/ 22 January 2019

Top NPA prosecutors lacked the will to probe foreign bribery cases, inquiry hears

The inquiry
The inquiry, chaired by former Constitutional Court justice Yvonne Mokgoro, was in its second day of public hearings. (Delwyn Verasamy/M&G)

Top level prosecutors at the National Prosecuting Authority (NPA) lacked the will to investigate allegations of cross-national bribery, senior prosecutor Chris Macadam said on Tuesday.

The foreign bribery investigations he testified about included allegations of corruption into the tender awarded to Net1 for the payment of social grants and allegations that came out of the arms deal.

Macadam was testifying before the inquiry into whether suspended deputy national director of public prosecutions, Nomgcobo Jiba, and suspended special director Lawrence Mrwebi are fit for office. The inquiry, chaired by former Constitutional Court justice Yvonne Mokgoro, was in its second day of public hearings.

Macadam had previously been assigned by former national director Mxolisi Nxasana as a dedicated prosecutor to deal with cases of foreign bribery allegations, which fell under the Organisation For Economic Cooperation and Development (OECD).

In 2007, South Africa ratified the OECD’s convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In 2014, however, the OECD castigated the country for not doing enough to implement it.

Macadam told the inquiry that, during his time as the dedicated prosecutor, South Africa had been commended for its progress. But when Shaun Abrahams was appointed as national director, he was told by Nomvula Mokhatla — one of Abrahams’ four deputies — that he would no longer be in charge, and that the foreign bribery cases would be dealt with by the Special Commercial Crimes Unit under its head, Lawrence Mrwebi. After some back and forth, he was told Jiba had instructed that he be withdrawn as dedicated prosecutor, which he assumed was an instruction that came from Abrahams.

Abrahams would later say however, that he had not revoked Macadam’s delegation as dedicated prosecutor and told him to attend an OECD meeting in Paris.

However, when a progress report was compiled for the OECD in December 2015, he was alerted that the report was compiled in his name, but that amendments had been made “in red’ and which he did not agree with.

“Advocate Mrwebi had simply taken my 2014 report and added certain comments in red. I looked at this report and realised that South Africa would be placed in a highly embarrassing position if this report were tabled at the OECD. The comments in red reflected either that nothing of any significance was being done…or that the police had no investigations at all on them,” Macadamsaid.

On December 4 2015, Macadam sent a memo to senior prosecutor Torie Pretorius SC, saying that the comments in red were not all correct.

These included a conclusion that there was no need to investigate the Net1 tender — because no court had found evidence of corruption. “The claim that no court has found corruption, flies in the fact (sic) of the ConCourt judgment, finding that there were irregularities amounting to a violation of the Constitution…the ConCourt agreed with the submission by Corruption Watch, the amicus, that such irregularities are present they will raise a red flag for corruption,” Macadam said in the memo.

It was also wrong that the report found there was no basis for any investigation into any of the arms deal allegations, he said in his memo to Pretorius. Instead, the decision was to await the outcome of the Seriti Commission into the arms deal and then decide on the way forward.

At the end of his evidence before the inquiry, he said that when he looked at what had happened in December 2015, “We’re back to square one, when we started in 2014 there was no proper enforcement … and when we look to now, we are in the same position.”

Asked by panel member Thenjiwe Vilakazi, where the lack of willingness to proceed with the investigation lay, Macadam said: “ It rests at a senior level”.

In response to questions from Mokgoro about political considerations affecting prosecutorial decision making, Macadam said that, although he had over the years experienced political interference in prosecutorial decision-making, the OECD convention required that ratifying parties had a policy that prosecutions cannot be dropped for political reasons. Prosecutors are obliged to disregard political and economic factors, he said.

As cross examination got underway just before lunch, counsel for Mrwebi, Mervyn Rip SC suggested that Macadam’s “real gripe” was “that you were removed. And that has clouded your view on the matter”.

Macadam denied this “emphatically”, countering: “The only reason I am here today is at the request of the evidence leader.”

His cross-examination continued into the afternoon.