Guest Column

Charging corrupt public officials today will be celebrated tomorrow

2017-07-28 14:49
The National Prosecuting Authority advocate Shaun Abrahams appears before a parliamentary committee. (Jaco Marais, Gallo Images, Rapport)

The National Prosecuting Authority advocate Shaun Abrahams appears before a parliamentary committee. (Jaco Marais, Gallo Images, Rapport)

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Wayne Duvenhage

In today’s South Africa of repeated headlines featuring the brazenly corrupt who defiantly operate with impunity, it’s easy to understand why many people no longer get excited when they hear about “criminal complaints filed” or “charges of corruption, fraud and racketeering laid...”

They’ve heard it far more times than they’ve received news of ongoing investigations or successful prosecutions. The wheels of justice appear to be jammed when it comes to holding the corrupt and captured to account for their transgressions, or so it would seem.

Thus the question we are repeatedly asked at OUTA: Why do we bother at all with laying these charges with the law enforcement authorities, knowing they will in all likelihood not act on them?

The answer is simply that focused and diligent action and charges against those involved in the corruption and decay of governance in South Africa, far outweighs the temptations of apathy and this becomes more pertinent when the state’s side of the transaction appears to be missing in action.

Just as the state’s unacceptable conduct was meted out during the brutal history of our criminal justice system under the apartheid regime, so today the forces of political interference are at play in the NPA and the Hawks by ignoring the expressly available evidence of serious corruption related to the spending of state funds. 

While civil society has a moral and ethical duty to report crimes when discovered, the deeper answer and reasons behind OUTA’s multifaceted actions lies in our aim to ensure the authorities are given no room to ignore the glaring evidence of state capture, which gives rise to massive looting and the compromising of our state institutions that threaten the very existence of our democracy. 

In so doing, we demonstrate an overwhelming faith in the future of South Africa. One that refuses to accept that today’s architects and purveyors of state capture will remain in control of the nation’s purse strings in perpetuity. 

We sincerely believe that in the not too distant future, new leadership will ascend to power and the current lid placed on the enforcement agencies will be lifted. This in turn will enable tomorrow’s wheels of justice to be well oiled as it metes out the corrective action against todays perpetrators of unjust conduct. Deserved incarceration, along with the recovery of stolen goods and funds will surely follow. 

Every day we are thanked by people within state institutions, and told that our work inspires them to hang in to stem the tide of corruption from within. Additionally, our work has brought untold messages of support and inspired feelings of heightened hope for the future of our country as a whole.

However, we believe our work goes well beyond the raising of spirits and hope that one day something will come of our charges laid. Our case files and laying criminal charges has numerous other benefits and avenues of action that stem from this work, some of which are:

• Help to obtain mandamus rulings (a court order to force the authorities to do their jobs).
• They enable the possibility of Anton Piller search warrants (private search and seizure orders). 
• Then there is the private asset freezing orders locally and abroad (Mareva injunctions)
• Certifications for private prosecutions are also a possibility from our persistent actions.  
• Statutory reporting of suspected crimes can also be registered in foreign territories since most corruption, tax evasion and money laundering crimes are considered extra-territorial in execution. This means that other countries’ law enforcement agencies may well be able to act when our own choose not to. 
• From our charges, cases are raised against the legal practitioners, accountants and auditors who may have aided and abetted these crimes, both locally and overseas.
• Our cases also assist oversight bodies such as CIPC, the SA Institute for Chartered Accountants and others to bar perpetrators from future director appointments or practicing as chartered accountants and auditors.
Recently, the Minister of Police, Fikile Mbalula told all South Africans in a Daily Maverick opinion piece that, “We must solicit collaboration with all actors but importantly with our communities to deal with corruption”. 
Well, there he now has it and the question is, will he look away or turn to those in active citizenry who have placed the ball of many a winnable case of corrupt activity and state capture squarely at his feet?

Tom Moyane, the SARS Commissioner recently explained his reluctance to take action based on the #GuptaLeaks by saying he would take action only based on “factual information” not “fake news”. The NPA’s head, Shaun Abrahams also says action can only be taken if facts are presented and even President Zuma himself said, “If I am not told what I have done wrong, I cannot correct my mistakes.”  

With all the cases and evidence now laid at their feet, will they now rise to the challenge of their own words?

The cases that OUTA and others are filing today, will not fade or die. Once registered, they are on record and in the system. The current regime may wish to ignore, divert and interfere with the wheels of justice today, but the tide will eventually turn. It always does. Bad guys never win in the long run when the tide turns the rule of law will come into play. And when it does, civil society does not want to find itself frantically bringing dozens of cases against the captured and corrupt leadership previously in power - a few months or years from now. Under such circumstances the guilty parties would no doubt claim to be victims of a witch-hunt.
Furthermore, laying multiple complaints many months or years after the event tends to result in sloppy and incomplete work, beset with problems of whistleblowers and witnesses who have moved on and pertinent information or records lost in the passage of time. In any event, where we find situations deemed fit to invoke private actions as listed earlier, and registering cases in other countries, in most instances we would be required to demonstrate that we had done the minimum required of notifying our own law enforcement agencies and afforded them the opportunity to do what was expected of them.
While dedicated people provide the energy behind OUTA’s work, the organisation is nothing without the support it receives from tens of thousands of proud South Africans who each contribute a small monthly amount through a quick and easy sign up process. We call it “Crowd Funding for South Africa’s Prosperity” and as a registered non-profit organisation, all funds go toward paying salaries, litigation expenses and provisions (reduced through the employment of our own internal legal capacity), office rent and general operating costs.
It is extremely unfortunate that South Africa will be paying for state capture looting for years and generations to come. The arms deal loans, signed in 1999, will be finally paid off only in 2020. Deals being signed now within state-owned entities like Eskom and Prasa will haunt us for decades.  

Doing nothing to halt the looting and state plunder is not an option.

- Wayne Duvenhage is chairperson of OUTA.

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