Image: National Prosecuting Authority
Are the National Prosecuting Authority (NPA) and Hawks dragging their feet on cases of state capture? Social justice NGO Open Secrets thinks so and lays out its arguments in a persuasive new report published in August 2022. There are many who would agree.
Bad Cops, Bad Lawyers focuses on the so-called bottlenecks within the NPA and Hawks – these are the officials and prosecutors who occupy senior positions, despite serious allegations of misconduct against them. They are the ones who are accused of opening cases against whistle-blowers and corruption fighters, and are viewed as having obstructed progress on high-profile cases. Open Secrets says it is high time their fitness to hold office is thoroughly investigated.
The report is based on evidence submitted to the Zondo Commission, confidential NPA documents, court judgments, and investigative reports.
Impunity reigns supreme
Nine years after the Gupta landing at Waterkloof Air Base, accountability for the transgression is still nowhere to be seen. Two officers were charged but the cases were withdrawn, confirming they were merely scapegoats. The incident sparked the still-ongoing national furore over state capture – and South Africans are still waiting for justice.
Seven years after the Passenger Rail Agency of South Africa (Prasa) laid charges with the Hawks in relation to impropriety at the agency, there is scant forward progress under the dubious direction of Major-General Alfred Khana. In 2017 Prasa took the Hawks to court to compel them to investigate corruption within the agency, but the dearth of updates and arrests, says Open Secrets, indicates that the Hawks are not getting anywhere in these investigations despite Prasa’s court action.
And over a year since the civil violence of July 2021, no convictions have been secured. According to incumbent Investigating Directorate boss Andrea Johnson, the NPA does not have enough evidence to prosecute the leaders of the uprising.
Meanwhile, Eskom has referred 110 cases to the police since 2018, and the Special Investigating Unit has referred 50 Eskom cases to the NPA. But only 65 people have appeared in court on state capture-related crimes, and just 21 cases have been enrolled in court.
The number of state capture convictions – ZERO.
Four years ago, new leadership at the NPA and Hawks provided a glimmer of light for a public desperate for an end to the culture of impunity and secrecy that prevailed during the 2010s and before. Shamila Batohi and Godfrey Lebeya were both appointed in 2018 to lead organisations that were severely weakened for the sole reason of protecting former president Jacob Zuma and his cronies from accountability.
But so far the public has been given no reason for increased (or any) confidence in either organisation. To date, the NPA and Hawks operate far below their capacity and consequently are failing in their duties to uphold the law.
Destabilisation and confusion
Since its establishment in 1998, the NPA has had seven permanent and three acting national directors of public prosecutions (NDPPs), including Batohi. “An NDPP term is supposed to be 10 years, but no NDPP has lasted the full 10-year period in office,” the Open Secrets report points out.
At the NPA, Nomgcobo Jiba was one of Zuma’s primary destabilising weapons. She became the acting NDPP in 2011 after the Supreme Court ruled that Zuma’s appointment of then head Menzi Simelane was invalid. Jiba made decisions that favoured Zuma’s interests, using her powers and authority to instruct prosecutors who would do her bidding to prosecute cases that ultimately delayed state capture prosecutions.
And at the Hawks, Berning Ntlemeza was controversially appointed as the organisation’s head in 2013, until the High Court overturned his appointment, citing that he was unfit to lead. Ntlemeza’s appointment, says Open Secrets, led to internal upheaval, with Hawks officers targeting their colleagues for investigation, which in turn obstructed the state capture cases those investigators were scrutinising. His predecessor Anwa Dramat labelled him as a Zuma ally.
These two, with the assistance of countless others, caused major damage to South Africa’s law enforcement capabilities. They have yet to face criminal action for their role in state capture.
Andrew Chauke, Sello Maema, and Torie Pretorius of the NPA, along with investigators Khana, Jan Mabula and Nyameko Xaba of the Hawks, are some of the officials named in the report as being overdue for a calling to account.
For South Africa’s broken law enforcement system to be rehabilitated, all these officials need to face investigation and sanction, where necessary, says the report. If they do not, then the public perception that compromised officials remain employed at these important agencies will linger, and investigations into state capture cases may never be completed.
“True reform in these agencies will not be possible unless they hold their own to account.”
Open Secrets says the time has come to “disrupt networks of patronage and force them to face justice”. It makes a number of recommendations in this regard:
- Competent investigators and prosecutors must be recruited.
Both the Hawks and the NPA are facing a shortage of skills and staff members to investigate and prosecute grand corruption cases. They must recruit competent and resourceful investigators and prosecutors into their agencies. Incentives and other initiatives can be considered to attract highly skilled investigators and lawyers.
- Investigate incompetent and corrupt prosecutors.
The NPA leadership can investigate prosecutors who face allegations of violating the NPA Prosecution Policy and hold them to account if there are findings made against them. There is no reason for the NPA to delay taking action to ensure its members are fit for office, and its failure to do so is a failure of justice.
- Investigate incompetent and corrupt police officers.
The Hawks and the police minister must recommend that the Independent Police Investigative Directorate investigate police officers who have failed in their duties through incompetence or abusing their powers. Competent and reliable policemen are a necessity for justice, but the Hawks’ leadership and the police minister have failed in their duties to hold their members to account.
- The Hawks and the NPA must be transparent.
The public has a right to access justice and to know whether criminal justice agencies are able to do their work effectively. The Hawks and the NPA must communicate transparently with the public on the challenges that they face and how they are dealing with incompetence or corruption among their members. This is important for public trust to be restored.
- Investigate and prosecute corruption cases.
The Hawks and the NPA need to successfully prosecute state capture and other grand corruption cases. Without these convictions, corruption will continue in South Africa. The most effective deterrent to financial crimes is justice. The Hawks and the NPA must act urgently to prosecute and secure convictions in these cases, and if they are unable to do so, they should be transparent about their challenges.