In this series for Daily Maverick, executive director of the Centre for Development and Enterprise (CDE) Ann Bernstein makes the case for a policy agenda that is substantially different from what we have seen over the past 15 years.

It is drawn from Agenda 2024: Priorities for South Africa’s new government, which is based on CDE’s extensive policy work and recent collaboration with experts, business leaders, former public servants, and others across our society. The project sets out to answer the most important question facing South Africa: what can a new government do to get the country back on track after 15 years of stagnation and decline?

The sixth article in the series makes the case for an energised National Prosecuting Authority (NPA). Read Part One here, Part Two here,  Part Three here, Part Four here and Part Five here.

South Africa faces crises on many fronts, none of which can be resolved unless the economy grows and the state becomes much more effective. The ongoing looting of public resources and seeming inability of law enforcement agencies to protect the state from “the enemy within” – powerful people who use their positions for self-enrichment and patronage – make this impossible. The period of State Capture was the epitome of this, but the same patterns continue to exist today.

Society and government cannot protect themselves without vastly improved performance from the NPA – the body constitutionally mandated to institute criminal proceedings on behalf of the state.

The NPA has been at the centre of the State Capture project. Over many years it has been gravely weakened by political interference. The process started with the closure in 2009 of the Directorate of Special Operations – the Scorpions – an independent unit housed in the NPA that combined investigation and prosecution capacities, focused on high-level priority crimes.

The low point of the process was reached when President Jacob Zuma appointed the pliable Shaun Abrahams to replace Mxolisi Nxasana as National Director of Public Prosecutions (NDPP) in 2015.

Hopes were high when the current NDPP, Shamila Batohi, was appointed in December 2018. However, nearly six years later, there is widespread dissatisfaction with the NPA’s performance under her stewardship.

Dismal record

The NPA has a dismal record when it comes to initiating prosecutions and securing convictions in high-profile corruption cases. It has failed to prosecute a significant number of major corruption cases long identified in forensic reports into the Passenger Rail Authority of South Africa (2017) and Transnet and Eskom (2018), and by the Zondo Commission (2022).

In several instances, these reports provided the NPA with a complete or near-complete basis to issue an indictment, and where this was not so, more than enough time has elapsed to have permitted the commencement of prosecutions. Not one high-profile politician responsible for State Capture has been successfully prosecuted.

The NPA’s disappointing performance has encouraged impunity among criminals and failed to deter the spread of corruption, resulting in the hollowing out of state institutions, and has led to a pervasive sense of despair that the state cannot or will not enforce the law.

There are a number of explanations for this lack of performance, some of them contested.

Part of the problem lies with the Hawks. Established as an entity within the South African Police Service after lengthy litigation in the wake of civil society opposition to the Scorpions’ demise, the Hawks have proved a weak institution lacking capacity, independence and will.

Other possible causes of the NPA’s poor performance include internal divisions, insufficient support from government, poor leadership and the lack of experienced prosecutors and resources.

Rogue elements, obstructiveness

The NPA appears to still harbour rogue elements. For example, in August 2023 the national director requested the suspension of a director of prosecutions. Over a year later President Cyril Ramaphosa, whose assent is required by law to give effect to the suspension, has still not taken a decision on the matter.

The Department of Justice has refused the NPA’s request for access to the full archive of the Zondo Commission, including witness statements and investigation materials. The department’s obstructiveness hampers the NPA in investigating and prosecuting cases of corruption flagged in the Zondo Report.

Investigating and prosecuting corruption and organised crime is complex. The accused are often well-resourced, and they engage experienced litigators to stall the State’s case. Such “Stalingrad” tactics place serious strain on the human and financial resources of the NPA. Unfortunately, the prosecuting authority and the Investigating Directorate (the specialised anti-corruption unit within the NPA) are under-capacitated. The latter has only one data specialist.

Yet, Section 38 of the National Prosecuting Authority Act permits the engagement of private legal and forensic practitioners to perform services in specific cases. Despite the private sector’s willingness to assist (including pro bono offers by law firms), these overtures have often been rebuffed by the NPA. Cooperation with the private sector is improving, but it is vital for the NPA to harness the capacities and expertise of the private sector even more.

In the view of many experts, the NPA strategy of developing the most comprehensive set of charges against an accused is an important source of delay and lack of success. A better approach in our circumstances is for the NPA to focus on the charges that will be easiest and quickest to prove in court. Remember Al Capone, the notorious US mob boss who went to jail for tax offences.

CDE is proposing a raft of recommendations to strengthen the NPA.

The President must appoint a retired senior judge to undertake an urgent inquiry into the NPA. The goal should be to identify the specific causes of the NPA’s lack of performance and to recommend remedial actions. This review should assess the leadership, performance, structure and independence of the NPA and report within eight months.

The President must table the report in Parliament within three months of receipt together with any directives or explanations as to why the recommendations are not being implemented.

The NPA needs to be led by the best available people. The process of appointing national directors, directors and deputy directors should in future be modelled on the one employed in the appointment of the SARS Commissioner in 2019.

To address funding and resource challenges, the NPA and Idac should make much greater use of private legal and forensic assistance to prepare and conduct prosecutions. Carefully constructed entities that ensure the continued independence of the NPA should help channel private funding to pay the legal and forensic practitioners required by the NPA and IDAC. It is essential to ensure public accountability of these entities.

Unconditional support

The President and the minister of justice should publicly and repeatedly indicate their unconditional support for the work of the NPA in dealing with priority crimes even if those charged are powerful people.

This backing must include cooperation from ministers and senior officials in all investigations. Politicians truly committed to dealing with corruption should actively assist in the identification and investigation of wrongdoers from within their ranks.

As importantly, the Government of National Unity should signal its full backing of the NPA by significantly increasing its funding so that it can strengthen its expertise. Private funding and assistance should be seen as interim measures.

The justice minister should request the Chief Justice to discuss with the judge presidents of the high courts to establish special corruption courts drawing on retired and acting judges to reduce delays in prosecution, without placing extra pressure on the ordinary work of the courts.

The President must make a decision on the national director’s request in August 2023 to suspend the aforementioned NPA director and the minister of justice must release the full archive of the Zondo Commission so that it is available to the NPA. The current delays are inexplicable.

We urgently need to remedy the NPA’s many serious shortcomings, failing which there is no prospect of turning the tide against corruption and crime. A state must protect itself and its people from crime, especially the crimes of the powerful.

Re-energising the NPA is essential to building a capable state. DM

Ann Bernstein is executive director of CDE. This article draws on a new CDE report, Energise the NPA, which is the fifth action document in CDE’s Agenda 2024: Priorities for a new government series.

This article was published by the Daily Maverick