Why the lag in prosecuting?
BEST LEGAL TALENT The National Prosecuting Authority’s (NPA’s) Asset Forfeiture Unit is probing seven cases related to state capture. Politics and society editor Thabo Leshilo spoke to legal expert Professor Penelope Andrews.
The failure of the NPA to act swiftly and vigorously against those involved in state capture shows there’s been a dereliction of duty.
It has the capability and could muster the resolve to pursue prosecutions according to its constitutional mandate. So its decision to act now says more about its autonomy and independence.
The latest developments highlight the challenges around the appointment of the national director of public prosecutions. From all accounts, incumbent Shaun Abrahams is deeply compromised.
There’s unlikely to be a conflict of interest if a strong, independent individual is chosen. But when a weak individual – someone chosen for reasons other than their legal talent and skill – is put in the post, the chances are they’ll fail to act decisively against their line managers. There are several possible explanations the NPA could offer.
It takes time for evidence to be gathered to build a solid case.
SA’s political climate, particularly in the last two years, hasn’t been conducive to pursue those involved in state capture allegations. This seems to have changed with new African National Congress president Cyril Ramaphosa.
It’s finally acting because it didn’t have a choice. Of all the institutions involved in state capture discussions, the NPA’s silence has been the most noticeable.
It’s been spurred on by developments in the British parliament where Lord Peter Hain called on UK regulatory bodies to investigate some British companies mentioned in the Gupta e-mails.
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The NPA and the police haven’t promoted and protected the rule of law as well as they could have. But SA’s judiciary has been a ray of light.
Except for a few lapses, the judiciary has consistently tried to strengthen the foundations and safeguard SA’s fragile democracy since 1994, despite many attacks.
The unique feature of the constitution is that judges are the final arbiters over the exercise of all public power.
It’s probably harder to prosecute corruption as it invariably involves subterfuge and deception to create the web of relationships, which are often challenging to unpack.
The NPA has in the past two decades succeeded in a few corruption prosecutions, ie Schabir Shaik, Zuma’s then-financial benefactor.
Its challenge is resources. It’s a David versus Goliath situation if you compare the expertise in the NPA with the resources that white collar criminals have. The NPA should look beyond its in-house expertise and gather the best legal talent.
Penelope Andrews is Dean of Law and Professor at UCT.
This article was originally published on theconversation.com and has been cut.