EDITORIAL: The NPA’s Nulane failure is SA’s disappointment

“Lackadaisical” is how judge Nompumelelo Gusha described the National Prosecuting Authority and investigators of the failed state capture criminal trial.

The NPA’s Investigating Directorate had sought to charge officials from the Free State department of agriculture and others, including Gupta associate Iqbal Sharma, of paying almost R25m to Gupta-linked company Nulane Investments. The NPA accused them of corruption and fraud. It amassed evidence from witness testimony, documents and even a person implicated in the illicit conduct. 

Yet this evidence turned to judicial ash as it failed to pass the tests of of legal procedure. Documents were not authenticated or had no relation to the matter; witnesses could not verify documents, were not in the room and could only speak to procedure rather than to alleged criminal conduct; and the person implicated had no corroborating evidence and was denied indemnity by the court. At every juncture, Gusha’s ruling untied whatever evidential thread the NPA attempted to weave over its wilting case. 

As one witness from Absa noted, she had never been requested to provide names of possibly implicated people despite having them easily on hand. Even senior investigators messed up evidence collection procedures, Gusha noted. A financial investigator, who was at the Zondo commission, got his sums so wrong that when corrected, he admitted that the new correct amount did not indicate impropriety. 

“The decision I reach,” Gusha wrote in her judgment, “will invoke a sense of loss, if not dejection, to the citizenry of this country.” One could almost feel Gusha’s regret when putting pen to paper. 

“It is an inescapable fact that almost R25m of taxpayers’ money left the fiscus. The question that remains is why and who facilitated this. Regrettably ... the institutions responsible to answer those questions failed.” 

Worse still, Gusha said, as the state’s evidence was painfully unwoven, its own witnesses “put the death knell on the state’s case”. 

It would be a comedy of errors were it not such a tragic failure. South Africans hoping for accountability will not see it. The NPA has indicated it will appeal. But this was its first shot at victory and it missed. It did nothing to reassure us it is not fumbling the trigger of justice. 

To be fair to the NPA, it is not entirely spinning legal dreams. It is possible another court will find Gusha’s handling of evidence was incorrect. Yet, boarding up a bridge we as a society have already crossed is not reassuring and does not explain why it was rickety in the first place. The NPA has talented officials who are trained and educated by some of the world’s best institutions. What we are seeing, however, is surely not their best.

We can only hope that things will get better. The NPA is key to holding those implicated in state capture to account. We hope that along with other law enforcement institutions, it learns the lessons of Nulane and steps up its performance sooner rather than later.