NPA in the dock over selective prosecution strategy

Questions have been raised on the alleged selective prosecution of the National Prosecuting Authority of state capture cases. Picture: African News Agency(ANA).

Questions have been raised on the alleged selective prosecution of the National Prosecuting Authority of state capture cases. Picture: African News Agency(ANA).

Published Oct 8, 2023


Prof. Bheki Mngomezulu

Between August 21 2018, and June 15 2022, the commission tasked to investigate allegations state of capture sat in Johannesburg. When it concluded its work, R1 billion had been used. This was after several extensions of the life of this commission.

Since the conclusion of this process, many questions have been raised. One of them is about the time that was used by the commission. The second question is whether the amount of money that was used in this commission was justifiable. The third and most important question is whether appropriate action has been taken by the National Prosecuting Authority (NPA) to-date to prosecute those who were implicated in the commission report.

It should be noted that the people implicated in the commission report included both those who are in the public and private sectors. As would be expected, general interest was in the public sector, which is where public funds were said to have been squandered. The pace at which the NPA has moved is generally described as having been too slow. This conclusion is premised on the fact that very few arrests have been carried out by the NPA. In its self-defence, the NPA advances the argument that any arrest must be based on investigation and that any hasty arrests would tarnish the image of this institution.

It is difficult to dismiss this view, especially because according to the South African jurisprudence, everyone is assumed innocent until proven guilty. Therefore, the mere mentioning of someone in the Zondo Commission is not enough to warrant an arrest. For this reason, the delay in arresting those implicated is justified.

However, there is another serious concern when one looks at the list of the few people who have been formally charged thus far. Most of these accused persons happen to be those who were associated with former President Jacob Zuma and/or the critics of the current administration.

The list of these people includes the likes of Dudu Myeni who was the chairperson of South African Airways (SAA) Board, Matshela Koko who is the former CEO at Eskom, Ace Magashule who is the former Premier of the Free State, Brian Molefe who is the former CEO at Eskom, and many others.

The fact that all these individuals were close to Zuma raises a concern about the possibility that the NPA is being used by certain people to settle their political scores.

What buttresses this view is that fact that under Brian Molefe, for example, the energy crisis was not at the level where it is currently. Molefe under Zuma’s administration addressed the issue of load shedding. If that was the case, on which grounds is he being prosecuted? Does the action by the NPA serve as demonstration that the wheels of the law are grinding or is this evidence of the abuse of state resources to settle political scores?

Another thorny issue has to do with the Gupta brothers. Ajay, Atul, and Rajesh “Tony” Gupta were implicated in the Zondo Commission but were never hauled before the Commission to answer to the allegations levelled against them.

One accusation levelled against the NPA, and the entire justice system is that people in these state institutions did not do their job well when applying for the extradition of these brothers from the United Arab Emirate (UAE) back to South Africa. A counterview is that everything was done properly but the onus was on the authorities in the UAE to do their part.

While it is true that legal arguments could be advanced to buttress this trajectory, the fact that most of the people who have been formerly charged were aligned to Zuma is a cause for concern.

Another factor which has compounded any assessment of the work of the NPA on the Zondo commission report is the ANC’s internal factional politics. In the past, the ANC was seen as a unit. Lately, ANC members and leaders are defined by the factions they belong to or are associated with. This is an indictment on the ruling party.

Ideally, the notion of the separation of powers as envisaged in the Constitution should apply. This is not the case. The issue of impartiality has been questioned. This became clear when Zuma appeared before Zondo, and the resultant incarceration announced by Justice Sisi Khampepe. There were many irregularities which questioned the impartiality of the judiciary. Given this context, the NPA’s response to the recommendations of the Zondo commission leave a lot to be desired. Issues such as fairness, consistency, transparency, honesty, and resoluteness have come to the fore.

As time passed, and as one faction seems to be on the receiving end, the credibility of the NPA is being subjected to scrutiny!

*Prof. Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy at the Nelson Mandela University

**The views expressed do not necessarily reflect the views of Independent Media or IOL