State capture report: NPA permitted to prosecute immediately, but will it?

Questions have been raised on whether the National Prosecuting Authority (NPA) has enough capacity to prosecute those implicated in the Commission of Inquiry into Allegations of State Capture’s report.

This comes after the first part of state capture report was handed over to President Cyril Ramaphosa on Tuesday.

NPA’s failure

In the 874-page report, the commission, chaired by Acting Chief Justice Raymond Zondo, found that state capture was established and also criticised the NPA’s failure to prosecute cases of corruption.

“It is of course well known that for many years the NPA has failed to prosecute cases of corruption, and specifically cases of corruption in the procurement process.

“The extent of that failure can be measured by reference to the almost complete absence of cases brought under the legislation applicable to crimes of this sort,” the report stated.

The report further states the NPA’s failure to respond “adequately, or at all” to the challenges of state capture corruption “points to a fundamental failure of a sovereign state function”.

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“What will now be required is a thorough re-appraisal of the structure of the NPA in order to understand the causes and the nature of its institutional weaknesses so that these can be addressed presumably by way of legislative reform

“The commission is well aware that remedial action of this sort requires an in-depth analysis of the internal structure of the NPA and the legislative and constitutional context in which it operates.

“Such an in-depth analysis falls outside the remit of the present commission and it must be left to the decision and the initiative of President [Cyril Ramaphosa] to order a separate detailed investigation,” it added.

Prosecutions

In the recommendations of the report, Zondo suggested that a new independent anti-procurement corruption agency be established. It also recommended that a number of implicated former officials face prosecution.

These individuals include former South African Airways (SAA) chair Dudu Myeni, former Transnet CEO Brian Molefe and former the South African Revenue Service (Sars) commissioner Tom Moyane.

While some organisations and political parties have called for the immediate prosecution of those implicated, the NPA’s former head of the Asset Forfeiture Unit (AFU), Advocate Willie Hofmeyr told eNCA that it will be “a real challenge” for the unit to deal with the cases.

READ MORE: Zuma, Myeni, Molefe, Moyane, Gigaba all in Zondo report’s crosshairs

Hofmeyr indicated that the NPA is allowed to start prosecuting individuals now rather than wait for the final report to be published.

He said, however, further investigations may need to be done, which will take time.

“There is a bit of a complicated process of transferring all the documents and evidence of the Zondo commission to the NPA, and get them into a form where criminal charges can be brought.

“There are going to be areas where further clarification is needed and witnesses called in for further information. It’s not going to be a quick move,” Hofmeyr said.

The former AFU head suggested that prosecutions may only happen next year.

“I should hope by next year a significant number of cases should start, state capture isn’t about few people doing wrong things, but senior officials committing corruption on a massive scale, so it’s going to be a big challenge. We need to give the NPA a chance to deal with it properly.”