Mandy Wiener

After years of failure, 2019 is the time for justice

2019-01-07 08:24
Advocate Shamila Batohi moments after being announced by president Cyril Ramaphosa to be the new NDPP head. Picture: Felix Dlangamandla

Advocate Shamila Batohi moments after being announced by president Cyril Ramaphosa to be the new NDPP head. Picture: Felix Dlangamandla

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What a difference a year makes. Cast your mind back twelve months and the country's criminal justice system and law enforcement institutions are in a very different state today to what they were in then.

In January 2018, South Africa was just coming up for air following Cyril Ramaphosa's election as ANC president at Nasrec. Ramaphosa, despite the slightest of victories, brought with him the promise of a new dawn. However, an assessment of the state agencies in the criminal justice sector pre 'Thuma Mina', would have left many sceptical that any ambitious optimism of turning them around was horribly misplaced.

A year ago, Arthur Fraser was still wielding power at the State Security Agency despite revelations that he was allegedly running a parallel intelligence operation and had even installed a personal server at his home. There were suggestions he was abusing the shadowy world of spooks and spies for his own personal agenda.

Similarly, Tom Moyane was also still ensconced in his office at Lehae La SARS in Pretoria regardless of significant allegations of his own abuse of power during his tenure. At the NPA, Shaun Abrahams was also comfortably in control in Silverton although threats to his position were simmering. The High Court in Pretoria had already ruled that his appointment as NDPP was invalid, but he was taking that decision on appeal to the Constitutional Court, and so was the president (remember Jacob Zuma was still Number One and he had an interest in keeping Abrahams in place).

Twelve months ago, the SA Police Service management was in shambles. Khehla Sithole had only just been appointed as permanent national police commissioner but he was still scrambling to right the ship after the acting commissioner Khomotso Phahlane was implicated in corruption and given his marching orders. Both the Hawks and the Crime Intelligence Unit were still without permanent heads.

The Hawks was left in a mess following a standoff between former head Berning Ntlemeza and police minister Fikile Mbalula. Ntlemeza had reappointed every single provincial head of the Hawks when he came into office and his legacy lived on despite the fact he was chased out of town. Crime Intelligence was suffering from a decade of pillaging and abuse under Richard Mdluli and multiple acting heads had come and gone through the rotating door of the unit.

By all accounts the system was broken and was barely functional following an intentional, malicious campaign to eviscerate and hollow out law enforcement agencies for personal and political gain.

But over the course of 2018, Ramaphosa successfully began the tedious, laborious process of clearing out the rot and replacing the leadership of each institution.

In April, Fraser was moved from State Security to Correctional Services. In March, Moyane was suspended as head of SARS, although he bitterly fought this in court for the remainder of the year. In March, Crime Intelligence finally got a permanent head when Peter Jacobs was appointed. In May, Godfrey Lebeya was installed as head of the Hawks.

And finally, in December, advocate Shamila Batohi was picked as the country's new National Director of Public Prosecutions.

Despite the general perception that the system was broken, there were also green shoots emerging from the courts of law. Triple axe-murderer Henri van Breda was convicted of killing his family members. Sandile Mantsoe was sentenced to 32 years in jail for the gruesome death of his girlfriend Karabo Mokoena, in a case which rallied public outrage.

Many were also rivetted when Cheryl Zondi stoically spoke from the witness box against Nigerian televangelist Tim Omotoso. These were shards of light, illustrations of how the system does still work and how justice is meted out every day in the country's courts despite a belief that this is not so.

On the contrary though, in spite of the columns and columns of media coverage and stellar investigative reporting, law enforcement agencies failed dismally in 2018 to execute any kind of justice when it came to state capture or complex commercial crimes.

Witnesses testified at the Zondo commission of inquiry and the Nugent commission, pouring out details about blatant crimes committed by those who were responsible for running the country. Astonishingly, only two of these instances were translated into actual prosecutions. But then in November, the NPA disappointingly withdrew charges in its flagship state capture case, the Estina Dairy Farm prosecution. This was on the back of an earlier ruling in the year by the High Court in Bloemfontein which found that the NPA had to hand back R250 million worth of Gupta assets which were seized. It was embarrassing.

There has also been very little movement in the most prominent commercial crimes of recent times, the Steinhoff and VBS bank heist cases. The Hawks are investigating former CEO Markus Jooste and there have been multiple calls for his arrest, particularly after the Public Investment Corporation had to write off massive investments on behalf of the Government Employees Pension Fund.

Jooste testified before Parliament but remains free from the law in this country. With regard to VBS, the Hawks have stated publicly that statements have been taken from 65 witnesses but no arrests have yet been made.

These failings to get a grip on complex commercial crimes may have to do with the lack of capacity in state agencies. There is no longer one forensic accountant employed by the Hawks which makes it nearly impossible to unravel a web like Steinhoff or Estina. It's no secret that a large portion of the very best advocates, investigators and experts in the SAPS, NPA and SARS have either been pushed or pulled into the private sector over the past few years. While there are still many capable, committed civil servants working hard every day, their tasks are made even more difficult with increased caseloads and depleted resources.

Now that the top echelon of leadership at various state agencies has been replaced, it is time for each organisation to start getting its house in order and seeing to it that justice is done.

Batohi has a full inbox when she comes into the job in February but top of her list has to be state capture cases so that justice is seen to be done. Lebeya has to clean out any remnant of Ntlemeza that is left at the Hawks and ensure that all his members are fully behind him and concentrating on doing the hard work of putting together evidence and dockets so that successful prosecutions are possible.

Jacobs has his hands full at Crime Intelligence where there is currently a standoff between senior staff that has spilled over into the public domain. After years of turmoil in that unit, the country can't afford any more of it and intelligence officers need to busy themselves with gathering intelligence on criminals rather than fighting one another and stealing from the secret slush fund. We're also watching to see who gets appointed as SARS commissioner so that the business of revenue collection, which is so desperately needed, can get back on track.

The process of rebuilding has begun, and it won't happen overnight. It will be gradual, and patience will have to be exercised. There are no more excuses and now is the time that those who have plundered and pillaged must face the law – 2019 must be the year of meting out justice and holding power to account. 



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