What should the National Prosecuting Authority do?

The NPA in South Africa is as much of a disaster area as the rest of the country. It is incapable of doing the job for which it was established, as is proven by the complete lack of any prosecutions of top-level criminals, never mind its failure to put any of them behind bars, as the country urgently needs. The reasons for this are clear, but the failure of the Director to correct this situation is inexplicable. It may stem from insufficient understanding of the principles of management of an organisation in crisis or, Heaven forbid, from the creep of the infection to the very top levels of this vital body. NPA Director Batohi has complained, several times, that the organisation has been corrupted, to the point where it is incapable of acting effectively. It is known that the virus of corruption has infested every part of government, from the clerk in the Licensing Office in Bedfordview, who takes a bribe of R600 to issue a driving license to a person who cannot pass the sight test, to the (previous) President, but that cannot be a reason to allow it to continue. Surely there are at least a couple of investigators and prosecutors who are both capable and honest left in the NPA, or, if that is not true, somewhere in the country? If there are none in government service who can be trusted, why should private contractors not be used? The argument that the government cannot afford the cost is nonsense – the country cannot afford another four years of the rampant corruption that is now the norm, and that cannot, apparently, be countered by an unwilling government.

What should Batohi do, if she really wants to perform the job for which she is paid?

Let’s analyse the problem.

The problem, as stated by Batohi, is that every case is hijacked, side-lined, confused or simply has vital papers stolen, to make sure that it goes nowhere. There are too many people involved in bringing the case from a report of wrongdoing to the point of successful prosecution. That is not unusual in a business scenario in which the company is highly politicised, with many parties promoting their private agendas. Surely, if  system is not working, the responsible person should either by-pass that system or correct it, by radical means, if necessary. The answer is to do three things simultaneously.

First, follow the evidence. Take a case which is prima facie good, and track who has access to it, who has input and who makes the crucial decisions. Do an evaluation of the correctness of those actions, of where the case goes off the tracks, of what went wrong and why. The Diwani case is an excellent example of a case where, on the facts known to the public, the accused should have been found guilty. He was not, and the public meekly accepted the fact that a man accused of hiring two killers to eliminate his new wife in Cape Town should go free, after the killers had confessed to the crime, and identified the accused, and the SAPS had spent millions on a private jet to fly from the UK, and on psychiatric evaluations which seemed to confirm the public view. The Judge threw the case out for lack of evidence. From a somewhat cynical point of view, there were only three points at which the sure-fire case could have gone wrong: the Police bungled the case so badly that a guilty verdict was impossible; the Prosecutor failed to present a sure-fire case in a professional manner; or the Judge was not competent to understand the facts. The third possibility appears to be very unlikely. The Courts generally have a good reputation for competence, even with the odd blip like Judge Seriti’s apparently purposeful bungling of the Arms Deal investigation. The remaining two elements seem to be more likely, and both are amenable to the oldest form of corruption – buying a person in a critical position. A payment of a few hundred thousand Rands to secure the mismanagement of a prosecution, or of the investigation leading up to it, is cheap in the light of a possible 15 year prison sentence, and the amount of money able to be offered would more than compensate for the lack of promotion or loss of professional esteem. This is even more true in South Africa, where wrongdoing is not seen to be a hindrance to advancement, where it is normal for convicted criminals and those censured by a Judge for dishonesty to be appointed as Ministers of State, while so many either charged with fraud and other dishonesty, even with money laundering and racketeering, have ascended to high office while the charges were hanging.

While the prima facie ‘facts’ are being determined, set up a channel in which the handling of chosen cases can be free of the involvement or influence of those found or suspected to be under suspicion. Feed some carefully selected cases into that channel and monitor them carefully. Fast-track them, so that the process can be watched over an abbreviated timespan, and record carefully who does what, and when, and, most critically, why. Manage the cases on an individual basis. Ensure that every fact that needs to be taken into account is recorded, and document the events of interference, so that the people who have negative influence that is not justified by the facts can be placed in quarantine. Ensure that the facts known to the public are correctly investigated, and question the conclusions.

Third, take the chosen cases to a logical conclusion. By this point, there should be at least three or four important cases that have watertight proof and presentation. Ensure that the people involved at all levels are aware that their performance in these cases will have long-term consequences for each of them personally, either positive or negative. It is not essential that every possible malfeasance of an accused be brought against him or her at this stage – that can be done when they can be interviewed for further charges in orange overalls, when they are less able to buy their way out of trouble. It is only necessary at this time to achieve the first conviction.

By choosing the cases carefully, successful investigations and trials will remove at least several of the corrupt individuals holding levers of power, and reduce the negative influences in future prosecutions, and, most importantly, will restore the belief that the NPA is a body to be feared by criminals. Comparison of effective processes with ineffective ones will provide clues to who is needed in the future, who is capable of development, and who should be discarded, after due investigation of their actions in the past. A separate channel should be established to ensure that the criminal prosecution of those meriting that special distinction is performed effectively, with the effect of cutting the ground from under those working within the system to subvert justice.

The next step is to repeat the process, taking care to ensure that each case enjoys a high probability of success. Each repetition will extend the list of those taken from positions of influence, and will reduce the body of people working against true justice in the country. It is important to understand that even one successful prosecution is a lot better that dozens of prosecutions still in the process, probably for the next few years.

Perhaps Batohi would be well-advised to include an investigation into the actions of her predecessor, who did so much to hollow out the institution she now leads.

While this is going on, Batohi could take a couple of hours to prepare a presentation to Parliament to ask for two new laws.

The first of these will require that the sentence imposed on a person abusing a position of trust be double that of others convicted of that crime. For example, the Chief Accounting Officer of a State Owned Entity who supports, or fails to prevent, a fraud by officers of that entity would be subject to double the prison time for the crime. The law should require that parole cannot be granted until at least the additional time has been served in full. This would prevent the present practice of criminals going free, carried head-high by ANC members to his new position as Head of Political Education in the ANC, after serving only a few months of a five-year sentence for corruption.

The second proposed law will offer indemnity from prosecution to any person who is party to a crime and provides evidence to the SAPS and the NPA which results in the criminal conviction of the counterparties to an act of corruption. This would be coupled with a bar for life against that person doing business with the State, as well as a requirement that he or she reimburses the State for the loss it has suffered. That indemnity will be effective only if the evidence is provided voluntarily and before an action against the person providing it is commenced.

If the NPA continues to bumble along on its present path, without taking any real action against the criminal kingpins who have blighted the South African political scene for so long, if it continues to ignore the exposure by investigative journalists made of criminal acts that have been at the centre of public discourse for years, the citizens will be justified in their belief that the NPA is merely another State body that offers jobs for pals without any expectation that it should perform the tasks for which it exists. It would join the SAPS on the list of those State bodies which have been shown conclusively to be part of the problem in South Africa.

Should the Courts interfere in Government?

The ANC and its multitudinous affiliates have started a campaign against the Courts ‘interfering in the rights of the Executive’, referring to the numerous cases that have been brought, in particular, against Jacob Zuma. However they fail to ask why this is so.

As in any situation where a problem is identified, the first steps in solving a problem are to define the problem and then to isolate the cause. Only then can any meaningful progress be made in solving it. Politicians seem prone to forget, or simply to ignore, these elementary steps, and the ‘uncouth rabble’ that makes up such a large proportion of Zuma’s supporters suffer from this syndrome to an extreme.

What is the real problem underlying the increasing recourse to the Courts?

The real problem is that the President and the Executive in general have increasingly ignored the laws that govern them, and particularly the Constitution, treating them as bothersome at best, and irrelevant to their elevated status. They have been supported in this by the ANC Party machinery, which seems to be bent, and bent upon maintaining this criminal President in his office of power. The Executive is running wild, and Parliament, under the stranglehold of the unrepresentative ANC’s NEC, supports the illegalities and lunacies. The sole aim of the majority in Parliament seems to be retaining power, regardless of the duties imposed on the MPs to represent the people, by demanding and obtaining accountability by the Executive, and by demanding that the Executive complies in every respect with the law. In the face of this breach of its duties by the legislature, the Opposition Parties and the people have no alternative other than to resort to the Courts to ensure compliance with the law by the Executive.

Examples of this are legion. Nkandla springs to mind as the prime instance where the President and his crooked Ministers abused their positions of power in an attempt to steal from the people, misleading a compliant Parliament by their transparent lies. The only way to ensure that the rule of law was applied was to seek recourse from the Court. Was that wrong? The only thing that could be said to be wrong about the matter was that it was necessary to go to Court to ensure that the law was applied. If the President and his men, from Ministers down to MPs, had complied with the laws in the first place, the Court would not have become involved. The same situation was applied in the default by the Minister of Social Security in complying with a Constitutional Court Order that the contract with CPS was unlawful. She knew the Order, yet she carefully refrained from doing anything to comply with it. When civil society obtained a further Order from the Court to ensure that the social grants would be paid, the Minister was more than surly, and has since declared that SASSA, which was set up with the mandate to ensure that it was able to pay the social grants itself, will not be able to do so within the next five years. That is a remarkable claim, given that CPS was able to set up the mechanism within a year. The statement by the Minister must, in any responsible society, result in another intervention by the Court. The actions of the Minister since the original Court Order would surely have resulted in the Minister being replaced, if South Africa had not been under the quasi-dictatorship of a gang of criminals, and her most recent statement should have resulted in an outcry by all MPs, regardless of Party, against the continued tenure of a Minister who has sown herself to be, at the least, incompetent, yet the ANC cadres have done nothing. Watch this space for the next Court intervention. The most recent attempt to pay Brian Molefe an ‘early retirement’ amount of R30 million, since replaced by a reinstatement of this tainted deployee as CEO of Eskom, with the blithe explanation that placing a man who could never be viewed as a fit and proper person in control of a major driver of the economy, as well as of bribes, finder’s fees and equity participations in contracting suppliers would be cheaper than fighting a Court battle in respect of non-payment of the R30 million after only two years of service. On this basis alone, Lynn Brown should be sentenced to 30 years of hard labour on Robben Island for treating the public as unthinking morons.

Now that it is clear that the real problem to be solved is the ability of the President and his executive to flout the law, it is possible to devise ways to ensure that the honesty, integrity and law-abiding character of the Courts and the Public Protector (sadly, no longer visible, now that Zuma has replaced a woman of integrity with a compliant puppet in the position) are no longer required to ensure that the letter and the spirit of the Constitution will be observed.

The first of these will be to place the appointment of the Ministers and senior officials of State Departments and State Owned Entities under the control of a Committee of Parliament, consisting of an equal number of governing Party members and Opposition Members, with the mandate to determine whether the candidates are fit and proper persons in respect of their qualifications, experience, conduct and integrity, and having the power to terminate their appointment if it is found that such state of fit and proper no longer exists. Such Committee shall make any appointment approval with a majority of 75%. It is not unreasonable to require that at least three-quarters of the representatives of the public trust the people running the activities that are paid by the Government.

The second would be to require that the President be elected independently by a vote by the electorate, after having obtained the approval of the Committee, with the Committee having the right to call a further election of the President at any time if it considers, by simple majority vote (held under conditions of secrecy) that the President has breached the Constitution or his oath of office, which shall be presumed if a competent Court issues an Order declaring that there has been such a breach.

The third would be to replace the current electoral system with one under which the MPs are directly responsible to their electorate, with the right of the electorate, by a petition signed by at least 25% of qualified voters, to demand a new election for that seat. The MPs would have an obligation to report to the electorate in open public meeting on their voting performance every quarter.

The fourth would be to ban any system under which a Party can force or coerce an MP to vote in a particular way. The requirement would reinforce the principle that MPs are directly responsible to the voters in their Ward, and must take directions and advice from those voters.

The fifth would be to reduce the salaries of MPs, Ministers and senior public officials, including their benefits, to a level commensurate with a similar position in the private sphere, and each such person will be subject to a performance appraisal by a dispassionate person. The performance requirements and the appraisal would be available to the public.

In summary, the intervention of the Courts in the affairs of Government is a vital means to hold of Government to account in its actions. The fact that such intervention has been necessary with increasing frequency is the problem, not the fact that a right which is enshrined in the Constitution should be used. The real problem to be addressed is the fact that the Government of South Africa has been captured by a gang of criminals.