Daily Maverick
Dailymaverick logo

Business Maverick

Business Maverick, DM168

Heavy criticism of National Prosecuting Authority, but slow and steady might win the race

Heavy criticism of National Prosecuting Authority, but slow and steady might win the race
Neesa Moodley
By Neesa Moodley
13 Oct 2024
Facebook
1
The National Prosecuting Authority has been accused of dragging its feet in rooting out corruption. Although there have been several key cases that have been successfully prosecuted recently, criticism has persisted as many people wonder, should the NPA be chasing plea deals? And why have corruption cases involving politicians not been closed?

Martin Schönteich, a consultant at the Institute for Security Studies, points out that an independent national prosecutor is fundamental to the integrity of a fair justice system. But the funding mechanism for the NPA is a factor that undermines that independence.

“Rather than receiving its budget directly from Parliament, the NPA relies on the Justice Department, with the department’s director-general acting as the accounting officer for the NPA’s budget. This creates a structural weakness, as the NPA’s financial wellbeing depends on another government entity,” he says.

Not only that, but key NPA appointments are made by the President, and the justice minister has the final say over the appointment of hundreds of deputy directors of public prosecutions.

This is a huge red flag, particularly when the current justice minister’s ethics have been flagged as questionable at best.

A joint investigation by Daily Maverick and News24 revealed that Justice Minister Thembi Simelane apparently accepted an amount of R575,600 from Ralliom Razwinane in 2016. At the time, she was mayor of Polokwane and directly authorised investments of R349-million in VBS Mutual Bank.

She has defended this claim, asserting that the money was a loan for a coffee shop and was repaid in full by January 2021. However, the first loan repayment was only made four years later on 9 October 2020, coincidentally on the same day that the serious corruption investigation task force in Limpopo started asking the Polokwane municipality some very pointed questions.

Out of line with international standards


Schönteich points out that the funding and appointment setup of the NPA is not in line with either the internationally recognised Jakarta Principles or the Colombo Commentary, both of which emphasise the need for financial and operational autonomy in prosecutorial bodies.

“Following the Zondo State Capture Commission’s 2022 recommendations, President Cyril Ramaphosa pledged to introduce reforms that would address the NPA’s financial and administrative independence. Yet in November 2023, the Portfolio Committee on Justice and Correctional Services expressed frustration over the lack of progress, urging the justice minister to introduce legislation by January 2025,” he says.

The Centre for Development and Enterprise (CDE) has recommended that the process of appointing national directors, directors and deputy directors should be modelled on the one used in the appointment of the SARS commissioner in 2019.  

Some of the problem areas identified in the turnaround of the NPA include a lack of capacity, prosecutors from the State Capture era who remain employed at the NPA, trying to build complex court cases rather than prosecuting to get people behind bars as soon as possible and resource challenges.

Daily Maverick looked at the NPA annual report for 2023/2024 for some insights.

The proof is in the pudding


In her foreword to the NPA annual report, National Director of Public Prosecutions Shamila Batohi refuted the widespread criticism of the NPA, pointing out that the Investigating Directorate has authorised 117 matters involving 212 accused persons and 68 entities. Of these, 78 are under investigation and 39 cases are enrolled.

“A quick scan of these cases will refute any suggestion that the NPA is not prosecuting any ‘big fish’ of State Capture. On the contrary, South Africa is one of the few countries in the world prosecuting many senior government officials and private sector actors for complex corruption and related offences,” she said.

The Specialised Commercial Crime Unit, working with the Directorate for Priority Crime Investigation, achieved 333 convictions in serious and complex commercial crime cases from 372 verdict cases. Four cases related to 16 recommendations from the Zondo Commission have been enrolled.

“Several other matters will be ready for enrolment in the next few months. In the past five years, almost 700 government officials and more than 1,000 private sector individuals have been convicted for corruption,” Batohi said.

Lack of capacity


One of the key action points in the CDE report deals with the lack of capacity at the NPA. Suggestions include encouraging public-private sector collaboration.

Key steps over the past year include 357 staff joining the team. Of these, 124 were recruited outside the NPA for permanent positions, 27 were brought in on fixed-term contracts and 206 were internal promotions and transfers.

The use of plea deals


Over the past few years, the NPA has adopted a corporate alternative dispute resolution policy. In simple terms, this entails electing to dispose of a suitable and applicable criminal case against a company other than through normal criminal court proceedings. Criminal cases are diverted away from the formal criminal justice system at the pre-trial stage, with a view to disposing the case against the company while still being able to proceed with prosecutions and asset forfeitures against the company’s directors, employees or agents.

 Corporate corruption plea deals


Three recent examples of plea deals are the 495-year sentence handed to former VBS chief executive Tshifhiwa Matodzi, which was in effect reduced to 15 years’ imprisonment, and the Steinhoff prosecutions.

After seven long years, which saw clear Stalingrad tactics employed by former Steinhoff chief executive Markus Jooste, the net had tightened considerably and Jooste died by suicide in March, just days before he was finally due to appear in court.

In the past month, the NPA has successfully concluded two plea deals related to the Steinhoff case. At the end of September former Steinhoff physician Dr Gerhardus Burger (79) received a five-year suspended sentence for insider trading in return for turning State witness. A week later, Steinhoff’s former chief financial officer, Ben le Grange, accepted a plea deal to take a 10-year sentence, of which five years are suspended for five years, and also turned State witness. DM

Neesa Moodley is an associate editor at Business Maverick.

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.

Categories:

Tags: