By Ambassador Carl “Mpangazitha” Niehaus
The National Prosecuting Authority’s disastrous performance in the Nulane trial debacle must be viewed in its proper context. It clearly signals that the Zondo-Ramaphosa chickens are coming home to roost.
Under the guise of fighting “state capture”, Ramaphosa weakened and compromised the independence of the NPA, to the extent that the agency has become a political tool and lost all credibility with the public. His misuse of Zondo’s judicial office to give legitimacy to a politically driven state capture narrative will also seriously compromise the independence of the judiciary as the so-called state capture cases make their way to the courts.
To understand the latest court ruling, we must accept that politically driven prosecutions are going to produce similar outcomes.
On April 21, 2023, Acting Judge Nompumelelo Gusha delivered a devastating blow to the NPA by acquitting all the Nulane trial accused and dismissing all fraud and money-laundering charges against them. She found that the State had failed to tie alleged Gupta-linked Iqbal Sharma and his co-accused to any of the crimes related to the Nulane case. She also ruled there wasn’t a shred of evidence that pointed to one accused, the former head of agriculture in the Free State, Limakatsho Moorosi, being implicated in the crimes.
The cases were allegedly linked to state capture in that the fraud and money laundering charges were for allegedly colluding with Free State officials to defraud the state of close to R25 million after Nulane secured a contract to conduct a feasibility study for a rural development project in the province.
Judge Gusha slammed the State’s investigation, labelling it “lackadaisical”. She ruled that the State had failed to produce enough evidence to show that the Gupta family and their associates were implicated in the alleged laundering of R24.9m of the proceeds of the alleged Nulane fraud. She accurately predicted that her decision would “invoke a sense of loss, if not dejection, in the citizenry of this country”.
Justice Gusha added that the State’s financial expert witnesses had sounded the “death knell” for its case when they admitted that they had made mistakes in their assessment of the Gupta network’s finances and conceded there was nothing untoward about its money transfers.
In short, the police and prosecution had been woefully inept in their handling of the Nulane fraud and money-laundering case. Gusha granted a Section 174 release to Gupta associate Ronica Ragavan and the Gupta family’s Islandsite Investment, two former Free State government officials, the directors of Nulane Investments, former Transnet board member Iqbal Sharma, and his brother-in-law Dinesh Patel.
Section 174 of the Criminal Procedure Act, which provides for the discharge of the accused at the close of a trial, states that if the court is of the view that “there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty”'. Why would the NPA prosecute a case where it fails to provide a shred of evidence pointing to the guilt of the accused?
The prosecution relied on a far-flung conspiracy theory that the Gupta brothers were part of a conspiracy to defraud the Free State government and intended to add them to the list of accused if they surrendered to South Africa. That also proved disastrous, as the UAE refused the NPA’s incompetent extradition request. Incredibly, the NPA also relied on the apartheid-era doctrine of common purpose to prove that all the accused colluded to commit fraud and ensure most of the money made its way to a United Arab Emirates Standard Chartered Bank account linked to the Gupta family. That simply did not wash. The court found that NPA had failed to prove a common purpose to defraud the state.
Gusha ruled that the prosecution had not produced evidence as to the identity of the persons who changed the Deloitte report, and had failed to counter the doubt the defence had raised about the authenticity of the letter sent to the department, which led to the contract with Nulane.
Of the evidence of Simphiwe Mahlangu, a forensic auditor at the National Treasury, Gusha said: “The fact is that in the course of his investigations he did not consult with and afford any of the accused an opportunity to be heard… His evidence is based on copies of documents he was given. His (evidence) does not take the state anywhere, save only to confirm that the amount of R24 948 240 somehow made its way (out) of the coffers of the department and into the banking accounts of Nulane Investments.”
Humiliated by the outcome of the case, the NPA was forced to issue a pathetic statement that the “outcome of this case has no bearing on our ability to prosecute other state capture cases. We remain resolute in our commitment and ability to vigorously prosecute those responsible for state capture and corruption”.
There can be no doubt that by blindly pursuing a state capture narrative, the NPA has brought disgrace to itself and the whole judicial system. The charges of state capture against any person should never be brought by the prosecutors against anyone because there is no such crime known as “state capture” in our statute books.
The pernicious influence of President Cyril Ramaphosa and Judge Raymond Zondo is exposed in this article as follows:
Based on politically driven propaganda, there has always been loud criticism of the NPA for its alleged failure to prosecute high-profile state capture cases. In November 2019, NPA boss Shamila Batohi said that while there was good co-operation with the inquiry chaired by DCJ Zondo, accessing information was difficult. She complained that “the Zondo commission cannot share (information) with us unless it has been made public or if the chairperson has otherwise authorised the release of information, and obviously there’s an unwillingness to do that because there’s much to be gained from people coming forward and giving evidence. We are in dialogue on how to manage challenges on both sides of the fence”.
On July 28, 2020, President Ramaphosa published in a Government Gazette notice an amendment that effectively allows our law enforcement agencies to access information gathered by the Zondo state capture commission, making it easier to build cases against implicated individuals. Previously, the inquiry’s regulations prohibited people employed by the inquiry from sharing information, even with law enforcement agencies.
It should have been intuitively obvious to any lawyer that changing the rules more than two years after the Zondo Commission commenced its investigations posed a threat to the fairness of the process, unfairly prejudiced the rights of implicated persons and threatened to undermine the legitimacy of the Zondo Commission and any prosecution based on its report.
It is true that a commission of inquiry is not a court of law. It does not have the power to prosecute or convict any person; that power belongs to the NPA. The procedural rules that apply in criminal cases are also not applicable, and witnesses or implicated people do not enjoy the same procedural rights as does an accused person in a criminal trial. While a commission may establish wrongdoing or misconduct, it does not find anyone guilty of a crime, nor does it establish civil liability for monetary damages. Here the prosecutors became “lackadaisical”, and instead of serving as impartial and objective investigators of alleged unlawful acts, they sought to advance their own career interests at the expense of the accused. Gusha called them out clearly.
Ramaphosa took a calculated risk when he changed the rules for the Zondo Commission to use it as a conduit of information to the NPA. Ramaphosa increased the likelihood that prosecutions based on the Zondo reports would be hotly contested and disastrous for the NPA. A feature that distinguishes public inquiries from trials is that public inquiries are not strictly bound by the rules of evidence that govern civil or criminal proceedings.
In the Zondo Commission, the strict rules of evidence were not applied to determine the admissibility of evidence. The commissioner of a public inquiry may receive any relevant evidence, including evidence that might be inadmissible in a court of law, such as hearsay evidence. This was a trap for the unwary NPA as it allowed its prosecutors to rely on inadmissible and most often hearsay evidence to build a criminal case, which carries a heavy burden of proof “beyond reasonable doubt”. That was a very risky proposition from the beginning.
In the process, on May 10, 2022, Shamila Batohi announced before the portfolio committee on justice and correctional Services that the NPA’s Investigating Directorate (ID) intends to prosecute nine “seminal” corruption cases related to state capture within six months. Batohi said the nine prioritised were “seminal cases that will talk to the heart of state capture". Batohi naively said: "The reality is that, right now, our response to the findings and recommendations of the Judicial Commission of Inquiry into State Capture is what will really be defining for the NPA and South Africa”. Many saw this as a gimmick designed to coincide with the ANC watershed elective conference, which was due to be held in December 2022. Individuals deemed a political threat to Ramaphosa were to be eliminated and defamed to assist Ramaphosa’s re-election bid.
Later in the same year, Batohi and Hawks boss Lieutenant-General Lebeya met to discuss the final State Capture Inquiry report. They expressed their commitment to ensuring accountability for those implicated and claimed that they were committed to enhancing collaboration and sharing resources and expertise to ensure the most effective prosecution-guided approach. But it was undeniable that the selection of those targeted for prosecution would be dictated by biassed political considerations. On August 30, 2022, the NPA spokesperson, Sindiswe Seboka, revealed that their next arrests “might actually shock everyone”.
The harsh court judgment in the Nulane case proves that Bathohi has ignored the admonition of the court in Berger versus United States, that a prosecutor’s overarching duty is “not that (she) shall win a case, but that justice shall be done”.
Our prosecutors are not ordinary lawyers for a party to a dispute. They are the guardians of the constitutional and legal rights of everyone who crosses their paths and of our constitutional system of administering justice. The law prohibits a prosecutor from pursuing an investigation or prosecution that is, or even appears to be, politically motivated or that violates the accused’s right to fundamental fairness in the administration of justice. Bathohi made a deal with the devil; she found herself being used as Ramaphosa’s Trojan horse, where she agreed to recklessly charge people with sundry crimes just to advance the state capture narrative.
We can only hope that the NPA and other Ramaphosa puppets have realised the danger of relying on the Zondo reports to formulate legal charges, as the Zondo Commission’s reports are simply opinions “devoid of legal consequences”. The report is not automatically admissible in court and cannot be used as a weapon or a shield in the hands of the NPA at any stage in a judicial forum. It cannot be improperly elevated to the status of a court judgment. Moreover, the Zondo Commission and its processes were woefully inadequate, and the members of the public who have been misled to believe that Zondo has adjudged certain persons guilty will continue to be shocked and disappointed.
In short, Ramaphosa has effectively forced Chief Justice Zondo to operate as an appendage to the NPA’s criminal prosecution and investigations, which appear to be unlawful and unconstitutional. Lawyers will have a field day litigating such matters and exposing just how corrupt and manipulative Ramaphosa has been.
*Ambassador Carl ‘Mpangazitha’ Niehaus is the President of the African Radical Economic Transformation Alliance.
* The views expressed do not necessarily reflect the views of IOL or Independent Media.