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.

What does Democracy mean? Part 1

The ideal for which Democracy stands is that each person in a State has an effective say in the Government which rules him or her, that he or she has a voice in the amount of taxes paid, and how these taxes are spent or invested, that the Government is responsible to the people.

The reality of “Democracy” is quite different.  The race to be elected is not spurred by a burning desire to apply one’s skills, abilities and intelligence to the ultimate ‘good of the people’, but rather a desire to join the gravy train.  Government provides an almost unparalleled income-generating opportunity.  Once the race is ‘won’ and the contestant ‘comes to power’ (both very revealing phrases), the process begins, of rewarding those who have supported the campaign, as well as those who are expected to have an influence in the next campaign, of building a ‘power base’, and of milking the Government funds for personal benefit.  The proportions of effort, and therefore of the flow of money and benefits from Government sources to each of these depends to a large extent on the country in which the candidate finds himself, on the sophistication of the electorate, on the efficiency and independence of the monitoring institutions, and on the degree of security felt by the politician.

First come the personal benefits – the Mercedes, Porsche, BMW or Range Rover, the salary and expense account, and similar matters.  Once this is in the process of being attended to, the politician sets about appointing his personal staff, including secretaries, personal assistants and bodyguards (is it not strange that every politician, who claims to be appointed by the people and to represent the people, has such a fear of the people that an entourage of bodyguards is considered essential, presumably to protect the ‘valuable’ person of the politician from the people?  Winston Churchill, as Prime Minister of Britain during the Second World War, needed only one bodyguard!). The security staff of the President of South Africa numbers more than seven thousand!  It is an established tradition in Third World countries, such as South Africa, that the appointment of a person to a senior post brings with it the opportunity to appoint numerous others in more junior positions, each one of them paying a proportion of his or her inflated salary to the senior person in the chain, and/or repaying that person by means of support and silence in acts which would not receive the approval of the electorate.  In this way, the benefits of Government service to the incumbents of managerial positions are inflated well beyond the relative average salary, while the capabilities of the persons actually doing the work are well below the requirement, with the consequence that the standard of performance of Government is generally below that in the private sector.  It is certainly no coincidence that the Eastern Cape Provincial Government in South Africa employed some 30 000 persons who showed up at their offices only once each month, to collect their paycheques.  This was admitted by the Premier of the Province, who stated in 1996 that the situation needed correction.  When a Management Consultancy offered to undertake an investigation at no charge to enumerate the workers and non-workers on the payroll, the offer was summarily declined!  The Premier obviously did not want this information to go on record!  A conversation with a senior person in Government in 2009 indicated that this situation had not yet been corrected. 

When the politician has had the opportunity to strengthen his connections in the power hierarchy of government, the next phase begins.  This is the granting of lucrative contracts to favoured persons, either as a reward for support given or to be given, or, more usually, as a simple business transaction, with the politician, his family, close friends or Party associates taking a substantial payment from the proceeds of the contracts.  Very often this payment is brazenly demanded in advance.  A company which was negotiating a contract (in 1996) valued at R12 000 000 was told by a ‘representative’ of a Provincial Premier that the normal fee, payable in cash in advance, was 15%, or R1 800 000.  When the company manager expressed surprise at this demand, he was told ‘do not be concerned – the 15% includes the Premier and the Provincial Minister for Economic Affairs’!  In other words, the payoff was probably sufficient to satisfy most ‘claims’ for illicit payments.  In another case, a building contractor was granted a contract to construct some 9 000 RDP houses, at a cost of R15 000 each.  He immediately on-sold the contract at R9 000 each, pocketing the difference of R6 000 per house.  It is reasonable to assume that he did not retain the whole of this difference – 15% (apparently the going rate) of R15 000 is R2 250 per house, a total bribe of R20 250 000.  At that time, it was almost impossible to build a house of any quality for R15 000, a fact borne out recently by the Government announcement that it was planning to spend over R90 000 per house on necessary renovations to bring them to a habitable state.  While inflation has savaged the South African economy in the intervening years, one is constrained to ask who was picking up the payoff in this case.

The newly-elected Prime Minister of the Bahamas, some two months after his ‘victory’ over the previous incumbent, was asked by a telephone caller on a radio chat show why it was taking so long for him to award the profitable contracts to his supporters, who had gone out on a limb to support him during the election campaign.  In some embarrassment, he explained that Government contracts had to be awarded in open tender, and advised the caller to contact him privately to discuss the matter. The content of that private telephone call would certainly be of interest to scholars of the democratic system.

As time goes on, and the newly-elected representatives of the people become more secure in their positions, they start spreading their nets more widely.  They support ‘peoples’ liberation groups’ in their ‘struggle for freedom’ or send ‘peacekeeping forces’ to those war-torn areas that they had created.  This is usually not done as an altruistic venture, but for hard-headed business reasons.  Robert Mugabe, President of a destitute Zimbabwe, sent a ‘peacekeeping force’ to the Democratic Republic of the Congo, in support of threatened DRC President Joseph Kabila, and received a payoff of 50% of the three richest diamond mines in the country, a benefit which he, magnanimously, shared with the Zimbabwean Minister of Defence, a key man in keeping Mugabe in power in Zimbabwe against the will of the people. The mines were summarily expropriated from the Belgian owner, who had built them up at his own cost, with no compensation being paid.

They enter into purchases of vast amounts of equipment, often for military purposes, but almost always with a personal benefit by way of bribe.  The sums involved are enormous – in one clear case, the President of an African country was paid a bribe of $20 000 000 by one of the major munitions suppliers.  This set the standard in that country, and subsequent attempts to place large contracts have involved values three to four times the size of the initial contract.

It does not need to be said that the money leaking from these transactions into the Swiss bank accounts of the people in power represents only a small percentage of the total amount of money wasted – a bribe of 15% of the value of a contract leaves 85% to be ‘value’.  The question is whether this 85% is real value to the purchaser, the people represented by the free-spending Government who, at the end, pay for it, either by payment of taxes or by non-delivery of the services and benefits for which the taxes were raised in the first place.  In most cases it would be reasonable to say that there was no real need for the goods purchased.  The Zimbabwean people did not benefit in any way from the sending of a ‘peacekeeping force’ to the DRC, the South African people did not need, or benefit from, the purchase of Navy vessels, fighter jets and helicopters, and the American people did not benefit from the Iraq war.  There are small groups of people who receive some benefit in each case – the Zimbabwean and American soldiers who might otherwise have been unemployed, the groups of military officers who saw their personal power bases, and prospects for added income, enhanced, and the politicians who arranged for some of the work to be done in their constituency, with a big payoff in terms of votes, but the total benefit is almost always much less than the total cost.  It would have been infinitely cheaper to have paid the bribes directly to the politicians involved and avoided the additional 85% occasioned by entering into the contracts.

The largest problems, of course, are that the public who are being fleeced in this way are not sufficiently interested to investigate each action by the Government, probably because the officials involved take care to ensure that they are never given the full and unadorned facts of the matter, and that the ‘watchdogs’ who are there to protect the public interest are not sufficiently vigilant or are part of the system.  The Police, a body designed to detect, correct and deter crime, consist of people who are dependent for their jobs on the very people they should be watching. Unfortunately, their appointment was based on the fact that their loyalty to those people would ensure that no meaningful investigation of corruption by their patrons would ever ensue. A telling proof of this is the statement to Parliament by the Minister of Police that the whole of the R246 000 000 spent by the State on the private residence of the President was justified as ‘security upgrades’. (one may be excused for wondering how a mud hut could need a quarter of a billion Rands in ‘security upgrades’!). Of course, the Party ensured that this outright lie, by the Minister and by the President was endorsed by the ANC MPs, who shouted down the members of the Opposition during the debate on this report, and so earned the disapprobation of the Constitutional Court for the dereliction of their Constitutional duty to hold the Executive to account. A similar situation occurred when President Mbeki avoided any Parliament debate on the honesty of the multi-billion Dollar Arms Procurement deal that made so many ANC members wealthy.

The public has little or no interest in actively participating in the monitoring of the people who serve them, probably because the obstacles and risks in doing so are so great.  Generally, Joe the Plumber does not feel that he has any ability to detect wrongdoing or to do anything to correct it, or, if he does actually act, he becomes a target for people who wield massive power.  The woman worker in the Department of Defense in the USA who detected some serious wrongdoing by officials in the Department, involving the giving of contracts with little control and contrary to regulations, found herself suspended shortly after she had brought the situation to the attention of senior officials.  Although the matter subsequently came to the attention of the TV media, it was a short-term wonder, with no result.  She was subsequently discharged from her job after many years of service. Perhaps the fact that the Deputy President of the country was a substantial shareholder in the benefitting company had something to do with the outcome. An investigation by the German Police into the bribing of a senior South Africa politician in the granting of a very large contract came to an end after the South African authorities (the Police, supported by the criminals in high Government positions) refused to provide a file required for the investigation. (One may deduce from this case that the German Police are honest and driven solely by law, while the South African Police acted entirely in the interests of the highly-placed Ministers and officials who profited from the crime.) An investigation by the British Police into alleged illegal payments to a Saudi Prince in the negotiations for a large aerospace contract came to a sudden end when the Saudi Government threatened to cut off negotiations in other contracts.  The Speaker of the English House of Commons went to great lengths to prevent the publication of wrongful or excessive expense claims by Parliamentarians.  When these expense claims were published, without the permission of the Government, the Speaker was forced to resign his position, but was immediately rewarded for his ‘sterling work’ by an elevation to the Peerage.  This latter is one of the few cases where the actions of a person with information received the support they deserved from the Press, even though the action of the ruling Party was not what any sane voter would have expected.  The list of known or strongly suspected wrongdoings by Politicians all over the world is very long, yet the list of corrections is extremely short.  Do not believe that these wrongful acts are a mere peccadillo.  Adolph Hitler could have been stopped in his tracks at an early stage if people of courage had stood up to stop him.  Unfortunately, those who were afraid to talk numbered in the tens of millions, including the ordinary German citizens, who recognised that his actions were not right, but were afraid to talk out in the face of perceived public support and a very real threat of retribution by Hitler’s thugs. That form of internal terrorism was supported by a British Prime Minister, who wanted ‘peace in our time’ at any cost. 

In order for evil to prevail, it is only necessary that good men do nothing.

 

The ANC Confirms its Spinelessness

The ANC has held an emergency meeting of its top brass, somewhat stiffened by numerous Zuma lackeys, and has now reaffirmed that it is firmly held in the grasp of the criminal charge-dodging President.

By this display of its complete lack of social and constitutional obligations to the people of the country, the ANC has proven, if any person in the country were still sufficiently obtuse to believe the ANC propaganda that it represents the people, that the top brass of the ANC are firmly in the same basket as Zuma. They have conveniently ignored the facts, that Zuma has retained in his Cabinet a group of Ministers who have repeatedly and convincingly demonstrated their incompetence and their desire to enrich themselves in every possible way at the expense of the people they nominally serve. By this, they have made themselves complicit in the criminal conduct of Zuma – the word is used advisedly, as the breach of the Constitution and of his Oath of Office by Zuma is very firmly a criminal act, which the ANC-dominated Parliament has failed to punish – and so opened themselves to being punished for those acts alongside him, when an honest Government comes into power. What Zuma has done to secure this is not yet known. It is probably a mixture of threat (his criminally-convicted Minister of Social Affairs remains at her post, despite having brought the country to the edge of a crisis, admitted that “we all have skeletons in our cupboards that we don’t want to bring into the open”) and financial inducement, as the Guptas famously made to Mcibisi Jonas (a cash offer of R600 000 to take the job as Minister of Finance and do their bidding).

The top brass of the ANC should enjoy the spoils of Zuma’s victory over right and justice as long as they come. The day of retribution will surely come, and the mood of the people is now such that the process of law might not be quick enough to satisfy the thirst of the people for honest government. For them, the choice seems to be a la the Nuremburg Trials or the fate that awaited Benito Mussolini. It is doubtful that they will be offered an Egyptian solution, or a TRC way out.

It is sad for the average citizen to be labelled with the same tag as Zuma and his cohorts. They do not deserve it. It is bad enough for a White to be asked, wherever he or she goes in Europe, Australia or the United States whether every South African is a crook. It is even sadder for the average ANC supporter to bear this burden, after the hope engendered by Nelson Mandela, after his Party had created the impression that every ANC capo believed in necklacing any opponent or possible dissenter, but it is saddest of all that the average Black must carry the label of incompetent and crook that the conduct of Zuma and his top brass have attached to them. Never mind. We still have the examples of Mcibisi Jonas and Ahmed Kathrada, both men of high honour and integrity, to show that Blacks are good people, no matter their Party affiliation.

Zuma has created a new Disbelief

Watching the spokesman for the National Prosecuting Authority state so positively that the charges against former employee Glynnis Breytenbach were not politically motivated has brought to the notice of many South Africans that President Jacob Zuma has injected a new element into the relationship between the public and the Government.  The spokesman stated that “We have taken an Oath of Office and we don’t engage in political actions”.  There can be no doubt that the statement, while it may be correct and true in relation to the present case, would be an outright lie when applied to the actions of the NPA in the past. 

Witness the unexplained withdrawal of 783 criminal charges against Jacob Zuma, clearing the way for him to become President, creating suspicions that were enhanced when the NPA failed to comply with a High Court Order to hand over the tapes recording conversations in that regard.  The fact is that Zuma’s conduct, admitted by him to be in breach of his Oath of Office and of the Constitution, has created a firm disbelief in the value of that Oath of Office and any statement made to assert the meaning of it. 

The public now believes firmly that the example that Zuma has set, of disregarding the Oath of Office whenever he chooses, is followed by his minions.  That belief was reinforced by the ludicrous ‘findings’ of the Minister of Police that the fire pool was actually a fire pool, not the luxurious swimming pool that the spectators could clearly see it to be.  The Minister of Police has admitted that he lied, that he made ‘findings’ in breach of his Oath of Office to uphold the Constitution and to protect the assets of the State, because he was instructed to do so  by the President, that he was ‘following orders’.  That statement put him firmly in the ranks of war criminals, men who proved themselves to be evil, and demonstrated that the Oath of Office is viewed by the ANC cadres only as a necessity to gain and hold the lucrative offices they need to carry out their depredations.  It is not the sacred and binding oath that the Constitution intended it to be, and it is no indication of the intention of the man taking it to protect the provisions of the Constitution, unless that happens to be convenient.  The loyalty to the man, and to the flow of benefits he confers, overrides the terms of the oath and of the Constitution.  Jacob Zuma made that clear in a public speech, in which he stated that his love of the ANC supersedes that for the country and, presumably, that for the requirements of his office.  The Oath of Office is considered by the State President and his minions to be just one of the preconditions to the gaining of great wealth, to flow from the (in their minds) unlimited funds of the State.  It is not sacred, or is it binding on their consciences.

The worst of the situation is that the body of the ANC, by its unquestioning support of these men, has shown convincingly that they subscribe wholeheartedly to the new standard set by their leader.  The only way for them to demonstrate that they are the good, honest man and women that the voters believed them to be would be to impeach the President.  We all know that will not happen.  The President and the ANC are all of the same class.

The public has received the message.  The citizens now know that the easiest way to detect a lie is to determine who spoke the words.  The public knows now that it cannot trust the statement of any member of Government, and particularly if the statement is reinforced by reference to that sacred Oath of Office.

It will take huge persuasion and proof by example for people to believe any member of Government in the future.  Thank you for that, Mr. President.  You have achieved a reversal of the belief in our leadership that Nelson Mandela spent 27 years to build up.