04/02/2018 16:52 SAST | Updated 04/02/2018 19:02 SAST

Depoliticise Top NPA Appointments, Urges Advocate

Leadership of the NPA must feel accountable to society, not politicians they may be required to investigate, says witness.

Marc Davies

The legal fraternity and civil society at-large should be directly involved in the appointment of the National Prosecuting Authority (NPA) head to strengthen its independence, said a witness at the corruption tribunal on Sunday.

Presenting to a panel at The People's Tribunal On Economic Crime, Advocate Hermione Cronje called on civil society to put high on its agenda the call for "more transparent, depoliticised processes to appoint the National Director of Public Prosecutions (NDPP)" among other senior appointments.

While at no point making specific reference to current NDPP Shaun Abrahams, Cronje said the appointment of the NPA head should be decided by a body in which the [legal] profession, politicians and civil society organisations all have a stake to "guarantee [the NDPP] doesn't get diverted along the way".

The advocate -- formerly part of the NPA's Asset Forfeiture Unit and involved in the recovery of assets from convicted fraudster Schabir Shaik -- also criticised the NPA's "dismal" record of successful prosecutions. While the NPA boasts remarkably high conviction rates, well over 90% depending on the types of crime, Cronje said this is only because so many cases are not taken up for prosecution.

She added that a combination of lack of capacity and the contingency of political will in the effectiveness of the NPA acted as major constraints on its ability to "tackle serious investigations".

'Pockets of excellence'

When asked by evidence leaders whether she thinks the NPA has the capacity to investigate institutions for complex financial crimes, Cronje said there are "pockets of excellence" in the NPA but as an institution in its entirety it wasn't clear whether it could achieve the impact it ought to.

"The NPA's record of prosecuting in this arena is dismal and its explanations for why don't lead anyone to believe it will solve this soon," she said.

The NPA takes a very defensive stance: give us time, give us space, we can't disclose what we're doing... but then nothing happens for years.

It was not a lack of training or expertise that is most detrimental to progress in this area, she said, but rather a lack of focus.

"There's no shortage of training available, and expertise can be developed, but people need to be in an institutional setting where they can focus on what they've been trained to do," she added.

The disbanding of the Directorate of Special Operations -- known as the 'Scorpions' -- in 2008 added to this malaise, she said.

"We don't have bodies that are forced to produce results, and focus. We had this in the Scorpions. That model of investigators, prosecutors and accountants working on a defined scope of crime, and showing results that aren't just 'plea bargains'... that's where [we need to go]".

Marc Davies
Panel at the People's Tribunal on Economic Crime, Constitution Hill, Johannesburg, 3 February 2018.

Could the NPA prosecute for sanctions-busting?

Asked by panel chair Justice Zac Yacoob whether there was a particular appetite in the NPA in the 1990s to prosecute those who had circumvented U.N. sanctions on arms during apartheid, she said there was no conscious organisational policy dictating this.

Yacoob queried whether it was the political milieu at the time -- with a heightened emphasis on reconciliation and concern for the economy and foreign investment -- that may have precluded this. In response, Cronje said without a conscious policy decision in the NPA to address past crimes, it made sense the organisation focused on what was ahead of it at the time.

I cannot say there was a conscious policy way one or another. There should, however, have been a conscious policy [to address these apartheid crimes].

Yacoob asked whether prosecution could be achieved today, some 25 years later, given that the Constitution provides that any accused person is entitled to trial within a reasonable time of committing an alleged crime.

Cronje conceded this could be a major constraint on the possibility of prosecution. She emphasised, however, that attempting to reclaim assets presented fewer challenges.

"My experience, training and orientation is in recovering the money [asset forfeiture]. There are far fewer constraints in ensuring people 'pay back the money' because it doesn't infringe [on] liberty," she said.

"Whether pre-1994 or right now, we have the legal framework to address these issues. We need to set aside the resources... [and create the institutional setting] to tackle them, she said".

The People's Tribunal on Economic consists of public hearings in which evidence is being collected to 'join the dots' on over 40 years of alleged economic crimes. It continues at Constitution Hill in Johannesburg until 7 February 2018.