Justice Minister Ronald Lamola. (Gallo Images/Alet Pretorius)
In 2005, Nashua gave printers worth about R12 000 to the National Prosecuting Authority (NPA). It is a banal fact, but one cited by Justice Minister Ronald Lamola by way of saying that donations to the NPA are not a novel idea and that far more substantial support could be leveraged without compromise to its independence.
The NPA needs to find an extra R1.2-billion in the 2023 medium-term economic framework period, over and above the additional R1.1-billion allocated to it in the February budget, according to a reply Lamola gave to a parliamentary question.
That money is earmarked for, among other things, employing 700 prosecutors and trainees, 17 senior advocates for the Asset Forfeiture Unit and 91 staff for the Investigating Directorate.
The minister stressed that despite this allowance from the treasury, the NPA “will never have enough funds to meet the demand on prosecutors” flowing from Deputy Chief Justice Raymond Zondo’s findings on state capture, and that enhancing its ability to act on his recommendations was a national priority.
“The extent of alleged corruption described in the Zondo reports highlights the need for bold and innovative approaches to enhancing the capacity and skills of criminal justice entities, including the NPA. These are complex crimes that require sophisticated responses,” Lamola said.
Zondo has said that taking his findings further is a task that needs “an army of prosecutors”, after lamenting the fact, in his first report, that to date only one person has been successfully prosecuted under the Prevention and Combating of Corrupt Activities Act.
Advocate Paul Hofmann, of Accountability Now, said it was plain that more money still was needed because the army required was seasoned prosecutors able to go hand to hand with the senior counsel those accused of grand corruption hired.
“It takes 20 years to gather the experience and knowledge and the court craft that is needed to stand up against senior counsel employed by the looter and the crook to defend. You’ve got to know all the tricks and the answer to all the tricks and you pick up by incremental long-term experience,” he said.
“All of that looks very good from the point of rebuilding the NPA but it is useless in relation to countering corruption properly … you need not an army of 700 people who have never been in court before but an army of people who know how to fight.”
Lamola’s preferred mechanism for private funding to the NPA is through the Reconstruction and Development Programme Fund, established in 1994, from where it would be managed according to established treasury processes.
“The NPA is engaging national treasury to explore options on how to appropriately utilise private donor funding and in-kind support, without undermining its independence,” he said.
“The NPA will ensure accurate and transparent donation reporting and will establish a donor oversight committee as a further governance structure. National treasury and the DG [director general] are working closely with the NPA to establish the said oversight committee. All cash donations will be managed as RDP funds through the national treasury processes.”
The national director of public prosecutions, Shamila Batohi, advocated a more targeted approach that would entail setting up a trust to receive anonymous donations. Addressing MPs earlier this month she asked that they keep an open mind, after the Economic Freedom Fighters objected that this posed the risk that private donors would be shielded from prosecution.
Batohi countered that she would not expose the NPA to a conflict of interest by taking money from any entity that was the subject of prosecution.
It seemed to mark a shift from 2019 when she said if donor funding for government projects was commonplace, the NPA needed to guard against perceptions that it could be captured in this manner, and any private money would not be used for prosecution per se.
“This type of support is almost exclusively not for actual prosecutions but for various sorts of administrative capacity development, training, strategic development,” she said in an interview at the time.
The Thuthuzela care centres were funded almost exclusively by external donor funding, and, similarly, Business Against Crime ploughed substantial funding into the establishment of the specialised commercial crime courts.
But there is a recent history of those facing high level corruption investigation to claim foreign funding and influence are behind their legal woes. The Scorpions were dismantled because they were successful but the fact that the unit’s recruits were trained by the FBI was useful to former president Jacob Zuma’s supporters, who put about the narrative that he was being persecuted in “Hollywood” style with the help of foreign agents.
Former public protector Thuli Madonsela was forced in 2016, in the wake of her State of Capture report from which the Zondo inquiry stemmed, to firmly deny claims by her successor, Busisiwe Mkhwebane, that her work had been funded by foreign donors.
“It’s a blatant lie that we used USAid money, ever,” Madonsela said.
The scale of corruption uncovered by the Zondo commission seems to have softened perception on using donations.
Last month, in his State of the Nation address, President Cyril Ramaphosa thanked the public sector for offering “to assist in providing those skills, which we lack in government, to enable investigation and prosecution of crime”.
He stressed that to protect the independence of the NPA a framework would be crafted to manage money coming in through the treasury.
Glynnis Breytenbach, a veteran of the NPA before becoming the Democratic Alliance’s spokeswoman on justice, said this week there was nothing untoward about taking donations. “It is perfectly acceptable, has been done before.”
The conditions were, she added, that it was done at arms length with no strings attached: “No quid pro quo, no favours asked or given. The NPA remains 100 percent in control. The donor can give [but] can expect nothing.”
Jean Redpath, of the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, said there was a sea change on the subject, and if the cause was unknown, the publication of the Zondo report may now subtly change how the NPA’s prosecutorial decisions are perceived.
“I think there has been a change in attitude,” she said, adding that over the past three years since Batohi’s appointment the sort of external assistance the NPA has accepted has been “very innocuous”.
Redpath said she saw no problem with private funding provided it was done with transparency and if the money was given to the NPA to use where it deemed it was needed.
“I think what is envisaged here is okay if it is completely transparent. It is completely clear where the money is coming from, where it goes in and what it is used for. So of course it would be completely inappropriate for a company to donate funds and say ‘I want you to prosecute X’, obviously that is a scenario that would raise some eyebrows.”
The controversy over the NPA has traditionally revolved around which cases they selected for prosecution, she said. “So why did you choose X and not Y? Why did you target this person and in a similar case you did not target the person?”
The recommendations from the state capture inquiry went some way towards silencing speculation in this regard.
“With the Zondo commission, you have a very senior judge clearly identifying people and saying there is a prima facie case against this person and they should be prosecuted, he has identified some people by name and some by position … He’s not saying they are guilty, he’s saying there is a case to be answered,” said Redpath.
“What that does for the NPA is it releases them from the burden of showing that their choice of prosecution is legitimate, because South Africa is not a compulsory prosecution regime, and there is a lot of discretion around which case to prosecute and which not.”
With Zondo’s recommendations widely known, the NPA would open itself to suspicion of bias if it failed to act, rather than as in the past, for deciding to prosecute somebody.
“I think Zondo cases are qualitatively different because those peoples names are already in the public domain, the reputational risk is actually in not prosecuting them for the NPA, the risk to the perceived independence of the entity,” she said.
A member of another prominent NGO in the justice field welcomed the readiness to accept donations, saying the state was so limited in its ability to probe and prosecute graft that “we need to chuck money at it”.
Redpath cautioned that money was not the only answer. The skills required now cannot be conjured as if by magic and political will, astute management and more parliamentary oversight would serve not only the functioning of the NPA, but its image as well.
“The only way you can demonstrate that you are independent is to explain all your reasoning and processes and be accountable and transparent.”
If there is frustration in government with the NPA, she said, the ministry might be reminded that the Constitution accords the entity full independence as far as prosecutorial decisions are concerned
“We have this kind of over-worry about ministerial interference which plays into the hands of the baddies and there needs to be transparency and accountability before parliament and they need to account to the minister about funds, where money has gone, how many people they have employed, how they have trained them. All of that, the minister is finally accountable for.”
The NPA was approached for comment but did not respond by the time of going to print.
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