Zero convictions, nine years after the Gupta Waterkloof landing

It’s been nine years since the Guptas first landed at the Waterkloof Air Force base, marking the start of what will go down in SA lore as the start of state capture.

Since then, there have been zero convictions for state capture. Some 65 people have appeared in court on state capture charges, but not one has been convicted.

It’s been seven years since the Hawks started investigations into corruption at the Passenger Railway Agency of SA (Prasa).

On Wednesday, investigative research and advocacy group Open Secrets released its latest report Bad Cops Bad Lawyers, and it’s a disheartening rollcall of seemingly wasted law enforcement effort. Multiple inquiries, thousands of pages of evidence published by the Zondo Commission into state capture, 110 cases referred by Eskom to the police since 2018 and 60 more referred to prosecutors by the Special Investigation Unit of the police, just on Eskom – and still no convictions.

This comes just a day after the Hawks held a media briefing to outline what progress it had made in locking up the bad guys. It focused on 45 high profile cases, but missed a few of the obvious ones: the theft of a large amount of US dollars at President Cyril Ramaphosa’s Phala Phala game farm and the irregular efforts subsequently used to track the thieves and the money; the lawlessness that allows illegal miners to operate seemingly without hinderance; and the failure to catch any of the big movers behind the July 2021 riots in Kwazulu-Natal and Gauteng.

The Open Secrets report uses evidence submitted to the Zondo Commission, confidential National Prosecuting Authority (NPA) documents, court judgments, and investigative reports to tell the story of how the Hawks and the NPA have failed to take on state capture cases. It also recommends that true reform in these agencies will not be possible unless they hold their own to account.

Much of the problem appears to lie with the Hawks themselves, which is actively recruiting to fill some 200 vacant posts. In a media address on Tuesday, Hawks boss Godfrey Lebeya outlined the extent to which his roughly 2 600 staff were investigating 22 477 cases with a combined value of R1.5 trillion. A total of 4 447 convictions have been obtained in the last four years, but what was noticeably lacking from this victory parade was any high profile arrests and convictions for state capture.

While much of the information in the Open Secrets report is in the public domain, it outlines an unmistakeable pattern of efforts to hobble investigation 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 supporters of Jacob Zuma — primarily former intelligence boss Mo Shaik and Mac Maharaj, Zuma’s former spokesperson when he was president. “Ngcuka was the subject of a gruelling judicial commission of inquiry after he was 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,” says Open Secrets.

This smear campaign coincided with the NPA’s investigation into the arms deal, which also implicated Zuma.

SA has cycled through six permanent and three acting NDPPs since 1998. None have lasted the full 10 years in office. Ngcuka’s successor Vusi Pikoli became the subject of an inquiry into his fitness to hold office after he issued a warrant of arrest for late police commissioner Jackie Selebi. Pikoli was dismissed two years after taking office, despite the Ginwala inquiry finding him to be a ‘person of unimpeachable integrity’.

Public trust in the office of the NPA declined even further under the Zuma presidency, when Menzi Simelane, then the director general of the justice department, was appointed to the to position of NDPP. Simelane had been found to have unduly interfered in the Jackie Selebi case and made misrepresentations under oath.

Things stepped up a notch in 2015 when Shaun Abrahams was appointed NDPP. He authorised some dubious cases, such as the investigation into former SA Revenue Service (Sars) officials Johann van Loggerenberg, Ivan Pillay, and Andries Janse van Rensburg for operating an alleged ‘rogue unit’ – later debunked. It is widely suspected that the accusations of a rogue unit were an attempt to knee-cap a legitimate investigation into big tax cheats. The case was dropped in 2020 when the NPA found no reasonable prospect of a successful prosecution.

The office of the NDPP was also used to run interference for political allies in other cases, such as the charges of fraud against Robert McBride, former head of the Independent Police Investigative Directorate (IPID), who had been investigating allegations of corruption against former SA Police Services (SAPS) Commissioner Khomotso Phahlane. Charges against McBride were dropped in 2016. Former national Hawks boss Anwa Dramat and former Gauteng Hawks boss Shadrack Sibiya were under investigation after being (falsely) accused of illegally renditioning Zimbabweans back to their home country. McBride cleared them of wrongdoing. Dramat had, at the time, been investigating upgrades to Jacob Zuma’s homestead in Nkandla, while Sibiya was looking into a case involving then crime intelligence boss, Richard Mdluli.

Karen van Rensburg, NPA’s former CEO and current head of administration, submitted two affidavits to the Zondo Commission, claiming the Authority had been captured and named Nomgcobo Jiba (acting NDPP between 2012 and 2013) and Shaun Abrahams among those responsible for the corruption at the unit. She detailed how investigators working on grand corruption cases were targeted by their colleagues, by leaking sensitive information and then criminally charging or disciplining the officials. If the officials did not leave their positions, the cases against them were pursued with extra vigour, opening the door for more pliable officials to take over high profile investigations. Charges against corruption busters were withdrawn once their reputations had been smeared.

Open Secrets’s report makes it clear why the state capture project has been so fruitful for those involved. The NPA and the Hawks are failing to do their jobs, and have “become the enablers of further corruption through their delays in important cases and their questionable prosecutorial and investigative decisions, while the ways in which they have conducted themselves for almost a decade has decreased public trust in their abilities and willingness to pursue justice,” says the report.

Open Secrets makes a few recommendations to correct this aberrant course: investigate incompetent or corrupt prosecutors and police officers, recruit competent investigators and prosecutors, and ensure the Hawks communicate transparently with the public about the challenges it faces.

“The 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 deterrent that there is to prevent financial crimes is justice. The Hawks and the NPA must act urgently to prosecute and to get convictions in these cases, and if they are unable to do so, they should be transparent about their challenges.”

Says one of the reports, authors, Michael Marchant: “Evidence put to the Zondo Commission suggested that senior prosecutors like Andrew Chauke, Torie Pretorius, and Sello Maema may have failed to uphold their duties as prosecutors. It is urgent that these accusations are fully investigated by the NPA, and appropriate action taken”.