Where criminal (in)justice rules
Seemingly stalled probes stoke concerns that the criminal justice system is broken
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.