‘Captured Hawks will sit on report’
Many of the issues flagged by the public protector have already been referred to the directorate
Some of the high-profile criminal matters in the public protector’s State of Capture report were lodged with the Hawks months before her report was released. Now Thuli Madonsela’s findings, and those of a judicial commission of inquiry, are doomed to wind up on the Hawk’s desk once again, where it is feared they will gather dust.
In March this year, Deputy Finance Minister Mcebisi Jonas disclosed that the politically connected Ajay Gupta, in the presence of President Jacob Zuma’s son, Duduzani, had offered him the job of finance minister.
The Democratic Alliance immediately opened a case with the South African Police Service. Within a few days, the case was transferred to the Hawks (aka the Directorate for Priority Crime Investigation) for further investigation.
“We haven’t seen any progress on this,” DA chief whip John Steenhuisen said. “The Hawks appear very reluctant to deal with any cases related to the president.”
In May this year, former ANC MP Vytjie Mentor handed an affidavit to the Hawks, in which she claimed there was a corrupt relationship between Zuma and the Gupta family. She said she was offered the job of minister of public enterprises by the Guptas.
The Hawks confirmed this to City Press at the time that it was investigating a corruption-related case against three Gupta brothers.
On July 1, business rescue practitioners handling the Optimum Coal deal filed a report with the Hawks detailing how Eskom gave Gupta-owned Tegeta Exploration and Resources R600-million to help them buy Optimum Coal.
This is one of the key matters investigated by Madonsela in her damning report.
There was only an acknowledgement of receipt and nothing further happened until the details were reported by the amaBhungane centre for investigative journalism on October 20. The Mail & Guardian understands that only then did the Hawks open a case.
The criminal matters raised in the State of Capture report are clearly priority crimes and fall in the Hawk’s mandate.
“The complete irony is that the Hawks and NPA [National Prosecuting Authority] are themselves captured,” said Cathy Powell, a senior lecturer in public law at the University of Cape Town (UCT).
The NPA can’t do anything directly but the Hawks now have strong evidence, although “they had it before and they have ignored it before”, said Powell. “But what should happen is there should immediately be a criminal investigation.”
Asked about progress on the earlier cases, the Hawks said it could not provide any details as the investigations are ongoing.
It said the Mentor affidavit was being investigated. “However, there are loopholes which need her attention. We are trying very [hard] to get hold of her to co-operate with us.”
The Public Protector Act requires the office to give notice to the Hawks and the NPA about to the criminal matters arising from such a report, which she has duly done.
The NPA confirmed the public protector has written to the national director advising him about the report, which is in line with the provisions of the Act. The Hawks said they have received the report and are studying it.
The NPA said the director of public prosecutions, Shaun Abrahams, is applying his mind to the matter but added that the NPA does not have investigative powers and the investigative authorities must tackle issues that warrant criminal investigation.
Paul Hoffman, an advocate and the head of the Institute for Accountability, said no one on the right side of the argument wants the matters canvassed in the public protector’s report to go to the Hawks.
“The Hawks do not function as an effective and independent anticorruption unit of the kind required by the Concourt [Constitutional Court] in binding fashion,” Hoffman said.
Powell said the Hawks may wait for the outcome of the judicial commission of inquiry that the president is required to establish within 30 days after the report was released on November 2.
But assuming the report will be taken on review, which will also delay it, this means the report will not be in force until the review is finished, she said.
“It is a racing certainty that one or more of those fingered in the report will assail it on review both on the grounds of failure to observe the audi alteram partem [listen to the other side] rule and also because the calling of a commission of inquiry is a presidential function which cannot be delegated to the office of the public protector,” said Hoffman. “It is novel territory in law and it’s anyone’s guess what the Concourt will make of the arguments in three years from now.”
If a judicial commission of inquiry does commence, it can only establish the facts and can’t find anyone guilty of a crime, said Powell. If the commission uncovers crime it must refer this to the SAPS, which will refer priority crimes to the Hawks.
“If nothing happens, it’s only Parliament that can do something about it,” said Powell. “Parliament’s main jobs is to oversee the executive. The minister of police must oversee the NPA and the Hawks, and Parliament must call the minister to account.”
Kelly Phelps, also a senior lecturer in public law at UCT, said there is an option in criminal law for an individual to bring a private prosecution. It is seldom exercised but exists out of recognition that the decision to prosecute is at the state’s discretion and the decision is made based on several factors.
Hoffman said: “If we had functional anticorruption machinery of state, in the form of an integrity commission, arrests and prosecutions would have eventuated long ago … We are at the mercy of those manipulating the levers of power in the criminal justice administration, and they are not constitutionalists, or even good people. So nothing will happen unless civil society makes it happen.”