It has been nine years since the Guptas first landed at Waterkloof Air Force Base, marking the beginning of what has gone down in SA history as the beginning of a state capture.
Since then, there have been no convictions for state capture. About 65 people stood trial on charges of state capture, but none were convicted.
It has been seven years since the Hawks launched an investigation into corruption at the Passenger Rail Agency of SA (Prasa).
Research and advocacy group Open Secrets released its latest Bad Cops Bad Lawyers report on Wednesday, and it’s a disheartening roll call of the seemingly futile work of law enforcement. Numerous inquiries, thousands of pages of evidence released by the Commission of Inquiry into state capture, 110 cases referred to the police by Eskom since 2018, and another 60 referred to the prosecution by the Special Investigations Unit of the police, on Eskom alone – and still no convictions.
It comes just a day after the Hawks held a media briefing to outline the progress made in apprehending the bad guys. It focused on 45 high-profile cases but missed a few obvious ones: the theft of large amounts of US dollars at President Cyril Ramaphosa’s Phala Phala farm and the irregular efforts that were subsequently used to track down the thieves and the money; the lawlessness that allows illegal miners to operate seemingly unhindered; and the failure to catch any of the major participants in the July 2021 riots in KwaZulu-Natal and Gauteng.
The Open Secrets report uses evidence from the Commission of Inquiry, confidential National Prosecuting Authority (NPA) documents, court decisions and investigative reports to tell how the Hawks and the NPA failed to prosecute state capture cases. He also advises that true reform in these agencies will not be possible unless they are held accountable.
Much of the problem seems to lie with the Hawks themselves, who are actively recruiting for about 200 open positions. In his address to the media on Tuesday, Hawks boss Godfrey Lebeya outlined the extent to which his approximately 2,600 staff are investigating 22,477 cases worth a total of R1.5 trillion. A total of 4,447 convictions were handed down over the past four years, but what was noticeably missing from this victory parade were any high-profile arrests and convictions for state capture.
Although much of the information in the Open Secrets report is in the public domain, it outlines an unmistakable blueprint for efforts to obstruct investigations and law enforcement. For example, former National Director of Public Prosecutions (NDPP) Bulelani Ngcuka was accused of being an apartheid spy by a group of Jacob Zuma supporters—primarily former intelligence chief Mo Shaik and Mak Maharaj, Zuma’s former press secretary when he was president. “Ngcuka was the subject of a grueling judicial commission of inquiry after being accused of being an apartheid-era spy. While his name was cleared by the commission, Ngcuka resigned as NDPP in 2004 after six years in office,” Open Secrets said.
This smear campaign coincided with an NPA investigation into an arms deal that also implicated Zuma.
Since 1998, SA has undergone six permanent and three active NDPPs. None of them stayed in office for all 10 years. Ngkuki’s successor Vusi Pikoli has been the subject of an investigation into his fitness to hold office after he issued an arrest warrant for the late Police Commissioner Jackie Selebi. Piccoli was dismissed two years after taking office, despite the Ginvala inquiry finding him to be “a man without reproach”.
Public confidence in the NPA’s office further declined during Zuma’s presidency when Menzie Simelane, then Director-General of the Department of Justice, was appointed as the NDPP. Simelane was found to have interfered excessively in the Jackie Selebi case and made misrepresentations under oath.
Things improved in 2015 when Sean Abrahams was appointed NDPP. He sanctioned some questionable cases, such as the investigation of former SA Revenue Service (Sars) officials Johan van Loggerenberg, Ivan Pillai and Andris Janse van Rensburg for running an alleged “rogue unit” that was later debunked. It is widely suspected that the charges against the rogue unit were an attempt to subvert a legitimate investigation into major tax fraud. The case was dismissed in 2020 when the NPA found no reasonable prospect of a successful prosecution.
The NDPP’s office has also been used to interfere with political allies in other cases, such as allegations of fraud against Robert McBride, the former head of the Independent Police Investigative Directorate (IPID), which investigated corruption allegations against former SA Police Services (SAPS) Commissioner Khomotso Fallan. The charges against McBride were dropped in 2016. Former Hawks national team boss Anwa Dramat and former Gauteng Hawks boss Shadrack Sibiya were under investigation after they were (falsely) accused of illegally handing Zimbabweans back to their homeland. McBride cleared them of guilt. Dramat was at the time investigating the upgrading of Jacob Zuma’s estate in Nkandla, while Sibiya was handling a case involving then-Criminal Intelligence boss Richard Mdluli.
Karen van Rensburg, the former NPA Director General and current Head of Administration, submitted two affidavits to the Probe Commission, alleging that the Authority was captured and naming Nomgkob Jiba (acting NDPP 2012-2013) and Sean Abrahams as those responsible for corruption in unit. She described how investigators working on major corruption cases targeted their colleagues by leaking confidential information and then prosecuting or disciplining officials. If the officials did not leave their posts, the cases against them were investigated with particular vigor, opening the possibility for more pliable officials to take over high-level investigations. Charges against the perpetrators of corruption were dropped after their reputations were tarnished.
The Open Secrets report makes it clear why the state capture project was so fruitful for the participants. The NPA and the Hawks are failing to do their jobs and have “caused further corruption through delays in important cases and questionable prosecutorial and investigative decisions, while their conduct has declined for almost a decade. society’s trust in their abilities and desire to seek justice,” the report says.
Open Secrets makes several recommendations to correct this errant course: investigate incompetent or corrupt prosecutors and police, recruit competent investigators and prosecutors, and make sure the Hawks are transparent with the public about the problems they face.
“Hawks and the NPA need to successfully prosecute state capture and other grand corruption cases. Without these convictions, corruption will continue in South Africa,” says Open Secrets.
“The most effective factor in deterring financial crimes is justice. The Hawks and the NPA must act urgently to prosecute and secure convictions in these cases, and if they are unable to do so, they must be transparent about their problems.”
In one of the reports, author Michael Marchant says: “Evidence presented to the Commission of Inquiry suggests that senior prosecutors such as Andrew Chouk, Tori Pretorius and Sela Maema may have failed in their duties as prosecutors. There is an urgent need to conduct a full investigation into these allegations and take appropriate action.”