political context that yet another piece of legislation, however well-intentioned, and some restructuring of the committee system of Parliament will produce improved accountability. The problem is not an absence of law, but a failure of politics.

In summary, without a social practice of fidelity to the foundational values of the Constitution which can only be promoted by accountability that depends on a sanction by the voters, there is little within the commission’s recommendations that is likely to alter the trajectory of present governance practices, save perhaps for a re-examination of the electoral system. 

This issue deserves renewed public attention. It is regrettable that almost 20 years have passed since the Slabbert Commission’s recommendations made an attempt to reconfigure the system to dilute the power of party bosses. 

Unfortunately, the commission failed to examine why a similar existing system for local government fails so lamentably. One would have expected some recourse to this failure when it made its recommendations regarding the reconsideration of the electoral system.

Successful prosecutions

To return to the more comprehensive parts of the Zondo Commission reports that have so commendably laid bare the cancer of national corruption: if the NPA can get “its act together”, use the resources of the legal profession as a whole and not obstinately believe that it has the exclusive efficiency skill to mount successful prosecutions, a change in the balance of political forces could result from an assertion of legal accountability.

In short, a few successful prosecutions still represent the best hope for this country’s democracy in its attempt to deal with the horrendous record of the Zuma administration which, sadly, in no insignificant part continues today, in its aim of plundering public resources.

It has been suggested that there be a system of amnesty for those who committed acts of corruption during the era of State Capture. Central to this proposal is that the granting of amnesty should be conditional on full disclosure of an applicant’s corrupt activities. If an applicant is not forthcoming regarding the extent of their crimes, amnesty should not be granted or, if applicable, it should be revoked.

Regrettably, there is a litany of problems with this proposal. In the first place, amnesty only works if there is a realistic possibility of successful prosecutions. Second, forensic capacity will be required to ensure full disclosure of what otherwise will allow ill-gotten gains to be secreted from public view.

In short, the success of an amnesty has to be coupled with a viable NPA. In turn, a viable NPA must be able to prosecute a few high-profile cases and that, in turn, may then precipitate the potential for a string of plea bargains. The NPA remains the key to the assertion of accountable government. It dare not fail the nation. DM

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All Comments 6

  • It would help if their budget was increased in line with the demands on them. Also they have a massive problem in ridding themselves of the cancer from within so carefully curated by JZ and his mates.

  • If NPA doesn’t succeed and doesn’t resign, then what? Democratic anarchy? What Zondo has done is given us a measure of what needs to be done. Hopefully, the CJ will now apply his mind to the efficiency (meaning mostly urgency) of the courts to mete out justice on villains!

  • Excellent article, thank you Prof. Could someone at Daily Maverick please ensure that a copy of the article is forwarded to Shamila Batohi, with these words highlighted: if the NPA can get “its act together”, use the resources of the legal profession as a whole and not obstinately believe that it has the exclusive efficiency skill to mount successful prosecutions ….

  • The issue, ‘Prof’, is that the NPA, had it the teeth to do the job, ought to have already done so. There are numerous cases falling outside of Zondo that can, should but have not been prosecuted. Zondo will be allowed time to fall into the dust, and prosecution will revert to talks of ‘amnesty’ and justice delayed.

  • If amnesty is given to any of these crooks I will eat my hat! This would open the door to every Tom Dick & Harry demanding amnesty for nearly every crime committed. This would be on the basis that ‘If he can do it and get granted amnesty, then I want the same’. This would be an abject disaster.

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