The justice minister, Ronald Lamola, has ordered an official inquiry into the National Prosecuting Authority’s (NPA’s) handling of the “Nulane” State Capture case.

His spokesperson, Chrispin Phiri, announced on 11 May 2023 that Lamola “has directed a Section 33 inquiry to the NPA”, in the light of the minister’s “concerns and very strong criticism directed at the NPA in the Nulane case”.

The NPA Act, following through on the wording of section 179 (5) of the Constitution, allows the Minister of Justice to “exercise his or her final responsibility over the prosecuting authority” in cases dealt with by it, and this includes the power to ask to be furnished with a report. The fact that this has been pursued after the scathing “Nulane” judgment is an indication of the consternation surrounding the state’s handling of the case.

The appropriate answer at this stage to the minister’s inquiry is that the matter is being taken on appeal and is not yet finally determined. The fact that the matter was allocated to a junior acting judge has been criticised, [ as has the language used by her in the judgment. ] All acting judges are vulnerable to criticism of their independence (they may, after all, want to be appointed permanently someday) and it is accordingly inappropriate to have them adjudicate politically sensitive cases. The cheering in Dubai, Nkandla, India and Vanuatu after the discharge of the accused was announced is indicative of the matter being highly charged from a political perspective. It has made the acting judge extremely popular in certain circles.

As the case has not been finally dealt with at this stage, it is arguable that the minister’s reliance on his powers under section 33 of the NPA Act is premature. The correct moment to trigger the inquiry is when the matter has been dealt with finally by the courts, which is not the case yet. Indeed, the appeal processes could take some time to complete.

Prematurity aside, the minister is barking up the wrong tree by calling for an explanation from those with their shoulders to the wheels of justice. It is the design of the criminal justice administration that is at fault for the general malaise in our criminal justice administration and, in particular, for getting to grips with serious corruption cases and other heavy lifting required of the NPA and the Hawks.

State Capture itself was enabled by the damage done to the criminal justice administration when the ANC resolved to close the Scorpions, a crack unit in the NPA, and to replace their investigative functions with the Hawks, a lesser body of investigators located within the police service. The reform has not worked, as is demonstrated by the plummeting statistics, and shows little prospect of improving the effective and efficient prosecution of kleptocrats, looters and others involved in serious corruption. It is quite conceivable that between cadre deployment in the NPA and the creation of the Hawks, the government led by Jacob Zuma enabled State Capture. The hollowing out of the NPA and the planting of deployed cadres in its ranks to ensure impunity for those involved in serious corruption is the true source of the complaints that have prompted the minister to point a finger at the NPA instead of enquiring into the structural and operational challenges created by parliament putting investigations into the hands of a mere police unit.

Nobody who takes a serious interest in the dysfunction of the criminal justice system today is suggesting that the Hawks are any part of the solution to the problems encountered. The official solution, Lamola’s baby, is to upgrade the Investigating Directorate of the NPA, but that too is a doomed project because not only will they remain a part of the NPA, their security of tenure of office will be no better than that of the Scorpions, and we all know what became of them. When Julius Caesar became all-powerful in Rome, Cassius was heard, according to Shakespeare, to mutter to Brutus:

“Men at some time were masters of their fates. / The fault, dear Brutus, is not in our stars, / But in ourselves, that we are underlings”

General Lebese, the head of the Hawks, knows that feeling. The Hawks do not enjoy the clout that the Scorpions had, nor are they operationally and structurally compliant with the requirements of the applicable law as laid down in binding terms by the Constitutional Court in the Glenister litigation. When the levels of corruption within the police are taken into account, it is obvious that SAPS is not the appropriate place in which to house anti-corruption machinery of state.

Not even the NPA itself is as independent as the courts would wish it to be in order to fulfil its mission to counter corruption effectively and efficiently. The government knows this. After succeeding Zuma, the president promised a new body that reports to parliament, but, sadly, his dreams of renewal on the corruption-busting front have now dwindled to the limping notion that upgrading the ID will do.

It won’t, here’s why.

If the ID is retained in the NPA, as planned by cabinet, then it falls under the “final responsibility” of the minister, a member of the executive. Its reporting line is not directly to our multi-party parliament where a more robust form of oversight can be expected, especially if the recommendations for parliament made by the Zondo Commission are accepted as they should be.

Compounding the problem is the fact that the accounting officer of the NPA (and therefor the ID) is the director general of justice. His or her control of the purse strings as accounting officer is a further constraint upon the system, one which does not bode well for the proper implementation of the STIRS criteria laid down by the courts.

STIRS is a handy acronym for Specialised, Trained, Independent, Resourced in guaranteed terms an Secure tenure of office.

These are the criteria by which the anti-corruption entity should be judged. The NPA is not presented with trial ready dockets by the Hawks and it is accordingly impossible for it to make any appropriate headway on the huge backlog of corruption cases plus those the Zondo Commission has referred to it.

When the NPA got a new leader in February 2019 there was already a backlog of about 600 cases according to Bantu Holomisa, leader of the UDM, who would like to see that leader, Shamila Batohi, on the carpet in a board of inquiry into her fitness for office. Since 2019, the Zondo report, which really only scratches the surface of grand corruption in SA, names over 1400 miscreants in need of investigation by our criminal justice administration.

If it is accepted, as it must be if government is to be rational about it, that the police are not up to the task at hand, then the necessary investigation of the high levels of serious corruption in SA will have to be transferred to another body. That body cannot be the ID, not while it remains within a structure as fraught with difficulties as the NPA of today – hollowed out by state capture and infested with “saboteurs” (Batohi’s description) planted there during the Zuma years to ensure that none of his cronies ever see the inside of a prison cell.

Both the DA and the IFP have come around to accepting that in order to comply properly with the binding criteria of the Glenister litigation, it is necessary to establish a new chapter nine institution that is given a constitutional mandate to prevent, combat, investigate and prosecute serious corruption. Like all other chapter nine bodies the new entity would have its independence guaranteed by the founding provisions of chapter nine and it would report to parliament, thus eliminating the type of executive influence, interference and impedance that has seen a history in which not a single National Director of Public Prosecutions has seen out the prescribed term of office.

The minister is labouring under a misapprehension as to the meaning of the law applicable. He misstated it at a conference at UCT in February 2023 by relying on and quoting the words of the minority in Glenister 2. The minister has been asked to put the record straight but has failed to do so. If he is still labouring under his misapprehension, it is understandable that he would seek to blame others for the poor showing in big corruption cases that have been lost in recent months. The fault lies in the failure of government to respect court orders and decisions which bind it and to implement those decisions properly.

The suggestions of Accountability Now for suitable reform have been with cabinet since August 2021. The DA has a private members bill in the works which is faithful to the structure and wording suggested by Accountability Now.

The political will to do the right thing in radically reforming the criminal justice administration is best generated by persuading voters to insist that their party of choice embraces any type of constitutionally compliant reform that will stop the rot of corruption in SA. Upgrading the ID simply won’t cut it.

Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation