Collapse of high profile state capture-related cases suggests ‘haphazard prosecutions’

Collapse of high profile state capture-related cases suggests ‘haphazard prosecutions’

The National Prosecuting Authority (NPA) has come under fire for struggling to prosecute high-profile corruption cases – in particular those related to state capture.

This after a fraud and corruption case involving former Eskom chief executive Matshela Koko was struck off the roll by the Middelburg Specialised Commercial Crimes Court in Mpumalanga this week.

Koko maintains his innocence and says the NPA singled him out for persecution to settle scores against him and his family by charging him with fraud and corruption involving R2.2 billion related to the Kusile power station.

The charges emanated from the Zondo state capture commission report published in January 2022 which, along with its findings, made several recommendations for investigations into individuals, companies and government contracts, among others, with a view for the NPA to prosecute.

April this year marked another setback for the NPA after Acting Judge Nompumelelo Gusha acquitted all the accused in the Nulane Investment company trial and dismissed the fraud and money-laundering charges against them.

Judge Gusha concluded that the State’s case had fallen short, failing to establish a connection between the accused, including the alleged Gupta-linked Iqbal Sharma, and the crimes associated with the Nulane case.

Stellenbosch University (SU) senior lecturer Dr Delano van der Linde said: “The Criminal Procedure Act 51of 1977 empowers judicial officers to investigate delays in proceedings that may potentially be unreasonable and ‘cause substantial prejudice’ to the State, witnesses or the accused.

“The court considers various factors such as the duration of the delay, the reasons submitted for the delay, the complexity of the charges against the accused as well as actual or potential prejudice suffered by the accused.

“The court is then empowered to, among other things, refuse a further postponement or, such as in this case, where the accused has not pleaded to the charges yet, strike the matter off the roll and institute the matter afresh.

Scrapping the matter off the roll does not constitute a not guilty finding.

“This is in contrast to the Nulane matter, where there was a discharge under section 174 of the Criminal Procedure Act.

At the end of the State’s case, the defence may apply for a section 174 discharge if the defence is of the opinion that the State has not proven a prima facie case.

The outcome of a section 174 dismissal, if granted, is that the accused is acquitted of the charges – which has the same effect as being found not guilty.

“The court in Nulane highlighted issues with the investigation and the quality of the evidence and witness testimony. The impression one gets from both cases is that the investigations and prosecutions are haphazard. Prosecutions should be instituted if the prosecutor believes that there is a prima facie case with reasonable prospects of success.

Instituting proceedings not ready for trial creates public distrust and a lack of faith in the National Prosecuting Authority – not only locally – but globally.”

Opposition parties have also weighed on the matter, with GOOD Party secretary-general Brett Herron saying: “Despite repeated assurances that our National Prosecuting Authority will be properly capacitated to prosecute corruption cases – arising from the Zondo Commission and other investigations – there appears to be very little evidence of this capacitation.

Although there is a lot of focus on the Zondo Commission report and findings, many of the state capture and corruption cases were not discovered by that commission of inquiry – they were already widely and publicly known – and their investigation and prosecution could have been well under way long before Chief Justice Zondo presented his findings.

“The collapse of two prominent corruption cases is (a) setback for the government’s promise of tackling corruption and the National Director of Public Prosecutions needs to explain to the people of South Africa, who she was appointed to serve, why the NPA is unable to point to any high-profile corruption prosecution.

There is clearly a capacity problem and unless this is addressed then the corrupt will literally be laughing all the way to their Dubai bank.“

While the NPA indicated its intention to have the Koko matter re-enrolled, it said it would respond to further questions on Thursday.

Cape Times