OPINION: The mandarins entrusted with state power can fool themselves about their sense of self-importance, but sooner or later they will face the day of reckoning, writes Professor Sipho Seepe.
IN A CONSTITUTIONAL democracy such as ours, all organs of state are regulated by the Constitution. The National Prosecuting Authority (NPA) is no exception. Section 179 (4) of the Constitution is crystal clear in expecting the NPA to exercise its prosecuting without fear, favour or prejudice.
Equally, section 35 (3) of the Constitution is unambiguous in that “every accused person has a right to a fair trial, which includes the right (a) to be informed of the charge with sufficient detail to answer it; (b) to have adequate time and facilities to prepare a defence; and (c) to have their trial begin and conclude without unreasonable delay.
In anticipation of possible violations of its injunctions, the drafters of the Constitution ensured that its supremacy is affirmed. Section 2 expressly affirms this by stating that “law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.
It would seem that far from being guided by clearly expressed constitutional injunctions, the NPA has become a law unto itself.
Accused individuals have had to approach the courts to compel the NPA to provide them with information that they will need to prepare for their defence.
As if that was not enough, there are too many instances which seem to suggest that the NPA has embroiled itself in the factional battles of the ruling party. In doing so, it has become a useful tool in settling personal and political scores that are linked to the internecine battles that engulf the ruling party.
Drunk with power, the NPA has become brazen in violating almost every aspect of the Constitution stated above. The agency has been quick to charge individuals without the having had enough evidence of their wrong doing.
Numerous politicians associated with a political faction seen to be opposed to that of President Cyril Ramaphosa have seemingly been targeted and charged by the NPA. Instead of being subjected to a speedy trial, they have been subjected to unreasonable delays due to the lack of evidence or preparedness by the NPA.
In targeting politically exposed individuals, the NPA has been so brazen in persecuting and prosecuting the anti-Ramaphosa factions that it had misrepresented itself in court.
In a case involving the suspended secretary-general of the ANC, Ace Magashule, the NPA had tried to bully the former personal assistant of Magashule, Moroadi Cholota, into being a State witness against him.
Cholota only learnt of this through the media. For her refusal to testify against her boss, the NPA has sought to retaliate by charging her. A warrant of arrest has reportedly been issued against her.
In other jurisdiction, the court would have invoked the doctrine of clean hands which required that the state would be denied any relief when it comes to court with dirty hands. Emboldened by the courts, the NPA seems to be at liberty to violate the rights of defenders with impunity.
The case of Duduzane Zuma, the son of former president Jacob Zuma stands out as one of the most egregious abuse of power. Following a lot of noise by mainstream media, Zuma junior was arrested after he came back to attend the funeral of his brother. He was immediately manacled and brought to court. The case was thrown out due to lack of evidence.
The so-called crisis at the NPA is self-manufactured and perpetuated by political leaders who discovered that using the NPA prosecution against one’s opponents can yield untold political benefits to those in power.
Criminal prosecution of political rivals effectively serves to sideline them from all political activities while the cases drag out in court, for a decade or even longer as the Brian Hlongwa case showed.
The NPA which finds itself pursuing frivolous or unwinnable cases is saddled with the responsibility of prosecuting hopeless and meritless cases. Sometimes this appears to be out of courtesy to certain political leaders with vested political interest in the prosecution
The NPA has forgotten one guiding principle enunciated by former US president Theodore Roosevelt: “No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favour.”
The prosecutors and judges who administer justice in our country must be seen as ethical and subject to meaningful correction when it is necessary. Nothing less than the rule of law is at stake.
Investigators have certain powers that make them prone to political manipulation especially at the initial stages of cases. This has given rise to a culture of lawlessness where the Hawks publicise investigations against politically active persons, not only to defame them but also to cripple them politically.
Some cases are prosecuted simply because of who the defendant is and not because any significant issue of law. Arguably, the Bathabile Dlamini matter is a case in point.
In the face of loud calls from some politicians that the NPA should succumb to their pressure to expedite prosecutions, it is necessary to highlight that evidence from the Zondo commission is not automatically admissible in a court of law. Around the world evidence of a commission of inquiry is not even admissible in court.
In South Africa, the change in the Zondo commission’s regulations, to allow law enforcement agencies to access evidence presented at the commission, has not yet been tested in the courts.
Zondo’s stingy approach to allowing cross-examination of witnesses means that most of the evidence allowed in without the benefit of cross-examination will be virtually useless to the NPA. In addition, Zondo will be subject to a judicial review by the many persons who were denied the right to cross-examine their accusers or those implicating them in corruption and maladministration. This will take years of litigation.
The NPA and its political crowd are blithely oblivious to the serious procedural and evidentiary hurdles that await the Zondo report. It will be a huge disappointment to those who naively believe that the Zondo commission has some panacea to a dysfunctional NPA and the slow pace of prosecution in corruption cases.
Instead of dealing with the serious public misinformation about what the NPA can or cannot do with regard to state capture corruption cases, National Director of Public Prosecutions Shamila Batohi has contributed to the spreading of untested information about the NPA’s capacity. Batohi is adamant that the NPA has the capacity to prosecute complex crimes that involve high-profile people.
Batohi’s briefing comes shortly after the resignation of Investigating Directorate head advocate Hermione Cronje, who was appointed in 2019, to lead the newly established directorate which is aimed at fighting corruption.
Well-resourced defendants will completely render nugatory any so-called findings of the Zondo commission. Years of litigation will follow before the Zondo commission can be accepted as anything of value. An independent and tough-minded NDPP cannot simply stand idly by and await the outcome of the Zondo commission.
The mandarins entrusted with state power can fool themselves about their sense of self-importance, sooner or later, they will face the day of reckoning.
* Professor Sipho Seepe is Deputy Vice-Chancellor of Institutional Support at the University of Zululand.
** The views expressed here are not necessarily those of the DFA.