Though not part of the state capture investigation, the National Prosecuting Authority’s (NPA’s) dismal record has come under the scrutiny of Deputy Chief Justice Raymond Zondo in his 874-page report released on Tuesday.
This is the first of three reports that will be released close to four years after the state capture commission was established.
The report delves into various sectors, individuals and institutions and how they played a role in ransacking South Africa. From alleged bribes at SAA and the brutal and brazen dismantling of the South African Revenue Service to the abuse of power in law enforcement agencies and the complicity of the former president, Jacob Zuma, and some of his cabinet members.
In all this South Africa needs the NPA to ensure that those who looted the fiscus and the country are brought to book. This is no small feat for an entity that performed inadequately for more than a decade.
Zondo notes in his report that during the hearings various witnesses offered insights regarding the extent of system malfunction and the feeling of helplessness it engendered. “So, for example, Mr Peter Volmink [Transnet governance executive manager] was driven to describe the well-intentioned and detailed legislative framework as belonging to one universe in sharp contrast to the reality on the ground which, he said, inhabited a ‘parallel universe’ within the public procurement space. This description, whilst vivid, is unfortunately not an exaggeration. It speaks accurately to a fundamental systemic failure,” reads the report.
Zondo also highlights the testimony of Themba Godi, the former chairperson of parliament’s standing committee on public accounts (Scopa) in which he provides bleak insight into a system that has lost its moral compass.
“Mr Godi said that, if one looks at Scopa’s resolutions, there are many where there is a call for action to be taken against officials who had not complied with legislation. However, he asked: how do you get things right if there are no consequences? He said that he was talking about accounting officers/authorities in the first instance, but also executive authorities who all these reports which speak of persistent non-compliance, but no action is taken by them.”
For more than a decade the public has witnessed pervasive corruption at all levels of government and in the private sector, but few people or companies are held responsible. Criminal prosecution is vital if this commission is to be worth its billion rand price tag.
The crux of the work of the commission will depend on the ability of the NPA to discharge its primary function, which is to institute criminal proceedings on behalf of the state.
Zondo argues in his report that it is well known that for many years the NPA has failed to prosecute cases of corruption, and specifically cases of corruption in the procurement process. He provides the example of the Prevention and Combating of Corrupt Activities Act that came into force in 2004 for the purpose of strengthening measures to prevent and combat corruption and corrupt activities.
The Act — which Zondo emphasises was in force during the whole period of state capture — deals with any member, officer or servant of a public body. It criminalised the offering or acceptance of bribes and it deals directly with corrupt activities that relate to the procuring and withdrawal of tenders.
“The evidence given to this commission identifies multiple cases of corruption to which the Act applied, yet reference to the Law Reports shows that only one prosecution was brought under the Act – State v Shaik and Others 2005 (3) SA 211 (D).”
He also notes that other Acts give the state the power to deal with corruption but they have not been used. The Public Finance Management Act has been around for about 20 years, but the first prosecution under that Act “appears to be the one which was initiated against Mr [Angelo] Agrizzi who was not a civil servant).”
The failure of the prosecutorial function in the NPA, which has been given powers by the Constitution, points to a fundamental failure of a sovereign state function, argues Zondo.
“What will now be required is a thorough re-appraisal of the structure of the NPA in order to understand the causes and the nature of its institutional weaknesses so that these can be addressed presumably by way of legislative reform. The commission is well aware that remedial action of this sort requires an in-depth analysis of the internal structure of the NPA and the legislative and constitutional context in which it operates. Such an in-depth analysis falls outside the remit of the present commission and it must be left to the decision and the initiative of the president to order a separate detailed investigation.”
There is a strong argument that President Cyril Ramaphosa should initiate this investigation. The words of Godi and other witnesses who appeared before the commission over the three years ring true.
“Mr Godi said that impunity was in a large measure one of the fundamental reasons non-compliance was persistent and had actually worsened. In the absence of enforcement, non-compliance merely repeated itself.”
Godi’s view focuses on how the failure to take strong action against the perpetrators has exacerbated the problem throughout the public service.
“Mr Godi’s sense of frustration is now shared across the spectrum of public opinion and by the government itself. It seems scarcely believable that the constant flow of legislation over the years had so little impact in curbing corruption and that the combined efforts of parliament, national treasury, the auditor general, the provincial treasuries and national and provincial governments could have been so ineffectual.”
Godi’s comments are also relevant regarding how the private sector is dealt with. Most of the testimony heard at the commission involved the private sector but Zondo notes in his report that although “our legal system clearly has the means to hold companies criminally liable for their part in endemic corruption, given the evidence presented to the commission and public statements made by the NPA, the combating of corrupt activities and money laundering is being hampered by the onerous burden of proof upon prosecutors (whose tasks are frustrated by inadequate resources)’.
He argues that the introduction of deferred prosecution agreements (DPAs) may go some way to improving the situation, particularly in the light of the recommended involvement of the Public Procurement Anti-Corruption Agency (PPACA) and its litigation unit and tribunal.
“There is no legislation or precedent that expressly permits the use of DPAs in South Africa. Commentators such as Corruption Watch have gone as far as to point to the lack of provision for DPAs as being ‘a major issue, hindering law enforcement authorities’ ability to detect foreign bribery and severely limiting the scope of voluntary disclosure by companies’ … In fact, it was as far back as 2002 that the South African Law Reform Commission proposed that DPAs be introduced.”
But Zondo notes that there will be no easy fixes for the festering corruption problem that has strengthened and extended its hold on the public and private sector.
His recommendations include the establishment of an independent agency against corruption in public procurement. The agency will include a litigation unit that will have powers of search and seizure against any juristic or natural person, including any political party, in connection with any investigation into corruption, fraud or undue influence connected to public procurement.
The unit should also be able to:
* Receive and negotiate deferred prosecution agreements and refer such agreements to the tribunal for approval;
* Institute proceedings before the courts for the recoupment of monies stolen from, or damages suffered by the state as a consequence of corruption, fraud or undue influence in the procurement process;
* Apply to the tribunal for an order debarring any person from participating in any tender process or the grant of any procurement contract either permanently or for a stipulated time and either conditionally or unconditionally; and
* Apply to the tribunal for an order striking any procurement official from the roll of professional procurement officers either permanently or for a stated period and whether conditionally or unconditionally.