Prosecution service can start going after bigwigs among the corrupt
Suspects in grand corruption were not investigated and prosecuted as they should have been
At an event organised by the Ahmed Kathrada Foundation, new national director of public prosecutions Shamila Batoyi pointed out — rightly — that those in the prosecution service over the past 10 years (since the demise of the Scorpions) have been attempting to ensure that suspects in grand corruption were not investigated and prosecuted as they should have been.
While the Scorpions operated as a unit within the National Prosecuting Authority (NPA), using the troika approach in which crime intelligence, forensic investigation and prosecutorial excellence were combined, the corrupt were in jeopardy of being charged, tried and convicted.
Jackie Selebi, despite being chief of police, was convicted of corruption after an investigation by the Scorpions. Tony Yengeni, an ANC chief whip, and all of the “Travelgate” fraudsters in parliament, went down while the criminal justice system was functioning as it should in terms of the constitution — ethically, professionally, effectively, independently, efficiently and economically.
When Jacob Zuma swept to power at the Polokwane conference of the ANC in December 2007, an urgent resolution to dissolve the Scorpions was passed and was acted on, in the face of strong opposition from civil society, the NGO sector and the opposition parties in parliament.
Gwede Matashe, then ANC secretary-general, was blunt enough to admit that the investigation of ANC bigwigs was the motivation. Their investigation of Schabir Shaik and of Zuma himself, is still not complete as Zuma faces charges arising from the same factual matrix that led to the downfall of Shaik and was also investigated by the Scorpions. The only weakness of the Scorpions — their lack of security of tenure as mere creatures of an ordinary statute — saw their demise despite the lawfare and the outcry.
The capture of the NPA, partial though it was, led to its decapitation by Zuma, who in effect bribed then prosecutions chief Mxolisi Nxasana to resign after he proved to be sufficiently independent-minded to prosecute Zuma due to his corrupt relationship with Shaik. This move had a chilling effect — so chilling that no big fish of state capture and grand corruption were prosecuted during the Zuma presidency. Prosecutors considered doing so a career-limiting move based on Nxasana’s experience.
This attitude did not however mean the wheels of justice stopped turning. Corruption investigations fell on to the competent shoulders of Thuli Madonsela as public protector. Though she protests that the investigation of maladministration (her main function) is a different skill-set to what is required for success in corruption cases, she nevertheless wrote reports that brought down the corrupt without criminal trials. But she is right that the incompetence and negligence that leads to maladministration is very different to the malfeasance in corruption.
The Secure in Comfort report about Nkandla, the Against the Rules reports about the high jinks of Bheki Cele when he was chief of police, and the final State of Capture report prepared by her office, are full of information of use to any prosecutor who no longer feels the chilling effects of the Zuma presidency.
Madonsela’s investigation into the tender irregularities in Limpopo, in which Julius Malema was involved, did form the foundation of a criminal case that was brought to court in a prosecution-ready state years ago. As one of the accused was ill, the case was postponed without setting a new date. The matter should be re-enrolled without delay; the excuse now raised by Batoyi does not apply.
A similar situation pertains in relation to Cele’s leases for police headquarters. The Moloi board of inquiry into his fitness for office recommended his corrupt activities be investigated by the authorities. This was not done, but the Against the Rules reports point to the evidence that would be needed to prosecute Cele successfully.
Concluding leases at three times the market rental is a highly suspicious activity. Cele’s charmed life due to his political connections should not be allowed to continue now that the bad eggs in the NPA are either out of office or on the back foot. Prosecuting a sitting police minister would be proof positive that the NPA is prepared to act independently, without fear, favour or prejudice — which is precisely its constitutional remit.
The easiest and most impressive “quick win” for the new national director of public prosecutions would be to press on with the case of corruption involved in the persecution of her predecessor but one, Nxasana.
The case has been investigated by the Hawks since 2015; it has run its course in the civil courts with affidavits from all concerned for the prosecution service to harvest. Better still, it culminated in the Constitutional Court in a manner that found the termination of Nxasana’s services illegal.
The docket is lying on the desk of a senior prosecutor in Pretoria, gathering dust. The complainant, Accountability Now, is treated like a mushroom and has not been asked for input for years. Nor have any reports on progress and/or any reasons for not progressing been furnished. All entreaties to get on with the job of prosecuting Zuma and his then justice minister, Michael Masutha, for corruption and defeating the ends of justice have fallen on deaf ears.
The NPA would be justified, given that the decapitation of its leadership is involved, in engaging outside counsel to run the trial, which would only take a few days in court. The facts are clear, the affidavits damning and the opportunity to secure long sentences for both Zuma and Masutha is available. What can possibly be holding up the service of process?
Zuma’s appetite for endlessly delaying his Shaik corruption case may be dulled if he finds himself behind bars in the Nxasana matter. A similar process in relation to the Nkandla matter, where the courts and public protector have prepared a roadmap for the prosecution service, is available but not used. There are also numerous special investigative unit reports, such as those concerning Bosasa, where the basic work has been done and the thwarting of progress on conviction should not be allowed to be used as an excuse any longer.
If the problem is that the skills available within the NPA and Hawks are not up to the task at hand, the solution is to establish an integrity commission under chapter nine of the constitution. This would function as the elite investigation and prosecution service in respect of state capture, grand corruption and kleptocracy matters only.
The NPA would be freed up to deal with more conventional and less complex crimes, the Hawks would be relieved of a particularly troublesome “priority crime” or two and could get on with the other tasks already given to them as our priority crime investigation specialists.
Super-specialists who are fearlessly brave, fearsomely skilled and fully focused on the eradication of grand corruption in all its manifestations can easily be recruited and carefully vetted to start the integrity commission. Many of them are former Scorpions who decamped to the private sector; others will recognise how badly the state needs them and will answer the call. There is little appetite to join the dysfunctional teams in place. New brooms should be allowed to sweep clean. They have a huge backlog to tackle as well as the fruits of the Zondo, Nugent and Mpati commissions waiting for them.
The work-around solution the creation of the integrity commission offers is surely preferable to trying to reform the NPA, repair the Hawks and get moving on the type of cases mentioned above. Their successful prosecution would involve jail time for Zuma, Masutha, Malema and Cele.
There is no better way to restore public trust in the criminal justice system, to inspire business confidence and to attract much-needed new investment. These developments could pull the economy out of the doldrums and into an era of job creation, secure peace, sustainable progress and shared prosperity.
• Hoffman, SC, is a director of Accountability Now