Why has nobody yet been charged or arrested?

Schabir Shaik

With the blizzard of incriminating #GuptaLeaks emails and the various reports into state capture released in the last few months, the oft asked question is: how come nobody has been investigated, charged or arrested?

Good question, and there is a very simple answer: because there is no statutory institution in this country that is equipped to do so, or willing to do so.

We do have a robust, independent, impartial and determined judiciary, which when it is presented with a docket from the prosecutorial authorities, pursues the requisite legal processes with diligence and without fear or favour. We’ve seen this on numerous occasions over the years, but dispiritingly, not of late.

Hark back to the heyday of the Directorate of Special Operations (DSO), or Scorpions as it became popularly known, and you will recall its successful prosecution of the likes of Tony Yengeni for defrauding Parliament by failing to disclose a near 50% discount on a luxury 4X4 Mercedes Benz, and Schabir Shaik because he, according to Judge Hilary Squires’ May 2005 judgment, “gratuitously made some 238 separate payments of money, either directly to or for the benefit of Mr Jacob Zuma, who held high political office throughout this period.”

Criticism levelled at National Director of Public Prosecutions (NDPP), Shaun Abrahams, could well be deemed unjustifiable, because Mr Abrahams and his organisation, the National Prosecuting Authority (NPA), can only proceed with a prosecution, if handed a charge sheet after an investigation by an element of the SAPS.

What is wrong with the replacement for the Scorpions, the Directorate of Priority Crime Investigation (less popularly known as the Hawks), you must inevitably ask?

The Scorpions, an element of the NPA, did both, because it was a multi-disciplinary unit, which included among its staff some of the best prosecutors, police, financial, forensic and intelligence experts in the country.

The Hawks came into being in 2008, when the Scorpions were shut down, on President Kgalema Motlanthe’s watch, which is interesting considering his present stance on state capture, corruption and the suitability for office of his successor, President Jacob Zuma.

The Hawks, because they are subordinate to the SAPS, are open to political influence. Whether or not such political influence has ever been exercised to protect politically connected people from investigation and subsequent prosecution is a matter of conjecture, but the fact that the Hawks discontinued the investigation inherited from the Scorpions, into the then just plain ordinary Mr Zuma, could lead one to an obvious conclusion.

Whether or not the Hawks has been used to settle political scores, is also a matter for conjecture, but again, the decision to charge Pravin Gordhan, Oupa Magashula and Ivan Pillay for for “misrepresenting the government insurance fund and Sars that Pillay was entitled to full pension benefits whereas they knew well that severance package not applicable to him”.

This, of course, came about after the Hawks failed dismally in trying to establish a prima facie case against Mr Gordhan for his alleged role in establishing the Sars Rogue Unit.

The supreme embarrassment of Mr Abrahams was a pleasure to behold in real time, when he addressed the nation on television, and withdrew all charges against Messrs Gordhan, Magashula and Pillay, because there was no case.

That both of these matters were assiduously and publicly pursued by the Hawks, while in response to the state capture and #Guptaleaks revelations, all we’ve heard is a loud silence, leads one to the obvious conclusion: the Hawks do precisely as they are told to do.

In similar vein, the continued refusal of Mr Abrahams to allow the law to take its course in relation to the 783 charges facing Mr Zuma, also leads one to an obvious conclusion.

The Scorpions handed the Hawks a prima facie, winnable case against Mr Zuma. In April last year, the North Gauteng High Court set aside then NDPP Mokothedi Mpshe’s 2009 decision to withdraw charges against Mr Zuma, ruling that the supposed “political interference” by Leonard MacCarthy and Bulelani Ngcuka did not compromise Mr Zuma’s right to a fair trial.

By that action, the 783 charges Mr Zuma faces, were effectively reinstated, and all that remained to be done, was for the North Gauteng High Court to set the matter down on the court role.

Quick as a wink, Messrs Abrahams and Zuma took the matter on appeal.

The two primary statutory institutions which are legally charged with the responsibility for investigating and prosecuting high profile criminal activity without fear or favour, seem to show a remarkable willingness to sit on their hands when it comes to pursuing the politically connected, and an equally remarkable willingness to pursue “troublemakers”, even if the pursuit ends in public embarrassment and withdrawal of all charges.

Even under a new ANC administration after 2019, Mr Zuma will probably continue to evade that day in court which he has worked so assiduously to side step, despite saying in 2008, that he welcomed the opportunity to clear his good name.