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One of the fundamental principles of the criminal justice system in South Africa and around the world is that not only should justice be done, but it should be seen to be done. Crucial to that is the public's faith in the system and confidence in the rule of law. If citizens cannot see that justice is being carried out, they do not believe that it is.
This week the National Prosecuting Authority (NPA) confirmed that it was withdrawing charges against the accused in the so-called Estina Dairy Project investigation. This case has become the emblematic, feature prosecution of the state capture project. It is one of just two state capture prosecutions that are actually being pursued by the NPA, despite mountains of allegations and evidence emanating from the Gupta leaks emails and the state capture inquiry hearings.
It is alleged that a quarter of a billion rand that was intended to uplift poor black farmers in the Free State was looted by Gupta companies. In February, charges were instituted against the former Oakbay CEO Nazeem Howa, a Gupta nephew, former Sahara Computers CEO Ashu Chawla, Estina director Kamal Vasram and three former Free State government officials. The NPA was meant to hand over the docket this week but it could not do so because it did not have all the evidence.
This was ostensibly because counterparts in India and the United Arab Emirates did not get back to them in time. Of course, this announcement was met with fury and outrage from the South African public. This is because it certainly looks like justice is not being done because, well, it is not being done. Poor black farmers who were meant to benefit from the R250m did not receive it and those who siphoned it off and plundered the coffers are getting off scot-free.
While it is important to note that the withdrawal of charges is "provisional", that does not go a far way in reassuring a public that is desperate for anyone responsible for state capture to be held to account. Remember how long it took for the arrests to be made in the first place – it took months as investigators fiddled, giving the alleged perpetrators months to shred the evidence and flee the coup.
This week's announcement also came on the back of an embarrassing loss for the NPA in the Bloemfontein High Court earlier this year, when it was found that there was not enough evidence linking the Guptas' assets which were seized with the Estina Dairy Project. As a result, the Guptas were handed back R250m worth of assets and were able to achieve a PR victory. The NPA didn't bother to appeal the ruling as it was left with egg on its face.
Over the past two years we have read article upon article of investigative journalism in which devastating details of capture have spilt out. From the destruction at parastatals and the evisceration of law enforcement agencies, it has been alarming to say the least. It is the sheer scale of the looting, the arrogance of those responsible, that have left us seething. To compound this, there have been weeks of testimony at the Zondo commission on inquiry during which politicians and civil servants have told the country about what went on in the corridors of power. The blackmailing, the extortion, the manipulation, the greed, the theft; all of it is coming out.
It is simply not enough for it to be all out there in the public domain. It has to be translated into convictions. There must be accountability and justice. This means prosecutions and successful ones at that. People must go to jail and pay back the money. Simple.
Some have suggested that special state capture courts could be the solution to fast-track and focus on these cases. However, those with experience say that is not necessary. The Specialised Commercial Crimes Unit should be equipped to deal with these cases and there are sufficient courts and court hours to hear these cases.
Ironically, there is the lingering concern that the capture of the NPA, the Hawks and Crime Intelligence over the past few years may now mean that there is not sufficient capacity within these institutions to actually deal with complex, commercial crimes. So many excellent, qualified and capable investigators and prosecutors have gone to the private sector or, in the case of the Selebi prosecuting team, to AfriForum.
This could explain why there have been no successful prosecutions involving state capture to date, despite the evidence in the public domain. Another possible solution is to bring back the most successful and capable corruption fighting institution in the country's recent history.
A unit resembling the Scorpions, which is capable of prosecutions led investigations, could be what we need to put people behind bars, regardless of their power and influence.
That unit never shied away from targeting the politically elite. As the president mulls over who he will appoint as the new National Director of Public Prosecutions (NDPP), pressure is mounting on that office to ensure that those responsible for the state capture project are brought to account.
Top of the new NDPP's priority list must be to ensure that justice is not only done in state capture cases, but that justice is also seen to be done. It is the only way to assure the public that justice is indeed being done.
- Wiener is a specialist reporter for News24.
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