Prosecution reforms finally have potential to sharpen South Africa’s anti-corruption drive

By Gareth Newham

27 Oct 2022

New measures could put the sting back in the tail of SA’s efforts to curb high-level corruption.

South Africa’s President Cyril Ramaphosa recently set out several government responses to the more than 350 recommendations made by the Zondo State Capture commission of inquiry. Media attention has focused on the decision to make the National Prosecuting Authority’s (NPA) new Investigating Directorate (ID) permanent. This is indeed a crucial development but was one of three vital measures mentioned by the President.

The NPA’s Deputy National Director for Strategy, Operations and Compliance, Advocate Anton du Plessis, told ISS Today the package of reforms could transform the prosecution’s ability to tackle crime and corruption cases.

First, establishing the ID as a permanent, specialised anti-corruption investigation and prosecution agency is a vital step. The directorate currently exists in terms of a Presidential Proclamation for a period of three years, which means it operates under extremely vulnerable legal arrangements. The ID also relies on the secondment of investigators from the police’s Directorate for Priority Crime Investigation (the Hawks).

To give the ID permanence and the necessary investigative powers to tackle complex corruption cases will require legislative amendments, possibly to the NPA Act. However, once passed, the ID will be better protected against those with political power who seek to undermine corruption investigations and prosecutions.

As a permanent structure, the ID could offer security of tenure for its staff and build a highly motivated team of specialist investigators and prosecutors to pursue corrupt politicians, government officials and business people. Given that the ID has already registered 89 investigations and enrolled 28 cases resulting in 165 people appearing in court related to State Capture, a good foundation has been established.

A permanent ID could also better develop partnerships with other agencies and individuals, including in the private sector, who can help prove how public funds were stolen using complex and opaque methods.

Justice Minister Ronald Lamola said a process for ensuring private sector support would be in place by the end of June, and it’s time for a progress update.

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A second reform announced by Ramaphosa was that legal changes would be made to ensure greater transparency and consultation in the selection and appointment of the National Director of Public Prosecutions (NDPP). This is crucial given that former president Jacob Zuma’s modus operandi was to appoint people without the necessary skills or integrity to key positions such as the NDPP so that they could be controlled. The Zondo commission found that Zuma was central to State Capture.

A precedent has already been set in how the current NDPP was appointed. An independent panel of legal experts was established to shortlist candidates against key criteria, and the interviews were publicly broadcast.

A crucial third reform is that: “Work will be undertaken to clarify the Minister’s ‘final responsibility’ over the NPA as set out in section 33 of the NPA Act and settling aspects related to the NPA’s financial and administrative independence.”

Currently, the NPA is structured in an unusual way. While senior managers and prosecutors are employed in terms of the NPA Act — and so can remain independent — the organisation is formally a programme in the Department of Justice and Constitutional Development, and subject to the decisions of that ministry and department.

The deliberate underfunding of the NPA during the State Capture years severely weakened the organisation. For example, when current NDPP Advocate Shamila Batohi was appointed in 2019, the vacancy rate among prosecutors was over 20%. Basic activities such as training and IT development were also underfunded, as was the innovative Aspirant Prosecutor Programme. The programme had been a success story providing an entry point and training opportunity for many law graduates.

Under the current structural arrangement, the NPA’s top management has limited authority over the staff employed in terms of the Public Services Act. Senior administrative staff, who are the backbone of the prosecution service, ultimately report to the Director-General of the justice department. This limits the NDPP and her deputies, who seek innovative ways of responding to the considerable public demand for the NPA’s services. Rebuilding public trust in the NPA will be difficult under these circumstances.

Until the NPA is a fully independent organisation that controls its budget and administrative support services, the risk of interference remains. Achieving that requires Parliament to move with speed to process amendments to the NPA Act and other laws, such as the Prevention of Organised Crime Act. These changes will enable the ID to efficiently tackle people, networks and companies involved in nefarious financial activity.

Other ongoing efforts to strengthen the NPA’s accountability, such as setting up its Office for Ethics and Accountability, should now be fast-tracked by the justice department. Clear timelines are needed, and progress should be regularly reported.

Careful development and quick implementation of these three key interventions will go a long way to strengthening one of South Africa’s most vital criminal justice institutions. And that will undoubtedly be in the interests of the public and not those involved in crime and corruption. DM

Gareth Newham, Head, Justice and Violence Prevention, Institute for Security Studies (ISS) Pretoria.

This article was produced with support from the Hanns Seidel Foundation.

First published by ISS Today.

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