How independent is the National Prosecuting Authority (NPA)? How free is it to do its work without fear?
On the face of it, the NPA is freer than it has been in years. For the first time since Nelson Mandela, SA has a president whose commitment to prosecutorial independence is strong.
Cyril Ramaphosa’s predecessor, Jacob Zuma, installed the incompetent Shaun Abrahams to do his bidding. And the president before him, Thabo Mbeki, fired one of the most capable prosecutors SA has ever had, Vusi Pikoli, for going after an Mbeki ally.
Ramaphosa shows no taste for meddling. His commitment to propriety in the relationship between the executive and the NPA seems deeply felt and exacting. But scratch the surface and the picture changes. Look at the granular detail and you begin to worry.
Earlier in 2023 the NPA found itself in a nasty situation. A senior Hawks detective, Frans Mathipa, investigating a case of abduction, found that his primary suspects were members of the special forces regiment of the SA National Defence Force (SANDF). For a fuller account of the case, see my previous column (“SA on the brink of being a state-approved killer country”, September 29).
He applied successfully to a court to obtain the communication records of the special forces members who were present in the vicinity of the abduction. The SANDF then tried to interdict Mathipa’s subpoena and lost. It was obliged to give Mathipa the records he sought, quite probably implicating its members in grave crimes.
At this point, something odd happened. A senior NPA prosecutor, at whose behest we do not know, decided not to implement the subpoena but instead to mediate between the Hawks and the military. No doubt the prosecutor did this in all innocence and with the best intentions. But while this mediation was in process, stalling the handing over of the incriminating records, Mathipa was shot dead late one night in his car by a skilled marksman.
What a shock this must have been for the NPA. The mediation process it initiated had given assassins the time to plan a murder. And the shock could only have deepened in the weeks after the assassination. For, in the face of what appears to have been the killing of a detective by members of an army regiment, the executive was silent. Ramaphosa said nothing. The ministers of police and defence said nothing.
Did the NPA feel afraid? A senior police investigator was dead. The silence from the cabinet was deafening. When Hennie van Vuuren, who was responsible for bringing this case to the public in the pages of Daily Maverick, asked the NPA for the name of the prosecutor involved in the mediation it simply refused. The prosecutor wished to remain anonymous, Van Vuuren was told, “given security concerns given the assassination of Lt Col Mathipa”.
We need to stop here and take a breath. A senior prosecutor does not want their name abroad for fear of assassins? And these assassins are, in all likelihood, members of the special forces regiment of the SANDF? And the president and his senior security ministers have nothing to say?
Something grave is happening in SA and too few people have noticed. One of the triumphs of this country’s transition to democracy was the emphatic neutralisation of the military as a threat to the new order. It has never meddled in politics. Its loyalty to the constitution has never been an issue. Of all SA has had to worry about over the past three decades, the military has not been on the list.
Something has now changed. A police detective is dead. Senior prosecutors are afraid for their names to go out into the world. The ones they are afraid of are almost certainly military personnel. For reasons that for now remain murky, Ramaphosa appears to want the whole matter to go away.
It is hard to exaggerate what is at stake. When the people staffing law enforcement organs fear other state agencies, and when they watch their country’s president turn a blind eye, we are in trouble.
• Steinberg teaches part-time at Yale University.
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