There has been a lot of hype in the media recently after the release of the latest report from the Zondo Commission where several key public figures have been identified for possible prosecution. The public is very keen to see those responsible for State Capture brought to book and to pay for their malfeasance. The task of prosecuting these matters lies with the NPA and it will no doubt be a gargantuan task. But the man in the street should not hold his breath to see politicians in orange suits too soon. Besides the capacity issues the NPA will face in dealing with these cases, prosecuting them is not so simple as we intend to discuss here below.
The fact that the Zondo Commission has stated that certain individuals should be considered for prosecution does not in any way mean that a prosecution can be undertaken tomorrow. In the criminal justice system the NPA is the second leg of the State’s arm of dealing with crimes. They can only deal with cases presented to them by the relevant law enforcement agencies (usually the SAPS) who are the first leg of the process. The NPA do not investigate and gather evidence – that is the job of the police. They may well guide investigations, but only once a case has officially been opened by the police. The Zondo Commission did gather evidence but not primarily to pursue criminal prosecutions, but rather to investigate issues as per its mandate from the Presidency (and guided by the report of the Public Protector). In a criminal trial the State must prove its case beyond a reasonable doubt and therefore the level of evidence required to sustain a successful prosecution is high. That is not necessarily the same level of evidence gathered at a commission, as they are not attempting to prove allegations in court, but rather collecting evidence in respect of a given mandate.
Now the NPA cannot just use the Zondo report as a case docket. The report must first be referred to the SAPS (most likely the relevant branches of the Hawks) and probably in liaison with the NPA’s Investigative Directorate who may give guidance therein. But to now get the contents of the report into a prosecutable docket is a lot of work. Statements taken from witnesses at the Commission may not be suitable for prosecution and may need to be retaken. It is very likely that statements will need to be taken from other witnesses, either as corroboratory evidence or to prove certain elements of the crimes alleged, that were not presented at the Commission. Investigators will have to be appointed at the Hawks who will need to register cases on their system, open dockets and start compiling the evidence to prove the allegations. The crimes emanating from the report will probably be quite wide-ranging, and could include Fraud, Theft, Corruption, Money Laundering, Extortion, Intimidation and numerous statutory crimes contained in various Acts.
Besides witness statements, these types of crimes will also need other evidence such as bank statements, cellphone records, computer evidence, video evidence and a myriad of documents. All of these types of evidence have certain evidential criteria that must be met for them to be admissible in court, and addressing that can be time consuming. Many of these types of evidence may only be obtained by subpoena (in terms of S205 of the Criminal Procedure Act)., and these take time not only in drafting and authorizing, but also in obtaining from the relevant sources such as the banks. Whilst it may be true that some of this evidence may have been gathered at the Commission, but it is quite likely there will be more needed to sustain prosecutions.
Once the evidence has been gathered in the docket it must then be returned to the prosecutor for checking to see if all is in order before embarking on bringing the suspects before court. These dockets will be cumbersome with hundreds of statements and documents and will take time to be properly assessed by the prosecutor. Then the prosecutor will have to draft a charge sheet and these too will be complicated and contain a number of legal technicalities. Prosecutors will have to be very careful to ensure that they have all their ducks in a row before starting the processes of putting the suspects into the accused dock. They can be sure that these cases will be challenged by the defence counsels engaged at very step of the way and it will not look good if any case is lost on a technicality because of haste in bringing the case to court.
I have dealt with hundreds of cases both as a prosecutor, and lately as a private watching brief, in bringing cases to prosecution and fully understand the difficulties in trying to expedite these matters. Some cases take years to get to trial readiness. But proper case preparation especially at the investigative stage, is vital for the successful outcome of any criminal case. These are also high profile and serious and complicated cases which should only be prosecuted by senior and competent staff. The NPA will also have capacity issues in how many such officials they have at their disposal to handle these cases.
So as you can see, putting such cases together is not an easy task and the NPA will strive to ensure that their cases are properly dealt with rather than try appease the public appetite for quick results. The old expression of the wheels of justice that grind slowly is indeed true but not necessarily because of any tardiness on the part of the officials (although that may well also be a factor!), but because of the systemic factors illustrated above. Adv Johnson and her team at the NPA will have their hands full, but it is in their interests, and that of the country as a whole that these matters be given the time and respect they deserve so that this dark chapter in our country’s history is addressed justly.