It was more than two years ago that the Hawks arrested Gupta family members in a blaze of publicity, only for the Estina dairy project scam case against the family and their associates to collapse spectacularly months later.
The Estina prosecution debacle powerfully illustrated the danger of the state launching cases, in the context of seismic political shifts, that were not backed up by the evidence needed to ensure convictions. The Hawks had arrested members of the Gupta network just hours before then president Jacob Zuma, their once-close friend, stepped down. That timing was arguably telling.
When the case ended up in court it soon became apparent that the state had failed to do even the most basic forensic investigation required to prove that Free State government money earmarked for the benefit of poor black dairy farmers ended up paying for a lavish Gupta family wedding at Sun City.
The National Prosecuting Authority (NPA) was forced to withdraw the prosecution.
Fast forward to last week, when the NPA’s investigative directorate launched multiple cases linked to evidence led at the Zondo state-capture inquiry that showed how intent the NPA is to not repeat the embarrassment of the failed Estina prosecution.
Lengthy and detailed indictments served on former ANC MP Vincent Smith, officials and business people implicated in the Free State asbestos “heist” and once unassailable business person Thoshan Panday and the police officials he is accused of bribing all show that the NPA is not launching cases to appease public outrage about rampant corruption.
Instead, the prosecuting authority appears intent on ensuring that those responsible for such corruption are actually found guilty.
These indictments include references to forensic audit reports, bank statements, witness evidence, documentation and the testimony of “section 204” witnesses, people implicated in crimes they are testifying about who are granted immunity in exchange for honest evidence. The indictments are further backed up by a recorded sting operation (in the Panday case) and supported by Zondo inquiry testimony.
They tell a story of how officials intended to safeguard and protect SA from corruption, be it through law enforcement, government administration or parliament, effectively sold out their country by selling themselves.
These are not trifling cases, and they will have to be answered.
But beyond wanting to demonstrate that the NPA — one of the state institutions hollowed out and almost fatally compromised by alleged political “capture” of some of its most senior offices — is transforming into a constitutional and effective law-enforcement body, the state also knows that it cannot afford to fail in its prosecution of these corruption cases.
There are two central reasons for this.
First, SA is so ravaged by corruption that even the NPA’s decision to focus on one case over another will inevitably be greeted with the question most often used to deflect attention from evidence stacking up against particular individuals: “But what about X?”
In that context, deciding to pursue a politically powerful person is a risk for a prosecuting authority still trying to recover from accusations that it abused its powers to settle ANC factional scores and not to ensure justice.
Part of the NPA’s defence against allegations of biased prosecution must be that its cases are rock solid and backed by evidence that cannot be easily undermined.
Second, the NPA knows that if it fails in successfully pursuing these cases the effect on a corruption-fatigued and despondent public will be devastating.
Right now, South Africans are desperate to see those responsible for economically and socially devastating corruption finally held accountable. If the NPA fails to deliver on national director of public prosecutions Shamila Batohi’s promise that the “days of impunity are numbered”, its leadership knows it will be responsible for far more than just a failed prosecution.
It will have killed something that the country desperately needs right now: hope.
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