NPA’s credibility gap will keep it on the defensive

Until the prosecuting authority has an independent leader, the decisions it makes will be greeted with suspicion

When it comes to some of its most politically sensitive cases, the National Prosecuting Authority (NPA) is spending nearly all of its time defending its decisions to prosecute in the first place and not actually putting anyone on trial. The credibility crisis that has gripped the NPA for nearly a decade has fuelled half a dozen legal challenges to the state’s determination to press on with prosecutions of people perceived to be in the political firing line. From former top SA Revenue Service (Sars) official Johann van Loggerenberg to Cato Manor serious and violent crime unit police officials, to politically connected KwaZulu-Natal businessperson Thoshan Panday and former KwaZulu-Natal Hawks boss Johan Booysen, the accused in some of the NPA’s most high-profile cases have argued that the state’s decisions to prosecute them were irrational and unlawful.

EFF leader Julius Malema is fighting to have the law used to charge him with inciting people to occupy land — the apartheid-era Riotous Assemblies Act — declared unconstitutional.

All of these court challenges, some of which have been dragging on for years, in effect block the state from pursuing and finalising any of the prosecutions. Ironically, it was the state’s decision not to prosecute former crime intelligence boss Richard Mdluli — a self-proclaimed loyal follower of then president Jacob Zuma — that created the opportunity for these challenges to prosecute.

In a 2014 ruling, the Pretoria high court found that the NPA’s decision not to prosecute Mdluli in two cases of murder and kidnapping and fraud linked to the alleged looting of a crime intelligence slush fund was irrational and lawful.

Crucially, the court found that the “constitutional principle of legality requires that a decision-maker exercises the powers conferred on him lawfully, rationally and in good faith”, and this requirement extends to the NPA.

The ruling enabled people accused of crime to challenge decisions to prosecute on the basis that they were irrational and unlawful. And the NPA is now facing an avalanche of such litigation.

One can arguably understand why the accused in these cases feel justified in turning to the courts in an effort to cut short what they would argue are likely to be prolonged and futile prosecutions, which would ultimately lead to their exoneration but cost them time and money.

There is a rich and varied history of highprofile cases involving individuals perceived to be political targets that either collapsed or ended in the vindication of the accused. DA MP Glynnis Breytenbach, once one of the NPA’s most senior prosecutors in the specialised commercial crimes unit, spent years on trial. Essentially, she was charged with, and ultimately acquitted of, illegally deleting material on her NPA laptop.

Earlier in October, the state provisionally withdrew all charges against former Hawks boss Anwar Dramat and former Gauteng Hawks head Shadrack Sibiya over the alleged illegal rendition of Zimbabwean suspects. The prosecution, which the NPA itself has now decided did not have a reasonable prospect of success, forced Dramat to resign. That resignation paved the way for Berning Ntlemeza — lambasted as lacking integrity and being unfit to hold office by the Pretoria high court — to assume leadership of the Hawks.

The NPA also earlier dropped its case against Independent Police Investigative Directorate (Ipid) head Robert McBride, who stood accused of unlawfully doctoring an Ipid investigation report that implicated Dramat and Sibiya in the renditions. But after receiving cellphone evidence that showed the pair were nowhere near the scene of those renditions, McBride had concluded that Dramat and Sibiya were not involved. Former police minister Nathi Nhleko unlawfully suspended McBride over that report, for which McBride was charged with fraud. The case, unsurprisingly, collapsed. The NPA later claimed this was because certain witnesses were “too scared” to come forward.

Perhaps the NPA’s greatest humiliation was its aborted prosecution of then finance minister Pravin Gordhan, who stood accused of fraud related to his involvement in the early retirement payout given to former Sars deputy commissioner Ivan Pillay. Two weeks after telling SA that “the days of disrespecting the NPA are over”, then national director of public prosecutions Shaun Abrahams was forced to reverse the decision taken by his prosecutors to go after Gordhan, Pillay and former tax boss Oupa Magashule. It transpired that Gordhan and Sars had obtained legal advice about the lawfulness of Pillay’s payout, meaning it could be shown they believed they were acting within the scope of the law so there was no basis for any criminal prosecution.

As a consequence of these ill-fated and seemingly baseless cases, the NPA faces a major perception problem, centred firmly on suspicions that the state does not always act in good faith when pursuing cases that have political resonance. Booysen remains adamant that he was charged with racketeering — linked to 28 alleged murders committed by the police Cato Manor unit

— because he was investigating Panday, who Zuma’s son Edward described as a business associate. The corruption case built by Booysen against Panday over an allegedly dodgy multimillion-rand police accommodation tender for the 2010 World Cup implicated senior KwaZulu-Natal police officials.

Booysen also recorded the alleged efforts of Colonel Navin Madhoe to bribe him to backdate a report linked to that investigation to exonerate Panday. Both Panday and Madhoe, like Booysen, are seeking to have the decisions to prosecute them over these cases set aside.

The NPA will undoubtedly be fighting these cases for years. In the event that the state convinces the Durban high court that its decisions to charge Booysen, Panday and Madhoe were rational, it is almost certain that those rulings will be appealed against. And if the cases do eventually go to court, there is a real danger that witnesses may no longer be available or will no longer remember crucial aspects of their evidence.

This is the cost attached to the NPA’s credibility deficit. Until the prosecuting authority is led by a qualified, capable and independent leader supported by ethical and professional prosecutors, the decisions it makes, particularly in “political” matters, will be greeted with suspicion.

Rather than ploughing resources into prosecuting the vast mess of corruption unearthed almost daily, the NPA will continue to spend millions convincing courts that its decisions to prosecute were above board.

This is a level of dysfunction that could block any prospect of high-profile corruption cases ever getting off the ground.

Right now, those who have the resources can effectively avoid trial for years. And the NPA, fighting to restore its reputation and credibility, is trapped in a weird and terrible limbo. It may be desperate to show that it is part of a new era of independent, anticorruption crime fighting, but it is unlikely to get the chance to prove that with actual prosecutions any time soon.