The Legal Gymnastics, Passing the Ball and False Starts – Political Interference and the Orchestrated Failure of the National Prosecuting Authority in South Africa to Ensure Accountability and Justice for Politically-Connected Persons in Corruption Legal Gymnastics, Passing the Ball and False Starts – Political Interference and the Orchestrated Failure of the National Prosecuting Authority in South Africa to Ensure Accountability and Justice for Politically-Connected Persons in Corruption and related cases

Abstract

Instances where persons and their associates in fiduciary trust and privileged positions (“politically-connected persons”) illegally monopolise the use of public funds to their advantage (“political corruption”) have become so endemic in South Africa that it has been described as entrenched. The Constitutional Court of South Africa (“CC”) commented that political corruption is inconsistent with the rule of law and the fundamental values of the Constitution of 1996 (“the Constitution”). This crime is the antithesis of the open, accountable, democratic government that is guided by fundamental values of human dignity freedom and the rule of law. The CC further stated that political corruption “… undermines the ability of the government to use its available resources to reduce fight poverty and deliver social and economic rights guaranteed in the Bill of Rights. Socio-economic rights are at the heart of human dignity especially in south Africa where most indigent that are victims of corruption depend on state resources.

South Africa has, in response to rampant and entrenched political corruption and in compliance with its international law and constitutional obligations, established various institutions and mechanisms to detect and prosecute those responsible for political corruption. Nonetheless, it has been argued that the initiatives to combat political corruption have been reduced to mere rhetoric or that politicians have actively obstructed these processes. This negative political attitude has adversely impacted the availability of resources and expertise within the criminal justice system. Research shows a disconnection between the detection, prosecution and successful conviction of instances of and those responsible for political corruption compared to the high incidence of these crimes. This challenge is attributed to the ability of politically-connected persons involved in corruption to establish a level of control and influence over institutions within the criminal justice system that allows them not only to continue with their criminal activities but also to effectively escape accountability. The recent press conference by the Kwazulu Natal Let Gen Mkhwanazi of the South African Police Service confirms this challenge. Due to the gravity of the matter, the President thus suspended the Minister of Poilce and established a Commission of enquiry led by Justice Madlanga to establish the veracity and length of these allegations. To date evidence has been led into some scathing corruption activities in the SAPS, justice system as well as some government departments. A number of persons have further been placed on leave pending investigations.

The failure of the criminal justice system to hold those responsible for political corruption can, however, not be attributed to the judiciary. Research shows that during the 2021/22 period, the judiciary achieved ten of its thirteen performance targets, while only three were not fully accomplished. The judiciary demonstrated a general commitment to hold the NPA to account, to decide political corruption cases without fear or favour and to render timely and impartial decisions according to the law. The independent and impartial performance of judicial officers inevitably displeased some politically-connected persons. As a result, judicial officers were subjected to numerous attacks, threats, insults and intimidation. In response, Chief Justice Raymond Zondo, in the judiciary’s annual report for 2021/22, warned that judicial officers would “not be intimidated by anybody, no matter his or her position in society”. The judiciary was thus generally not susceptible to political interference and performed its adjudicative functions admirably regarding matters placed before it. The independent and impartial performance of the judiciary was complemented by courageous interventions by civil society and principled persons within the criminal justice system.

Politically-connected persons could, nonetheless, maintain the required control over the criminal justice system despite the judiciary’s admirable performance of their official duties. Many instances of corruption were never detected or were not, when reported, properly investigated by the South African Police Service (“SAPS”). Matters investigated and referred to the National Prosecuting Authority (“NPA”) were not placed before the criminal courts for adjudication. The underperformance of these institutions within the criminal justice system has partly been attributed to economic and skill starvation and logistical challenges, such as prolonged power cuts and insufficient resources. These factors already imply a measure of political interference and the effects of endemic corruption. However, research suggests that the NPA’s failures cannot merely be attributed to a lack of resources. Instead, the evidence points to institutional inefficiency and the inappropriate exercise of the NPA’s discretion not to prosecute instances of political corruption due to political interference. This underperformance is revealed in patterns of bias and extraordinary delays and failures by the NPA in effectively prosecuting politically-connected persons where credible evidence of the commission of political corruption existed. These challenges were exacerbated when the NPA, at times, proceeded to institute prosecutions against law enforcement officials investigating political corruption where there existed insufficient evidence or in contravention of the NPA’s Prosecution Policy. The inefficiency< questionable decisions and poor leadership within the SAPS and the NPA, including various National Directors of Public Prosecutions (“NDPPs”), strategically employed to delay and obstruct prosecutions, allowed politicians and their accomplices to remain in power and act with impunity. The reality is that persons were corruptly deployed into positions of authority to facilitate further corruption.