It’s now or never for the National Prosecutor’s Office…
While many fear what might happen in the coming era of coalitions in provinces and national government, it may in fact be only the National Prosecuting Authority (NPA) and a properly functioning criminal justice system. impede clientelism and corruption. determined to completely take over the state.
While the scandal around President Cyril Ramaphosa and the stolen US dollars from his farm is likely to test many aspects of our politics, it will almost certainly test our criminal justice system to near breaking point. The key moment in this scandal may well come when an NPA prosecutor must make a decision on whether to indict Ramaphosa.
It will be a crucial test for the NPA as an institution at a time when the stakes couldn’t be higher.
If he decides not to prosecute, it will lead to the assertion that the NPA is biased in favor of Ramaphosa and that he is unable to prosecute “without fear or favour”. National Director of Public Prosecutions Shamila Batohi is reportedly accused of failing to act against the person who officially named her.
If the NPA decides to press ahead, Ramaphosa may well have to step down as the country’s president and head of the ANC, with consequences that are impossible to predict.
But this is only the first of the most pressing tasks facing the NPA.
Guptas and the Zondo Commission
Atul and Rajesh Gupta are being held in Dubai at the request of South African prosecutors. Most legal experts agree that their extradition to South Africa will be a long and expensive process, with extradition hearings notoriously complicated. And yet, if the NPA is seen as a failure, then it will lose more legitimacy in the eyes of the public.
Then there are the other lawsuits that could arise from the release of the latest volume of the Zondo Commission report.
Some of them can lead to awful timing.
It is likely, for example, that the commission’s final report will recommend that Arthur Fraser be prosecuted for the numerous illegal actions of the State Security Agency while he was at its helm.
This could put the NPA in a situation where it must make a decision on whether to indict Fraser at the same time it is making a decision on indicting Ramaphosa, against whom Fraser has brought damning charges. It is likely that this was Fraser’s original goal and explains why he made his “accusations” so publicly more than two years after the theft of US dollars from Ramaphosa’s farm.
It is entirely possible that politicians like EFF leader Julius Malema will claim that the NPA is biased and use it in court as an argument in the cases they face.
Others who face lawsuits may well be trying to wield the power of our politics over the NPA. And politicians faced with “stepping down” from their positions in the ANC would be encouraged to challenge every step of the prosecution process.
For example, ANC President and Minister of Energy and Mineral Resources, Gwede Mantashe, has already said that he would challenge the findings of the Zondo Commission. Many other officials who have been recommended for prosecution are likely to do the same – if only to prolong the process to the breaking point. These obvious legal maneuvers mean the NPA will likely have to decide whether to prosecute someone while their legal challenge is pending.
If he indicts such a person before a conclusion in this challenge, then it will be argued that the NPA’s decision is premature. If he decides not to, then he will be accused of treating some people differently than others. And there will be every incentive to challenge the commission’s findings simply to delay any jail time.
Add the ANC’s electoral conference into the mix, and the NPA will inevitably be accused of playing politics – its decisions could determine who is eligible to run for the party’s top jobs.
While all of this may happen in the short term, over the next few months there could be a much bigger test awaiting the NPA.
Reform of the prosecution service
There is strong evidence that it is reconverting and reforming. At the moment it is seen as more independent than former President Jacob Zuma’s NPA – which, of course, could change if the Phala Phala scandal explodes in its face.
The NPA may prove even more important than ever at a time of major trends in our politics, those leading to an era of coalitions.
While some of the coalitions have performed well, others have been based almost entirely on clientelism. As the recent history of the Patriotic Alliance in Nelson Mandela Bay shows, when it held the balance of power, there is a price to pay for their support.
There is also evidence of simple and sometimes blatant corruption.
In Nelson Mandela Bay, the former mayor of the UDM, Mongameli Bobani, died of Covid-19 while he was under investigation by the Hawks for alleged corruption.
In Johannesburg, a the chief of evidence said then mayor, late Geoff Makhubo, during a hearing: “We will submit that it was ultimately about corrupt payments”, relating to a manifest conflict of interest.
Both were crucial figures in the politics of these metros. And although no final court ruling was issued, there was clear evidence of corruption against both politicians.
A well-managed and independent NPA
However, if we have a properly functioning criminal justice system and a well-run and independent NPA, it could prevent the worst excesses of our politics. This could prevent some of the corruption that is endemic in administrations across the country.
Of course, that would be a huge challenge for the institution.
It is perhaps one of the most significant faults of the ANC that from the outset it did not create a truly independent NPA. While Bulelani Ngcuka may have started his tenure as the first National Director of Public Prosecutions with the right intentions, his involvement in the Spy Tapes saga (in which he discussed the timing of Zuma’s 2007 prosecution) has raised questions about his conduct.
Zuma’s ability to twist the arm of then-incumbent NPA leader Mokotedi Mpshe to drop charges against him in 2009, just in time for national elections (a decision later overturned by a court) was possibly the ultimate expression of how the ANC used political power to bend the NPA to its will.
Only now, arguably, does he have the potential to really show that he can be independent and how powerful the independence of the prosecution can be.
Today, the NPA seems more important than ever for the survival of South Africa’s young democracy. No pressure… DM