The Citizen (KZN)

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.

- Hat does the NPA’s decision tell us about SA’s prosecutor­ial capabiliti­es and resolve? Why did it take so long for action to be taken? Should we be concerned about the rule of law? Why is it hard to prosecute corruption and commercial crimes?

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.

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