/ 7 June 2013

Wanted: Firm leadership of the National Prosecuting Authority

Minister of Justice Jeff Radebe was absent from the parliamentary justice committee's meeting.
“As a result of the weakened exchange rate, the October outlook is a major concern,” says Minister Jeff Radebe. (Madelene Cronje/M&G)

True, the minister may have a point that most ordinary prosecutions have proceeded in the ordinary course and that the NPA has secured many successful ones. But, in the light of recent evidence, that can surely not be the test for the kind of NPA envisaged in the Constitution, and which should be demanded by the citizens of this country.

That prosecutor Glynnis Breytenbach was acquitted on all charges brought by the NPA to justify her dismissal was probably less surprising to informed observers than the decision of the NPA to take this finding on review. Recall that the presiding officer at the enquiry, a senior advocate, found that there was not a jot of evidence to substantiate any of the charges.

The test for review in these cases is whether this decision is "reasonable". That means a senior advocate must have made a colossal error: far from there being no evidence against Breytenbach, the fact-finder would have to have been confronted with weighty evidence that would have called for immediate dismissal.

For this reason, the NPA faces a legal Everest if it is to win this case. Assume that it is not successful in its application: Will it then face the consequences of Breytenbach's return to office and a resumption of cases from which she was unfairly removed?

On its own, this case is cause for deep concern. But there is more. J Arthur Brown, head of Fidentia, the collapse of which caused huge financial losses to many, many poor people, walked away with a fine of R150 000 – to many, that seemed a mere slap on the wrist.

The sentence is being appealed, so usually one would hold one's verdict until the Supreme Court of Appeal has spoken. But the trial judge, Anton Veldhuizen, raised a critical point: Why did the NPA not only drop 190 charges against Brown but also fail, until the sentencing process, to lead critical evidence about the sheer scale of the fraud?

Forensic risk
The NPA may reply that its decision was justified, if it succeeds on appeal but, even so, why did the prosecution team not give the judge the full picture until, in his view, it was far too late? Why leave so crucial a case to such a forensic risk?

The manner in which the trial was analysed by Veldhuizen should again prompt grave concern. In this case, if the NPA fails in its appeal, or even if it succeeds but is yet again subjected to judicial criticism, will its leadership, which is responsible for the case, its management and supervision, be held to account?

In an accountable democracy, that is what should be expected if so important a case is found by the judiciary to have been as badly botched as Veldhuizen implies.

Although the Constitutional Court, somewhat surprisingly, refused to entertain an appeal in the Fred van der Vyver case ("Holding state agencies to account has just become harder", Serjeant at the Bar, May 24), that decision does not justify, in any way, the decision of the prosecution to use evidence that it knew, from earlier in the process, had been discredited. The court, in effect, accepted that the prosecution would have proceeded even without the said ­evidence, but that cannot justify a prosecution service that does not play open cards with the court.

In summary, we have three hugely worrying events (and we could add the Andries Tatane and Anene Booysen cases to this list) that justify questions about the standard of conduct that must be demanded of an independent NPA. For more than eight months now, the NPA has enjoyed only an acting head, Nomgcobo Jiba, whose previous record probably means that she is unlikely to pass muster for a permanent appointment, on the basis of the test laid down by the Constitutional Court in its judgment on Menzi Simelane's appointment to the same office.

Why, then, the delay in filling the post, particularly when it has to face so many high-profile problems? Is there no one in this country with the talent, independence and expertise to do the job? It is surely obvious, as the events documented in this column show, that firm leadership is required – and urgently. Once the NPA is beyond repair, or no longer enjoys widespread legitimacy, the constitutional aim of a criminal j­ustice system that faithfully and fairly serves the people of this country will be merely an aspiration.