A case of selective prosecution?
19 October 2016
The National Prosecuting Authority (NPA) will tell all who care to hear, that the body is independent, impartial and that the body acts without fear or favour. It follows then, that after the Finance Minister Pravin Gordhan has been charged with fraud - albeit with debatable merits of the case - that criminal charges too, should be laid against various individuals whose business ventures appear to have transgressed numerous South African laws.
An affidavit deposed to by the Finance Minister suggests that the Department of Mineral Resources was not entirely truthful in its approval of the transfer of R1.5 billion from a trust account to a bank in India. The affidavit is in support of an application for a Declaratory Order asking the Court to declare that as the Minister of Finance, he did not have the authority to intervene with the Banks’ decision to close business accounts associated with the Gupta family. The sum of R1.5 billion was meant to rehabilitate Optimum Coal Mine which is owned by the Gupta family - the subject of a Public Protector investigation into allegations of state capture.
This particular transfer is but one of similar transfers which in total amount to R6.8 billion. South African banks alerted the Financial Intelligence Centre as to the transactions before taking the decision to close the bank accounts belonging to the companies owned by the individuals named in the State Capture Report. In accordance with the Financial Intelligence Centre Act (FICA), banks are required to report any suspicious and unusual transactions to the Financial Intelligence Centre. Some news reports even go so far as to suggest that these same individuals, through their businesses, are involved in corrupt or criminal activities, and that this is accordingly reflected in their bank transactions.
In terms of the Prevention and Combating of Corrupt Activities Act, banks are required to report knowledge of corrupt activities. The same law, in addition, provides that any person who holds a position of authority and knows or ought reasonably to have known or suspected that any other person has committed an act of corruption involving an amount of R100 000 or more must report this information or suspicion to any police official.
To date, the NPA has not stated its position regarding the possibility of, at the very least, a criminal investigation into these widely reported allegations of wrongdoing by these individuals. It certainly is not for lack of resources, seeing as the NPA has an entire division which is dedicated to prosecuting organised crime, corruption, as well as other serious offences - the Directorate for Priority Crime Investigation - commonly known as the Hawks. In Glenister v the President of the Republic of South Africa, the Constitutional Court underlined the fact that the Constitution imposes an obligation on the state to establish and maintain an independent body to combat corruption and organised crime. Of corruption, the same court stated that “[I]t blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted.”
In line with the prosecutorial independence that is guaranteed by both the Constitution and the National Prosecuting Authority Act, the NPA has a discretion in making decisions which affect the criminal process. This discretion can be exercised at specific stages of the process, including the decision to withdraw charges or stop a prosecution. While arguably the NPA only becomes involved in a case after the South African Police Services (SAPS) delivers a docket to the NPA, section 179(2) of the Constitution empowers the NPA to “…carry out any necessary functions incidental to instituting criminal proceedings”. This ensures that in addition to the NPA deciding on whether the SAPS has adequately investigated the case and presented enough evidence for the case to be brought before a court, the NPA can still investigate a case of its own accord. While the NPA’s discretion extends to a decision to prosecute, it is now settled law that this discretion has to be exercised rationally and within the confines of legality. In other words, should there be overwhelming evidence to suggest law-breaking, then the NPA will be hard pressed to choose not to prosecute.
The Public Protector’s report into allegations of state capture by the same individuals mentioned in the Finance Minister’s affidavit has been placed under an embargo pending the finalisation of legal action instituted by the President, as well the Minister of Cooperative Governance and Traditional Affairs, to prevent its public release. Perhaps its contents, as well as any remedial action recommended therein, will lend greater impetus for the NPA to likewise institute proceedings against individuals found to have broken the nation’s laws.
This seemingly selective prosecution casts a shadow over the integrity of the NPA, with many political analysts pointing to a politically-captured organisation carrying out politically-driven prosecutions. Should this be the case, then this does not bode well for South Africa’s constitutional democracy. We wait to see what steps, if any, the NPA will take in bringing to book the individuals whose business dealings have transgressed the nation’s laws.
By Phephelaphi Dube, Director, Centre for Constitutional Rights, 19 October 2016