ANALYSIS | Dr Jean Redpath: State capture accountability - progress under a changing NPA

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The NPA accuses Dr Andrew Lekalakala of fraud.
The NPA accuses Dr Andrew Lekalakala of fraud.
PHOTO: Fani Mahuntsi, Gallo Images

While it must be acknowledged how difficult the task is that the NPA faces, nothing could be more important than the task ahead, because it is indeed the last stand for public accountability. The next few months are crucial for the NPA and for the country, writes the University of Western Cape's Dr Jean Redpath

To what extent has there been action by the National Prosecuting Authority (NPA) post-2019 against the primary movers of state capture and corruption?

The record shows there has been progress in prosecuting those who may have expected "political immunity" from prosecution. Some key precedents and changes within the NPA pave the way for an increase in momentum, which is starting to become apparent.  

Former president Zuma  

Former president Jacob Zuma is top of the list of the most important players in state capture. His current prosecution first commenced before he became president, and accordingly the case does not relate to the official state capture period. However, the case is symbolically important. The 2007 decision by then National Director of Public Prosecutions (NDPP) Bulelani Ngcuka not to prosecute Zuma for corruption, while nevertheless prosecuting Schabir Shaik for corrupting him, effectively cleared the way for Zuma's presidency of the ANC and of the country, and for the decade of state capture which followed.

Fast forward to 2022, and Zuma has seemingly not yet run out of "Stalingrad" tactics in preventing his resumed prosecution. Zuma's trial was due to start the day before his 80th birthday, on 11 April 2022, in the Pietermaritzburg High Court. It was then diarised for 17 May 2022 to allow time for Judge President of the Supreme Court of Appeal (SCA), Mandisa Maya, to consider an appeal for her to intervene in terms of section 17(2)(f) of the Superior Courts Act, which allows the Judge President to personally intervene in "exceptional circumstances". By 17 May, she had not yet responded, and the case was again postponed, to 1 August 2022. In the interim, Maya dismissed the request to intervene, blaming internal processes for the delay.

The eventual decision to prosecute Zuma in relation to his dealings with Schaik was taken by NDPP Shaun Abrahams in March 2018 after another NDPP's 2009 decision not to prosecute, that of Mokotedi Mpshe, was confirmed to be irrational and overturned by the Supreme Court of Appeal, in an application brought by the Democratic Alliance – in other words, it was effectively forced on the then NDPP. From 2019 onwards, however, the NPA has been under the leadership of Shamila Batohi, who has had the unenviable job of attempting to turn around the NPA, itself a target of capture, including ensuring that its senior members have the will and skill to prosecute. In 2022, Zuma's case continues to be pursued by veteran prosecutor Billy Downer, who publicly disagreed with previous NDPP decisions not to prosecute.

An important additional result of the Zuma SCA case for the NPA relates to the oft-repeated accusation by the so-called "Radical Economic Transformation" (RET) faction of the African National Congress that the NPA is "politically targeting" prosecutions of the RET-allied. Indeed, former president Zuma's lawyers initially argued successfully in the high court that the timing of Zuma's charging was "political" and therefore Zuma's entire prosecution could not stand. The Supreme Court of Appeal pronounced strongly against this spurious line of reasoning: if a case is essentially sound, the timing or other aspect of it cannot subvert the whole case nor support its withdrawal by the NPA (Navsa J in Zuma v Democratic Alliance). This is important, given that any prosecution proceeding in 2022 might be accused of being "timed" around the ANC's elective conference in December 2022.

The Guptas

Zuma was indeed key to the post-2007 state capture project, most notably in his dealings with Atul and Varun Gupta. Much of what happened during the Zuma's presidency clearly falls in the ambit of the offence of corruption in public office as defined in the Prevention and Combating of Corrupt Activities Act (as well as other offences). For the offence of corruption in relation to public office, it must be shown, in brief, that (1) the accused accepted gratification for himself or for someone else (2) in order to act, broadly speaking, improperly. The Guptas' "gratification" to Zuma included employment of and gifts to Zuma's children. It was not only Zuma who was in corrupt relationship with the Guptas, however, and any number of distinct cases may be brought against them.   

The NPA's Investigating Directorate announced – twice – that Interpol (the International Criminal Police Organisation) had issued red notices for the Guptas' arrest, on request of the NPA. Their names were not on the public Red Notice list, however, suggesting that help was not needed in establishing their whereabouts. The Guptas were subsequently arrested in the United Arab Emirates. Extradition proceedings are being spearheaded by Anton Katz, who is working with the NPA and is among the most well-known of Senior Counsel in extradition matters, and among the very few lawyers who have answered the NPA's appeal to provide assistance.  

It is not necessary for the NPA to convict the perpetrators of corruption for every separate offence with different facts with which they are connected. One solid conviction is likely to result in a significant penalty; additional charges on different facts may always be brought at a later stage, for those who are serial offenders.

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The names of Atul and Rajesh Gupta, and their wives, Chetali and Arti, appear on a charge sheet among a group of 17 accused in an indictment presented at the Bloemfontein Magistrate's Court, where their associate, Iqbal Sharma, and three former government officials appeared briefly on 3 June 2021. The case relates to a 2011 contract awarded to Sharma's company, Nulane Investments 204, to perform due diligence on what would later become the Vrede Dairy Project, under then Free State Premier Ace Magashule. A case management session is set down for September 2021 in the Bloemfontein High Court, and trial is scheduled for early 2023, from 23 January to 3 March.

The Optimum Mine, a Gupta asset, was "frozen" on 23 March 2022 on application by the NPA's Asset Forfeiture Unit (AFU) in December 2021 for a preservation order, after the media reported its imminent sale. Such freezing is the first step in a forfeiture process. Forfeiture may run independently of criminal prosecutions; so-called "civil" asset forfeiture (as opposed to criminal, which follows a conviction) need only be proved on a balance of probabilities, showing that the asset is either "an instrumentality of an offence" or "the proceeds of crime". Other Gupta assets frozen include a private jet, a house in Saxonwold, Johannesburg, and another house in Constantia, Cape Town. Preservation orders expire after 90 days, unless there is a forfeiture application before court. 

Ace Magashule

After Zuma and the Guptas, arguably next on the seniority list is Ace Magashule, elected to the ANC national executive in 2017, the former premier of the Free State, and former secretary-general of the ANC, until the ANC's July 2021 step-aside rule. Magashule is implicated in a variety of matters, including murder, detailed in journalist Pieter-Louis Myburgh's book Gangster State. Corruption involving an audit of asbestos in housing in the Free State has been prominent in the allegations against him, and this case has made the most progress. In March 2022 the Bloemfontein High Court dismissed the applications by Magashule and his co-accused, including former Mangaung mayor Olly Mlamleli, and five companies, including Edwin Sodi's Blackhead Consulting, to have the charges dropped. The next step in the process is a pre-trial conference on 23 September 2022, after which a trial date can be arranged.  

Magashule's relative youth, prior seeming stature within the ANC, and implication in acts of violence against political rivals make his cases particularly important. Johannes de Nysschen is prosecuting the asbestos case. De Nysschen is also currently prosecuting the case against Stanley Bakili and co-accused in the conspiracy to murder CityMed managing director, Louis Siemens, who was shot four times, assassination-style, in the basement parking of the Preller Square shopping complex in May 2018. It is alleged Bakili took bribes for the amendment of CityMed's hospital licence. De Nysschen has been assigned bodyguards for protection after his home was burgled. The confessed shooter, Xolisile Botha Mbebetho, is already serving 22 years for killing Siemens.  

The DPP in the Free State is Navilla Somaru, who replaced Xolisile Khanyile, who was appointed to the Financial Intelligence Centre in January 2018. In 2016, the Treatment Action Campaign wrote an open letter to Khanyile's office drawing attention to long delays in corruption matters in her jurisdiction, including that relating to former Free State MEC of Health Benny Malakoane; the charges against him were withdrawn in July 2018. Somaru brings new energy and openness to the Free State DPP's office.

Former mayor Zandile Gumede

In addition to Zuma's case, the KZN Division is also dealing with the high-profile prosecution of former mayor Zandile Gumede and her 21 co-accused. Elaine Zungu has replaced Moipone Noko as DPP in KZN. Noko was first moved to the North West and then resigned in February 2021. Noko's questionable decisions included decisions not to prosecute Umhlanga businessman Thoshan Panday and senior police officers in the FIFA 2010 World Cup graft scandal, and, conversely, to prosecute former KZN Hawks head Johan Booysen and detectives of the Cato Manor and Port Shepstone organised crime units with racketeering, murder and robbery in the since discredited "Cato Manor death squad" saga.

Trial is set down for 18 July to 31 August 2022. The facts relate to alleged tender fraud in Durban's Solid Waste Management, with 2 786 charges relating to more than R320 million. Gumede stepped aside as mayor in 2019 and as Member of the Provincial Legislature in KZN in 2021, after the ANC step-aside rule was formulated in 2021. However, in the interim, Gumede was voted in as leader of the ANC in KwaZulu-Natal in the ANC regional conference of April 2022, but later stepped aside. The case is being prosecuted by Ashika Lucken, who previously successfully convicted notorious cheque fraudster Nadeem Arshad on 26 counts, leading to a sentence of 18 years' imprisonment.

Zungu's appointment bodes well for future decisions in this crucial division. It is Directors of Public Prosecutions in the various Divisions of the High Court who make the decisions in their jurisdiction. However, the NDPP "may intervene in any prosecution process when policy directives are not complied with" and "may review a decision to prosecute or not to prosecute, after consulting the relevant DPP and after taking representations". This is what occurred in the original Zuma prosecution back in 2007. Batohi has made it clear that she will not lightly meddle with DPP's decisions; changes to DPPs have also enabled this stance.

Former minister Bathabile Dlamini

In Gauteng, one former minister has been successfully prosecuted. Former minister of social development and the president of the ANC Women's League, Bathabile Dlamini, was found guilty in March 2022 of perjury by the Johannesburg Magistrate's Court for lying under oath during a 2017 inquiry into the social grants debacle at the South African Social Security Agency. Her conviction is an example of the strategic prosecution of "low-hanging fruit" – less complicated, easier to prove cases. Her sentence of four years in prison (half of which suspended for five years) or a R200 000 fine unfortunately does not constitutionally exclude her from public office; for exclusion the Constitution stipulates a period of 12 months' imprisonment without the option of a fine. Dlamini's case was prosecuted by Matthews Rampyapedi (who also convicted Tsotsi star Presley Chweneyagae on a guilty plea).

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DPP Andrew Chauke (formerly South Gauteng Division; now Gauteng Local Division) reportedly made a decision to prosecute Dlamini in August 2021; his division, however, is not without controversy. In February 2022, Johannesburg chief prosecutor Pumeza Futshane, who is married to Chauke, was disciplined internally. She is alleged to have used hate speech and xenophobia on social media, manipulated performance data, and demoted experienced prosecutors in the sexual offences' courts to the maintenance court. The hearing recommended her dismissal. AfriForum's Private Prosecution Unit, under former NPA prosecutor Gerrie Nel, had pushed for an investigation into the accusations against Futshane, which first emerged in 2019, but she was only suspended in March 2021.

Chauke and NDPP Batohi have reportedly clashed over, among other things, the initial failure to prosecute Duduzane Zuma for culpable homicide after an accident in his Porsche. Zuma junior was prosecuted, but acquitted, although an inquest had found him negligent (culpable homicide is the unlawful, negligent causing of death of a human being). Chauke remains DPP in this Division.

Former ANC Youth League deputy president

In the Eastern Cape Division, Andile Lungisa, the former ANC Youth League deputy president and Nelson Mandela Bay councillor, was convicted and sentenced to three years' imprisonment in the Port Elizabeth Magistrate's Court in 2018, of which one was suspended for five years, after being found guilty of assault with intent to cause grievous bodily harm for smashing a glass jug on the head of DA councillor Rano Kayser in the council in 2016, on camera. The sentence theoretically should bar him from public office until 2025, although he served only a fraction of his sentence.  

Previously, Lungisa and three others had faced money laundering charges in relation to R2.5 million paid out by the arts and culture department for a Nelson Mandela Sports Day concert, which event never happened. The charges, which were brought in the Johannesburg Commercial Crimes Court, were later withdrawn in 2016; it is unclear whether they will be reinstated. In the interim, Lungisa was arrested for a Covid-19 gathering violation; depending on his parole conditions, this should have triggered his return to prison, but apparently did not.

These are only snapshots of the tortuous progress of a few notable cases involving the political elite. Many prosecutions began in the pre-2019 era; there is progress post-2019, particularly during 2022, where the pace has increased. August 2022 will be a month to watch.

The Zondo Commission has now made more than 300 recommendations for prosecution to the NPA, many of which are not yet before the courts. The only feasible way forward is for the NPA to succeed soon in one or two high-profile matters already enrolled, and to use that precedent to persuade other likely accused persons into plea bargains. In the absence of an initial record of success, this is less likely.

The NPA is a relatively small organisation of approximately 4 500 people, of which only around 3 000 are prosecutors. Only a smaller number still have the experience and skills to prosecute complex cases, including those of corruption. The task in prosecuting these cases is not only difficult but fraught, and in some cases dangerous. The individual prosecutors working hard to secure convictions deserve South Africa's appreciation and support.

This is not to say there are not problems with the institution of the NPA, nor that there are not things to improve. Yet, the NPA, as an institution in 2022, is a great deal better than the NPA of pre-2019, not least with better leadership, and it appears to be starting to set a new standard for itself that acknowledges that the practices and thinking of the 10 years before 2019 compromised the independence, accountability, competence and credibility of the institution.

There is also greater transparency from the NPA, reflected in the media, social media and briefings to Parliament and engagements with civil society, and a willingness to make use of outside expertise where appropriate.

The NPA is, in many ways, the lynchpin of our democracy. While it must be acknowledged how difficult the task is that it faces, nothing could be more important than the task ahead, because the NPA is indeed the last stand for public accountability. The next few months are crucial for the NPA and for the country.

- Dr Jean Redpath is a Senior Researcher at Africa Criminal Justice Reform, a programme of the Dullah Omar Institute, University of the Western Cape. 

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