There is only so much the executive can do to assure citizens and prospective investors that there is change and that there is no room for the corrupt and crooked. An effective, efficient and independent NPA bringing the high profile state capture accused to book, will have a massive effect on public sentiment, writes Mandy Wiener
“You betcha!!!” beeped the response on my phone from a senior prosecutor. It was a quick response to my question: So, is 2020 going to be the year of prosecutions for South Africa?
Expectations are high and constantly mounting. National Director of Public Prosecutions Shamila Batohi and her sidekick Hermione Cronje know this. We know they know it. Everyone knows it. They have to get the crooks and cronies behind state capture into the dock and into orange overalls through convictions.
We also know that it’s not so simple. Prosecutors need cast iron evidence that will hold up in court. Media reports won’t cut it. Many of the cases are complex and convoluted and need forensic capability to unravel – an overwhelming task for a service that is thin on capacity and stretched beyond its abilities.
Yet despite apparently insurmountable challenges, action appears to be happening.
Recently, the Sunday Times reported that a number of former executives at Eskom and Transnet, along with multi-national engineering firms, are set to face arrest within weeks. These include big fish Brian Molefe, Siyabonga Gama and Anoj Singh who are seen as the lynchpins of the state capture project at parastatals.
Hundreds of millions of rand were allegedly siphoned from Eskom and Transnet with company officials and Gupta linked companies benefiting.
Toward the end of the business year there was a flurry of activity from the Hawks and the NPA.
In mid-December, former senior Eskom executives were arrested on charges of fraud and corruption. The crimes were related to the troubled Kusile power station to the value of around R745 million.
The Hawks uncovered apparent gross manipulation of contractual agreements between contractors, Eskom employees and third parties at Kusile. The move was enough to temporarily satisfy a public hungry for justice but it wasn’t quite the big catch we were waiting for.
In December there was also news that Justice Minister Ronald Lamola was leading a delegation, including Batohi and Cronje, to the United Arab Emirates to try and secure the extradition of the Gupta brothers. This was a crucial development after the United States earlier in the year invoked the Magnitsky Act against them.
There were other arrests too and the beginnings of court cases which are set to play out over 2020.
Former President Jacob Zuma’s protracted corruption trial is set down to finally get underway in the first quarter of the year.
There was the charging of ex-Bosasa COO Angelo Agrizzi and former prisons boss Linda Mti, the arrest of ex-State Security Minister Bongani Bongo, the charging of the Amathole Toilet Ten and the arrest of Ethekwini mayor Zandile Gumede of fraud and corruption charges.
These trials could all play out over the course of 2020 if they aren’t delayed and drawn out by the accused.
But it’s the big arrests that will really influence the public sentiment and boost confidence. As a nation, we know what the numbers say about economic growth and investor confidence.
There is only so much the executive can do to assure citizens and prospective investors that there is change and that there is no room for the corrupt and crooked. An effective, efficient and independent NPA bringing the high profile state capture accused to book, will have a massive effect on public sentiment.
We remain hopeful and so do the leadership of the prosecuting authority, but as I’ve listed before, there are considerable hurdles that will have to be overcome.
Batohi has been at pains to lower expectations and for good reason too.
Former prosecutor and DA spokesperson on justice Glynnis Breytenbach says she is not convinced that 2020 will pan out as hoped and hyped.
“The public has not much confidence in the system and have grown cynical and impatient waiting for strong action. Not everyone understands the detailed preparation necessary for successful commercial prosecutions, nor the time necessary to prepare such cases. We are in a worse position than we were in at the beginning of 2019, simply because public perception remains one of an inefficient and ineffective prosecution service. No consequences for bad behaviour simply encourages criminal behaviour and increases public apathy.
“I hope 2020 will bring the prosecutions we so badly need to see. But I am not convinced that it is possible to deliver on public expectation. I am told that there are problems between the new Directorate and the SAPS, and this is really not the type of work that can be done remotely. It is essential, if this project is to succeed, that the prosecutors involved forge a strong relationship of trust with the SAPS involved, something that on the face of it, seems to be lacking.”
Constitutional law professor Pierre de Vos agrees that he doesn’t expect as many prosecutions as predicted.
“Some people who do not understand that the system has deliberately been broken and will take some time to fix, might have less confidence – but I have no way of knowing for certain. There may well be a few prosecutions in 2020. Not as much as the NPA predicts or as people expect. The big question is whether the prosecutions will stick and whether people will be convicted,” says de Vos.
CASAC’s Lawson Naidoo says that credibility is slowly being restored, but there is a risk that this will dissipate if high profile prosecutions are not forthcoming soon.
“We need prosecutions to demonstrate that accountability means something in South Africa, that the culture of impunity is over,” says Naidoo.
It will be convictions and not prosecutions, that will truly have an impact on society’s psyche and sentiment. But convictions don’t come quickly or easily – there will have to be trials or plea deals first before we get there. So if “you betcha” that 2020 is going to be the year of prosecutions, get comfortable because there is going to be lots to watch this year.