SA faces crises on many fronts, none of which can be resolved unless the economy grows and the state becomes more effective. The looting of public resources and 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 today.

Society and the government cannot protect themselves without a vastly improved performance by the NPA, which has been at the centre of state capture. It has been gravely weakened by political interference since the 2009 closure of the Scorpions — a unit housed in the NPA that combined investigation and prosecution capacities, focused on high-level priority crimes.

Hopes were high when Shamila Batohi was appointed in December 2018. Six years later though, 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 large number of major corruption cases long identified in forensic reports into the Passenger Rail Authority of SA (2017), Transnet and Eskom (2018) and the Zondo commission (2022).

In several instances these reports provided the NPA with a complete or near complete basis to issue an indictment, and where this was not so more than enough time has elapsed to have permitted the commencement of prosecutions. Nevertheless, not a single politician responsible for state capture has been successfully prosecuted. The NPA’s disappointing performance has failed to halt the spread of corruption. This has led to a pervasive sense of despair that the state cannot, or will not, enforce the law against powerful people.

There are a number of explanations for this lack of performance. Part of the problem lies with the Hawks. Established as an entity within the SA Police Service after lengthy litigation after civil society opposition to the Scorpions’ demise, the Hawks have proved a weak institution lacking capacity, independence and will. Other possible causes of the NPA’s poor performance include internal divisions, insufficient support from government, poor leadership, the lack of experienced prosecutors and resources.

Recommendations

Having consulted some of the country’s leading lawyers, retired judges and other experts on what needs to be done, the Centre for Development and Enterprise has proposed a raft of recommendations to strengthen the NPA.

The president should appoint a retired senior judge to undertake an urgent enquiry into the NPA, the goal being to identify specific causes of the lack of performance and recommend remedial actions. This review should assess the leadership, structure, performance and independence of the NPA and report within eight months. The president must table the report in parliament within three months of its receipt, together with any directives or explanations as to why the recommendations are not being implemented.

To address funding and resource challenges, the NPA should make much greater use of private assistance to prepare and conduct prosecutions. Carefully constructed and publicly accountable entities that ensure the continued independence of the NPA should help channel private funding to pay the legal and forensic practitioners required. The GNU should signal its full backing of the NPA by increasing its funding. Private funding and assistance should be seen as important, but interim, measures.

 We have a country in crisis to fix. We must make the changes necessary to achieve faster growth, many more jobs and stop the elite’s looting of public money. 

The president and justice minister should publicly and repeatedly indicate their unconditional support for the work of the NPA even if those charged are powerful people. This backing must include co-operation from ministers and senior officials in all investigations, including assisting in identification and investigation of wrongdoers from within their ranks. The justice minister should ask the judiciary to consider the establishment of 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 August 2023 request to suspend a director of prosecutions. The justice minister must release the full archive of the Zondo commission to the NPA. The current delays are inexplicable. If the GNU is to succeed, it cannot continue to implement the policies and hesitant approach to reform of the sixth administration. The medium-term budget policy statement at the end of October should include more money for the NPA.

Is there a party in the GNU who will raise these issues in the appropriate forum in government? And if it does not get a satisfactory and immediate response will they publicly push the GNU to take the right decisions?

And what of organised business, now locked into a partnership with the president to fix three bottlenecks that hold back growth, including crime and corruption? A new forensic unit is being established between organised business and the NPA with funding over a five-year period.

Well done. However, this is not a game-changer if there are fundamental problems within the NPA and in its relationship with, and independence from, the government.

As SA moves forward into the uncharted waters of the GNU and its potential for a new set of policies, appointments and politics, business leaders need to think hard about the balance between working with the president to fix various crises and holding the president and the rest of government to account. Many issues holding the country back do not merely reflect a shortage of skilled people; they involve wrong-headed policies and priorities, bad appointments and corruption. Is there any conditionality on business involvement with the president?

The DA also needs to develop effective strategies to push for fundamental reform from within the GNU on critical issues. Neither the ANC nor the DA can win on everything, but so far the balance has been weighted heavily towards ANC “business as usual”.

This crucial tension will determine the success of the GNU. So far we see lots of assistance being provided, and enormous willingness to pull together, but little evidence of fundamental policy change or urgency to hasten delivery. Are the law-enforcement agencies being held to account for their low level of performance?

The GNU has enormous potential to start dealing with the country’s challenges. However, this potential requires real change away from the policies, bad appointments and attitudes of the previous government that have led us to this sorry state. We have a country in crisis to fix. We must make the changes necessary to achieve faster growth, many more jobs and stop the elite’s looting of public money.

The NPA is not performing as it should. It is time for organised business to back calls for reform and for the GNU to take the necessary action to fix it.

Bernstein is executive director of the Centre for Development Enterprise. This article draws on a new report, ‘Energise the NPA’, the fifth in the centre’s ‘Agenda 2024: Priorities for a New Government’ series.

This article was first published by Business Day