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Whether it's R2 000 grafted through a municipal extortion scheme or R2 billion stolen through state capture, the NPA is going to prosecute, writes advocate Rodney de Kock.
The NPA fulfilled its public commitment made to Parliament by National Director of Public Prosecutions Shamila Batohi in May this year to enrol nine seminal cases related to state capture by the end of September. In doing so, we demonstrated that the wheels of justice are indeed starting to turn in meaningful ways in South Africa.
The NPA did not only focus on seminal corruption cases. We also made significant progress in prosecuting another wave of cases which are of equal importance in our drive to ensure accountability for corrupt activities.
Although these cases do not get the same level of public and media attention, they collectively involve billions of rands which have been stolen from the public purse – often by collusion between state officials and people in the private sector – and enable the NPA to deal, bit by bit, with corruption across the public and private sectors. These include several cases being pursued in the provincial divisions by specialised commercial crime prosecutors and other prosecutors tasked with guiding criminal investigations and conducting prosecutions.
Collective effort
Of pertinence in the novel approach to expediting state capture and complex corruption cases, is the role of the Task Force, which brings together closer collaboration key role players in these cases.
The Task Force includes several NPA units including the Directors of Public Prosecutions, the Asset Forfeiture Unit, the Investigating Directorate, Strategy, Operations and Compliance (SOC) Unit as well as the DPCI.
READ | Plan to deal with high-level corruption and state capture on track - NPA
In some cases working with Counsel from the private sector has also borne remarkable fruits. The recent enrolment of the seminal cases and other complex corruption cases guided through the Task Force has therefore been by design and not by default. This has been a collective effort by prosecutors, investigators, analysts and other DPP and NPA staff members with specialised skills.
Other noteworthy cases include:
- The Director General (DG) in the office of the KwaZulu-Natal premier, Dr Nonhlanhla Mkhize, and an alleged accomplice, who appeared in the Durban Specialised Commercial Crime Court on 30 August. They are alleged to be involved in unlawful activities and fraud of R37 million in relation to a Mhlathuze Water procurement project in November 2018.
- Former eThekwini former mayor Zandile Gumede and 21 other suspects have been charged with fraud and other offences relating to a R208 million Durban Solid Waste tender. Her co-accused include councillor Mondli Mthembu and businessman Craig Ponnan. The case commenced in Durban on 22 August.
- Former Jozini municipal manager Mr x and an accomplice, who are accused of R5m fraud and corruption. The former municipal manager allegedly established a youth upliftment programme in 2014 and forced the municipality's finance department to pay a service provider R5 million for services that were not rendered.
- The executive mayor of JB Marks municipality, Kgotso Khumalo, has been charged with fraud and theft relating to R5 million that was illegally diverted from municipal funds. The case is due to be heard in the Potchefstroom magistrate's court on 19 October.
- Blackhead subcontracted the work multiple times, and of the R230 million paid only R21 million ended up with the company performing the work, and as a result, many Free State residents still live in homes with asbestos. The key accused is suspended ANC secretary-general and former Free State premier Ace Magashule. Magashule has been charged with fraud, corruption and money laundering regarding the 2014 contract the Free State Department of Human Settlements awarded to the Blackhead Consulting joint venture (JV) to audit and remove asbestos from homes. The matter has been postponed until 20 January 2023.
In addition, nine suspects are due to appear in the Gqeberha Magistrates’ Court later this month for corruption involving R56.4 million, which was allegedly stolen from the Nelson Mandela Bay Municipality. The accused include two former Nelson Mandela metro officials, two community office bearers as well as five business people. This trial is due to start on 25 October 2022.
In November, the case of former State Security Minister Bongani Bongo – who remains a Member of Parliament – and 11 other suspects is set down in the Mpumalanga Specialised Commercial Crime Court in November for a pre-trial conference. They face 69 charges in relation to allegedly dubious land deals amounting to almost R124 million.
More arrests expected
Twenty-seven people are on trial for alleged corruption relating to Venda Building Society/Mutual Bank (VBS) over the inappropriate administration of state funds in VBS by several municipalities. The accused face more than 188 charges and include former political and administrative leaders from Thulamela Local Municipality, Collins Chabane Municipality, Merafong and West Rand District Municipality, Fetakgomo-Tubatse Municipality, Thulamela Municipality and Mafikeng Municipality. The case is due to be heard between October and December of this year.
More suspects are expected to be arrested during the course of the investigation as about 20 municipalities in Limpopo, North West and Gauteng, lost nearly R1.6 billion after illegally investing with the bank. More than 2 391 statements have been gathered by the investigators thus far.
READ | 'We can't prosecute ourselves out of corruption' - NPA head
Meanwhile, the so-called "Nelson Mandela Funeral" case is proceeding in Buffalo City Municipality, where 14 people are on trial for allegedly defrauding the municipality around funds for transporting mourners to memorial services. R4.1 million has already been recovered by the Asset Forfeiture Unit and repaid to National Treasury.
While these cases continue, it is worth reflecting on those who have already been sentenced for corrupt activities in recent months. These include:
- Yunus Moola, who was sentenced to 15 years imprisonment after pleading guilty to 3 799 counts of fraud and multiple counts of contravening the Banks and Financial Advisory and Intermediary Services (FAIS) Act. Moola operated a Ponzi scheme between 2011 and 2015, where he defrauded 3 799 investors of about R500 million. Many investors had invested their pensions and life savings into the scheme.
- The former head of KwaZulu-Natal's treasury, Dumisani Sipho Derrick Shabalala, has begun a 15-year jail term. He was handed 15 years’ imprisonment for his role in receiving R1.5 million from Intaka Investments for the acquisition of Wataka water purification plants valued at R44 million. The corruption occurred between 2004 and 2007 when Shabalala formed a relationship with an Uruguayan businessman, Gaston Savoi, and the company Intaka Investments.
- Lindelani Pert Gumede, 38, a bookkeeper who stole just over R11 million from the Covid-19 Temporary Employer/Employee Relief Scheme, was sentenced to an effective jail term of 20 years in August.
- The former head of engineering services at the Passenger Rail Agency of South Africa (PRASA), Daniel Mshushisi Mthimkhulu, was convicted on three counts of fraud by the Johannesburg Specialised Commercial Crimes Court. Mthimkulu is awaiting sentencing.
Of course, not all the corruption cases pursued by the NPA and the SCCU involve massive amounts of money. But they are equally important in terms of displaying the justice system's commitment to pursuing all criminal activity, no matter the scale, as part of the broad campaign against corruption.
Three cases provide evidence of just how far the net is cast:
- In the Mthatha Specialised Commercial Crimes Court, the former financial officer at Mbhashe Municipality, Gcobani Mntumni, was sentenced to six years imprisonment for fraud and money laundering.
- In Makana Municipality, the NPA also achieved a significant victory with the dismissal in March 2022 of an appeal by Bishop Mzukisi Samuel Banzana against a 12-year sentence for corruption relating to housing contracts. Banzana was sentenced in September 2017 after a corruption and maladministration investigation into Mzingisi Development Trust, which was awarded a contract by the Department of Human Settlements to build 1 211 RDP houses in then-Port Elizabeth during 2007.
- In Polokwane, former councillor Stella Tebogo Mojapelo was found guilty of asking people for bribes so they could get jobs with the municipality. A trap was set after a whistleblower reported the matter to law enforcement authorities. Mojapelo was arrested and charged with corruption involving R2 000 and sent to jail for five years.
Apart from mere enrolment, the benefits of the crimes are being recovered by the Asset Forfeiture Unit of the NPA. In matters related to State Capture cases, restraints and preservation orders were obtained in the amount of R12.5 billion. Confiscations and forfeitures to the amount of R2.9 billion has also been secured.
Due to the seriousness of these cases, a decision has been taken that many of these cases will be prosecuted in the high courts. The trials relate to complex cases, which is emphasised by the fact that from the serious complex corruption cases enrolled, the 74 cases enrolled contain a total of 350 accused persons. Currently, we already have 20 cases enrolled in the high courts.
Crime doesn't pay
During the past 18 months, a total of nearly 50 serious and complex corruption cases have been enrolled with the joint participation of all of the above-mentioned stakeholders. Among these cases are 23 from the Anti-Corruption Task Team (ACTT) Priority List, the nine seminal cases as well as 15 cases from the DPP Priority Corruption Lists. The collaborative efforts that the prosecution and the DPCI have put in place, is driving the success of the Task Force. The work of the members of the DPCI, in particular the leadership of the Head of the DPCI, Lieutenant General Godfrey Lebeya, is acknowledged.
It’s becoming clear that crime doesn't pay. Whether it's R2 000 grafted through a municipal extortion scheme or R2 billion stolen through state capture, the NPA will prosecute whoever is involved.
- Advocate R De Kock, Deputy National Director of Public Prosecutions: Head National Prosecuting Service
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