At the time of writing the one promise I care about that President Cyril Ramaphosa has made and patently hasn’t kept, yet, is to appoint an investigating director at the National Prosecuting Authority (NPA). I can only assume there’s been a hitch.
A new head of the NPA, Shamila Batohi, has been in the job exactly four weeks. But she knew she had it three months ago, and back in early December raised the issue of the investigating director in public after meeting with Ramaphosa. So they had clearly spoken about it back then.
Given the urgent need to tackle crime and corruption, and the fact that Ramaphosa has been president now for more than a year, you’d have thought the paperwork necessary for the creation of the investigating director would have been done over Christmas. Ramaphosa doesn’t have to find and appoint the director — that would be inappropriate even though the NPA Act gives him the power —he can let the head of the NPA do that.
He simply has to sign a decree giving Batohi the authority to go ahead and create the directorate, appoint someone to run it and get on with the job of investigating, arresting and prosecuting the criminals in our private and public sectors. None of our problems are complicated. Eskom makes electricity by burning coal under boilers that produce steam that turns turbines which produce a current.
What the president shouldn’t do is overthink things. He cannot create an investigating directorate and then tell it what to do. And even if he wants it to confine itself to the issues of state capture he simply cannot interfere if it goes where he would rather it didn’t go.
That’s the courageous thing about what Ramaphosa is doing. He is trying to create institutions over whose activities he will have little or no influence. Too many South Africans want him to order the arrest of this or that miscreant, but that is not how civilised countries work. He can’t be the ultimate fixer. He is there to create a capable state and get out of its way.
It’s beginning to happen. It was refreshing to see the SA Revenue Service-inspired raid the other day on the house of tobacco smuggler Adriano Mazzotti in Johannesburg’s plush Hyde Park. EFF leader Julius Malema’s family lived on the property until recently and Mazzotti has funded the EFF. Jacob Zuma has family in the tobacco smuggling business.
— There are some pretty tough cookies out there champing at the bit to have a go at the scoundrels who have brought this country to the edge of the precipice.
The raid showed that his political connections were not going to save Mazzotti his sports cars or his property. Sars is an interesting weapon because it can take your stuff simply because they think they’re right. It is the perfect misery machine. If you want your stuff back, go argue in court for the next 10 years.
Sars is one thing, however, an investigating director at the NPA is another; almost beyond the control of the NPA director herself. Finance minister Tito Mboweni did not make any provision in his budget for funding the new job, but it is going to need some money. Business will inevitably have to help.
The person appointed will literally be able to investigate anything (when Thabo Mbeki and Zuma snuffed out the Scorpions they thought they’d removed the NPA’s ability to investigate — their idea was that the police would investigate and the NPA would prosecute; it’s why none of the crooks who have been running the country are in jail yet).
Mbeki and Zuma weren’t paying attention. Chapter seven of the NPA Act gives the investigating director wide powers. They can commandeer police resources, private sector lawyers, accountants and investigators — almost anything they need to do an investigation and prosecute it.
Which is all great, except that Ramaphosa has not yet signed the decree so nothing is happening. I can only imagine there’s a conversation going on about who should run the directorate, or perhaps a conversation with the lead candidate, or with people the lead candidate might want to work with. There are some pretty tough cookies out there champing at the bit to have a go at the scoundrels who have brought this country to the edge of the precipice. Ramaphosa has nothing to lose and everything to gain by letting loose the dogs of war in the form of the serious legal arsenal available to him.
I can’t explain the delay, nor am I going to entertain conspiracy theories about it. I assume it’s people, not politics. I don’t think the EFF sat quietly while Ramaphosa made his state of the nation address as part of a deal. The EFF leadership is in trouble once the decree is signed because the most obvious crime to prosecute (it’s practically marinated in investigation) is the looting of VBS Mutual Bank. Ramaphosa will let the sword fall where it may on the ANC in Limpopo.
He has no choice. Any attempt to game the process, to delay until after the elections, to speed up before the elections, to finesse this or that, will surely backfire. You’re trying then to calculate the impossible. Rather just play things straight. Appoint a new Sars commissioner and give Batohi her investigating director, and let them both just get on with their jobs.
• Bruce is a former editor of Business Day and the Financial Mail.
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