There can be an irony about timing. Take two prosecution agencies, divided by 8 000 miles and differences in the public perception of their independence and competence.
One day after the deadline for President Jacob Zuma to provide written representations as to why the corruption charges reinstated by the Supreme Court of Appeal should not be brought to court, United States special prosecutor Robert Mueller charged and did a deal to procure evidence from one-time US national security adviser Michael Flynn.
So, though many commentators draw parallels between Donald Trump and Zuma, there is a massive difference between the determined and skilled tactics employed by Mueller and the somnolent Shaun Abrahams — South Africa’s national director of public prosecutions (NDPP) — who, save for his disgraceful handling of a noncase against former finance minister Pravin Gordhan, has shown very little energy when it comes to politically loaded cases.
I doubt that South Africa is rushing to bet that Abrahams will reject the representations, even with the presence of the formidable Billy Downer SC as one of the designated team and the precedent of previous judgments which clearly show that, if the National Prosecuting Authority (NPA) has a triable case against an accused, it is for the court to deal with any objections that may be raised by the accused.
The cynicism that pervades public discourse about Abrahams is sourced in the main from the extraordinary phenomenon that — notwithstanding the extensive Gupta email leaks, the obvious shenanigans at Eskom and the Passenger Rail Agency of South Africa, and the vast sums of public money that have gone to waste — no one has been charged, and no prosecutorial activity of the kind being displayed by Mueller and his team in the US has taken place
Take one obvious example, which has been documented without credible denial. In 2013, the Free State government — allegedly as a result of the activity of then provincial agricultural minister Mosebenzi Zwane — caused a Gupta-linked company, Estina, to be paid R114-million by the state.
It is further alleged that, by means of the banking facilities of a prominent international bank, a Gupta-linked company in Dubai, Gateway, was paid this exact sum — of which a significant part found its way back into South Africa to pay for the Gupta wedding at Sun City.
Let us assume that Mueller was in charge of investigations into state capture in South Africa. He would not have relied on the inept Hawks. If he needed further investigation, he would have invoked his powers under the National Prosecution Authority Act and initiated a further investigation. In addition he would have requested information from the Financial Intelligence Centre and, following on that, any banking institutions that were involved in this set of transactions.
By now, Zwane would have been interviewed, as would other witnesses. Pressure would have been put on them all to come clean, allowing the investigating authority to obtain evidence against the major beneficiaries of the deal.
If, at the end of all of this activity, it was announced that the allegations were without legal foundation (surprising, given the lack of any credible denial) the public would probably have believed the process, and hence the NPA.
The Free State case is but one small example of a far wider pattern that is now richly documented.
The most interesting question that flows from this inactivity is: What happens to Abrahams in the event that Cyril Ramaphosa is elected ANC president and thereafter takes over as president of South Africa?
Ramaphosa can provisionally suspend Abrahams on account of misconduct or, alternatively, because he is not a fit and proper person for the post, pending an inquiry. If, following this inquiry, the president decides to remove Abrahams, Parliament has to pass a resolution as to whether the removal is recommended. If it is not, he has to be restored to his office.
Given the wording of these sections of the relevant legislation, the record clocked up by Abrahams to date becomes highly relevant. If it can be shown, for example, that he had no legal justification for not pursuing a rigorously independent investigation into the Free State dairy case, or for that matter any of the multitude of corruption claims that appear daily in the media, then a suspension could be justified under the legislation. The investigation that would then follow would surely provide clarity as to what has been occurring on Abrahams’s watch.
All of this may be wishful thinking, in that these outcomes are dependent on who succeeds Zuma. This in turn brings us back to the Zuma representations as to why the charges against him should be dropped by the NDPP. Once more, as was the case at the time of the Polokwane conference in 2007, the holder of the powerful office of the nation’s chief prosecutor has to make a decision under the shadow of a crucial political event — the ANC national elective conference.
Perhaps Abrahams will surprise us all by insisting that his team reports back to him expeditiously and without recourse to political considerations.
We know what Mueller would do.