You’ve got to give Zuma his nefarious due. He and his crooked cohort engineered their current freedom by gutting the NPA and the Hawks, a job so well done that when you read Paul Hoffman’s suggested cure and list of still-operational heavyweight miscreants, it almost takes your breath away. Like all bureaucracies – never mind being politically overseen by some of the people who crippled it – the NPA responds with defensiveness to directives by SA’s highest courts. Here the founder of Accountability Now, an NGO born of environmental necessity, takes former chief prosecutor and shadow minister of justice, Glynnis Breytenbach’s recent exhortations and asks, “Yes, but how?” Breytenbach’s exhortations are, ‘box smart’ and ‘pick your fights’, neither of which the NPA does, says Hoffman. He unpacks what the courts have said the NPA needs to “acquit itself of the task of fighting corruption” and predicts the money they’re asking for will likely never come. The army of prosecutors, the chief justice says it needs may never be mustered. – Chris Bateman
More free advice on boxing smart and picking the right fights for the NPA
By Paul Hoffman*
The leadership of the National Prosecuting Authority recently called at Parliament, with begging bowl in hand, to request greater-better-more funding. A billion here, two billion there, mostly to gear up the NPA to counter corruption with greater zest, efficiency and effectiveness than has been the case since the start of the first Zuma presidency (of the ANC in 2007, and the country in 2009).
It is really quite touching that the NPA leaders think that those who orchestrated and abetted state capture, Covid-preneurism, patronage networks of varied kinds, nepotism, cronyism and kleptocracy would ever part with funding designed to end the impunity they have enjoyed for so long.
The estimates in relation to the loot of state capture range between R1trn and R2trn. The funds being requested by the NPA pale into insignificance when compared to the amounts that could be recovered for the public benefit by a properly capacitated anti-corruption entity in SA. There is no such entity at present. Throwing money at the NPA is not going to magically turn it into the “army of prosecutors” that the chief justice has warned will be necessary to mop up after those involved in state capture through the various crimes that have been unearthed by his Commission in the wake of the work of investigative journalists, brave whistle-blowers and the investigators used in the State Capture Commission.
Retired Constitutional Court justice, Richard Goldstone, recently described the NPA as “gutted”. The leaders of the NPA speak, in a similar vein, of a “hollowing out” of the NPA and its infestation by “saboteurs”. They decry the failure to recruit for years on end. They point out that the expertise and equipment required for complex corruption cases is simply not at the disposal of the NPA.
More money may buy artificial intelligence equipment, but then someone trained in its use is required. The NPA must be one of the least attractive job opportunities for those with the type of expertise required to counter corruption in the manner envisaged by the Constitutional Court in the Glenister litigation. The saboteurs enjoy impunity that matches that of those who put them in place to prevent the big fish from being held to account for using public office for private gain. Their fellow travellers in the private sector sail on without even a suggestion of being held to account for the loot amassed and the crimes committed. There is no concerted effort to track down the Guptas and bring them to book. The Steinhoff baddies sail on uncharged.
In these circumstances, it is fanciful to expect the NPA entreaties for more money to fall on fertile ground. The shadow minister of justice, Glynnis Breytenbach, herself a seasoned ex-prosecutor, has given some free advice to the NPA. It can be summarised in five words:
“Box smart” and “pick your fights”. Currently, the NPA does neither.
Of course, free advice is usually worth what one pays for it. The temptation not to write a gloss on the pugilistic advice of the shadow minister is strong, but not irresistible.
On boxing smart: finding ways to extract more funding for the fight against corruption that must be won if the state is not to slip into failed status is the main priority. It is not enough to go along with the half-baked idea of the NPA’s ‘investigating directorate’ to deal with state capture and related crimes. Yet, the NPA does so. The first head of the ID resigned at the request of the NPA leadership. The ID itself is not clothed with the attributes needed, in a binding fashion, by the highest court in the land in its Glenister rulings. The ID is also not making appropriate headway with the anti-corruption task with which it is seized.
In August 2020, the NPA should have jumped at implementing the instruction given to cabinet back then to establish – as a matter of urgency – the type of body the court requires. The NEC of the ANC called for a stand-alone, permanent, specialist body of independent experts to tackle the corrupt.
Instead of boxing smart on the issue, the NPA sat like a rabbit in the headlights, too concerned about its turf being invaded to do anything. It seems to have wanted to silently wish away the resolution. It may have succeeded, to the detriment of corruption busting in SA.
When, a year later, Accountability Now publicly offered some suggested legislation that would in effect put flesh on the bones of the NEC resolution and bring into proper implementation the directions given by the Constitutional Court, the NPA, instead of boxing smart, merely noted the memorandum, executive summary and draft legislation, including a Constitutional amendment, designed to alleviate its lot and improve its independence, too.
Had it boxed smart, the NPA would have welcomed both the NEC resolution and the draft legislation and it would have taken steps to secure urgent implementation. Instead, it sat paralysed.
The implementation of the NEC resolution via the debating and refining of the draft legislation would relieve the NPA of its obligations to prosecute serious corruption. Without that millstone around its neck, the NPA could get on with its core business of prosecuting crime and could also attend to rebuilding itself as an institution after the ravages of state capture and all the damage that did to the NPA.
The funding of the new institution required by the court, the NEC and suggested by Accountability Now would not be the problem or business of the NPA. It might lose some ID staff to the new body, but that is a small price to pay in the context of the inability of the NPA to itself deal with corruption any time soon enough to save the country from failing as a state. The whole of the ID would be disbanded and the staff could be reabsorbed into the NPA if not taken over by the corruption-busting entity.
When the DA and the IFP came out in favour of the establishment of a new body to prevent, combat, investigate and prosecute serious corruption, the NPA could and should have welcomed the stance taken, one which accords with that taken by the ANC in August 2020. Instead, once more, the mute rabbit in the headlights.
For the NPA to box smart involves an appreciation of what the law requires in relation to corruption busting and a frank assessment of what the NPA can deliver on this front, given its track record since 2009.
In the Glenister litigation, the court ordered Parliament to pass remedial legislation to put in place effective and efficient anti-corruption machinery of state that is adequately independent to acquit itself of the task of countering corruption.
The legislation so passed has not been a success. The delegation of investigative functions to the Hawks has not seen any big fish face trial for corrupt activities. Hardly surprising when the lack of operational and institutional independence is taken into consideration. These features are not helped by the fact that the minister of police is a former commissioner of police who was dismissed for his incompetence and dishonesty.
The knock-on effect of the weakness of the Hawks is that the NPA, as prosecutor, has not had dockets worthy of working on from the Hawks and the corrupt have consequently enjoyed impunity.
These home truths, which the NPA is not willing to face, have led to the emerging political consensus that a new body is required. Those who box smart recognise this reality and plan accordingly. They do not ask for more money, which they know they will not get enough of, to do what really needs to be done: an overhaul of the criminal justice system.
With regard to picking your fights: the NPA is hell-bent on running the trial against Jacob Zuma and Thint, an unwieldy affair in which it will be necessary to prove over 700 transactions. Success in the matter will bring with it minimum sentences of 15 years imprisonment.
The activities of Jacob Zuma in his feral decapitation of the NPA, effected by bribing its head to quit, have led to successful civil litigation in which the corrupt deal was undone. Despite a complaint, made by Accountability Now in 2015, the NPA has chosen to do nothing about prosecuting Zuma in this matter. Even an offer of the services of senior counsel at cut rates to run the trial – which would not last a week – fall on barren ground with the NPA leadership.
Bheki Cele’s involvement in those questionable World Cup Soccer leases for SAPS headquarters in Pretoria and Durban has been referred to the ID of the NPA. No progress has been made on charging him with corruption despite the contents of the reports of the Moloi Board of Inquiry and of the Public Protector called ‘Against the Rules’ and ‘Against the Rules Too’.
Lindiwe Sisulu has, at least prima facie, committed contempt of court and has scandalised the black members of the courts of the land. The NPA once again sits with hands neatly folded. The NDPP, Shamila Batohi, says she does not react to newspaper reports, but these are not reports, they are the words of the minister herself. She crowns her perfidy by calling the president a liar in relation to her retracting the statements made.
The irregular goings-on around the refurbishment of the Zuma homestead at Nkandla involve criminal activities for which the NPA must account. No prosecutions have eventuated despite the passing of the years. The matters remain under investigation.
Picking your fights involves going after big fish who are stranded by existing civil court findings against them. Malusi Gigaba and Zweli Mkhize are but two of these. Dudu Myeni must be low hanging fruit for the NPA, but her prosecution is snail-paced and slow to start. The State Capture Commission has named and shamed numerous apparatchiks in confirmation of whistle-blower and investigative journalism work; none of them is facing trial.
The NPA leadership knows that the state is bound by the Glenister findings. It is, too. Instead of seeking to avoid the proper implementation of those findings in the manner desired by the political establishment already, the NPA ought to be working towards being relieved of responsibility for prosecuting serious corruption. That would enable it to rebuild, free of the political baggage that needs to be addressed with some urgency in the interests of preserving constitutional democracy under the rule of law.
The Accountability Now suggested draft legislation has provisions in it that reinforce and improve the independent status of the NPA. These should be welcomed by the NPA. Instead of picking a fight with those who would prefer to keep its ambivalent status intact, the NPA does not fight for its independence.
Boxing smart entails accepting the legal requirements for corruption busters as laid down in the Glenister litigation; welcoming the urgent reforms needed and also rebuilding the NPA itself so that it can function as intended by the Constitution (as amended).
Picking the right fights may not be popular with those who have strayed to the dark side, but it is the right thing to do and is certainly better than doing nothing. The NPA – through no fault of the current leadership – is so gutted that it has little fight in it and, unfortunately, no stomach for the right fights.
- Paul Hoffman SC is a director of Accountability Now.
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