Zelna Jansen
THE National Director of Public Prosecutions (NDPP), Advocate Shamila Batohi, released a media statement on 20 October 2024 in which she made allegations of “unwarranted and politically motivated attacks on the organization and a smear campaign against its senior staff’.
The statement further goes on to say that “The timing and nature of these attacks come from well-worn playbooks that aim to undermine the work of the NPA as it makes progress against serious corruption.”
These statements were made in response to the media raising concerns about Deputy Director of Public Prosecutions, Advocate Anton du Plessis, not receiving his security clearance from the State Security Agency (SSA). The security clearance was denied because of Du Plessis’ dual citizenship. It is not illegal to have dual citizenship and the NDPP regards this as a “non-issue.”
The statements made by the NDPP are extreme and worrisome as they allude to political interference in the work of the NPA, which is to institute criminal proceedings on behalf of the state without fear, favour, or prejudice.
Earlier this month in reporting to the Portfolio Committee on Justice (PCJ) on the NPA’s annual performance, the NDPP pointed out that South Africa is one of the few countries in the world that is prosecuting senior government officials and private sector actors for complex corruption.
Complex corruption can be described as corruption that is systemic and requires comprehensive and multidisciplinary approaches for its effective prevention and combat. These cases are not straightforward and traditional approaches of prosecution will not suffice.
At the PCJ meeting, the NDPP reported that over the past five years, 39 high-profile state capture corruption matters were enrolled with the Investigations Directorate Against Corruption. Seven hundred government officials and over 1000 private sectors have been convicted of corruption. The Asset and Forfeiture Unit (AFU) has frozen R30,38 billion in assets, preventing criminals from using proceeds of crimes to fight prosecutions. The AFU has also recovered R11,7 billion of which R6,8 billion returned to victims.
The NDPP emphasized that despite resistance, the NPA is well-positioned to continue its progress. One of the challenges highlighted by the NDPP is that the Director General (DG) of the Department of Justice is the accounting officer of the NPA. The NDPP reminded the PCJ of discussions that took place between her, the previous Minister of Justice and the Committee about amending the NPA Act to address this aspect. The NDPP emphasized the importance of enhancing the NPA’s financial and operational independence as a vital component of an effective NPA. The NDPP emphasized that she would appreciate the support of the committee when the legislative amendments are tabled in Parliament.
The NDPP further implied that the DG of Justice being the accounting officer is a challenge to the independence of the NPA. One must therefore ask whether the size of the budget allocated to the NPA is being used as a tool to influence who is being prosecuted.
Media articles have been circulating calling for the Minister of Justice, Thembi Simelane to step down from office. The minister has been associated with receiving a loan from a company involved in the VBS scandal. The minister has not been convicted and has appeared before the PCJ, stating that receiving the loan was a legal transaction and she has since repaid the loan. This matter is before President Ramaphosa to decide.
One can contentiously ask whether interference is coming from the Minister to prevent the NPA from prosecuting people of interest in the VBS scandal.
There is also the Phala Phala matter, wherein the DPP of Limpopo said that it would not be prosecuting the President as there is no prospect of a successful prosecution. A Section 89 Panel established by Parliament found that there is prima facie evidence that the President contravened the Prevention and Combating of Corrupt Activities Act, 2004.
This brings one to the question of whether Du Plessis not obtaining security clearance because of his dual citizenship is an “unwarranted and politically motivated attack” on the NPA and a “smear campaign against its senior staff.”
Security clearances are issued in terms of the Minimum Information Security Standards Document (MISS). MISS was adopted by Cabinet in 1996, and it states that “each application for a security clearance in respect of persons with dual citizenship must be assessed on the merits of each individual case”.
The SSA could have concerns about foreign influences infiltrating the NPA and compromising its independence. Du Plessis does have considerable influence on decisions as to whether to prosecute a case or not. Dual citizenship means that he pledges allegiance to two countries. One therefore wonders if South Africans are comfortable with government employees with dual citizenship holding sensitive positions in key public sector institutions like the NPA.
Vetting is required if one wants to be employed or remain in the employment of government. There have been views that there are employees in government including the NPA that do not have the required vetting. Permanent appointments in the public sector are subject to security clearance and vetting may take several years. The Standing Committee on Public Accounts in 2019 expressed deep concerns about the lack of enforcement of the law when it comes to the vetting of officials of government and state-owned enterprises as this leaves the government vulnerable to crime, fraud, and mismanagement of state funds.
There have been suggestions that to enhance the NPA’s independence, it must report and receive its budget directly from Parliament. The Office of the Chief Justice has made similar requests to move away from the budgetary controls of the Department of Justice. But the NPA, like other government institutions in the justice cluster, is part of the justice value chain or system and its operations impact other institutions in this value chain. The NPA’s operations will also impact other government institutions not in the justice cluster.
One must therefore ask if all the government institutions want to move away from their political heads and report directly to Parliament, will the committees be in a position to have a poly-centric view as well as resources to disburse funds? Committees are already approving and passing budgets. Decision-making in committees is also more transparent and the public has more immediate access to stakeholders. Perhaps going forward this is something for the legislative arm of government to consider. Particularly, as government institutions strive to move away from political influence for corrupt ends.
* Zelna Jansen is an attorney specializing in law and policy reform, lobbyist, opinion writer and thought leader.
** The views expressed in this article do not necessarily reflect the views of The African.