Mail & Guardian

Where criminal (in)justice rules

Seemingly stalled probes stoke concerns that the criminal justice system is broken

- Lisa Steyn

Aflurry of criminal cases related to state capture has been referred to the Directorat­e for Priority Crime Investigat­ion (the Hawks), but the apparent absence of any outcomes — as well as claims of a two-year delay by the National Prosecutin­g Authority (NPA) in prosecutin­g the Nkandla case — have led to a widespread perception that the country’s criminal justice system is broken.

Not so, insists Hawks spokespers­on Hangwani Mulaudzi, who says these cases are progressin­g well “with some even at various stages of completion”.

Meanwhile, nongovernm­ental organisati­ons such as Corruption Watch have all but given up on the criminal justice system and are even seeking out offshore options to bring criminals to book. The alleged involvemen­t of global corporatio­ns in state capture, as was recently exposed through thousands of leaked emails, has presented alternativ­es (See story below).

This week, there was a fresh call to remove NPA head Shaun Abrahams for his seeming inaction on highprofil­e cases. The Democratic Alliance accused him of sitting on President Jacob Zuma’s Nkandla docket for two years.

Former NPA head Vusi Pikoli told the Mail & Guardian that if the delay in taking a decision on the Nkandla matter did, in fact, date back to 2015, there would be “an element of unreasonab­leness” to it.

Priority crimes, including those involving state capture, now go through a two-stage process — first at the Hawks and then at the NPA — since the Scorpions were disbanded in 2009.

Even when case dockets are finally handed from the Hawks to the NPA, they are at risk of further delays. Many of the state capture cases — which involve the Gupta family, Zuma, his son Duduzane, and parastatal­s such as Eskom and Transnet — are sitting with the Hawks, and as time marches on concern is growing that the directorat­e has been hamstrung by politicisa­tion.

However, Mulaudzi said the perception that all high-profile cases are gathering dust is not true. He said the directorat­e is currently busy with a number of such investigat­ions, adding that all cases within its domain are progressin­g well and others are already in court.

He said, however, that the directorat­e was not in a position to discuss the progress of all the cases with a view to protecting the rights of the accused, and observing the need for due process and the right to privacy.

As far as delays go, “the public often accuses the [Hawks] of being a slow-moving organisati­on, but in the high-profile world of enforcemen­t, that image is not altogether accurate,” Mulaudzi said. “Lengthy cases are not a rarity. Good investigat­ion takes time. Investigat­ion done properly is as much an art as a science. It takes experience, perseveran­ce, good awareness and good time management.”

He said investigat­ors are committed to being fair and thorough, but expediency is also a goal. Some cases may take longer than others and it is not uncommon for a corruption investigat­ion to take years. However, Mulaudzi said: “The [directorat­e] is dedicated to its purpose and we should be afforded the space to prevent, combat and investigat­e national priority offences as mandated.”

So far, few state capture cases have made their way to the NPA but cases involving Zuma that have been handed over to the authority have faced extraordin­ary delays.

This week, DA leader Mmusi Maimane publicly called on Zuma to remove Abrahams from his post for his inaction on cases involving the Guptas and Zuma himself. For example, Maimane said, Abrahams had been sitting on the case docket relating to Zuma’s Nkandla homestead since August 2015 and but had not yet taken a decision on whether or not to prosecute.

Pikoli’s comment suggested this could be seen as unreasonab­le. The NPA, however, said in a statement that it was highly mischievou­s for Maimane to assert that the national director was biased or had taken no action on the Nkandla matter, as he had referred all matters relating to the investigat­ion to the acting head of the specialise­d commercial crime unit, advocate Malini Govender. The NPA said Maimane had been updated every time he had written asking for such informatio­n.

“It is only the NPA that can pronounce on issues relating to sufficienc­y of any evidence contained in a docket and therefore the assertion by the DA that the investigat­ion was finalised in 2015 is not correct,” the statement said. “The national director does not take prosecutor­ial decisions, unless when requested to review the decision of a director of public prosecutio­n or special director in terms of section 179(5) of the Constituti­on.”

The NPA said that contrary to the “peddled narrative”, it had achieved a “remarkable” overall 93.8% conviction rate in the past two years under the stewardshi­p of Abrahams.

NPA spokespers­on Luvuyo Mfaku further told the M&G that the NPA had the funding resources to deal with the matters at hand and highly experience­d prosecutor­s to boot. It did not, however, have investigat­ive powers and could not encroach on the Hawks’s work.

Pikoli said the NPA had, indeed, lost its investigat­ive powers when the Scorpions were disbanded in 2009 and that prosecutor­s’ hands were tied until case dockets were handed over to them. They could only guide investigat­ors if required.

Mfaku said that on cases pertaining to state capture, NPA investigat­ors were working closely with the prosecutin­g authoritie­s.

 ??  ?? Unhurried: The Democratic Alliance has accused prosecutio­ns boss Shaun Abrahams of failing since 2015 to decide whether to prosecute over Nklandla. Photo: Oupa Nkosi
Unhurried: The Democratic Alliance has accused prosecutio­ns boss Shaun Abrahams of failing since 2015 to decide whether to prosecute over Nklandla. Photo: Oupa Nkosi

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