How the NPA lost its way

2012-02-11 12:00

I remember a time when the National Prosecuting Authority (NPA) was sexy.

It was the five years or so after ANC parliamentarian Bulelani Thandabantu Ngcuka was appointed South Africa’s first national director of public prosecutions in 1998.
The transformed NPA – now led by a single “super attorney-general” – was seen as a ­beacon of righteousness; a moral rock that performed its duties without fear, favour or prejudice.

Predictably, the opposition parties in ­Parliament questioned Ngcuka’s objectivity. But in a relatively short period of time he managed to build an institution that, at least from the outside, looked strong, clean and competent.
Those years feel awfully long ago.

The NPA is a flicker of its old self, plagued by internal power battles, witch-hunts and pungent odours of political influence.
Good prosecutors are leaving in droves, I am told, and those who stay keep their mouths shut and follow orders. It’s tough to find a job out there.

“Prosecutors have been totally emasculated. What’s going on is frightening, but you dare not speak out. People have kids and families you know,” a senior prosecutor ­recently told me.

What was different 14 years ago?

With the establishment of the NPA and the office of the national director of public ­prosecutions through new legislation, ­Ngcuka took the gap to start afresh. Cabinet?– surely with his input – appointed a mix of experienced prosecutors (Jan Henning, Jan D’Oliviera and Frank Kahn) and new blood (Willie Hofmeyr, Silas Ramaite and Leonard McCarthy) to senior positions.

With that came the establishment of specialised units to focus on specific categories of crime: sexual offences, corruption and fraud, organised crime, terrorism and crimes against the state. Ngcuka’s public relations machine was in overdrive and the NPA’s successes were widely published, to the joy of the chattering classes.

Talented lawyers gave up private sector jobs to join this cool new outfit. Along with the taxman, the NPA was easily the most ­attractive government agency to work for.
But all that changed when the NPA, ­specifically the Scorpions, started targeting senior ANC politicians, most notably Mac Maharaj, Tony Yengeni, Ngoako Ramatlhodi and Jacob Zuma.

Ngcuka’s demise was kickstarted by an ­off-the-record briefing to black newspaper editors in 2003, where he boasted about his high-profile investigations and smeared ­Zuma. Shortly after that he was accused by Maharaj and Moe Shaik, brother to arms deal-implicated Schabir and Chippy Shaik, of having been an impimpi for the apartheid state. A protracted commission of inquiry kept Ngcuka out of the anti-crime spotlight and eventually found there was no evidence to support the claim.

In another injudicious moment in 2003, Ngcuka announced there was a prima facie case of corruption against Zuma, but chances of a successful prosecution were slim. He declined to prosecute Zuma with Shaik.

This was one of two decisions that fundamentally changed the being and public perception of the NPA. Zuma’s supporters saw this as a sly way of prosecuting him in the public domain. It also formed the cornerstone of Zuma’s conspiracy chant, which ­ultimately led him to victory over Thabo Mbeki in Polokwane. Ironically, this decision by Ngcuka probably kept Zuma out of jail.

Arms deal prosecutor Billy Downer ­revealed years later that Ngcuka acted against his advice as well as that of his then colleague Advocate Gerda Ferreira when he decided not to prosecute Zuma. They wanted to charge Zuma and Shaik together.
Remember what Judge Hilary Squires found? That there was a “mutually beneficial symbiosis” between the corrupt Shaik and Zuma.

After Ngcuka came Advocate Vusi Pikoli, who inherited the Zuma matter and became the face of the Jackie Selebi prosecution.

Again the political forces struck: Pikoli was suspended after he had obtained arrest and search warrants against Selebi. It later emerged during the Ginwala Commission’s hearings that despite briefing Mbeki and his lieutenants on numerous occasions, the former president, through his justice minister Brigitte Mabandla and her director-general Menzi Simelane, effectively halted the Selebi probe.

It was only after an independent panel analysed the Selebi docket that he was charged in court. What transpired is history.Like his predecessor, Pikoli was cleared by a commission of inquiry, but left his office.

The Pikoli decision, taken by caretaker president Kgalema Motlanthe, had a chilling effect on the NPA and was a deeply demoralising experience for prosecutors who saw in him a straight-walking, principled man.

Little did they know what was to follow: in April 2009, a month before the national election, Advocate Mokotedi Mpshe, who had been the acting national director of ­public prosecutions since Pikoli’s suspension in 2007, announced the dropping of corruption charges against Zuma. This was the second decision that changed the NPA’s ways.

Zuma’s lawyer mysteriously obtained ­secret recordings of conversations between McCarthy and Ngcuka, during which they discussed the timing of charges against ­Zuma and how it could affect the ANC’s ­leadership race.
Mpshe, supported by Hofmeyr, argued that the NPA couldn’t go to court to prosecute Zuma with dirty hands and that the case had been terminally contaminated.

In the same press conference, Mpshe ­confirmed that he – who ultimately had to decide when and how Zuma should be prosecuted – wasn’t influenced by the “big talking” of Ngcuka and McCarthy.
Downer and his colleagues publicly ­distanced themselves from the decision. The DA is currently challenging Mpshe’s decree in court.
Mpshe was swiftly moved out of the NPA and is working as an acting judge in the Land Claims Court.
Zuma replaced him with no other than Simelane – a party loyalist who was labelled dishonest by the Ginwala report.

Simelane served as national director of public prosecutions for two years before the Supreme Court of Appeal cancelled his ­appointment in December, saying Zuma had not applied his mind to determine whether Simelane was fit and proper for the job.

Senior staff who worked with Simelane said he was “totally out of his depth” and was very careful not to rock the political boat.

The latest quarrel at the NPA – disciplinary action against respected prosecutor Glynnis Breytenbach, fuelled by seemingly cynical motives – has the potential to destroy what morale and commitment is left in the NPA.

Again politically-connected individuals are at the heart of the battle: crime intelligence head Richard Mdluli and Zuma’s son and friends. Will this be the straw that finally breaks the camel’s back?


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