SA’s long, ambling walk to justice
IHAVE banged on at length over the years about the extraordinary delays now endemic to the criminal justice system. The Regal Bank story, and the jail term finally imposed on its CEO, Jeff Levenstein, is a case all too illustrative of the contracting performance of the National Prosecuting Authority (NPA).
Regal was put into curatorship on June 27 2001. Levenstein claimed the bank’s woes were the result of a “venomous, horrible disinformation campaign” directed at him personally. A commission of inquiry led by John Myburgh found that Levenstein was an “immoral megalomaniac” and that he and the bank’s directors should face criminal charges. Myburgh sent a 600-page report to the NPA in March 2002. It included 90 pages of criminal charges and 18 counts of fraud.
On May 13 2003, Gill Marcus, at the time a deputy governor of the Reserve Bank, complained about the slow pace of the NPA’s investigation. Myburgh added his voice to her concerns. The NPA responded that Myburgh’s information required “lots of work” and it was therefore “nowhere close to being ready for prosecution”. Nevertheless, two weeks later, on May 30, Levenstein was arrested in a dawn raid. He was released on bail of R200,000.
Levenstein made a second court appearance on August 1 2003. On February 13 2004 the case was postponed to July 2 because the NPA team had melted away —– the lead investigator went off to KwaZuluNatal and the prosecutor resigned. Stephen Joseph SC, for Levenstein, asked how it was possible for the matter to be complex when the pro forma charge sheet had been prepared by Myburgh.
On July 2 2004, the case was postponed because the presiding magistrate had retired; a replacement was delayed. On July 26 2005, the trial was again delayed as Levenstein’s attorney withdrew due to a lack of funds. On January 23 2006, the case was postponed to May. Finally, in June 2009, acting Judge Naren Pandya found Levenstein guilty on all eight counts (six of fraud, two of contraventions of the Companies Act). The judgment took 10 days to read. The final sentence was 14 years’ jail and a R500,000 fine.
On October 1 this year the Supreme Court of Appeal reduced the sentence to eight years. It has taken 10 years and four months from the time Levenstein was arrested.
Talk about a saga.
ICAN understand why some, editor-in-chief Peter Bruce in particular, have reacted angrily to the African Union’s (AU) demarche on the International Criminal Court’s (ICC) decision to prosecute African heads of state. But I think there is cause to proceed with care.
Immunity from prosecution is a doctrine of international law. It is well established that many countries provide specifically for sitting heads of state to enjoy immunity from prosecution. Germany’s president can only be removed by impeachment; that applies equally to France and the US. In the UK, the ruling monarch is exempt from the jurisdiction of the criminal courts.
The French example is worth looking at. A former president, Jacques Chirac, was embroiled in a series of financial scandals, many of them occurring while he was still mayor of Paris. Chirac was served a summons to appear before an ordinary court only after his term of office as president had expired. He was found guilty of corruption and handed a suspended two-year jail term in 2011.
An English court has ruled that a warrant could not be issued against Zimbabwean President Robert Mugabe for charges over alleged international crimes because he is a serving head of state.
So, though we may be outraged (as I am) that the African Union has been sandbagged by a minority into what may become a permanent breach with the ICC, the fact that many western states confer immunity on their heads of state suggests that perhaps the ICC, which isn’t even recognised by the Americans, should be more careful.