City of Johannesburg considers Private Prosecution due to NPA inaction

18 March 2019

Today, I have written to Adv. Andrew Chauke, the South Gauteng Director of Public Prosecutions, expressing my deep concern and frustration due to the withdrawal and lack of progress on several criminal matters sitting with the National Prosecuting Authority (NPA).

I have requested the law enforcement authority to clarify whether it intends to prosecute these matters before court.

Should the NPA indicate that is has decided to abandon these cases, I have also requested that the City be provided with a nolle prosequi (a formal notice by the prosecuting authority of their decision to voluntarily discontinue criminal proceedings) for each of the criminal cases so that the City may assess its legal options in taking the matters forward.

It is the City’s view that the continued inaction on these cases effectively rewards criminal conduct, negating the City’s efforts to end corruption.

On numerous occasions the City has sought to engage the NPA to raise our concern on the apparent lack of attention paid to fraud and corruption cases emanating from the City. These engagements have yielded poor results.  

In fact, the NPA has opted to withdraw many slam-dunk cases, with overwhelming evidence against the accused, allowing those responsible for fraud and corruption to walk away scot-free.

One such case is that of former candidate valuer, Mbali McClare, who was arrested for deliberately undervaluing 22 properties in the city, amounting to just under R500 million, that was withdrawn by the NPA late last year.

At the time we were informed that the NPA had no option but to withdraw the case due to its inability to obtain statements from owners of the buildings which had been devalued. However, the Johannesburg Special Commercial Crimes Unit is situated in a building owned by one such individual and the City’s Group Forensic and Investigation Services Unit (GFIS) was immediately able to identify other building owners.

I was disturbed to be informed that, months later, statements from building owners are still outstanding.

Another case which illustrates the NPA's inability to prosecute serious criminality was the withdrawal of the case against the directors of Setheo Engineering. The directors were arrested in 2017 after having allegedly colluded with City Power officials and received payments exceeding R88 million for work that was never completed in the building of the Eldorado Park sub-station and refurbishment of the Hopefield sub-station.

In addition to a fraudulent bank guarantee, I personally handed over the financial records of the estimated 28 fraudulent payments to the then acting Head of the Hawks in 2017. I was dumbfounded when informed last week that the financial investigator is still perusing the matter.

In another travesty of justice, early last year, we witnessed the withdrawal of the case against the former MMC of Housing, Dan Bovu. This case related to the alleged illegal sale of state land to vulnerable people within our society. This case too was provisionally withdrawn from the roll because material witnesses were no longer prepared to testify after being paid money.

Accused individuals out on bail cannot directly or indirectly interfere with witnesses and yet the very same trust that was established by Bovu, that received the proceeds of the illegal sale of land, was allegedly used to pay the material witnesses in order that they would no longer be willing to testify.

Rather than pressing further charges for defeating the ends of justice and witness interference, the NPA saw fit to provisionally withdraw the case from the roll. A year later we are informed that witness statements still need to be obtained, despite the City handing over a sworn affidavit from once such witness confirming the payment of money in exchange for their silence.

Any decision by the NPA to decline to prosecute and/or withdraw charges must be based on rational reasons. I am of the view that the decision to provisionally withdraw the above cases were not.

In any event, the lack of progress on these matters since their withdrawal is seriously bringing into question the Gauteng NPA’s commitment to ensuring that those who have elected to steal public money face the consequences of their actions.

Sadly, it appears that individuals in the NPA are intentionally frustrating the prosecution of these cases to undermine the City’s fight against corruption.

There are many other cases like this, that not only represent a miscarriage of justice for the City but also for the law abiding and hardworking residents of Johannesburg. Every cent lost to corruption means less services for our residents. We cannot allow criminals to continue to go unpunished for stealing from our residents.

It is our residents’ demand that justice be done and I will not rest until those who have elected to steal from our residents face the full might of the law.

Issued by Luyanda Mfeka, Director: Mayoral Communications, Office of the Executive Mayor, 18 March 2019