South Africans are commissioned-out, our pensions are the Public Investment Corporation’s (PIC’s) plaything, and the great VBS pilfering spree has yet to result in a single arrest. Business Day spoke to Werksmans head of business crimes and investigations, Bernard Hotz.
So is the law, in fact, an ass?
People talk about commissions fatigue but we’ve got to realise the commissions of inquiry — whether it’s Zondo or Nugent or the PIC — have played a crucial role. Realise that one has to differentiate between civil and criminal [law]. So you’ll be aware in criminal [law] that you have to prove someone’s guilt beyond reasonable doubt; in civil [law] you have to prove someone’s liability on the balance of probabilities. When somebody comes and they sit at a commission and tell a story, and the story is atrocious … what happens then?
The lay public cannot think unfortunately that as soon as they finish talking that their transcript and their file will be sent to the prosecutor who will the next day instruct the police. Because what they have to do is receive all the evidence and then start an investigation and join all the dots and cross all the Ts.
You’ve got an already depleted law enforcement agency which is now handed this mammoth task. You have an NPA [National Prosecuting Authority] which is plagued with inefficiencies, people are in there who should not be and [you have] an inability to attract the right calibre of excellence at this moment, and they’ve now been shotgunned with all this evidence.
The right way to do it is through a prosecutorial-driven investigation. The Hawks work hand in hand with the prosecutors because they’re supposed to cover all the legal dynamics — so they really have to start at the beginning. So, yes, everybody’s heard the nonsense that’s been going on but it’s not enough to act.
Very often what happens in the commissions is that the people who are implicated aren’t going to come to the commission and apply to cross examine [their accusers] because the advice they’re going to get from their legal teams is: “Sit tight, sit back and wait till you are formally charged, and then we can start by picking the state’s case to pieces because they haven’t done their job properly.” There’s a long legal path that has to be followed in order for them to stand trial and be convicted.
Is there any way to speed up the process?
It’s a fact that the police and NPA do not have the capacity, the resources to handle these huge cases on their own; they need to partner with private enterprise with bona fides, with confidentiality agreements in place to assist them in investigating and compiling the cases … to make sure that people suffer the consequences of their actions. So we in the VBS [were] appointed by the Hawks in terms of particular confidentiality regimes, we are working for them.
Is this a first?
Yes. So when President [Cyril] Ramaphosa and [National Director of Public Prosecutions] Shamila Batohi said we want to partner with private: here it is. We’re not usurping anybody’s roles ... we did the investigation so it would be stupid to reinvent the wheel.
Would you say SA’s legal system still upholds the law? Is the system broken or is it simply the participants in the system that have failed?
Let me say this: there’s nothing wrong with our laws, we’ve got very good laws, we just have the wrong players. Everyone’s complimenting the judges but in order for judges to do their jobs properly they’ve got to have proper cases presented to them. The first thing that defendants, or the accused, do is use their ill-gotten gains to pay the best legal teams their gains can buy. It’s high-time that they be met, fire with fire. You can’t fight a nuclear battle with a catapult. So it’s time that when one’s capacitating law enforcement, the NPA — until such time you’re at that level where you’ve got the Rolls-Royce of an honest integrity-driven office — make use of provisions. In the NPA Act there’s provision for the use of special prosecutors. Why can the NPA not go to the very skilled, senior counsel to say: we’ll pay you your normal hourly rate and we want you to be the prosecutor.
Can they do that?
Yes, and allow the prosecutors that are being brought in to be mentored by the Silks. If you’re wanting to attract the right calibre of lawyers to go to the NPA, leaving aside for a moment the salary and working environment, when one deals with big cases in the private law firms you’ll hear people saying: ’I’ve got a Silk and I’ve got a junior. Now, the Silk is the person who is going to do the argument, but the Silk has the junior counsel to do all the legwork and to build up the case and learn from the Silk. Why do you not have the same scenario in the NPA? Go out and get the top people to fight these battles because there’s nothing worse than to have a junior prosecutor walking into court without resources faced by this awesome legal team on the other side, and expect them to get convictions.
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