Effective state institutions are crucial for young democracies to flourish. For South Africa, strong and independent institutions of justice are needed to lay the foundation for the rule of law, political stability, and sustainable development.
State-building is a long-term undertaking. It takes patience, resources, innovative partnerships, political commitment and bureaucratic skill.
Compared to other constitutional democracies, South Africa is a toddler. As we prepare to celebrate our big 3.0 on 27 April, we have many achievements to be proud of. An independent judiciary, courageous civil society and media, free and fair elections, and prudent economic policy all bode well for our future.
And this at a time when much of the democratic world is facing strong headwinds — globally over six billion people live in countries where the rule of law is in decline, according to the 2023 Global Rule of Law Index.
However, intentionally bad policy decisions and poor leadership during the State Capture period scuppered progress in key areas. New institutions are particularly vulnerable to disruption from corrupt political decision-makers, of which the National Prosecuting Authority (NPA) is a glaring example.
Launched in 1998, the NPA rapidly established itself as a world-class prosecution service. It introduced specialised units to deal with complex crimes. Through prosecution-led investigations popularised by the Scorpions, stimulating career paths for prosecutors, and improved conditions of service, the NPA became an employer of choice for a new generation of lawyers committed to the post-apartheid transformation agenda.
The NPA’s trajectory of growth was undermined by almost a decade of State Capture. Through political interference and a reduction in funding, the NPA atrophied. Between 2009 and 2019, the NPA had six different national directors. Good prosecutors resigned and the country’s best law graduates no longer saw a future for themselves as lawyers for the people in the NPA.
Many hardworking prosecutors stayed behind to keep up the good fight, but their politicised and dangerous working conditions made it difficult for them to deliver effectively on their mandate.
The situation changed when, in his first State of the Nation Address in 2018, President Cyril Ramaphosa committed his government to rebuild the NPA. Over the last five years, the NPA has stabilised its senior leadership, increased staff capacity and capabilities, partnered with the private sector to secure specialised skills, and collaborated with international experts to incorporate comparative best practices in its operations.
The NPA’s rebuilding efforts have allowed the organisation to reclaim its footing and confidence. It has initiated several institutional innovations, mostly unseen to the public, yet vital to the broader efforts to future-proof the organisation.
These include an Office for Ethics and Accountability to promote accountability and professionalism, a Community Prosecution Initiative to strengthen NPA engagements at community level, a Corporate Alternative Dispute Resolution policy to enhance the NPA’s effectiveness in dealing with corporate corruption and the recovery of billions of rands in stolen monies, and a forward-looking organised crime strategy.
It took almost 10 years of State Capture to undermine the NPA. It was always going to take more than five (Covid-affected) years to revitalise it. And these largely behind-the-scenes reforms don’t make headlines in a country desperate to see the corrupt in orange overalls.
Nevertheless, methodically rebuilding the NPA is crucial. Our democracy is vulnerable to failure without effective institutions that enjoy widespread confidence. Recent Afrobarometer surveys reveal a marked decline in public trust in state institutions, with two-thirds of South Africans stating they are willing to give up elections for security, housing, and jobs.
The shadows of State Capture and ongoing endemic levels of corruption have evoked an acute crisis of confidence in South Africa’s constitutional democracy.
A profusion of priorities and challenges
Revitalising the NPA is complicated by high levels of serious crime and the daily demands on its services. The NPA’s 3,500 prosecutors deal with almost 850,000 matters a year, including 600,000 criminal prosecutions spread across hundreds of courts.
There are some 4,000 murders a year in the 27 member states of the European Union (EU) comprising almost 450 million people. South Africa, with a population of 60 million, had almost 28,000 murders last year. The EU comparison is a sobering demonstration of both the high level of lethal violence in South Africa and the tremendous burden placed on our law enforcement agencies.
In respect of complex and high-profile corruption matters, the NPA faces challenges largely beyond its control. Such matters require specialised digital forensic analytical skills and hardware that are scarce in the public sector (globally, not just in South Africa).
Many high-profile corruption accused can secure teams of senior legal counsel which seek out procedural and evidentiary loopholes to justify postponements and delays in the holding of trials — the proverbial Stalingrad tactics.
Read more in Daily Maverick: It’s time we deal decisively with the legal practitioners of Stalingrad tactics
There’s progress, but more needs to be done
Notwithstanding these challenges, the NPA is making tangible progress against complex corruption. Some noteworthy examples include:
- Over the last five years, almost 700 government officials have been convicted of corruption;
- The NPA’s Asset Forfeiture Unit has restrained and preserved more than R14-billion of State Capture assets; R5.7-billion has been confiscated or forfeited; and R6.29-billion has been recovered. Returning stolen funds and hitting criminals where it hurts the most is a key element of accountability; and
- In respect of State Capture-related corruption matters, the NPA’s Investigating Directorate (ID) has declared 103 investigations and enrolled 37 cases involving 208 accused persons — including some of the “biggest fish” from the public and private sectors These numbers refute the growing narrative that nothing is happening on State Capture cases.
However, the NPA leadership is acutely aware that more progress is needed. South Africans are impatiently clamouring for swift convictions of those implicated in State Capture.
The NPA understands and feels this pressure.
But it cannot succumb to it. Decisions to prosecute must always be informed by the evidence available and must be taken without fear, favour or prejudice.
The challenges associated with securing convictions in complex corruption matters are not unique to South Africa. Even sophisticated and specialised prosecution offices — such as the Serious Fraud Office (SFO) in the UK — secure a depressingly small number of convictions.
Over a five-year period between 2018 and 2023, the much larger and well-resourced SFO secured a mere 29 convictions, or an average of a bit under six convictions a year. At the time of publication of its most recent annual report, the SFO had 35 open high-level corruption matters, which is two less than the number of matters enrolled by the ID.
Internationally, complex corruption cases take on average eight years to complete. In South Africa’s adversarial system, guilty pleas for corruption are rare. So, the convictions typically only come at the end of the protracted criminal justice process.
The NPA is doing everything in its power to enhance its ability to prosecute complex corruption matters. Legislation will soon be promulgated to establish the Investigating Directorate Against Corruption (Idac) within the NPA. This legislative change will create a permanent prosecution-led agency with investigative powers that draw on the NPA’s experience in tackling complex crime and corruption.
It’s vital that sufficient funding be allocated to this new unit, which will also need to explore innovative partnerships to ensure its effectiveness once it is fully established.
It’s hard to stay positive when the bad news keeps rolling in
South Africans set the rule of law bar very high, and we should. Our history demands it, and our future depends on it. Sadly, in the current context, too many citizens are losing hope in the transformative power of the rule of law.
The country faces a poly-crisis of public insecurity, organised crime, load shedding, failing municipal infrastructure, and anaemic economic growth. Such a cumulative bombardment of bad experiences on a wide range of issues which have a devastating effect on the daily lives of South Africans, breeds cynicism and overshadows the positive developments that do occur.
Many of these crises are driven by a lack of accountability and widespread corruption. This places a special responsibility on the NPA and its law enforcement partners. People understand that our current rule of law challenges are having profoundly negative downstream consequences.
Bold reforms needed
South Africa is a young democracy and a product of a series of compromises coming out of a period of protracted conflict that brought the country to the precipice of civil war. Our democratic institutions and legislative frameworks are imbued with a significant dose of euphoria and idealism that informed the new state-building project of the late 1990s.
With the benefit of hindsight, it is apparent that there are unintended design flaws that need to be corrected. Moreover, the world for which our criminal justice system was constructed decades ago has changed.
In the short to medium term, the NPA will focus on three potential game-changers that will significantly enhance its effectiveness.
First, once signed into law, the new NPA Amendment Act will bolster the ability of the NPA’s Idac to adopt the tried and tested prosecution-led approach that we know works. As a permanent entity, Idac will attract and retain the capacity and skills needed to deliver more effectively on its mandate.
Second, guided by its new organised crime strategy, the NPA is working with its partners to ramp up efforts to tackle organised crime. New syndicated forms of organised crime, with a propensity to violence, are becoming increasingly embedded and dangerous. Organised crime must be combatted proactively with specialised prosecutors and investigators.
Using a prosecution-led model, additional Investigating Directorates could be established in terms of the NPA Act to combat pervasive forms of organised crime, including extortion, kidnapping for ransom, and critical infrastructure theft.
Third, the NPA welcomes recent progress to enhance its financial and operational independence in law, which Parliament and the executive have committed to do. Legislation dealing with broader aspects of the NPA’s independence is to be submitted to Parliament in early 2025.
In the longer term, we need a fundamental review of the criminal justice system to enhance its integration, effectiveness, and ability to tackle the crime challenges facing South Africa today.
Fortunately, a lot of research has already gone into this bold endeavour. In 2008, a major government-sponsored study proposed fundamental changes to the criminal justice system, including better coordination, planning, and training.
It’s encouraging that the Department of Justice and Constitutional Development has recommitted to these plans and is updating them with new research and developments. We need to be bold and tenacious about implementing them.
Strong and independent criminal justice institutions are essential to the functioning of a democratic society and the protection of its citizens. The reform of our criminal justice system must prioritise the building of resilient institutions capable of surviving the vagaries of political change.
Such foundational work — while painstaking and often hidden from public view — is indispensable if the reforms to our laws and processes are to succeed and endure the trials and tribulations of the volatile world we inhabit. DM
Advocate Anton du Plessis is NPA Deputy National Director of Public Prosecutions.
Dr Martin Schönteich is a former prosecutor with extensive international experience in rule of law and justice sector reform.