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Will State Capture cases suffer ‘non-prioritised’ f...

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If accountability for apartheid crimes could be ‘non-prioritised’ will State Capture cases suffer same fate?


Brett Herron is GOOD Secretary-General and a member of the Western Cape provincial legislature.

Nowhere in the Constitution or in any legislation is provision made for prioritising the pursuit of criminal charges against certain categories of criminals while 'non-prioritising’ the pursuit of others.

There is presently great focus on holding the authors of State Capture criminally accountable. As there should be.

However, in circumstances in which politicians assume the power to prioritise or non-prioritise who should be held accountable for crime, who’s to say the likes of the Guptas and friends won’t be holidaying in Honolulu come Christmas — after the ruling party’s elective conference?

In times of resource challenges, it would be stupid to argue against prioritising the prosecution of murderers or rapists above, say, jay-walkers or petty thieves. That’s arguably permissible because the reasoning is operational, not political.

But such an argument cannot be applied to those who committed the most heinous apartheid-era atrocities. Or to those accused of grand corruption.

While the Constitution and legislation are abundantly clear on such matters, the ANC’s track record in government strongly suggests that the successful pursuit of such cases depends not so much on the skills of investigators and prosecutors as it does on politics.

During his budget vote speech at the end of May, Minister of Police Bheki Cele referred to 100 Truth and Reconciliation Commission (TRC) cases being investigated by the Directorate for Priority Crime Investigation, of which 76 cases remained under investigation, 17 had been referred to the NPA and seven were in court process.

These cases were among approximately 300 recommended by the TRC for further investigation more than 20 years ago. Further investigations were critical to the integrity of the TRC’s carrot-and-stick approach to post-apartheid amnesty. Those who chose to evade the commission, or were found not to qualify for amnesty, faced potential prosecution.

Minister Cele’s budget vote speech offered no explanation as to why just seven of the 300 cases were in court, more than two decades later — or, if 100 cases were being investigated, what had happened to the other 200. I, therefore, took the opportunity to submit some written follow-up questions.

Asked to explain the delays, the minister responded: “The delay was caused by non-prioritisation from 2003 until 2017. The Directorate for Priority Crime Investigation, in collaboration with the National Prosecuting Authority, have now prioritised these cases.”

He did not bother to explain why the cases had been “non-prioritised”, by whom, or according to which legal process.

The closest we’ve come to the answers to these questions were provided by former head of the NPA Vusi Pikoli in an affidavit in 2015: “I also have reason to believe that my decision to pursue prosecutions of apartheid-era perpetrators who had not applied for amnesty or had been denied amnesty by the TRC contributed to the decision of president Mbeki to suspend me” (in 2007).

Minister Cele kept his answers short, but they nonetheless revealed the extent of politicians’ control over decisions of the country’s investigative and prosecutorial services. The period from 2003-2017 spans most of the administrations of both presidents Mbeki and Zuma.

Extraordinarily, among the cases these former ANC presidents agreed to “non-prioritise” was that of the death of another former president of their own organisation – Africa’s first Nobel Peace Laureate, Albert Luthuli!

If the Luthuli family couldn’t depend on the democratic state for justice or, at least, for closure, what chance for the other 300-odd families of so-called lesser mortals? Who can be held accountable if most of the perpetrators have died or are dying of old age?

Where does that leave members of the allegedly criminal Gupta family and their friends? Does their fate lie in the hands of political elective processes in December or an apolitical criminal justice system that takes decisions without fear or favour, as it should? DM


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