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The rookie errors in the Nulane prosecution are unacceptable

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Paul Hoffman SC is a director of Accountability Now.

As the Free State high court judgment in the Nulane case reveals in painstaking detail, both the investigators and the prosecutors made a complete hash of their work.

As is its practice in important matters, Daily Maverick has given extensive coverage to the discharge of most of the accused, and the acquittal of one (against whom no evidence was led), in the Free State high court criminal trial on Friday 21 April 2023. The report, and the full judgment are available here.

A successful application for a discharge at the end of the state’s case in any criminal matter is an indication that the wheels have come off the prosecution’s best-laid plans or the evidence it has adduced is not the stuff of proof beyond a reasonable doubt or even sufficient to put the accused on their defence. It is the equivalent of a pilot failing to get his aircraft off the ground.

The blame in the Nulane case has been widely attributed to incompetence in the preparation and presentation of the case dubbed as “audacious and stillborn” by the presiding trial judge. The investigation of the matter was the responsibility of the Hawks and its prosecution was attempted by the Investigating Directorate (ID) of the National Prosecuting Authority.

Read more in Daily Maverick: Judge slams State’s ‘stillborn, audacious’ case as all 8 Nulane corruption accused discharged

As the judgment reveals in painstaking detail, both the investigators and the prosecutors made a complete hash of their work.

Upon reflection and after careful analysis, it is not solely the fault of the keystone cops who investigated or the under-skilled prosecutors who presented the case in court.

It is, more appropriately, the fault of the government which has, more than five years since Jacob Zuma departed from high office, persisted in preserving the structures he put in place to ensure that he and his cronies in the State Capture enterprise would never see the inside of a jail cell.

This nefarious objective was achieved by summarily closing the Scorpions, a well-functioning unit within the NPA (before it was gutted by Zuma). This bold scheme was put in place the minute Zuma swept to power after his success at the Polokwane conference of the ANC in December 2007.

Read more in Daily Maverick: Disbanding the Scorpions was not a matter of loyalty over conscience (Part One)

Read more in Daily Maverick: Disbanding the Scorpions: Corruption is too big an issue for us to constantly get stuck in the past (Part Two)

The Scorpions operated according to what they called the troika principle and they employed experts, investigators and prosecutors who made proper use of crime intelligence. Today, by contrast, crime intelligence is virtually non-existent, the best of the Scorpions investigators and prosecutors have been scattered to the four winds and very few of them have returned to the NPA in the post-Zuma era.

It turns out that the Ramaphosa leadership is but a continuation of the Zuma excesses; not surprising if regard is had to the fact that, despite his feigned shock and surprise at the perfidy all around him, Ramaphosa was elected as deputy to Zuma in 2012 and presided over cadre deployment (an illegal and unconstitutional activity) while he was deputy president of SA.

In a vain attempt to put lipstick on a pig, the current Cabinet plans to make the ID (a creation of a presidential proclamation that contradicts the legislated separation of investigative work — for the Hawks, and prosecutorial work — for the NPA) into what it calls a permanent body within the NPA.

This, if it is done by ordinary legislation, will put the “permanent” ID in no better position than that of the Scorpions. Creatures of ordinary statutes can be closed down by a simple majority in Parliament voting for their demise, which is the fate suffered by the Scorpions.

Cabinet defiantly maintains that it is not necessary to effect any constitutional amendments to address the failure of government properly to implement the binding decisions of the highest court in the land in the Glenister litigation.

The NPA itself is not adequately independent to fulfil the role of corruption buster. There are two main reasons for this sad state of affairs: the minister of justice exercises final responsibility over the NPA and the director general of justice is the accounting officer of the NPA.

The court rulings that the government is bound to implement make it crystal clear that an adequately independent body is required to attend to the work involved in preventing, combatting, investigating and prosecuting serious corruption in SA. No such body exists.

The Hawks are answerable to the national commissioner of police who in turn accounts to the minister of police. The NPA is neither fish nor fowl, falling somewhere between a department of state answerable to a minister and a Chapter Nine Institution answerable only to the multi-party Parliament of SA.

The binding criteria laid down in the Glenister cases in 2011 and 2014 have been honoured in the breach by both the Zuma (obviously) and the Ramaphosa administrations.

Despite a call upon his Cabinet by the NEC of the ANC to create a stand-alone, specialised, permanent and independent body to “deal with corruption”, the Cabinet has ignored that August 2020 resolution and persists in its tinkering with the ID despite the obvious shortcomings of that tiny unit within the NPA.

At a conference held at UCT on 6 February 2023, the minister of justice stoutly maintained that Cabinet may rely on the content of a minority judgment penned by then Chief Justice Sandile Ngcobo in the 2011 Glenister case for declining to involve itself in the reforms necessary to give full effect to the majority judgment in the matter, written jointly by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron.

The minister’s attitude is legal nonsense. Paul Pretorius SC, who spoke immediately after the minister at the conference, bluntly but politely corrected his misstatement of the law. Accountability Now followed up by asking the minister to correct the error, but no correction by him is forthcoming.

The reason for this recalcitrance became apparent on 17 March when Accountability Now presented its suggestions for “radical enforcement transformation” of the criminal justice system to Parliament.

The ANC members who attended expressed their concerns that the body recommended by Accountability Now would be too independent for their liking. Herein lies the rub: the striving for hegemonic control of all the levers of power in society which informs the “national democratic revolution” agenda of the ANC and its fellow travellers (including the EFF) does not accommodate a legally binding notion that the anti-corruption machinery of state should be adequately independent of political control, influence, interference and impedance.

This criterion of the majority judgment is central to the success of the struggle against grand corruption, State Capture and the condition called “kleptopia” by some analysts.

A Cabinet labouring under the current misapprehension regarding the applicable law is not going to be able to apply itself appropriately to the formulation of the much-needed reform of the law. Expect more Nulane disasters as the criminal justice administration bumbles on into the arms of the oncoming mafia state.

The appropriate response to the setbacks in recent weeks is the reform of the corruption-fighting capacity of the state. Appropriate suggested laws have been put before the executive, the legislature and the NPA.

The DA has a private members bill in the works in which the idea of a Chapter Nine Anti-corruption Commission is given detailed treatment. The IFP has, since 2019, supported the reforms needed. Even the August 2020 resolution of the ANC suggests that there is support for the idea in the ranks of the governing alliance.

The appropriate response of civil society to all of the developments outlined above is to involve itself in the need for reform, critically review that which is on the table already and formulate suggested improvements and alterations.

The voters of SA also have a role to play. They should insist, street by street, branch by branch, municipality and province-wide, that all political parties should respect the law as laid down in the Glenister cases (the so-called “Stirs” criteria), and do what is necessary to implement all the criteria fully. The report of the Zondo Commission makes it pellucid that the Hawks/ID combination is not working.

No one should vote for any political party or independent candidate who is not expressly behind the notion of establishing a system of governance in the criminal justice administration that is “Stirs” compliant.

All political parties should make it part of their manifesto that they will strive for “Stirs” compliance if not via a Chapter Nine entity, then in a way that achieves the goals of effective and efficient anti-corruption work. These goals may be summed up as ending the impunity abroad in SA, imprisoning the culprits and setting out to rake back the loot.

It is plain that the Hawks and ID are not up to the task of achieving these goals. If the ANC is unable to develop a constitutionally compliant response to the crisis of corruption and the dysfunction in the criminal justice administration, if it is not up to implementing the Glenister criteria properly, the voters of SA should be astute enough to cast their votes accordingly in 2024. DM

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Comments - Please in order to comment.

  • Terry Pearse says:

    Paul’s justifiable outrage at such brazen efforts by the governing party to deceive as well as manipulate the justice system is manifest.

  • Chris Binnington says:

    A forlorn hope expressed in the final paragraph regarding the electorate. There is no light at the end of this particular tunnel.

  • chulleyrsa says:

    Have you ever thought that the objective might have been to mess up the state case?

  • Jeremy Stephenson says:

    It is absolutely essential to turn this into THE burning election issue of 2024. The fight against corruption will never be won until the Glenister Concourt order is implemented and a genuinely independent anti-corruption agency can start to unpick the patronage networks that still keep the ANC in power.

  • Chris 123 says:

    It was always the intended result. To do it properly you get private top silks to match the ones these people can afford, with our stolen money.

  • Jon Quirk says:

    Our erstwhile President, of course knew this full-well even as he was appearing before the Zondo Commission; that his compradors would never go to jail, or be held accountable.

    A Leader of integrity would have made sure that the NPA was properly resources and skilled, before these cases were to be brought before the Courts. With the ANC, as he himself put it, being “Accused number 1”, he was always going to ensure this and in the process doubly kick South Africa in the face as, as well as the known cost to the economy of R1.5 TRILLION, the further costs of R1.5 billion of Zondo costs would further kick us all, even as we writhed in pain on the ground.

    Who could even contemplate ever voting for the ANC ever again?

  • Allauddin Thobani Thobani says:

    Adv Shamila Batohi and Adv Andrea Johnson require to justify the reason for not engaging a private senior counsel to handle this important matter. Is it deliberate!!

  • Trevor Tutu says:

    I would like to know the mistakes made by the prosecutors and investigators in this specific case. I am not saying that I am uninterested in the failings of the system, but tell me why these particular crooks got off.

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