October 19, 2019

Before there can be convictions, charges have to be laid

PROFESSOR BALTHAZAR (not his real name), in a Daily Maverick article, refers to comments by the chief justice that the work of the National Prosecuting Authority (NPA) cannot be measured by conviction rates. True, but less learned citizens are not looking that far ahead. As the Zondo Commission daily reveals what look like indisputable cases of serious corruption, they want to see at least a start made in a prosecution process. Before there can be convictions, charges have to be laid.

The chief justice, in delivering his annual report, referred to the appropriate benchmarks for assessing the success of the work of the National Prosecuting Authority (NPA). He observed that conviction rates were not the best measurement in that it was the courts and not the NPA that convicted. To assess the NPA on the convictions or acquittals in cases brought by that body was, in his view, a completely incorrect way to evaluate the efficacy of the prosecution service.

The remarks of the chief justice require careful scrutiny, particularly as the public is becoming increasingly anxious about the failure of the NPA to charge, let alone obtain convictions in any of the welter of cases brought to public attention over the past couple of years – the myriad Gupta cases, the cases involving Bosasa, Markus Jooste and the demise of Steinhoff, a series of carefully documented reports concerning the EFF, the collapse of VBS to name but a few.

Without at least a couple of these widely publicised cases being heard in the criminal courts...faith that South Africa can truly restore the rule of law will continue to evaporate.

More than nine months into her role as the head of the NPA, Advocate Shamila Batohi’s major communications with the public concern a lack of funds and the ruin that she inherited. All of this is true and the enormity of her job cannot be underestimated. But, the importance of re-establishing the credibility of the criminal justice system cannot be overestimated. Without at least a couple of these widely publicised cases being heard in the criminal courts, or at the least an explanation as to why, on the basis of law, certain of these cases cannot be prosecuted, faith that South Africa can truly restore the rule of law will continue to evaporate.

 It is no exaggeration to say that, absent some accountability for State Capture and other forms of high profile corruption, there will be no new political dawn and no reconstruction of an economy to benefit the millions of South Africans who continue to live in degrading conditions, without hope and with an increasing sense of betrayal.

One can find a range of mitigating excuses for the seemingly non-existent progress in the NPA. The NPA depends on thorough investigations being conducted by the police and/or the Hawks. Both institutions have been shockingly compromised over the past decade, although, in fairness, we should admit that 25 years into democracy, that from the dawn of democracy, SAPS has never been adequately shaped into an efficient crime-busting force.

It appears further that progress at the NPA has been made more difficult for Batohi by the swathe of Zuma appointees/supporters who still lurk in the organisation in influential positions. In addition, from speeches given by Batohi, there has been considerable difficulty in accessing adequate funding.

All that having been said and accepted, it does not explain the depressing level of somnambulance that characterises the NPA at present. Recalcitrant personnel need to be removed in exactly the way SARS, through its new commissioner, has done. If the disgruntled corps who are suspended and then removed after due process wish to litigate, so be it.

If there is insufficient funding, by now one would have expected approaches to the relevant ministers or the president, if necessary, to procure a deviation from the strictures of the Public Finance Management Act to release further funding.

It also appears that legal and accounting firms are prepared to provide much need forensic expertise so as to ensure that some of the cases which must be brought to court can be conducted with the necessary financial and legal knowledge and experience. However, from reports, the NPA has done little to encourage this much-needed assistance.

One excellent decision that was made was the appointment of advocate Hermione Cronje as the head of the Investigative Directorate, which the public was told would deal with public corruption, no matter the political source thereof. However, almost five months have passed since that appointment and the public is none the wiser about the unit’s progress.

 There is something truly surreal about almost daily disclosures of corrupt activity, most of which appear to be extremely plausible and in which no one is ever held to legal account. It would be unreasonable to have expected that convictions would have already been secured, in even one of these cases, but no one has been charged, or at least there has been no announcement of any action to be taken. This is a devastating indictment of the criminal justice system.

It is no exaggeration to say that the NPA and its ability to enforce the law without fear or favour holds the key to the future of constitutional democracy in South Africa.

The longer it appears that all forms of corruption, when committed by politically connected persons are subjected to de facto immunity, the more the current politics of the nation will destroy the hope of building a society based upon the commitments of the constitution.

And while many of the cases that should be brought to trial are complex, there is sufficient low-hanging fruit for prosecutors to pluck, thereby providing hope to South Africa that there is a criminal justice system worthy of the name. DM

This article first appeared in the Daily Maverick.

Professor Balthazar is one South Africa's foremost legal minds. He chooses to remain anonymous, so it doesn't interfere with his daily duties.

Last modified on Tuesday, 08 October 2019 19:38

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