tag:theconversation.com,2011:/global/topics/npa-32325/articlesNPA – The Conversation2021-08-25T15:11:34Ztag:theconversation.com,2011:article/1666682021-08-25T15:11:34Z2021-08-25T15:11:34ZMissteps stand in the way of criminal liability in South African mental health patient deaths<figure><img src="https://images.theconversation.com/files/417609/original/file-20210824-24-2593zl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The 144 mental health care users were failed from the get go.</span> <span class="attribution"><span class="source">Alet Pretorius/Gallo Images/Getty Images</span></span></figcaption></figure><p><em>Between March and September 2016, nearly 2000 mental health care users were discharged from a private long term care facility after a South African provincial government organ cancelled a contract. Patients with varying mental health care needs were transferred to unlicensed nongovernmental organisations. It led to 144 deaths. Later, the public would hear details of how patients were deprived of basic provisions such as food, shelter and medication. Five years later no criminal charges have been instituted. On the eve of an <a href="https://section27.org.za/life-esidimeni/">inquest into the deaths</a>, Jo-Mari Visser unpacks how the system has failed to bring justice.</em></p>
<hr>
<h2>When did the system first fail those who lost their lives?</h2>
<p>Right at the beginning – the point at which <a href="https://www.dailymaverick.co.za/article/2017-09-04-health-e-news-esidimeni-unnatural-deaths-erased/">various medical officers</a> recorded causes of death on the death certificates.</p>
<p>First some context.</p>
<p>In South Africa, the <a href="https://www.npa.gov.za/node/9">National Prosecuting Authority (NPA)</a> is the government agency responsible for instituting criminal prosecutions and performing related functions. Included is the duty to help give effect to the provisions of the <a href="https://www.gov.za/sites/default/files/gcis_document/201505/act-58-1959.pdf">Inquest Act 58 of 1959</a> when a death due to unnatural causes has been reported to the South African Police Service. </p>
<p>The NPA decides whether there is any reason to get more information or to begin criminal proceedings. But this never happened because the deaths were recorded as natural.</p>
<p>Here’s how the process works. When the police investigation into an unnatural death has been completed and all information, post-mortem reports and witness statements have been included in the case file, it is submitted to the public prosecutors at the NPA. The Authority studies the contents of the file and decides whether there are any outstanding investigations still to be concluded. If so, the prosecutor will return the case file to the police with careful instructions about what must be done.</p>
<p>If the prosecutor is convinced that, on the face of it, there is enough potential evidence to secure a successful prosecution and there are no clear reasons not to prosecute, they will institute criminal proceedings against the suspect on behalf of the state. </p>
<p>But if the prosecutor is not convinced of the strength of the case they will submit the case file to the inquest court. This might happen if there’s doubt about the exact cause of death or if there is not a clear link between a known suspect’s actions and the fatal outcome.</p>
<p>The 144 mental health care users were failed from the get-go. Immediate police investigations into these deaths were prevented because the cause of death was indicated as “natural causes” on the death certificates. </p>
<p>Because of this, no postmortem examinations or other forensic investigations were conducted at the time.</p>
<p>This affected every subsequent development.</p>
<h2>How did the tragedy unfold?</h2>
<p>By mid-2016, the Health Department of the Gauteng Province – South Africa’s economic hub – had implemented its decision to cancel its contract with the Life Esidimeni Health Care Centre. This resulted in <a href="https://www.researchgate.net/publication/329988090_Contribution_of_the_Health_Ombud_to_Accountability_The_Life_Esidimeni_Tragedy_in_South_Africa">more than 1700</a> patients being moved haphazardly to other hospitals and non-governmental organisations. This was despite <a href="http://healthombud.org.za/wp-content/uploads/2017/05/FINALREPORT.pdf">warnings</a> that such a move would be detrimental to the patients’ well-being. </p>
<p>Almost immediately reports of abuse, starvation, dehydration and neglect surfaced, and by September 2016, a reported <a href="http://healthombud.org.za/wp-content/uploads/2017/05/FINALREPORT.pdf">77 patients had died</a> under suspicious circumstances.</p>
<p>Under public pressure, the Minister of Health instructed the Health Ombud of South Africa to investigate the circumstances surrounding the deaths. In a comprehensive <a href="http://healthombud.org.za/wp-content/uploads/2017/05/FINALREPORT.pdf">report</a> published in February 2017, the ombud detailed the unacceptable – and often horrific – conditions in which the patients were moved and cared for after their removal from Life Esidimeni. </p>
<p>The report showed that almost all aspects of the move and subsequent care violated the National Health Act and the Mental Health Care Act. It also violated the patients’ and their families’ constitutional rights to, among others, dignity, life, access to quality health care services and environments that are not harmful to their health and well-being. </p>
<p>The report also revealed the entries on the death certificates. But it made clear in its findings that “natural causes” did <em>not</em> reflect the circumstances in which these mental health care patients died. </p>
<p>The entries on the death certificates came under scrutiny again some time later during a dispute resolution process between the families of the deceased patients and the government, a restorative process recommended by the ombud. Former <a href="http://section27.org.za/wp-content/uploads/2018/05/Life-Esidimeni-arbitration-award-by-retired-Deputy-Chief-Justice-Dikgang-Mosenke.pdf">Deputy Justice Dikgang Moseneke</a> oversaw this arbitration process.</p>
<p>In his arbitration report Moseneke recorded the concessions made by the state that</p>
<blockquote>
<p>the deaths of the concerned mental health care users were not natural deaths but caused by the unlawful and negligent omission or commissions of its employees… </p>
</blockquote>
<p>He attributed blame to the former Gauteng MEC for Health who cancelled the contract with Life Esidimeni, several provincial governmental officials, and the staff of the NGOs who carried the same legislative and constitutional duties of care as the state toward the patients and their families. </p>
<p>But Justice Moseneke stopped short of ordering the police to investigate criminal charges against the mentioned parties. He rightly held that the police must perform their investigative functions as the law commands it, and not at his bidding.</p>
<p>By this time, <a href="https://section27.org.za/">SECTION27</a>, a <a href="https://section27.org.za/life-esidimeni/">public interest law centre</a>, had assisted some families of deceased patients to submit requests with the South African Police Service to launch inquests into these deaths. By the time the arbitration was concluded, all 144 case files had been submitted to the NPA. </p>
<p>Despite the NPA’s <a href="https://www.timeslive.co.za/news/south-africa/2019-09-17-not-enough-evidence-to-prosecute-esidimeni-deaths-npa/">fervent investigations</a> it found that not enough evidence existed to justify the institution of criminal proceedings. Insufficient evidence about the exact cause of death and the connection of specific role-players to these deaths resulted in the NPA submitting the case files for joint inquest in 2021. </p>
<h2>What good will the inquest do?</h2>
<p>An inquest is not a trial. No pronouncements on guilt will be made and no person will be named “accused”. </p>
<p>The purpose is to fill those evidential gaps that preclude the NPA from instituting criminal proceedings. During the inquest, each piece of evidence will be perused, more evidence will be collected and all possible avenues will be scoured to find answers to the questions: how did the patients really die? And who exactly caused their deaths? </p>
<p>It is important to remember that while the health ombud and arbitration assigned blame to certain entities and individuals, criminal proceedings are conducted on a much higher standard of proof. Potential evidence will be subjected to strict rules of admissibility and must carry sufficient probative value to persuade a criminal court of the guilt of specific perpetrators - <a href="https://www.npa.gov.za/sites/default/files/resources/justice_system/NPA_eng.pdf">beyond reasonable doubt</a>. </p>
<p>But this reflects the second great failure in the process of pursuing justice for the deceased and their loved ones. The police investigations and forensic examinations of most of the deaths only started during and after the arbitration. It is not known how much time had elapsed between the deaths and the performance of autopsies once it was determined that the deaths were not – as initially indicated – due to natural causes. </p>
<p>Even less is known about any opportunities the South African Police Service and its Forensic Division should have had to collect crucial evidence during the time immediately following the deaths. We will never fully understand how much evidence has been lost due to these failures.</p><img src="https://counter.theconversation.com/content/166668/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jo-Marí Visser does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An immediate police investigation into the deaths was prevented because the cause of death was indicated as ‘natural causes’ on their death certificates.Jo-Marí Visser, Senior Lecturer: Department Public Law, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1206952019-07-19T14:56:23Z2019-07-19T14:56:23ZZuma plays cat and mouse with corruption inquiry: it may be a high-risk strategy<figure><img src="https://images.theconversation.com/files/284974/original/file-20190719-116586-8zwm12.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African President Jacob Zuma recanted his decision to walk out of the Zondo Commission. </span> <span class="attribution"><span class="source">EPA-EFE/Wikus de Wit/Pool</span></span></figcaption></figure><p>South Africa’s former President Jacob Zuma threatened on Friday to <a href="https://ewn.co.za/2019/07/19/zuma-to-continue-testifying-at-zondo-inquiry">walk away </a> from a judicial <a href="https://www.sastatecapture.org.za/">commission of inquiry into corruption</a>, throwing the process into temporary confusion and uncertainty. </p>
<p>An agreement was later <a href="https://www.timeslive.co.za/politics/2019-07-19-hlaudi-motsoeneng-sighted-as-jacob-zuma-arrives-at-state-capture-probe/">cobbled together</a> that will maintain Zuma’s participation in the process. But it may be a short-lived truce as he is likely to continue to use the threat of a walk-out as leverage over how his evidence and its truthfulness are tested. </p>
<p>For those that have attentively followed the former President’s legal and political strategy over the past two decades – referred to in some quarters as his <a href="https://definitions.uslegal.com/s/stalingrad-defense/">“Stalingrad” strategy</a> – this will have come as no great surprise.</p>
<p>Over the <a href="https://theconversation.com/south-african-probe-into-corruption-features-star-witness-jacob-zuma-120194">past months</a>, the commission headed by Deputy Chief Justice Raymond Zondo, has heard chapter and verse about the systematic abuse of public and private power that wreaked havoc with numerous key state institutions in the country. These included the National Prosecuting Authority, the South African Revenue Service as well as several state-owned entities vital for development and public service delivery, such as power utility Eskom.</p>
<p>According to numerous witnesses Zuma was the central protagonist. Several large files of witness statements were presented to his legal team in the run up to Zuma’s extraordinary appearance before the commission this week. They contain myriad accusations against him.</p>
<p>The responsibility of a commission of inquiry is to uncover the truth. Hence it has a duty – as Justice Zondo made absolutely clear to Zuma as he began his testimony – to make findings on all material matters. This is the case even though the commission is not a court of law and cannot hold any individual civilly or criminally liable.</p>
<p>Herein lies the dilemma and the risk for Zuma. He will have been advised that in the absence of counter-evidence, preferably from himself, the grave danger is that the commission will prefer the evidence of others and so make adverse findings against him.</p>
<p>That is probably why he was advised to appear before the commission. And why, having walked out, he returned. </p>
<p>But the strategic and tactical dilemma for Zuma and his legal team is this: by putting him on the witness stand, there is a risk that he would be found wanting, especially in terms of the details of any matter.</p>
<p>As every lawyer learns sooner or later in their career, the devil really is in the detail: the more detail you get into, the more likely that any discrepancy in the evidence is likely to emerge. And, in turn, the more likely that a dishonest witness will be exposed.</p>
<p>Hence, Zuma’s lawyers were very anxious to protect him from any scrutiny and, therefore, from any detailed questioning of his version of events.</p>
<p>This is why the quarrel between the legal teams – Zuma’s on the one hand, and the commission’s, on the other – ended up being about the pivotal issue of “cross-examination”.</p>
<h2>Unpacking the process</h2>
<p>Laymen watching events unfold this week may well have been greatly puzzled by this dispute. They could be forgiven for thinking that given that the whole point of a commission of inquiry is to find the truth this would, by definition, entail asking questions, difficult ones if needed.</p>
<p>My colleague Professor Pierre de Vos <a href="https://www.dailymaverick.co.za/opinionista/2019-07-17-zondo-inquiry-is-fully-within-its-rights-to-question-zuma/">explained</a> – with his customary thoroughness – the process as thus: the rules of the commission permit “examination” of any witness, including to “examine” the witness to try and establish whether he or she is being truthful. </p>
<p>Helpful as this legal analysis is, those of us who have practised at the Bar will know that in an adversarial court proceeding the distinction between “examination in chief” and “cross examination” is very clear. One side to the proceedings will lead evidence “in chief”. And then the other side (or sides) will cross examine the witness in order to limit the damage being done to their client’s interests. Or to undermine the credibility or veracity of it.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/284981/original/file-20190719-116596-1njt3ne.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/284981/original/file-20190719-116596-1njt3ne.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=898&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284981/original/file-20190719-116596-1njt3ne.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=898&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284981/original/file-20190719-116596-1njt3ne.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=898&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284981/original/file-20190719-116596-1njt3ne.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1129&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284981/original/file-20190719-116596-1njt3ne.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1129&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284981/original/file-20190719-116596-1njt3ne.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1129&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Counsel for the Inquiry, Advocate Paul Pretorius.</span>
<span class="attribution"><span class="source">EPA-EFE/Kim Ludbrook</span></span>
</figcaption>
</figure>
<p>But in an inquisitorial proceeding, such as the Zondo Commission, the distinction is rather less clear and far more subtle. This is because there are no competing parties. Instead, what you have is a commission armed with a legal team whose job it is to assist it in making findings of fact by adducing relevant evidence.</p>
<p>Often, in this context when a witness is being forthcoming, the need to test the plausibility of evidence may be reduced. But when a key witness, such as Zuma, comes to the stand and time and again, as he did this week, says he cannot remember the detail – or otherwise deflects or obfuscates – then the need to probe deeper and ask more difficult questions is likely to be greater.</p>
<p>Zuma’s team protested that when Counsel for the Inquiry, Paul Pretorius SC, started to do so, he was “cross-examining” the witness and that this was “unfair”. Putting aside the semantics of whether it was “cross examination” as opposed to “mere examination” for a moment, it is difficult to understand the point from a legal perspective. But it’s easy to understand it from a political perspective.</p>
<h2>All about survival</h2>
<p>Legally, it would have been inappropriate if Zuma had been treated as a hostile witness from the beginning, as is often the case in an adversarial court proceeding. </p>
<p>So, when Zuma was able to give <a href="https://www.fin24.com/Economy/analysis-undisputed-winner-from-zumas-train-wreck-testimony-is-ramaphosa-20190718">detailed accounts</a> of events in the 1970s, as a part of his bizarre story of intrigue that was clearly designed to create a counter-narrative in which he is the victim of a devious and dangerous international crusade to eliminate him, rather than the perpetrator of state capture, but is unable to recall details of conversations from a few years ago when he was president, real cross-examination would be to put a question like this to the witness:</p>
<blockquote>
<p>Mr Zuma, can you really expect the commission to believe that you can remember details from 40 years ago but not from seven years ago? That’s not credible is it? You’re not being frank or honest with the commission, are you?</p>
</blockquote>
<p>However, somewhere along the spectrum of possible types of questioning, there is a middle ground in which the witness’ account could and should be tested by tougher questions. Otherwise, how else is Zondo to assess the evidence before him and make findings, especially if there are competing versions?</p>
<h2>The game’s not yet over</h2>
<p>Zuma and his legal team may think they have played a smart hand. Having volunteered to give evidence, having presented an alternative narrative that deflects from the core subject of state capture, and having avoided detailed questioning on the sort of detail that may have tripped their client up, they then walked away only to return within a few hours.</p>
<p>Had Zuma not returned, the risk would have been that in the absence of detailed evidence from him to set alongside that of the witnesses who gave evidence against him, Zondo may have no choice but to make damaging findings that are severely adverse to a former head of state whose legal and political options appear to be narrowing by the day.</p><img src="https://counter.theconversation.com/content/120695/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is Associate Professor in Public Law at the University of Cape Town, a partner in political risk consultancy The Paternoster Group and a member of the Advisory Council of the Council for the Advancement of the South African Constitution.</span></em></p>The dilemma for Zuma and his legal team is this: by putting him on the witness stand, there is a risk that he would be found wanting, especially in terms of the detail of any matter.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1017532018-08-21T13:44:22Z2018-08-21T13:44:22ZSouth Africa’s criminal justice system is on the mend. But it’s just the beginning<figure><img src="https://images.theconversation.com/files/232693/original/file-20180820-30578-ocyzr9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African President Jacob Zuma has lost his grip on the country's criminal justice system. </span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p>The recent <a href="http://www.saflii.org/za/cases/ZACC/2018/23.html">judgment</a> by South Africa’s Constitutional Court that ended the reign of the country’s national prosecutions boss marked the end of former president Jacob Zuma’s hold on the country’s criminal justice system.</p>
<p>The court found that Zuma had appointed Shaun Abrahams unlawfully to the powerful position, and ordered him removed. President Cyril Ramaphosa has since <a href="https://www.news24.com/SouthAfrica/News/breaking-silas-ramaite-appointed-as-acting-npa-head-20180814">replaced him with Silas Ramaite</a> in an acting position.</p>
<p>Abrahams was the last remaining Zuma acolyte in the country’s criminal justice system. Finally, Zuma has lost the iron grip he once held on crucial state institutions.</p>
<p>Abrahams’ departure follows sweeping changes to other key positions in the government’s criminal justice and security cluster. The highly compromised <a href="http://www.sabcnews.com/sabcnews/arthur-frasers-redeployment-causes-controversy/">Arthur Fraser</a> has been moved from the State Security Agency while the priority crimes investigating unit, the Hawks, has a <a href="https://www.news24.com/SouthAfrica/News/godfrey-lebeya-appointed-as-new-hawks-boss-20180524">new head</a>.</p>
<p>There are still two relatively new Zuma appointments in position: the national police commissioner <a href="https://ewn.co.za/2017/11/22/general-khehla-sithole-appointed-new-national-police-commissioner">Khehla Sitole</a>, and the Inspector General of Intelligence <a href="https://www.news24.com/SouthAfrica/News/zuma-appoints-inspector-general-of-intelligence-20170313">Isaac Dintwe</a>. Both of them have received Parliament’s endorsement at a time when it was already increasingly critical of Zuma. Dintwe, for example, was directly responsible for <a href="https://www.news24.com/SouthAfrica/News/inspector-general-of-intelligence-claims-ssa-head-arthur-fraser-is-intimidating-him-20180411">Fraser’s demise</a>. They are, therefore, not Zuma functionaries. </p>
<p>The fact that the final step against Abrahams was taken by the Constitutional Court, and wasn’t a political decision, adds legitimacy to his departure. The clarity of the judgment on the constitutional and legal aspects of the position of the country’s prosecutions’ boss, and independence of the prosecutions authority, deepens the democratic character of criminal justice. </p>
<h2>Court’s role in deepening democracy</h2>
<p>The court’s ruling on Abrahams follows a trend of taking decisions that have promoted democracy in a tangible way. A few examples illustrate the point.</p>
<p>In 2016 the Court reaffirmed that remedial decisions taken by the Public Protector <a href="https://www.news24.com/SouthAfrica/News/full-text-constitutional-court-rules-on-nkandla-public-protector-20160331">were binding on all public officials and representatives of the country</a>. </p>
<p>The court also ruled that the appointments of two previous <a href="https://www.dailymaverick.co.za/article/2012-12-06-government-finally-drops-menzi-simelane-for-good/">prosecutions bosses</a> were invalid. </p>
<p>Another example was the court’s interpretation of the parliamentary Speaker’s powers on <a href="https://www.timeslive.co.za/politics/2017-06-22-read-in-full-concourt-ruling-on-secret-ballot/">no confidence motions</a>. This entrenched the principle that the speaker can decide when voting would be by secret ballot or by public electronic voting.</p>
<p>The court also set aside a decision by the former National Director of Public Prosecutions, Mokotedi Mpshe, to <a href="https://www.news24.com/SouthAfrica/News/concourt-refuses-to-hear-npa-appeal-on-zuma-corruption-charges-da-20161007">withdraw corruption charges</a> against Zuma. </p>
<p>In another key judgment, the court ruled that political parties should <a href="https://www.businesslive.co.za/bd/national/2018-06-21-the-constitutional-court-rules-voters-should-know-who-funds-political-parties/">disclose</a> the sources of their private funding.</p>
<h2>Public expectation</h2>
<p>Abrahams’ demise has created the public expectation that stronger action can now be taken against corruption. The ongoing revelations of <a href="http://www.eisa.org.za/pdf/sym2017papers.pdf">state capture</a> excesses have left the National Prosecuting Authority with no room to sidestep prosecutions. </p>
<p>If there’s no action it will be difficult for Ramaphosa to refute the claim that those accused of corruption continue to enjoy political protection on his watch. His promise of a new era of <a href="https://www.news24.com/SouthAfrica/News/ramaphosa-promises-corruption-crackdown-at-maiden-sona-20180216">clean governance</a> and efficient government is unquestionably bound to visible prosecutions without fear or favour. Urgent progress with prosecutions is just as important as his economic renewal agenda.</p>
<p>But progress in the fight against corruption doesn’t only depend on the National Prosecuting Authority. The police – and special investigative units in particular, such as the Hawks who are responsible for criminal investigations – would have to be seen to be doing their jobs. Their efficiency and effectiveness in investigations are crucial to the success of prosecutions. Serious reform of the police services is therefore equally important for effective prosecutions.</p>
<h2>Public perception</h2>
<p>Arguably, one of the most serious challenges facing the prosecutions authority is how to address the public perception that it’s <a href="http://www.capetalk.co.za/articles/268246/npa-hawks-delay-on-guptaleaks-shows-they-are-compromised-says-foundation">politically compromised</a>. A range of factors account for this. </p>
<p>Firstly, there’s the high turnover of national directors which in turn is a symptom of political pressure. The incumbent’s term of office is <a href="http://www.justice.gov.za/legislation/acts/1998-032.pdf">ten years</a>, in line with fixed, non-renewable terms for the Public Protector and judges. But since 1998 the five permanent and two acting national directors have all, on average, lasted only three years. On top of this, two previous commissions of inquiry against national directors – the <a href="http://www.justice.gov.za/commissions/comm_hefer/2004%2001%2020_hefer_report.pdf">Hefer</a> and <a href="http://www.justice.gov.za/commissions/2008_ginwala.pdf">Ginwala</a> inquiries – happened within a politicised environment. </p>
<p>There have been a number of cases that have pointed directly to political manipulation of the National Prosecutions Authority. These include the abuse of the Hawks’ and the prosecutions authority’s <a href="https://city-press.news24.com/News/pravin-gordhan-back-in-hawks-crosshairs-20180312">investigations</a> against former national tax commissioner Pravin Gordhan and other tax officials to protect Zuma’s interests. So was Mpshe’s decision to <a href="https://mg.co.za/article/2017-10-13-sca-rejects-zumas-spy-tapes-appeal">rescind corruption charges</a> against Zuma.</p>
<p>An immediate priority for prosecuting authority is to change this legacy of political abuse, and to cultivate credibility. </p>
<h2>What needs to be done</h2>
<p>Ramaphosa’s campaign of renewal will initially require many more <a href="https://www.news24.com/Analysis/the-state-capture-inquiry-what-you-need-to-know-20180819">investigations</a> of politicians to combat corruption in the public sector. That entails potentially more political complications for him and the risk of creating more political enemies. It will also threaten deeply entrenched patronage networks in the governing ANC. </p>
<p>For the National Prosecuting Authority, only after it has shown visible success in significantly reducing corruption in the public sector can its political exposure be reduced. The most critical factor in changing its negative legacy is for the prosecutions authority to safeguard its independence. </p>
<p>The latest Court <a href="http://www.saflii.org/za/cases/ZACC/2018/23.html">judgment</a> has made an important contribution to this. It has provided clarity on the prosecutions boss’s tenure of office. It also instructed the <a href="https://www.gov.za/documents/national-prosecuting-authority-act">National Prosecuting Authority Act</a> to be changed to curtail the president’s powers to appoint and dismiss the national head of prosecutions. </p>
<p>Independence in terms of decision making is equally important, but does not form part of the court judgment. This will require consistency and a show of high levels of integrity and competence by the National Prosecuting Authority. </p>
<p>To promote its independence, it would help if its leading figures are career professionals with no public political profiles. The <a href="https://www.news24.com/SouthAfrica/News/breaking-silas-ramaite-appointed-as-acting-npa-head-20180814">appointment of Silas Ramaite</a> as the acting National Director of Public Prosecutions, is a good beginning.</p><img src="https://counter.theconversation.com/content/101753/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The axing of the prosecutions head follows sweeping changes to other king positions in the security cluster by President Cyril Ramaphosa.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1016972018-08-16T13:51:41Z2018-08-16T13:51:41ZCourt fixes some of the flaws in South Africa’s prosecuting authority<figure><img src="https://images.theconversation.com/files/232313/original/file-20180816-2912-2izisd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Jacob Zuma: the Constitutional Court has ruled his appointment of the top prosecutor illegal.</span> <span class="attribution"><span class="source">EPA-EFE/Jackie Clausen</span></span></figcaption></figure><p>South Africa’s Constitutional Court has <a href="http://www.saflii.org/za/cases/ZACC/2018/23.html">ruled</a> that the removal of the previous National Director of Public Prosecutions, Mxolisi Nxasana, by former President Jacob Zuma, was unlawful and invalid. The appointment of his successor, Shaun Abrahams, was therefore also invalid. </p>
<p>The National Prosecuting Authority is the body responsible for prosecuting criminal offences in South Africa. The <a href="https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1">Constitution</a> requires it to do so</p>
<blockquote>
<p>without fear, favour or prejudice.</p>
</blockquote>
<p>In its judgment the Court <a href="http://www.saflii.org/za/cases/ZACC/2018/23.html">explained</a> why the National Prosecuting Authority must be independent:</p>
<blockquote>
<p>The NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds. </p>
</blockquote>
<p>The judges went on to say that, equally, functionaries within that prosecuting authority may be pressured into pursuing prosecutions “to advance a political agenda”. </p>
<p>The Court noted that the prosecuting authority has suffered ongoing instability over the years. Its capacity to fulfil its core functions is increasingly in doubt. This has been illustrated in a number of ways.</p>
<p>The first is that the authority has been abused by powerful office holders – by the president in this particular case. In addition, it has failed to act in cases where strong evidence has been in the public domain. The prime example relates to the <a href="http://www.gupta-leaks.com/">Gupta leaks</a>. Also, the prosecuting authority has pursued baseless cases against <a href="https://theconversation.com/charges-against-finance-minister-show-misuse-of-south-african-law-67177">opponents of people in power</a> and is losing its effectiveness in <a href="https://www.uwc.ac.za/News/Pages/The-NPA-What-does-the-future-hold.aspx">prosecuting non-political cases</a>.</p>
<p>The question now is: how much of this did Monday’s Constitutional Court judgment fix? It has removed some of the design flaws which allowed the authority to be abused and compromised. But it has merely opened the door towards other changes which may be necessary to ensure a functional, reliable and competent prosecutions body – changes which require the input of Parliament and broader society.</p>
<h2>Independence and competence</h2>
<p>An effective, accountable National Prosecuting Authority needs at least two things: structural independence and competent personnel with expertise and integrity.</p>
<p>Structural independence refers to the design of the institution, in particular whether the legislation that governs it is designed in a way that prevents those in power from forcing it to act in their own interests instead of in the interests of justice. </p>
<p>Two rulings from the Court’s recent judgment will improve the structural independence of the National Prosecuting Authority. First, it held that the clause allowing the President to extend the term of a National Director of Public Prosecutions was unconstitutional. </p>
<p>In addition, the court also declared Section 12(6) of the act invalid to the extent that it allows the President to suspend National Prosecuting Authority officials indefinitely and without pay. Instead, the Court limited the period of suspension to six months, and ordered that the suspended officials be paid during that period.</p>
<h2>Weaknesses remain</h2>
<p>But the judgment didn’t address other weaknesses. In particular, it left untouched the process of appointing its head. Under the National Prosecutions Act, the choice of the National Director of Public Prosecutions remains within the sole discretion of the President. The National Prosecutions Act does set out certain prerequisites, such as legal qualifications. The national head of prosecutions is also required to be a “fit and proper” person. </p>
<p>But the President is not required to consult with anybody on his choice or to justify his decision. </p>
<p>This explains why the removal of Abrahams hasn’t triggered widespread relief. Nobody knows – or has any say in – who will be appointed next.</p>
<p>Civil society has taken up this issue in the wake of a string of disastrous appointments. It’s suggesting that the head of the prosecutions authority should be chosen in an open, consultative manner. </p>
<p>The court provided no guidance on this. Nor did it tell South Africans what qualities the country’s chief prosecutor should have.</p>
<p>It consciously stopped short of commenting on Abrahams’s performance, noting merely that nothing had been brought to the court to suggest that he was not fit and proper to hold the post. </p>
<p>It was, nevertheless, not prepared to retain him in the position because he owed it to an abuse of power by Zuma. As the rule of law required a “cleansing” of the National Prosecuting Authority from all abuses of power, such a benefit could not be allowed to continue.</p>
<p>The only substantive guidance that the judgment offered on the qualities of the national director can be found in its response on what should happen to Nxasana. Although the judges were split on whether he should be allowed to return to his previous position, there was no dispute over the fact that he had allowed himself to be bought out of his office. In so doing he had acted in a way that was unworthy of the position he held.</p>
<h2>A clean page</h2>
<p>The court decision presents a clean page for the National Prosecuting Authority. It allows for the appointment of a new National Director of Public Prosecutions who might clean up the institution and return it to effective functioning. This, however, is far from a certainty.</p>
<p>The court’s judgment protects the independence of the new head of prosecutions and his or her deputies by removing some potential for fear, favour or prejudice. But it provides no guarantees that the new prosecutions boss and the National Prosecuting Authority will be impartial and competent and conduct themselves with integrity. </p>
<p>For that, further civil engagement and structural reform is needed.</p><img src="https://counter.theconversation.com/content/101697/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cathleen Powell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An effective, accountable National Prosecutions Authority needs at least two things: structural independence and competent personnel with expertise and integrity.Cathleen Powell, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/723892017-02-03T12:33:30Z2017-02-03T12:33:30ZExplainer: how South Africa’s first private prosecutions unit will work<figure><img src="https://images.theconversation.com/files/155352/original/image-20170202-1680-mwllma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's celebrated state prosecutor Gerrie Nel, known as 'The Bull Dog', is to lead the country's first private prosecutions unit. </span> <span class="attribution"><span class="source">Reuters/Marco Longari/Pool</span></span></figcaption></figure><p><em>South African rights group, <a href="https://www.afriforum.co.za/home/">AfriForum</a>, has made legal history by launching the country’s first dedicated private prosecutions unit to be headed by celebrated former state prosecutor <a href="https://www.dailymaverick.co.za/article/2017-01-31-private-prosecutions-inc-gerrie-nel-leaves-a-deeply-compromised-npa-behind/#.WJNMWBt97IU">Gerrie Nel</a>. The development comes amid accusations that the country’s National Prosecuting Authority is politically biased and highly selective about the prosecutions it pursues. Nel said his main concern was that “everyone should be equal before the law.” Politics and Society Editor Thabo Leshilo asked legal experts Chantelle Feldhaus and René Koraan to explain how it will work.</em></p>
<p><strong>How do private prosecutors work – are private prosecutorial capabilities (units) common in other countries?</strong></p>
<p>In most countries prosecutors have the power to decide whether to prosecute or not. In other words there’s no principle of compulsory prosecution. This means that people who believe they have been aggrieved can fall through the net if the state declines to prosecute their case. </p>
<p>Private prosecutions are allowed in many countries under common law. These include <a href="http://www.dpp.act.gov.au/__data/assets/pdf_file/0006/715506/PROSECUTION-POLICY-OF-THE-AUSTRALIAN-CAPITAL-TERRITORY.pdf">Australia</a>, <a href="http://sunile.us/private-prosecutions-canada.pdf">Canada</a>, <a href="https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/85001/94924/F-209599740/KEN85001.pdf">Kenya</a>, <a href="http://www.scielo.org.za/pdf/sacq/n56/05.pdf">Zimbabwe</a> and the <a href="http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/">UK</a> – as well as many more.</p>
<p>The South African <a href="http://www.justice.gov.za/legislation/acts/1977-051.pdf">Criminal Procedure Act</a> makes provision for two forms of private prosecutions. Section 7 of the act provides for private prosecution by an aggrieved individual on the basis of a certificate <em>nolle prosequi</em> – a declaration the <a href="https://www.npa.gov.za/">National Prosecuting Authority (NPA)</a> not to prosecute. </p>
<p>And section 8 provides for private prosecution under statutory right. This means that any person can conduct a prosecution in a court competent to try the offence.</p>
<p>Private prosecution must be instituted and conducted in the name of the private prosecutor, or prosecutors, in terms of section 10 of the <a href="http://www.justice.gov.za/legislation/acts/1977-051.pdf">Criminal Procedure Act</a>. </p>
<p>There are certain limits. Two or more people can’t prosecute the same charge except if they’ve been injured by the same offence. And the law limits who can launch and conduct a private prosecution. Someone can only pursue a private prosecution if they can prove substantial interest in a matter, for example if they have suffered an injury. This right also extends to a next of kin – for example it can apply to a husband if the offence was committed against his wife or child. </p>
<p>The right also extends to a legal guardian or curator of a minor or lunatic if the offence was committed against someone’s ward.</p>
<p><strong>How do private prosecutors work with state prosecutors?</strong></p>
<p>The NPA can stop a private prosecution if it wants to prosecute the matter itself. And if the accused in a private prosecution pleads guilty, the prosecution must be continued by the state prosecutor.</p>
<p><strong>Does South Africa’s constitution make provision for this?</strong></p>
<p>Section 34 of the <a href="http://www.gov.za/sites/www.gov.za/files/images/a108-96.pdf">Constitution of South-Africa </a> entitles everyone to bring a dispute to a court or tribunal to seek redress. But there’s no specific constitutional right to institute a private prosecution. </p>
<p>Section 179 of the Constitution creates a single Prosecution Authority. This has the power to institute criminal proceedings on behalf of the state. A decision on whether or not to prosecute must be based on the <a href="https://www.npa.gov.za/content/prosecution-policy-and-policy-directives">NPA’s prosecutions policy</a> . Its decisions must be taken impartially – <a href="http://www.justice.gov.za/legislation/notices/2010/20101229_gg33907_nr1257_npa-code-of-conduct.pdf">without fear, favour or prejudice</a>. And the prosecuting policy must serve the interest of the public in general, and not a specific group. </p>
<p>A decision about a prosecution can be reviewed after consulting the relevant <a href="https://www.nationalgovernment.co.za/units/view/66/Justice-Protection-Services/National-Prosecuting-Authority-of-South-Africa">Director of Public Prosecutions</a>. The review takes into account representations from the accused person as well as the <a href="http://mg.co.za/article/2016-10-18-gordhan-turns-down-invite-to-make-representations-to-npa-boss-shaun-abrahams">complainant</a>. This means that if a person is not satisfied with the decision not to prosecute it can be taken on review. </p>
<p><strong>What are their pitfalls – can they be used for political ends or to drive private agendas?</strong></p>
<p>The main hurdle for any private prosecutions will be for individuals to show that they have suffered an injury.</p>
<p>Before the private prosecutor can go ahead he or she must make a deposit with the magistrate’s court as security that the charge will be prosecuted and brought to a conclusion without delay. The amount of money is determined by the Minister of Justice. Once the accused is called to plead he can apply to the relevant authority to review the amount. The court can then require the prosecutor to deposit any additional amount that’s decided.</p>
<p>The amount paid as security is forfeited to the state if the private prosecutor fails to prosecute a charge to conclusion, or without undue delay. This also happens if a charge is dismissed because of the failure of the private prosecutor to appear on the court date that’s been set down. </p>
<p>And if the charge against the accused is dismissed, or the accused is acquitted, or a decision on appeal favours the accused‚ the court can order the private prosecutor to pay the costs, or part of the costs and expenses incurred during the trial. Payment goes to the accused. And if the court believes that a private prosecution was unfounded and vexatious‚ it can award the accused costs and expenses.</p>
<p>In turn, if an accused is convicted on a private prosecution, the court can order the costs and expenses of the private prosecutor to be paid by the state.</p>
<p><strong>How can a unit such as this one help individuals bring private prosecutions?</strong></p>
<p>An individual’s statutory right to institute private prosecution is seen as a “safety-valve” in the machinery of the law. It’s also seen as an indirect way of controlling corruption and incompetence in the state’s prosecutorial services. A unit like the one set up by <a href="https://www.afriforum.co.za/private-prosecutions/">Afriforum</a> can help an individual if the NPA refuses to prosecute.</p>
<p><strong>What’s the history of private prosecutions in South Africa – any successes?</strong></p>
<p>Even though private prosecutions have been allowed in South African for <a href="http://www.justice.gov.za/sca/judgments/sca_2015/sca2015-206.pdf">almost 100 years</a>, its fairly rare. There have, however, been two important cases. </p>
<p>In 1988 the then Attorney General of the Cape declined to prosecute a 13-man security police task force responsible for the <a href="http://www.sahistory.org.za/dated-event/trojan-horse-massacre">murder of three people</a>. The families of some of the victims took the case to court in South Africa’s first private prosecution, but failed to win a conviction.</p>
<p>In the other, Faizel Hendricks was <a href="http://www.iol.co.za/news/crime-courts/family-wins-long-fight-for-justice-2024665">sentenced to jail for 15 years</a> in 2016 for murdering his girlfriend 10 years earlier. This became the first successful murder conviction by means of private prosecution in South Africa.</p><img src="https://counter.theconversation.com/content/72389/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Even though private prosecutions have been allowed in South African for almost 100 years, they are fairly rare and there has been only one known successful private prosecution.Chantelle Feldhaus, Lecturer in the Faculty of Law, North-West UniversityRené Koraan, Lecturer: Criminal Law, North-West UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/681752016-11-06T10:38:48Z2016-11-06T10:38:48ZHow Zuma has used the capture of South Africa’s state institutions to stay in power<figure><img src="https://images.theconversation.com/files/144450/original/image-20161103-25343-zu2p1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The criminal case against South African finance minister Pravin Gordhan, right, is an example of President Jacob Zuma's abuse of state institutions. </span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p><a href="https://www.enca.com/south-africa/npa-withdraws-charges-against-pravin-gordhan">The withdrawal</a> of charges against South Africa’s Finance Minister Pravin Gordhan by the country’s <a href="https://www.npa.gov.za/">National Prosecuting Authority</a> brings to mind events in <a href="http://city-press.news24.com/News/i-stand-by-my-judgment-judge-who-threw-out-zuma-corruption-case-20160216">2008</a> when a judge quashed corruption charges against current President Jacob Zuma. </p>
<p>In his judgment Judge Chris Nicholson found that then President Thabo Mbeki had used state institutions to execute a political strategy to get rid of Zuma. The judge quashed the charges of corruption, money laundering and fraud against Zuma, removing a major obstacle to his becoming president of the country. The Supreme Court of Appeal later <a href="http://mg.co.za/article/2009-01-12-judge-nicholson-redcarded-by-sca">overturned this judgment</a>.</p>
<p>Now state institutions – in particular the criminal justice system – are being abused in internal power struggles within the governing African National Congress and the government. Zuma’s political survival is a core ingredient in both.</p>
<p>But he may have run out of road. Against the backdrop of the ANC’s mounting appreciation of its recent <a href="https://theconversation.com/sharp-tongued-south-african-voters-give-ruling-anc-a-stiff-rebuke-63606">electoral losses</a>, this could be the year that determines his immediate future.</p>
<p>But much more than the president’s future is at stake. The most significant long-term consequence of the machinations against Gordhan is the institutional damage caused to the priority crimes investigating unit of the police, the <a href="http://www.saps.gov.za/dpci/index.php">Hawks</a>, and the country’s National Prosecuting Authority.</p>
<p>Their credibility in the public eye is at an all-time low. While the courts are being used by opposition parties and civil society to challenge abuses, the criminal justice system is being used by members of the government to protect their interests. This might in fact be the real “state capture” rather than <a href="http://www.news24.com/SouthAfrica/News/download-the-full-state-of-capture-pdf-20161102">crony relationships</a> between businessmen and government officials.</p>
<p>How did it come to this?</p>
<h2>Gunning for Gordhan</h2>
<p>Gordhan’s woes began in earnest in February when the <a href="http://www.saps.gov.za/dpci/index.php">Hawks</a> demanded his response to 27 questions about the erstwhile <a href="http://www.timeslive.co.za/politics/2016/02/28/The-Hawks-27-questions-for-Pravin-Gordhan">investigative unit</a> at South African Revenue Services (SARS).</p>
<p>The questions centred around allegations that the SARS unit was engaged in <a href="http://www.politicsweb.co.za/news-and-analysis/sars-this-is-the-inside-story--adrian-lackay">rogue activities</a>. Gordhan was the head of the revenue service at the time.</p>
<p>What followed over the next few months was a game of cat and mouse between the prosecuting authority and Gordhan. On May 20 the head of the Hawks, Lieutenant-General Berning Ntlemeza, confirmed that Gordhan was <a href="http://www.iol.co.za/news/crime-courts/gordhan-off-the-hook-2024530">not a suspect</a> in their investigation. His statement came as market sentiment towards South Africa intensified, threatening a downgrade of the country’s <a href="https://theconversation.com/why-its-appropriate-that-south-africans-rally-behind-their-finance-minister-59872">sovereign rating</a>. </p>
<p>The game ended, however, on August 25 when the Hawks summoned Gordhan to their offices to sign a <a href="http://www.dailymaverick.co.za/documents/document/3-Hawks-letter-to-Malatji-22082016.pdf">warning statement</a>. <a href="http://www.dailymaverick.co.za/documents/document/4-Pravin-Gordhan-Statement-to-the-Hawks-23082016.pdf">He refused</a>. </p>
<p>On October 11 he was summoned to <a href="https://www.enca.com/south-africa/npa-charges-gordhan-pillay-and-magashula-with-fraud">appear in court</a>. The <a href="http://mg.co.za/article/2016-10-11-breaking-gordhan-summoned-for-fraud">summons</a> was the fourth time this year that Gordhan had been confronted by either the Hawks or the National Prosecuting Authority. </p>
<p>Is there a pattern in these events? </p>
<p>I believe there is. And it has to do with the country’s National Treasury exercising its mandated independence. Efforts to thwart it began with the firing of then Finance Minister Nhlanhla Nene in <a href="https://theconversation.com/the-removal-of-south-africas-finance-minister-is-bad-news-for-the-country-52170">December 2015</a>. Subsequently, a crisis developed each time the Treasury intervened in the management of state-owned enterprises such as South African Airways, the electricity utility Eskom or the South African Broadcasting Corporation. </p>
<p>The question of Treasury doing its job – part of which is to ensure that taxpayers’ money is spent well and honestly – has also been inextricably tied up with the <a href="http://mg.co.za/tag/gupta-family">Gupta family’s</a> patronage relations with Zuma. The country seems to have found itself in crisis mode whenever this relationship has come under the spotlight.</p>
<p>The most startling incident included <a href="http://www.news24.com/SouthAfrica/News/full-text-mcebisi-jonas-statement-20160316">a statement</a> by Deputy Finance Minister Mcebisi Jonas that he had been approached by members of the Gupta family and offered the job of finance minister. This was while Nene was still in the post. </p>
<p>The Guptas’ contracts with Eskom about coal supplies and <a href="http://city-press.news24.com/News/how-eskom-bailed-out-the-guptas-20160612">ownership of a mine</a> also deepened the view that the Treasury was the only state institution which could arrest these developments, counter the patronage plague and reign in the Gupta business spree in state enterprises.</p>
<p>Gordhan appeared as the personification of the move to counter Zuma’s and Guptas’ designs on Treasury and a bulwark against fiscal ill-discipline, mismanagement of the state businesses. South Africa found itself in an unusual situation: a government minister had become the main counterbalance for the president. </p>
<h2>Zuma’s strategy</h2>
<p>Zuma’s apparent survival strategy in most instances is to look for a skeletons in the closet. In Gordhan’s case, he thought he’d found one in the allegations that SARS engaged in illegal intelligence activities, on Gordhan’s watch. </p>
<p>The strategy appears to work this way: whenever Treasury opposes a plan by Zuma, his allies in state companies and the Guptas the Hawks respond by making it known that they have resumed their SARS investigation. Then, once the issue has been resolved, as when Treasury relented and agreed to provide a <a href="http://www.fin24.com/Companies/TravelAndLeisure/Treasury-approves-R6488bn-loan-for-SAA-20150122">loan guarantee</a> for South African Airways, the Hawks investigation goes quiet.</p>
<p>This strategy reached a critical point when former Public Protector Thuli Madonsela indicated that her report into allegations that the Guptas had captured the state was <a href="http://www.businesslive.co.za/news/latest-news/2016-10-13-zuma-seeks-interdict-to-stop-madonsela-releasing-state-capture-report/">ready for release</a>. </p>
<p>The furore coincided with the Constitutional Court’s refusal to grant the National Prosecuting Authority the right to appeal against the <a href="http://ewn.co.za/2016/04/30/Legal-experts-praise-spy-tapes-judgment">“spy tapes” judgment</a>, raising the possibility that Zuma could once again face charges related to allegations of corruption that were dismissed in 2008. </p>
<p>These two developments posed a real threat to Zuma. He had to do something. So, the resuscitation of charges against Gordhan in the hope that the fear of losing his position as finance minister would neutralise him. </p>
<h2>State capture by the presidents?</h2>
<p>The use of the National Prosecuting Authority and the police in ANC presidential and succession struggles has a decade-long history. What’s been different in the Zuma era is that a symbiosis has developed between the Hawks and the National Prosecuting Authority. This political contamination in their ranks is illustrated by the controversies around senior figures such as <a href="http://ewn.co.za/2016/10/06/NPA-investigator-running-a-gestapo-like-investigation-against-Breytenbach">Glynnis Breytenbach</a>, <a href="http://www.news24.com/SouthAfrica/News/booysens-tell-all-book-reveals-web-of-deceit-20160917">Johan Booysen</a>, <a href="http://mg.co.za/article/2015-04-22-hawks-boss-dramat-quits-after-reaching-settlement">Anwa Dramat</a> and <a href="http://mg.co.za/article/2016-09-15-npas-nomgcobo-jiba-and-lawrence-mrwebi-struck-from-the-roll-for-advocates">Nomgcobo Jiba</a>. </p>
<p>Pressing ahead with charges against Gordhan made one conclusion possible: Zuma had ultimately captured the Hawks and National Prosecuting Authority for his own political survival.</p>
<p>Abrahams’ withdrawal of the charges against Gordhan has strengthened Gordhan’s position immeasurably. And charging him again would create more risks for the National Prosecuting Authority. With the latest withdrawal Zuma has lost his bargaining chip against Gordhan. But that’s not to say that the game is over.</p>
<p><em>Former President Thabo Mbeki has pointed that our initial article failed to mention that Judge Nicholson’s judgment <a href="http://mg.co.za/article/2009-01-12-judge-nicholson-redcarded-by-sca">was overturned</a> by the Supreme Court of Appeal. This republished version corrects that.</em></p><img src="https://counter.theconversation.com/content/68175/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The use of the prosecuting authority and the police in ANC succession struggles has a long history. What’s different in the Zuma era is the symbiosis between elite police and the prosecution service.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680782016-11-02T12:35:42Z2016-11-02T12:35:42ZSouth Africans learn that the law can be a double-edged sword<figure><img src="https://images.theconversation.com/files/144188/original/image-20161102-27231-y7cqgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Head of South Africa's National Prosecuting Authority, Shaun Abrahams, dropped a fraud charge against the finance minister Pravin Gordhan.</span> <span class="attribution"><span class="source">Siphiwe Sibeko/Reuters</span></span></figcaption></figure><p><em>South Africa’s National Prosecuting Authority charged the country’s finance minister Pravin Gordhan and two of his former colleagues at the tax authority, Ivan Pillay and Oupa Magashule, with <a href="https://www.enca.com/south-africa/npa-charges-gordhan-pillay-and-magashula-with-fraud">fraud</a> last month. The charge was widely criticised as <a href="https://theconversation.com/charges-against-finance-minister-show-misuse-of-south-african-law-67177">baseless</a> and <a href="http://www.sowetanlive.co.za/news/2016/10/23/helen-suzman-foundation-and-freedom-under-law-launch-bid-to-set-aside-gordhan-s-charges">politically motivated</a>, amid allegations of <a href="http://www.biznews.com/leadership/2016/10/25/south-africans-mobilise-to-save-sa-from-state-capture-can-they-eject-zuma/">state capture</a>. It sent the currency into a <a href="http://www.timeslive.co.za/sundaytimes/businesstimes/2016/10/11/Rand-and-banking-shares-plummet-on-Gordhan-NPA-summons">nosedive and wiped billions</a> off the stock market. This week, the NPA <a href="http://www.iol.co.za/news/crime-courts/npa-drops-charges-against-gordhan-2085233">withdrew</a> the charges on the eve of the trio’s court appearance. Politics and society editor, Thabo Leshilo, asked law professor Penelope Andrews for her view.</em></p>
<p><strong>What’s the significance of the charges being withdrawn against Gordhan?</strong></p>
<p>The significance lies in three things: first, it was the extraordinary level of public attention that the case generated. The airwaves, the media and social media were alight with commentary on the case. </p>
<p>Second was the educational function that the charges provided. Ordinary citizens got another peek at the <a href="https://www.npa.gov.za/">National Prosecuting Authority</a> and its operations and there is now greater awareness of the meaning of fraud since this was the charge laid.</p>
<p>The third was that as events unfolded they showed that public campaigning and public pressure may actually yield results.</p>
<p><strong>What does all this say about the NPA and its independence?</strong></p>
<p>At the moment there is a lot of <a href="http://www.destinyconnect.com/2016/10/23/shaun-abrahams-met-zuma-behind-closed-doors-charging-gordhan-report/">speculation</a>, some of it quite persuasive. But something as serious as this – a minister being charged and the flagrant disregard for its consequences – requires a concerted probe into the reasons for the actions of the National Prosecuting Authority. We have to move from widespread speculation to confirmed facts.</p>
<p><strong>What’s to be read into the lateness of the decision not to prosecute, coming as it did on the even of their court appearance?</strong> </p>
<p>My sense is that the National Prosecuting Authority was taken by surprise at the level of <a href="http://www.timeslive.co.za/politics/2016/11/02/The-leading-figures-supporting-the-Save-South-Africa-protest">public disapproval</a> of its actions and the <a href="http://www.moneyweb.co.za/news/south-africa/da-eff-and-save-south-africa-march-against-state-capture/">overwhelming support</a> for Gordhan. In particular, they must have been alarmed by the level of <a href="http://constitutionallyspeaking.co.za/gordhan-is-there-any-case-to-answer/">legal opinion</a> about the spurious nature of the charges and opposition to the case itself.</p>
<p>The lateness of the decision to prosecute may have been hubris on the part of the head of the National Prosecuting Authority, <a href="https://www.npa.gov.za/content/adv-shaun-kevin-abrahams">Shaun Abrahams</a>. Or it may have been a decision of his to persevere and let the chips fall as they did. The decision not to prosecute may also have been a last ditch attempt on his part to save his reputation, such as it was, and to prevent a drubbing by the court.</p>
<p><strong>There has always been suspicion there was no case against the the trio and that the charges were politically motivated. This appears to be vindicated by the withdrawal. What does it say about the rule of law in South Africa?</strong></p>
<p>It actually says contradictory things about the rule of law. It can be used as a shield that protects those who might be falsely accused. This was clearly the case here. But the rule of law could also be a sword –- to attack those who obstruct the nefarious plans of powerful people.</p>
<p><strong>How does all this reflect on the head of the prosecuting authority? Are there grounds for him to resign?</strong> </p>
<p>I take no position on whether Abrahams should resign. Many prosecutors make decisions to withdraw charges for a host of reasons, some of them quite legitimate. The better route would be an inquiry into what went into the decision to charge the minister and the two others in the first place. Was it malice? Incompetence? A conspiracy? An inquiry would highlight whether Abrahams and his team are fit to run the nation’s prosecuting authority. </p>
<p><strong>What needs to happen to prevent a replay of similar situations in future, and rebuild confidence in the NPA?</strong> </p>
<p>An inquiry, not necessarily judicial, but led by credible individuals trained in the law, needs to be held into the <a href="http://www.dailymaverick.co.za/article/2016-10-27-game-over-for-abrahams-moyane-and-co-documents-prove-gordhan-prosecution-political/#.WBnHAfp97IU">fiasco</a>. It should be underpinned by a transparent process with unlimited access to a wide range of sources. Only such a concerted effort to clarify what has transpired will ensure that it is not repeated.</p><img src="https://counter.theconversation.com/content/68078/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Penelope Andrews does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s National Prosecuting Authority charged the country’s finance minister Pravin Gordhan and two of his former colleagues at the tax authority, Ivan Pillay and Oupa Magashule, with fraud last…Penelope Andrews, Dean of Law and Professor, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/671772016-10-17T15:19:58Z2016-10-17T15:19:58ZCharges against finance minister show misuse of South African law<figure><img src="https://images.theconversation.com/files/142007/original/image-20161017-12454-f8h00e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's minister of finance, Pravin Gordhan, is under attack</span> <span class="attribution"><span class="source">Reuters</span></span></figcaption></figure><p><em>Foundation essay: Our foundation essays are longer than usual and take a deeper look at a key issue.</em></p>
<p>Earlier this month South Africa’s National Prosecuting Authority (NPA) laid criminal <a href="http://mg.co.za/article/2016-10-11-breaking-gordhan-summoned-for-fraud">charges</a> against the country’s Finance Minister Pravin Gordhan. </p>
<p>The NPA does have the power under law to charge people with crimes – that’s its job. But do the charges against Gordhan stand up to scrutiny? And did the NPA follow the correct processes in charging him? </p>
<p>Closer examination shows that the NPA is bringing a case it cannot win. Indeed, the weaknesses of the case are so glaring that any vaguely competent criminal lawyer should have been able to spot them. Secondly, it is doing so in a manner which belies its claim to be protecting and enforcing the law. </p>
<p>This case may therefore have less to do with the law than with the pursuit of a political agenda. If so, law has ceased to be the basis of a just and fair society – and instead become an instrument for political gain. </p>
<p>The charge sheet brings a case of fraud against Gordhan, with an alternative charge of theft. Both charges are meant to arise from his approval of early retirement by Ivan Pillay from the South African Revenue Services (SARS), and his rehiring of Pillay as Deputy Commissioner on a fixed-term contract. Related to this is the so-called “penalty” which SARS paid to Pillay’s pension fund, which allowed him to enjoy full pension benefits (as though he had retired at the statutory age).</p>
<h2>The merits of the charges</h2>
<p>We can dispose of the charge of theft without further ado. Gordhan cannot be guilty of theft if he did not appropriate the money that was paid out for Pillay’s benefit. There has never been any indication that anybody other than Pillay benefited from his early retirement on full benefits. </p>
<p>To prove the main charge – fraud – the NPA would have to establish that Gordhan unlawfully and intentionally made a misrepresentation which caused prejudice or potential prejudice to another (or to the state). </p>
<p>According to the charge sheet, these requirements are all met because Gordhan “unlawfully, falsely and with the intent to defraud” pretended to SARS that it was liable to pay R1 141 178.11 (US$78 000) to the <a href="http://www.gepf.gov.za/">Government Employees Pension Fund</a>.</p>
<p>Which of the elements of fraud could the NPA prove? Clearly there would be prejudice to SARS if it was made to pay out more than R1 million which it did not owe. But, on the available evidence, SARS did owe that money to the pension fund. </p>
<p>Furthermore, none of the other prerequisites of fraud can be met. </p>
<p>The <a href="https://www.acts.co.za/public-service-act-1994/index.html">Public Service Act</a> allows an executive authority to authorise an employee’s retirement before the age of 60 on request of the employee “if sufficient reason exists”. If early retirement is authorised, the employee is entitled to receive full pension benefits. This can happen because the “missing” retirement contributions – those which the employee would have paid in the years between actual, early retirement and the statutory retirement age – are paid into the retirement fund by somebody else. </p>
<p>The Government Employees Pension Fund <a href="http://www.gepf.co.za/uploads/annualReportsUploads/Member_Guide_2016.pdf">guide book</a> confirms that, in such cases, the employer pays the “additional liability”. In other words, when Gordhan recommended that SARS pay the pension “penalty” for Pillay SARS was, in fact, liable for that amount.</p>
<h2>The 3000 earlier retirement cases</h2>
<p>The NPA’s only chance of establishing a “misrepresentation” by Gordhan is by establishing that he could not lawfully approve the early retirement in the first place. But to establish that the approval was unlawful, the NPA would have to show that there was no “sufficient” reason for such approval. </p>
<p>The Public Service Act does not set out what such a reason would be, vesting considerable discretion in the executive official. In addition, the Legal and Policy Directive which Gordhan obtained at the time of authorising Pillay’s early retirement established that 3000 cases of such early retirement <a href="http://www.politicsweb.co.za/documents/gordhan-charges-legally-flawed-and-factually-unfou">had already been approved</a>. </p>
<p>Thus the prosecution would have to demonstrate that the reasons for approving Pillay’s early retirement were out of line with the reasons that were considered “sufficient” in the 3000 other cases. But more than that, these reasons would have to be so out of line as to demonstrate a misuse of Gordhan’s discretion. </p>
<p>It would not be enough that the approval of Pillay’s retirement and rehiring were unlawful (which they almost certainly were not). The prosecution would also have to show that these acts were so obviously unlawful as to prove an intention to defraud on Gordhan’s part. </p>
<h2>The procedures</h2>
<p>The second issue is whether the NPA followed appropriate procedures before it charged Gordhan. </p>
<p>The decision about which particular cases should be prosecuted is made by the provincial directors of public prosecutions (DPPs). Each director is empowered to do so with respect to crimes carried out in his or her jurisdiction. </p>
<p>In addition, certain specialised units have been set up to prosecute crimes that are not limited to any one jurisdiction. These include the <a href="http://www.gov.za/south-african-police-service-commercial-branch-success">Specialised Commercial Crimes Unit</a> (established in 1999) and the <a href="https://www.npa.gov.za/node/17">Priority Crimes Litigation Unit</a> (established in 2005). The directors of these units may also initiate a prosecution, but only with the concurrence of a provincial director. </p>
<p>In addition the head of the NPA, the National Director of Public Prosecutions (NDPP), may – in writing – assign a matter to a prosecuting unit which does not otherwise fall within its remit. This director does not have the power to initiate prosecutions on his or her own. Indeed, Shaun Abrahams, the current director, emphasised that he had not decided to prosecute Gordhan “on his own”, but on the advice of the Priority Crimes Litigation Unit with the concurrence of the director of public prosecutions for <a href="http://city-press.news24.com/News/abrahams-will-review-gordhan-charges-if-he-asks-me-to-20161013">North Gauteng</a>. </p>
<p>The problem is that fraud does not fall within the remit of the Priority Crimes Litigation Unit. This unit was set up to prosecute international crimes (such as war crimes and crimes against humanity), terrorism, treason, sabotage and offences under the <a href="https://www.npa.gov.za/node/17">Internal Security Act</a>. In other words, it was set up to deal with crimes which threaten international or national security. </p>
<h2>Does it matter which unit prosecutes?</h2>
<p>Isn’t it a mere technicality which unit makes the decision to prosecute? The answer is emphatically no. A case like this demonstrates how important it is that a body which claims to enforce the law abides by law in its own processes. </p>
<p>Abrahams’ “cherry-picking” of the litigation unit to consider this prosecution supports growing <a href="http://www.iol.co.za/news/crime-courts/gordhan-seeks-court-ruling-on-guptas-2080416">evidence</a> that it is not about ensuring “justice for the victims of crime by prosecuting without fear, favour or prejudice” – the stated mission <a href="https://www.npa.gov.za/node/10">of the NPA</a>. Something else is going on.</p>
<p>It’s also important to note that the charges brought by the NPA are completely new. They bear no relation to the crimes which the Hawks <a href="https://theconversation.com/south-africas-finance-minister-is-vindicating-the-law-by-ignoring-police-unit-64535">initially</a> claimed they were investigating against Gordhan. </p>
<p>The inescapable inference is that the Hawks and the NPA have not noted a possible crime, investigated it carefully to see if there is sufficient evidence of a crime and, if so, who committed it, and then conducted a thorough legal investigation to ensure that they could successfully prosecute the case in court. Instead, they have, for over a year, focused on one man – Pravin Gordhan – and trawled through all the material they could find to pin a charge on him. </p>
<p>Abrahams spent the first 30 minutes of his press conference dwelling on the so-called SARS “rogue” unit. He read out voluminous sections of the Constitution and legislation to establish that only the President has the power to establish a covert unit to investigate threats to national security. None of his statements in the first half hour provided a legal basis for any criminal prosecution. They were also completely unrelated to the charges that were then announced. The statements were simply a smear, ostensibly legitimated by the legal authority of the NPA. This is a serious misuse of that office.</p>
<p>But Abrahams also wilfully ignored the <a href="http://www.fin24.com/Economy/enoch-godongwana-hawks-probe-aims-to-remove-gordhan-20160914">point</a> made by numerous commentators and Gordhan’s own <a href="http://www.dailymaverick.co.za/article/2016-08-24-statement-by-minister-of-finance-pravin-gordhan/#.WATOcPl97IU">legal team</a> that the SARS unit had nothing to do with national security – a point which renders irrelevant the myriad provisions that Abrahams read out. The relevant legislation does not prohibit the creation of a covert unit. It merely prohibits any such unit from gathering “departmental intelligence”. This is defined as intelligence related to “any threat or potential threat to the national security and stability of the Republic”. By contrast, the SARS unit investigated tax fraud and the evasion of excise duties.</p>
<p>In such situations law seems, at best, to be an afterthought. At worst, it can become an instrument of the powerful against any obstacles to their plans. </p>
<p>Wherever we are on this spectrum, the reckless disregard of the substance and procedure of the law by the very state agencies which claim to protect and enforce it is ominous.</p><img src="https://counter.theconversation.com/content/67177/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cathleen Powell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Closer examination of criminal charges brought against South Africa’s finance minister, Pravin Gordhan, suggest that they are weak in law and serve a political agenda.Cathleen Powell, Senior Lecturer in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.