The departure this week of senior prosecutor advocate Gerrie Nel from the National Prosecuting Authority (NPA) is just another illustration of the mess that this key institution is in. Here's a look at why the NPA seems to be on the road to nowhere.
- No one can keep the top job
Since 1994, not one National Director of Public Prosecutions (NDPP) has ever served out their full 10-year term in charge of the NPA. In fact, the average length spent in the top job is around two years. Every NDPP has either been suspended, fired or taken a golden handshake. The last guy, Mxolisi Nxasana, got a R17 million payout — he had 98 months left on his contract. The most public of these suspensions was that of advocate Vusi Pikoli, who has always maintained he was removed in order to prevent the prosecution of police chief Jackie Selebi. Then the Constitutional Court handed down a ruling which found the appointment of his successor Menzi Simelane to be irrational and invalid. In effect, the meddling of politicians has led to continued instability in the leadership of the organisation. The other big problem is that the NDPP is hired and fired by the President and should be done by Parliament or the Judicial Service Commission.
- Some are more equal than others
George Orwell's Animal Farm has nothing on the NPA. The essential creed of the institution is that it prosecutes without fear or favour and that all are equal before the law. Over the past few years it has become increasingly evident that there are selective prosecutions happening in the country and those with political power and influence are protected from prosecution. The most obvious example of this is President Jacob Zuma. The NPA has stonewalled every attempt made by civil society organisations and opposition parties to gain access to the so-called "Spy Tapes" and to review the Zuma decision.
- There are actually 783 reasons why the NPA is screwed
Public faith in the institution was completely crippled by one big decision and it is the hangover from this decision that casts a long shadow over the NPA. In 2008, eight years into the case and two weeks before an election, NDPP Mokotedi Mpshe withdrew 783 charges of corruption against Zuma. The reason he gave was that the legal process was tainted by the actions of NPA officials. So in other words, it had absolutely nothing to do with the actual merits of the case against Number One. It looked to all the world like it was a political decision favouring the ANC's presidential candidate and it completely undermined the credibility of the organisation. It has never really recovered.
- One woman: Nomgcobo Jiba
This one person alone was probably enough reason to get advocate Gerrie Nel packing up his robes and skedaddling off to AfriForum. She has been a thorn in his side for over a decade. So who is she? Nomgcobo Jiba is a deputy director at the NPA although she is currently on suspension. She did act as NDPP for a while and is seen as very close to Zuma. Jiba played a central role in securing an arrest warrant for Nel when he was arrested on trumped up charges by the police in 2008, during the height of his investigation into Jackie Selebi. Jiba blames Nel for sending her husband Booker Nhantsi to jail in 2005 after he stole from a trust fund. Zuma issued a presidential pardon for Nhantsi in 2012 and expunged his criminal record. It's what friends do for friends, you know.
- Deep factions
Over the last decade, battle lines have been drawn within the NPA and clear factions have emerged. There are those who are close to and protect Zuma and those who believe in the rule of law and pursue justice. In one camp was Jiba, another deputy Lawrence Mrwebi and the former head of the NPA's integrity unit who is now the head of the Hawks in Gauteng, Prince Mokotedi. The triumvirate ran roughshod over the NPA, making decisions based on personal and political agendas. Over the years, 12 separate judges on four different benches in three high profile cases, have slammed Jiba for her conduct. She was charged with perjury and for lying under oath (she basically fabricated an entire affidavit). Jiba and Mrwebi were struck from the roll of advocates and have been suspended as a result. But questions have lingered about where Jiba's power comes from and the true nature of her relationship with Zuma.
- The ugly Breytenbach affair
Fiesty prosecutor Glynnis Breytenbach came up against the all powerful triumvirate at the NPA in the most public way possible. In full view of the country's cameras, all the dirty laundry of the organisation came tumbling out at Breytenbach's internal disciplinary hearing. She was suspended in 2013 by Jiba ostensibly because of her persistent attempts to prosecute the former head of Crime Intelligence Richard Mdluli. Mdluli is like the bogeyman in South Africa — a proxy for all that is festering and corrupt within the country's criminal justice system. Breytenbach insisted on prosecuting him for fraud and corruption but Jiba, Mrwebi and Mokotedi stepped in and ensured Breytenbach was taken out of the picture. After all, Mdluli had helped Jiba at her own Labour Court hearing back in 2008 when she was suspended. He had provided an affidavit to help her against the NPA and so she owed him a favour.
Breytenbach was officially suspended because of her handling of a mining rights case and her decision to delete information off her work laptop, but an independent chairman made a very different finding at her disciplinary hearing. Breytenbach, one of the country's most accomplished white collar crime prosecutors, left behind a raft of commercial cases that have just been left unfinished such as the Barry Tannenbaum ponzi scheme.
- The good guys are being shafted
While the top dogs at the NPA are busy pursuing political agendas, the good men and women prosecutors are being sidelined. If you're not politically pliable, you're out. A perfect example is struggle veteran and former head of the Special Investigative Unit and of the Asset Forfeiture Unit, advocate Willie Hofmeyr. When Hofmeyr was being interviewed for Thuli Madonsela's job in Parliament last year, he made a revelatory statement about just what is going on within the organisation. Hofmeyr was asked what the scope of his work was at the NPA and why he wanted to leave. He explained that he was no longer able to do his job despite having bucket loads of expertise and experience. He described himself as "an efficient postbox". He'd been moved to a random legal department doing a menial job that kept him busy for just three hours a day. What a waste.
- That almighty embarrassing Gordhan about turn
There are no words to describe just how badly this entire affair affected the credibility of the NPA in the eyes of the public. Its reputation was left in tatters. First, NDPP Shaun Abrahams announced that Finance Minister Pravin Gordhan would be prosecuted. The rand took a dive and everyone freaked. Then just days later, Abrahams came back to the podium and announced that Gordhan would not be prosecuted. It was all very, very awkward and stank of sinister motives. It looked fairly obvious that Gordhan was being pursued because of political and sinister motives and that both the NPA and Abrahams were being used as pawns in a much broader power play.
- Securing justice for all or just for some?
Prosecutors are busy doing their work at courts across the country every day. Most are dedicated and passionate and aren't given the credit they deserve. Many have to endured the outrage of members of the public who chastise them for being incompetent and lazy. The problem is that a number of high profile cases that have received media attention have ended badly for the NPA and made them look incompetent and ineffective. Think for example of the Andries Tatane case in which seven cops were acquitted of murder because of a lack of evidence, the dropping of charges against the main accused in the Anene Booysen trial, the bizarre plea bargain for J Arthur Brown, and the even more astonishing deals cut with the self-confessed Kebble hit men. On the flipside, there was the successful prosecution of Oscar Pistorius which was led of course by Nel.
But it is because of all the reasons above that experienced and dedicated prosecutors like Nel are leaving the NPA, and both the organisation and the country will be all the poorer for that.Suggest a correction