crime rate
Ivor Powell
Critics routinely dismiss National Director of Public Prosecutions Bulelani Ngcuka as a political appointee. The man is an elected African National Congress parliamentarian, they point out, his wife is the minister of minerals and energy, he has struggle credentials as long as your arm, he is a prominent member of President Thabo Mbeki’s inner circle …
Next, the malcontents compare him – and Ngcuka is meant to suffer in the comparison – with Judge Willem Heath, characterised here as an independent and unstoppable force of nature, a lone ranger of the South African judiciary.
The tag of political appointee, however, is one that Ngcuka accepts with equanimity – but subject to a caveat. “If the question is: ‘Will I use my position to fight the enemies of the ANC?’ the answer is a big no,” he insists. “But I am a political animal. I’ve been ANC all my life. It’s going to take more than the stroke of a pen to change that.”
Far from apologising for his political affiliations, Ngcuka is inclined to see them as a virtue in his position. After all, the fight against crime is, as he puts it, “a government and an ANC agenda”, and being an insider makes him that much more effective. For instance in August when Ngcuka was faced with the latest in an embarrassing series of failures to make asset seizure provisions contained in the Prevention of Organised Crime Act stand up in court.
No reliable statistics are available on the spread of organised crime in South Africa, but the intelligence checklist of foreign criminal interests currently operating inside South Africa tells its own tale about the way the world’s fourth- largest economic sector is entrenching itself in our young democracy. It includes Nigerian, Cameroonian, Congolese and other African syndicates; Italian and American Mafia interests; Russian, Yugoslavian and other East European gangsters; as well as Far Eastern triads and South American drug cartels. In addition there are the largely South African carjacking outfits, and an increasingly criminalised taxi industry.
The way to clamp down on all this was identified relatively early on: hitting the criminals in the financial solar plexus by seizing their assets.
The problem, though, has been making the legislation stick. With already frequently redrafted legislation still found wanting last month, the state was forced to return assets to former chemical and biological warfare unit head Wouter Basson – assets seized against R44-million allegedly misappropriated from the state.
This was merely the latest instalment in a black comedy of errors, unfolding most publicly in earlier and equally embarrassing attempts to seize the assets of alleged Cape gangster and drug dealer Gavin Carolus, and then those of allegedly crooked cop Piet Meyer.
In all cases, though in different places in the text of the Prevention of Organised Crime Act, the issue was a failure to entrench a retrospective force to the seizure of assets.
“I was bothered by losing all these cases,” Ngcuka admits. “But I was able to go to the government, to the ANC to get these loopholes closed, and it will not be as easy for these people to get off in the future.”
Passing the required amendments was effected in what is probably near record parliamentary time, about a week from initiation to legislation. Whether the Act will hold up the next time it is challenged in court remains to be seen. But as far as Ngcuka is concerned, time is on his side.
It took many years – and many setbacks – to make blueprint legislation legally watertight in the United States, as Ngcuka has observed.
At this stage in proceedings, he says, he is keen to have the amended legislation challenged in the Constitutional Court – as the next expectable step beyond the high court cases brought thus far.
Indeed, a Constitutional Court challenge could open up an entirely new frontier. The government’s asset seizure legislation breaks with legal tradition in that it allows for action against alleged criminals in advance of their having been convicted of any crime – and will almost certainly be appealed on the basis that it flouts the presumption of innocence until proven guilty that lies at the heart of South African law.
In the meantime, Ngcuka confides he will be content merely to tie up identified organised criminals in the process of the law. “Of course we aim for prosecution, but as long as we can raise the temperature and prevent these people from pursuing their criminal operations, we’ll be lowering the crime rate. And that is what I’m setting out to do.”