State capture: where are the prosecutions?

When it comes to prosecuting corruption cases, the National Prosecuting Authority (NPA) needs to score — and fast.

"It’s like a penalty kick, a free kick," says Kevin Malunga, former deputy public protector and academic head of law at Regenesys Business School, referring to the work of the commission of inquiry into state capture. In the first two of its reports, the commission, headed by acting chief justice Raymond Zondo, "has given [the NPA] the information, saying: ‘There’s a goal, you shoot that goal.’"

This includes the forensic evidence that’s so crucial to conducting successful investigations, says Malunga.

Despite high expectations following recent commissions of inquiry, the NPA has failed to deliver much in the past few years.

Take, for example, the commission of inquiry into Marikana. It made a number of findings regarding police failures following the fatal shooting of 34 miners almost a decade ago, but there hasn’t been much action in bringing to justice the cases it referred for possible prosecution.

Corruption cases — especially those related to the procurement process — have also gone largely unpunished.

In part, that’s an issue of capacity: in the nine years that Jacob Zuma served as president of SA, the NPA was actively stripped of experienced prosecutors and investigators.

In the first of its reports, the state capture commission says there has been "almost [a] complete absence of cases brought under the legislation applicable to crimes of this sort" — which amounts to the "fundamental failure of a sovereign state function".

The commission thus recommends that the NPA do some introspection to understand "the nature of its institutional weaknesses" and bring legislative amendments where necessary.

NPA head Shamila Batohi says this process is already under way — but it may mean prosecutions emanating from the state capture commission progress more slowly than the public would like.

"To focus only on a handful of cases at the expense of strengthening the foundation of constitutional democracy, that all are equal before the law, cannot be justified," Batohi wrote in a Sunday Times opinion piece last week. "Prosecuting complex corruption cases takes time and extensive resources."

NPA spokesperson Mthunzi Mhaga tells the FM prosecutors have been advised to "seriously consider prioritising" cases related to contraventions of the Public Finance Management Act and the Municipal Finance Management Act.

"Those are statutory crimes that don’t require protracted criminal proceedings. We are also now improving our co-ordination with [the SA Revenue Service]," he says.

The NPA has established a task force, led by senior management, to co-ordinate work to increase the chances for successful prosecution, he says. And various units in the NPA, including the Investigating Directorate (ID), Asset Forfeiture Unit and Specialised Commercial Crimes Unit are already dealing with matters related to the Zondo reports.

In addition, expert panels will support prosecutors, evaluating evidence and providing advice to speed up cases.

The NPA is also doing "an urgent audit" of the cases covered. It has identified 40 cases from the state capture reports, 15 of which are already enrolled in court with good prospects of successful prosecution: seven from the security sector, three from state-owned enterprises (SOEs) and five involving high-level private and public sector corruption.

But success might not be as easy as Batohi makes it sound. Since her appointment in 2019, the NPA hasn’t recorded one successful prosecution of a high-level state capture case. And the early resignation in December of ID head Hermione Cronje will have put a further spanner in the works.

The ID was established in 2019 to focus specifically on state capture cases and other matters emanating from commissions of inquiry, with a special focus on fraud, corruption and related offences.

Building back the human resources and skills base lost in recent years will also take time and money.

Former public protector Thuli Madonsela last week warned that the cases the commission has recommended for further investigation shouldn’t be left too long.

"The difficulty about leaving things to further investigations is the crime trail gets cold," she told radio station 702.

But a lack of resources means the NPA will have to "strategically prioritise cases for impact", Batohi told parliament’s justice & correctional services committee in December.

Soon after the release of the first part of the Zondo report last month, the NPA and Hawks said a task team would review all cases emanating from the report. The ID is also taking over forensics capacity from the state capture inquiry and is looking to the National Treasury for more money when finance minister Enoch Godongwana tables his budget later this month.

While we have100% of the smoking gun, those accused still need to be subject to a fair legal process

—  Kevin Malunga

With the projected growth of its budget from R107m in 2021 to R180m in 2022, it expects to add 80 staff members to its current 120.

Mhaga, for one, is confident that the capacity constraints that hamstrung the NPA’s previous prosecutions won’t plague the current cases.

In any event, where possible, the NPA tries to minimise costs by working with partners, he adds. "This includes developing a legal framework that enables us to work with the many partners, locally and internationally, who have offered support, in a manner that ensures we are able to accept assistance while ensuring we remain independent."

The NPA has already appointed 21 special prosecutors to focus on key aspects of the state capture commission’s findings, and tasked them with getting cases ready for court. The Hawks have also indicated that just over a dozen detectives will be directed to state capture cases.

As the commission has done so much of the spadework already, Malunga says prosecutors will have to be either "very inept or sloppy at their jobs" if they fail to make at least some successful prosecutions.

But it’s important that they follow the law and due process. "While we have 100% of the smoking gun, those accused still need to be subject to a fair legal process," he says.

In its first two reports — the third is set to be handed to President Cyril Ramaphosa by the end of February — the commission has recommended close to 20 people for further investigation and possible prosecution.

The most high-profile is Zuma, for possible corruption and racketeering related to the reinstatement of former Transnet CEO Siyabonga Gama. Former public enterprises minister Malusi Gigaba’s name also features, in relation to cash payments he allegedly received on visits to the Guptas’ home in Saxonwold between 2010 and 2018.

Others include Gupta business associate Salim Essa, Trillian Capital partner Eric Wood, businessman Kuben Moodley, former Transnet CFO Anoj Singh and former Transnet CEOs Brian Molefe and Gama.

On top of prosecutions, the commission recommends institutional reforms related to public procurement policy, whistle-blowing laws and the governance of SOEs.

It also details how the deployment policies of the ANC have enabled the capture of state institutions — right down to municipal level, says Jay Kruuse, executive director of the Public Service Accountability Monitor.

While the abuse of party deployment certainly accelerated under Zuma, he says, "it was not introduced by Zuma".

Yet the ANC — which is doing its own review of the report — seems to have little will to change its cadre deployment policy. Ramaphosa himself defended this before Zondo, saying the ANC steers transformation through its deployment committee.

Despite high expectations following recent commissions of inquiry, the NPA has failed to deliver much in the past few years

—  What it means:

Perhaps more easily within reach are three other recommendations, touching on legislative reforms. First, is the establishment of a Public Procurement Anti-Corruption Agency, with a governing council appointed by a panel consisting of the chief justice, auditor-general and minister of finance. Such a body will fill the gaps in monitoring and enforcement capacity of the Treasury and the NPA, says Kruuse.

There are also recommendations to provide better protection for whistle-blowers, and to introduce deferred prosecution agreements (DPAs), which could help the NPA reduce its backlog of cases.

Under such agreements, implicated parties could have their prosecutions deferred in exchange for full and honest disclosure of their crimes and the repayment of stolen proceeds.

Kruuse says DPAs are a necessary recommendation, "given how systemised the capture across government has become". He says negotiating concessions for those implicated, in exchange for names and information about those who might have been involved at a higher level, will reveal the individuals "who used the machinery of government to enrich themselves, and we will then see people being exposed and facing criminal consequences".

This, in turn, would send a signal that corruption will be prosecuted, whether you are a dodgy civil servant or a private company.

But he warns against "political solutions" for those implicated. "The easy solution for people who are implicated is to dress this up and use this as a political tool to settle scores," he says.

That, however, "will be a way to short-circuit the next steps in our rebuilding".

Importantly, though, results need to be visible to ordinary people, who haven’t necessarily read the entire Zondo report, says Institute for Global Dialogue analyst Sanusha Naidu. For example, the blacklisting of individuals who defrauded the state could be an easy win.

"There needs to be shame, and that is what we’re not seeing here," Naidu tells the FM. "Shame is a low-hanging fruit."

As it is, many of the individuals implicated are still getting airtime, she says, appearing on television, and acting "as though they are the ones who have been victimised".

Accountability, she believes, has to come from the top — starting with decisive action from the president. That means Ramaphosa needs to decide whether he will "put the state before the party, and take the risk in ... cracking the proverbial whip".