JAUNDICED EYE

Eskom gets the headlines but it’s a sideshow to the main event.

A far greater threat than the disintegration of the national grid is the crippled criminal justice system. The SA Police Service (SAPS) is in large measure non-functional. The National Prosecuting Authority is in critical aspects dysfunctional, and the lower courts, headed by inexperienced or possibly corrupt presiding officers, regularly make disquietingly unpredictable findings.

As a consequence, while the rates of the various categories of crime fluctuate, the trend over the past decade is upwards. And the victims increasingly have also stopped reporting even serious crimes because they know that the arrest/prosecute/convict/jail equation is so skewed in favour of the perpetrators, that it is a waste of time and emotional energy to do so.

South Africa is, in the title of Cormac McCarthy’s bleak novel, No Country for Old Men. Or young women. Or old women. Or children. Or anybody who doesn’t have private security or isn’t part of that ever-growing category of the political elite that has 24-hour VIP police protection and — coincidentally, of course — uninterrupted electricity.

Even the all-consuming drama of Eskom’s slow-motion meltdown is a symptom of this deeper malaise. It’s rooted in unrestrained criminality. 

Whatever the flaws and political naïveté evident in former CEO André de Ruyter’s secret investigations into the syndicates and politicians behind the billions being stolen from the power utility, there’s little doubt that while criminality is not the sole cause of Eskom’s failure, it is a major contributing factor. ___STEADY_PAYWALL___

A sign of high-ranking Africa National Congress members’ complicity in these nefarious networks has been the extreme reluctance of SAPS and the supposedly independent Hawks special investigation unit to tackle a rot that has been extensively documented over years by many credible sources.

President Cyril Ramaphosa may or may not be a crook. There’s no clarity because the president has done everything within his considerable powers to avoid public scrutiny by a parliamentary inquiry, despite the findings of a triumvirate of lawyers, including a former Chief Justice, that there are prima facie grounds for this.

But what is incontrovertible is that he is an enabler of crookery. Despite his promises to implement the findings of the Zondo Commission of Inquiry into State Corruption, he has not stirred a finger. 

Most damningly, it is his contrivance that the two most important anti-crime arms of the state apparatus, SAPS and the NPA, are headed by individuals who are not doing their jobs.

Police Minister Bheki Cele should never have been appointed  

Former President Jacob Zuma, hardly known for his passion for clean governance, fired him in 2011 as National Commissioner, following a board of inquiry finding that he was “dishonest and unfit for office”. The board’s finding was reversed on technical grounds in 2019, although a similar finding by the Public Protector was never challenged.

He has been useless as a minister — all calculated flamboyance and extravagant statements for the television cameras he so loves, but pisspoor performance in actually doing the job. Despite his gung-ho machismo — the police must “shoot to kill” and other blood-curdling threats — his tenure has been marked not only by relentlessly dismal policing statistics but embarrassing blunders every time he has inserted himself into an investigation, as he does all the time.

Take the case of the eight women who were last year gang raped in Krugersdorp during a video shoot. Cele was immediately on the scene, performing for the cameras. SAPS would avenge this “shame of the nation” and there would be a merciless pursuit of the illegal miners from Lesotho who were allegedly responsible.

Within days, more than 130 men were arrested and two were shot dead. By the time of the preliminary hearing, a few days later, all but 84 had been released. Eventually 14 of them were charged with rape, sexual assault and robbery with aggravating circumstances. All were acquitted when the NPA had to withdraw charges, conceding that there was no evidence to link the men to the crime. No one has since been arrested.

Adding insult to injury, earlier this month SAPS was ordered by the Information Regulator to publicly apologise to the eight women. Their names, ages, home addresses and ID numbers were circulated on social media, after being leaked by the cops. No one has been disciplined. 

Admittedly, the Police portfolio, despite its importance, has never performed well. In the past decade, the Police budget has grown by 72% to R100 billion last year, while their performance has declined almost in lockstep. Over that same period, cases closed dropped by more than half. In 2012, SAPS solved 32% of murders investigated; last year it was less than 15%.

Not only has SAPS, under Cele, failed dismally in its primary task of catching criminals, but it has also become more thuggish to boot. In the past five years, SAPS paid out R2.3 billion in court-awarded compensation to victims of unlawful police conduct, a 52% increase from the previous five years.

More subtle in her failures is Shamila Batohi, head of the NPA. Appointed more than four years ago, to breathe life into an enfeebled, cowed and incompetent NPA, she has done nothing of the sort. 

The NPA, which she described at the time of her appointment as “a house on fire”, set ablaze presumably by the arsonists of Zuma camp keen to escape justice, talks big but fails repeatedly. 

A few weeks back, the NPA’s most important attempt to address Zuma era corruption, failed out of legal ineptitude. The application to extradite Atul and Rajesh Gupta — identified by the Zondo Commission as the key players in what the government estimates to have been R1.6 trillion of state looting — was dismissed by the United Arab Emirates. 

The UAE found that the request “did not meet the strict standards for legal documentation as outlined in the extradition agreement". Some of the paperwork was either incorrect, in the case of the fraud charge, or missing, in the case of the corruption charge. 

In other words, rookie errors for which Batohi, as head of the NPA, must take responsibility.

But it gets worse. Last week the Bloemfontein High Court ruled on a keystone to the UAE extradition request, the Nulane Investments trial, where eight people were accused of ripping off R24.9 million destined for a project to support emerging black farmers.

This was the prosecution that Batohi described as one of nine “seminal” cases against people identified by the Zondo Commission as being involved in state looting. But judging by the High Court judgment, perhaps she meant to say “nominal” not “seminal”. 

The SAPS investigation was poor, found the court. Its investigators failed to maintain a correct chain of custody of evidence. The NPA prosecution was so inadequate — Acting Judge Nompumeleo Gusha described it as “lackadaisical”, “laborious”, “a comedy of errors”, “stillborn”, and not meeting the “barest [evidentiary] threshold” — that all eight accused were discharged without having to defend themselves. Gusha caustically remarked that the only way that the State would get a conviction was if the accused got into the witness box and incriminated themselves.

Over and over again, the State witnesses failed in any way to advance the NPA’s case and, on several occasions, achieved quite the opposite. 

Notokozo Zama, a chartered accountant attached to the Zondo Commission, had to admit that he had made the basic error of starting a crucial analysis with the wrong opening balance. Had he started with the correct one, “he readily conceded”, his findings would have been much different and “indeed would have evinced nothing sinister”.

Again, all rookie errors, for which Batohi, as head of the NPA, must take responsibility.

Gusha was aware that high hopes rested upon the Nulane prosecution. She noted at one stage that her decision would “invoke a sense of loss, if not dejection” in the South African public. 

“It is an inescapable fact that almost R25 million rand of taxpayers' money left the fiscus. The question that remains is why and who facilitated this. Regrettably … the institutions [SAPS and the NPA] responsible to answer those questions failed.”

And so did their leaders, again.

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