There’s a reason prosecuting state capture crimes takes time
NPA has to be rebuilt on just principles and made safe from capture itself
With two courageous and comprehensive reports from the Zondo commission now handed to President Cyril Ramaphosa, attention is — correctly — turning to the criminal justice system to begin investigating and prosecuting those involved in state capture.
As the National Prosecuting Authority (NPA), responsible for converting the vast amounts of information and recommendations into evidence and watertight cases that prove criminal wrongdoing beyond reasonable doubt, we are hard at work to ensure that thorough investigations are conducted and, where the standard of evidence is met, people are prosecuted.
Understandably, there is growing public frustration at exactly how long this may take — particularly when it seems much of the evidence presented at the commission has already been in the public domain for some years due to the excellent work of civil society and some media institutions. We are not blind to that frustration, nor are we deaf to calls for swifter action.
Seeing those who have been implicated being held accountable is a top priority for the NPA. The social compact in our country depends on it. But the challenges facing the NPA are far greater than ensuring that high-profile criminals face trial and end up in prison, if justice demands that; they involve the difficult long-term task of rebuilding a national institution like the NPA to bring justice to the entire country.
This has required putting safeguards in place to prevent the NPA from falling victim to capture in future. To focus only on a handful of cases at the expense of strengthening the foundation of our constitutional democracy, that all are equal before the law, cannot be justified.
Having said that, when it comes to acting on priority cases, we have not hesitated to move swiftly and decisively, and we will continue to do so. We have created a dedicated co-ordination team, which is conducting an urgent audit of all cases covered in the Zondo commission reports, including those already proclaimed by the NPA’s Investigating Directorate (ID), and in the specialised commercial crimes unit of the NPA.
Our focus is on progress and impact, which will build on the work already done within the NPA over the past few years, in collaboration with the Zondo commission and other law enforcement partners. Our team has already received a significant boost with the recruitment of 21 special prosecutors who are focused on key aspects of the Zondo commission’s findings.
This crack team of prosecutors is well into the work of preparing charge sheets, collating and coordinating evidence, and preparing to bring cases to court. As they do so, they are building on some of the noteworthy successes the NPA has already had in the fight against corruption. Here are a few:
• The Gauteng high court granting an order to seize assets worth R1.4bn belonging to accused people implicated in the corruption scandal involving the construction of Eskom’s Kusile power station. Former Kusile senior executive France Hlakudi appeared in the Pretoria regional court this week on charges of fraud of R30m.
• Former Transnet board member Iqbal Sharma and former senior members of the Free State department of agriculture being charged with contraventions of the Public Finance Management Act, fraud and money laundering;
• The high court in Bloemfontein granting an unlimited restraint order to the value of R520m for assets belonging to Sharma and his company Nulane Investment and the Guptas through their Islandsite company.
• The Free State high court confirming a provisional restraint order against Edwin Sodi and his companies as well as other accused to the value of almost R300m;
• The Free State housing matter involving the department of human settlements — and purchases of about R50m — being enrolled in August 2021;
• Linked to the Free State cases above is the asbestos matter in the Bloemfontein high court;
• The recent arrest of Kamal Vasram and Saliesh Indurjeeth for their links to the failed Estina dairy project in the Free State town of Vrede;
• Former Gauteng health MEC Brian Hlongwa is facing charges of corruption in the 3P matter, which was enrolled in December 2021; and
• Several municipal officials across the country have been charged.
These are evidence of our increased focus in 2022 on enhancing the credibility of the NPA through effective prosecution of corruption.
Our commitment is clear: we are fully focused on improving the effective prosecution of corruption. We are rebuilding our capacity to ensure enhanced internal and external collaboration, the increased impact of asset recovery, the enhancement of our own skills base, and improved communications about corruption cases.
As we do so, there is one particular aspect of anticorruption work that we are examining afresh: the approach to whistleblowers, and the importance of their safety. Protecting these people is a national priority. These brave women and men are essential to our concerted efforts to root out corruption. In the long run, the government needs to partner with the private sector and civil society to develop comprehensive policies and agencies to provide sustainable protection to whistleblowers.
In the interim, the Office for Witness Protection (OWP), now situated in the NPA, should be bolstered so that it can accommodate all whistleblowers who are potential witnesses. The OWP has been highly effective, with no fatalities related to protection since its placement in the NPA.
However, there are whistleblowers who are not potential witnesses or do not want to testify; in such cases we are considering an amendment to legislation to include whistleblowers in crimes set out in the schedule to the Witness Protection Act.
Equally important is the discussion taking place about a permanent anti-corruption agency. In April 2019, the president signed a proclamation that established the ID in the NPA to focus on the state capture commission cases and other commissions with special focus on fraud, corruption and related offences. The ID has successfully been set up from scratch and is now poised to deliver on its crucial mandate.
Prosecuting complex corruption cases takes time and extensive resources. The ID must be given the space, time and capacity to deliver on its mandate as swiftly as possible. That said, the strategy in the NPA is to speedily prosecute less serious, but impactful cases, in the short term.
Already the ID has a total of 40 cases from the Zondo commission reports, 15 of which are enrolled in court. Seven are from the security sector, three from state-owned enterprises and five involve high-level private and public sector corruption — all with good prospects of successful prosecutions.
We will soon be requesting an amendment of the proclamation to make the ID a permanent NPA entity. This will address many of the resourcing challenges the ID is facing. This should be followed by proposals for relevant amendments to the NPA Act and the South African Police Service Act to enhance prosecution-led investigations in line with existing jurisprudence and best practice. This will enable ID investigators to exercise police powers in appropriate situations.
We have also requested the minister of justice to explore options to further promote the independence of the NPA, both de jure and de facto. This will insulate it from any future capture and ensure that the NPA, including the ID, prosecutes without fear, favour or prejudice.
The NPA is moving. It may not be at the pace many South Africans would like to see — but there is no doubt that it is bringing about results. We live by our commitment to be lawyers for the people of SA. We know we need to do better to achieve this noble aim. But we will not rest until we do. And those who continue to commit crime in SA should not doubt our commitment to ending their reign of destruction. Our actions will speak for themselves.