OPINION: Greenback may be route to justice

Bronwyn Nortje
Bronwyn Nortje
If we really want justice for SA, we need to take a step back from our ghoulish fascination with the Gupta leaks, the resignations and the smallanyana skeletons and ask what we really want for those who have systematically looted the country’s riches.

The past few weeks have delivered a smorgasbord of disclosures and resignations relating to a small but powerful group within the government and the ANC who deliberately undermined SA’s institutions for personal financial gain.

Along with evidence that a campaign was led by London-based public relations firm Bell Pottinger to sow racial strife and distract attention from the real villains, we also now know how senior government officials were brazenly involved in corruption that has cost the country billions of rand.

Watching these stories unfold is so mesmerising because we desperately hope those responsible will get their just desserts. Will they face time in jail? Will they have to pay back the money? Or will they be let off with a slap on the wrist and a golden handshake?

This might seem trivial now, but for the future of the country, it is vital South Africans feel justice has been done.

The removal of these people from their positions of power and the shame and ridicule that is being heaped upon them is the beginning of this process, but we need to focus on what happens next. It is only after we decide on what sort of justice we are after – and whether it is possible – that we can concentrate our efforts on ensuring we empower and support those who will be able to achieve it.

There are three possible and interrelated outcomes people would want to feel that justice has been served.

First, we would want those involved to face the full might of the law and stand trial for any criminal acts in which they may have been involved.

If there is sufficient evidence and they are found guilty, they should serve jail time or face other suitable sanctions. Any money acquired through illegal or corrupt activities should be returned and illegal tenders should be cancelled.

I doubt we will see this sort of result if action is taken through the judicial system. It is highly unlikely there is sufficient political will in the Hawks, the National Prosecuting Authority (NPA) or the police for this to happen.

Since Shaun Abrahams was appointed as national director of public prosecutions, the NPA has been plagued by scandals and clearly has an ulterior motive when it comes to the sort of prosecutions they pursue.

The NPA was behind a prolonged campaign against former finance minister Pravin Gordhan for the so-called South African Revenue Service rogue unit and has failed to satisfactorily answer questions relating to their selective prosecution of the Nkandla scandal.

Earlier this month, Abrahams filed papers with the Supreme Court of Appeal to set aside a high court ruling that President Jacob Zuma should face charges dating back to 2001 related to fraud, racketeering and corruption.

Another complication in bringing about a successful prosecution is that many of the crimes would have taken place outside of the borders of the republic. We know a significant portion of state funds has made its way into a myriad of almost untraceable bank accounts across the world, but tracking this would be a mammoth task.

In theory, the government and its institutions could work with the likes of the Financial Action Task Force to trace the money and place pressure on other countries to repatriate it, but if they are that way inclined, why did they let this happen in the first place?

As long as Zuma and his cronies are in power, any form of state prosecution that will bring about the necessary justice is unlikely to happen. As was the case with the spy tapes and Nkandla, prosecutions may be brought against guilty parties, but whether or not justice will be done is questionable.

There is an outside possibility of someone pursuing a private prosecution, but this is a costly and lengthy process and requires proof that the person undertaking the prosecution was personally affected by the crime.

The establishment of a dedicated private prosecutions unit by AfriForum earlier in 2017 suggests there are some who think justice can be achieved this way (assuming that after the cases are brought to trial they are heard impartially) but it is a long road to travel.

The path to achieving the most satisfactory justice against the Zumas, Guptas and others involved in corruption is probably outside of SA. There has been talk of bringing a case against Bell Pottinger in the UK.

If successful, this would result in extensive disclosures that could in turn provide unequivocal evidence that would force a regime change in SA and criminal prosecutions of the guilty parties at home and in other jurisdictions.

Another potential route would be via the US Justice Department. The Travel Act in conjunction with the Foreign Corrupt Practices Act is the long arm of the US legal system that brought cases against several officials related to Fifa in 2015. A peculiarity of US law is that it extends to anyone using US dollars or its banking system to commit an illegal act.

The Travel Act prohibits any acts of foreign travel or foreign commerce distribution or management of any illegal activity and is often the link used by federal courts to extradite and prosecute individuals.

So if the Guptas used dollars that were the product of corrupt or illegal activity in SA, or in the process of money laundering turned rands into dollars and those dollars came into contact with a US-registered firm (such as MasterCard), they could be singled out by the department.

It’s a long shot, but right now it may be the best shot we have to get the sort of justice these people deserve.

Bronwyn Nortje is a political and economic analyst with a special interest in welfare economics and the distribution of social goods. This piece first appeared in Business Day.

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