South Africa faces crises on many fronts, none of which can be resolved unless the economy grows and the state becomes much more effective. The ongoing looting of public resources and seeming inability of law enforcement agencies to protect the state from “the enemy within” — powerful people who use their positions for self-enrichment and patronage — make this impossible.  The period of state capture was the epitome of this, but the same patterns continue to exist.

Society and government cannot protect themselves without a vastly improved performance from the National Prosecuting Authority (NPA), the body constitutionally mandated to institute criminal proceedings on behalf of the state. The NPA has been at the centre of the state capture project. Over many years it has been gravely weakened by political interference.

The process started with the closure in 2009 of the Directorate of Special Operations — the Scorpions. The low point of the process was reached when then president Jacob Zuma appointed the pliable Shaun Abrahams to replace Mxolisi Nxasana as national director of public prosecutions (NDPP) in 2015.

Hopes were high when the current NDPP, Shamila Batohi, was appointed in December 2018. However, nearly six years later, there is widespread dissatisfaction with the NPA’s performance under her stewardship.

The NPA has a dismal record when it comes to initiating prosecutions and securing convictions in high-profile corruption cases. It has failed to prosecute a significant number of major corruption cases long identified in forensic reports into Prasa, Transnet and Eskom , and the Zondo Commission. In several instances, these reports provided the NPA with a complete or near-complete basis to issue an indictment. Not one high profile politician responsible for state capture has been successfully prosecuted.

The NPA’s disappointing performance has encouraged impunity among criminals and a pervasive sense of despair that the state cannot or will not enforce the law.

The president and the minister of justice should indicate their unconditional support for the work of the NPA in dealing with priority crimes even if those charged are powerful people

There are a number of explanations for this lack of performance. Part of the problem lies with the Hawks, which has proved to be a weak institution lacking capacity, independence and will.

The NPA appears to still harbour rogue elements. For example, in August 2023 the national director requested the suspension of a director of prosecutions. More than a year later President Cyril Ramaphosa, whose assent is required by law to give effect to the suspension, has still not taken a decision on the matter.

The department of justice and constitutional development has refused the NPA’s request for access to the full archive of the Zondo Commission.

Investigating and prosecuting corruption and organised crime is complex. The accused are often well-resourced, and they engage experienced litigators to stall the state’s case. Such Stalingrad tactics place serious strain on the human and financial resources of the NPA. Unfortunately, the prosecuting authority and the Investigating Directorate (the specialised anti-corruption unit within the NPA) are under-capacitated. The latter has only one data specialist.

Yet, Section 38 of the NPA Act permits the engagement of private legal and forensic practitioners to perform services in specific cases. Despite the private sector’s willingness to assist (including pro bono offers by law firms), these overtures have often been rebuffed by the NPA.

In the view of many experts, the NPA strategy of developing the most comprehensive set of charges against an accused is an important source of delay and lack of success. A better approach is for the NPA to focus on the charges that will be easiest and quickest to prove in court.

The Centre for Development and Enterprise (CDE) is proposing a raft of recommendations to strengthen the NPA.

The president must appoint a retired senior judge to undertake an urgent inquiry into the NPA. The goal should be to identify the specific causes of the NPA’s lack of performance and to recommend remedial actions within eight months.

The president must table the report in parliament within three months of receipt together with any directives or explanations as to why the recommendations are not being implemented.

The NPA needs to be led by the best available people. The process of appointing national directors, directors and deputy directors  should in future be modelled on the one employed in the appointment of the commissioner of the South African Revenue Service in 2019.

In order to address funding and resource challenges, the NPA and the Investigating Directorate Against Corruption (IDAC) should make much greater use of private legal and forensic assistance to prepare and conduct prosecutions.

The president and the minister of justice should indicate their unconditional support for the work of the NPA in dealing with priority crimes even if those charged are powerful people. This backing must include cooperation from ministers and senior officials in all investigations.

As importantly, the GNU should signal its full backing of the NPA by significantly increasing its funding so it can strengthen its expertise. Private funding and assistance should be seen as interim measures.

The justice minister should establish special corruption courts, drawing on retired and acting judges to reduce delays in prosecution.

The president must make a decision on the National Director’s request in August 2023 to suspend the aforementioned NPA director and the minister of justice must release the full archive of the Zondo Commission, so that it is available to the NPA.

We urgently need to remedy the NPA’s many serious shortcomings, failing which there’s no prospect of turning the tide against corruption and crime. A state must protect itself and its people from crime, especially the crimes of the powerful. Re-energising the NPA is essential to building a capable state.

Bernstein is executive director of CDE. This article draws on a new CDE report, ‘Energise the NPA”

This article was published on Sunday Times