EDITORIAL | NPA’s bungling of state capture cases is of grave concern

It was certainly a moment to celebrate, as if a huge weight had been lifted off Matshela Koko’s shoulders, but also a moment to gnash teeth or kick heels for the country’s top prosecutors.

The R2.2bn corruption case, billed as one of the so-called seminal cases against state capture accused, was struck off the court roll on account of unreasonable delays by magistrate Stanley Jacobs at the Middelburg specialised commercial crimes court on Tuesday.

Expectedly, Koko was buoyant and immediately went on the offensive, noting the National Prosecuting Authority (NPA) misdirected itself in charging him. “It did not act without fear, favour or prejudice. They were doing somebody a favour. This (arrest) is a persecution. That’s why the banks have terminated my family’s bank accounts because of this criminal matter. The aim is to destroy and liquidate my family without the benefit of a fair trial. The damage done to my family is immeasurable,” said Koko.

While some may dismiss this as a soporific meant to induce pity, serious questions must be asked of the NPA, especially its head Shamila Batohi. The NPA’s inability to manage major cases has become a national embarrassment.

A few months ago, in another of the so-called seminal cases, an acting judge, Nompumelelo Gusha, slammed the NPA in the Bloemfontein high court: “To say that the manner in which the investigation was concluded is a comedy of errors would be the understatement of the millennium.” She went further to say “taking into account that a little more than R24m of taxpayers’ money was at stake, the lackadaisical manner in which this matter was investigated is truly to be lamented”. 

To arrest and hope to get evidence against the accused later has now been shown to have a negative impact not only on the accused and his family, but on our country’s ability to fight off corruption.

This damning judgment related to an alleged corrupt tender in which money was paid to Nulane Investments, owned by Gupta associate Iqbal Sharma, to conduct a feasibility study. The NPA protested that Gusha made errors, but, like Koko, Sharma celebrated. The NPA appeal was also dismissed in August.

The NPA’s attempts to prosecute people involved in state capture has proven a fiasco of sorts. The NPA has also bungled an extradition of the Gupta brothers from the UAE, where they were detained pending the outcome of the case. It is common cause that given the role they played, as explained in the state capture commission reports, many expected the state to do everything possible to ensure they face the full might of the law. But alas. The NPA discovered after the Gupta’s release that they will not be coming to SA any time soon.

This week, it was Koko’s turn to do the victory dance as the NPA scrambles for answers to why the prosecution ship is falling apart. Koko was charged alongside his wife Mosima and stepdaughters Koketso Aren and Thato Choma, lawyer Johannes Coetzee, Eskom’s former project director at Kusile, Hlupheka Sithole, former South African Local Government Association (Salga) CEO Thabo Mokwena and others. The state retains the right to reinstate the charges when it is ready to prosecute.

The message from Jacobs is clear: the NPA and the police should stop arresting people before it has obtained evidence. You’d think this is common cause. But what the presiding officer was, in fact, saying is the state should not simply effect an arrest to appease a restless nation, demanding action against corruption that is tearing our country apart. To arrest and hope to get evidence against the accused later has now been shown to have a negative impact not only on the accused and his family, but on our country’s ability to fight off corruption.

As a country, we must hope that the NPA will reinstate charges against Koko and his co-accused, if such evidence exists. Given that there is R2.2bn at stake here, we hope the NPA and the police have put together their best teams, supported by the brains trusts at both police and prosecutions head offices. That this case has become the latest to be bungled must worry all of us.

Jacobs has directed that the Koko matter should not be placed back on the roll without the express approval of the NDPP — a statement read to mean Batohi must apply herself to the evidence available to the state because everyone else involved have so far failed and can’t be trusted. This is an indictment on the army we depend on to fight off the putrid stench of corruption.