It’s hard to prosecute a cop for taking a R50 bribe when our president is Jacob Zuma. It’s hard to prosecute a policeman for selling a docket when you’re not prosecuting Richard Mdluli for murder and corruption. It’s hard to explain to anybody else, and harder still to explain it to myself.
But I don’t understand how people can pretend it’s okay when, patently, it isn’t. Most prosecutors understand the huge amount of power a prosecutor has.
I hope most prosecutors also understand that power cannot be abused. It would be so hideously wrong. A prosecutor can actually ruin your life with abuse of power.
Judging from my interactions with my peers, most competent prosecutors understand that an abuse of power is not on. I have seen for some time now, though, that it is more and more acceptable to abuse your power for whatever reason - personal advantage, financial gain, to make someone else happy. I see this not because they have done it to me, but because they have done it to so many others whose lives they have ruined.
Luckily, I don’t exactly have a ruin-able disposition. But I know people who have spent every cent of their own money fighting against people who are abusing their powers. The same criteria apply to being a politician. I don’t think you necessarily have to play it differently.
There have been many times in the last few years when I have had to choose between what was politically expedient and what was right. And I have always done what was right.
I have no doubt it will cost me in the future, but that’s too bad. Through the parliamentary portfolio committee, we have quite a lot of authority to interrogate the NPA, and influence where it is going. We have oversight over the NPA’s performance.
They have to report to us four times a year, and we have to approve their budget. Having said that, the ANC majority in the committee protects the NPA in its current form. So the ANC will generally approve what it wants, but we can question and object to issues we see as important.
At least, then, the press can cover it. When the NPA reports to us, I know how they are doing and I know what they are doing. And I can read between the lines of their performance reports.
For example, when they talk about a conviction rate of 70 or 75%, I ask: a percentage of what? I also ask them why withdrawals of charges and cases are high. It’s no good claiming that the police are arresting people when that does not translate into meaningful charges, and when those don’t translate into court cases that can actually be prosecuted.
You can’t arrest people, and you can’t charge them - and you certainly can’t prosecute them - without evidence. Reading the NPA’s reports, it appears someone is placing cases on the roll, in vast quantities, and then withdrawing them. Prosecutors are getting cases and placing them on the roll regardless of whether or not there is a case. A competent prosecutor should look at the docket, and not place the matter on the roll if the police have arrested someone without a case.
The problem with me being on the committee, though, is that now if I query the NPA, it gets a colour to it because it looks vindictive. So I feed my concerns to my two DA colleagues.
I won’t use information that I believe would, under normal circumstances, be privileged. But I can help them interpret the information they do have. We have had some successes, notably with respect to budgets, and how budgets are allocated.
Certainly, by constant nagging, we managed to get the public protector’s budget increased. Because of the way the parliamentary committee protects the NPA, we have had more successes with the NPA in court, though. When I joined the DA, they had won the matter against (former NPA director) Menzi Simelane.
This was good for the DA, and it was a big deal: it got rid of Simelane. But it inadvertently hastened the downward slide of the NPA. It also, however, established the irrationality principle. When the president makes an appointment, he has to apply his mind rationally.
He can’t just appoint somebody “just because”.
Take Hlaudi Motsoeneng, Berning Ntlemeza, Shaun Abrahams their appointments were not rational. The DA has been accused of trying to run Parliament through the courts, but we only use this approach when we believe we have exhausted all other remedies. And, unfortunately, there are a number of instances where we have no alternative. We shouldn’t be using the law. It is actually Parliament’s work. We are abusing the law to do the work Parliament is meant to do, and the reason we can’t use Parliament is because the ANC is holding Parliament to ransom.
We’ve used the law to expose the ANC for what they are, and we wouldn’t have been in this position if it weren’t for the law. It is enforcement by the courts of the rule of law that has brought us to this point.
And it only demonstrates that the rule of law is the most vital principle in a constitutional democracy.
A lot of people - when Zuma is gone, when their patronage is gone - a lot of people will be vulnerable to prosecution. But right now, the NPA is captured. It dances to the tune of Zuma and answers to the whims of Zuma. The organisation is dysfunctional, a shadow of its former self. The NPA is a top-down institution.
When Vusi Pikoli was there, he was that one person who provided backbone and direction. Now it’s led by Shaun Abrahams, who has mislaid his backbone.
He is a fellow who, shame, believes his own publicity and seems to operate under the illusion that he can prosecute.
Discipline comes from the top down, not from the bottom up. If the head honcho has respect for the system and does things properly, that trickles down. If the chief magistrate has respect, it follows that the other magistrates, the chief prosecutor, the prosecutors will all have respect for the office, and for the system. For example, Bulelani Ngcuka was a great guy, but he wasn’t big on discipline. Once a month we would have national management meetings - on policy, strategy, that sort of thing. As people got used to Bulelani’s management style, meetings would start at 8am. Then at 8.10. Then 8.20. Then 8.30 People would arrive at the meeting not wearing a suit and tie. When Pikoli took over as the national director of public prosecutions, the first national management meeting he called was set to start at 8am and most people were already there but no one bothered to be in the meeting room on time. So Vusi started the meeting without them. At the next meeting, by 8am everyone was at the table, pen in hand.
And every single man in the room wore a tie. Pikoli worked from 5am to 9pm every day. None of us minded working hard, because he worked harder.
If the leader is a jellyfish, then the whole organisation shakes like one. Mxolisi Nxasana tried his best to fix the NPA, and he did very well. He allowed prosecutors to have hope again. But you can only do so much in a year.
The current deputy national directors are supposed to give direction; they are supposed to advise. There are still a lot of people in the organisation with a lot of experience in the criminal justice system, and they can - and should - advise Abrahams. If I had free rein with the NPA, I would first appoint a national director with substance.
Let’s for one moment accept that it can’t be me. It should be a man or woman with proper qualifications, with proper experience, with a huge amount of authority.
If I could choose absolutely anyone, Dikgang Moseneke would be my first choice. If I couldn’t have him, it would be Kate O’Regan. And if I couldn’t have her, then Willem van der Merwe.
If I couldn’t have any of those, and let’s assume I had to choose from within the NPA, I would choose someone I don’t really like and who has never made me feel exactly warm and fuzzy - and that would be Rodney de Kock, who is the Western Cape DPP.
Despite the fact that we have never been able to forge a particularly close relationship, I think he runs a good, clean office. He is an effective administrator, he has the experience, and I believe he would really do his very best.
If the NPA has a good head, then I would fire all the deputy NDPPs - simply because they have not done their job. They have not stood up to the national director. They have not put the interests of the NPA before their own, and they have failed miserably to uphold their oaths of office. I would fire them all.
And I would fire all the DPPs except for De Kock, and Lungisile Mahlati in Grahamstown. But I would fire all the others who allowed the NPA to be captured on their watch, who put their own interests above every single prosecutor and, by implication, above every single citizen of South Africa.
And you could replace these people from within the ranks of the NPA, because there are still many very competent people, who can do all of those jobs.
At the moment, there is a culture of impunity for not doing your job at NPA. People stroll into court at 10am, 11am, when they are supposed to be there at 8am so court can start at 9am.
It is not good enough that prosecutors arrive in the courtroom late morning, while people who have gotten out of bed at 4am and travelled by public transport to be at court on time sit and wait, without even the courtesy of an explanation or apology for the late, or sometimes even no start.
* This is an edited extract from the memoir Rule of Law by Glynnis Breytenbach with Nechama Brodie, published by Pan Macmillan at a recommended retail price of R275.
The Sunday Independent