Matshela Koko
The legislative framework, appointment process, judicial review, accountability mechanisms, and adherence to professional standards ensure the independence of the National Prosecuting Authority (NPA).
Collectively, these mechanisms ensure that the prosecuting authority operates independently and is accountable to the judiciary, Parliament, and the Minister of Justice, rather than being subject to political interference and the influence of big corporations with a bottomless pit of money, especially multinational companies.
The president, the head of the national executive, appoints the national director of public prosecutions. This appointment is made independently of any political influence or interference.
The Constitution requires that the prosecuting authority, including the national director of public prosecutions, serve impartially and exercise its powers, duties, and functions in good faith and without fear, favour, or prejudice. This ensures that they act independently and in the public’s best interests.
The national director of public prosecutions determines prosecution policy and issues policy directives. It may intervene in the prosecution process when there is no compliance with the policy directives. The prosecution authority decides prosecutions without any external influence or pressure.
Section 32(1)(b) of the National Prosecuting Authority Act prohibits any interference, hindrance, or obstruction of the prosecuting authority or its members in exercising their powers, duties, and functions. This provision protects the independence of the NPA and safeguards it from improper influence or interference. However, the rule of law and the Constitution bind the prosecutorial policy and the discretion of the national director of public prosecutions.
There are limits to public power, including the separation of powers between the judiciary, legislature, and executive. Through the Constitution, the courts must ensure that the limits to exercising public power are not transgressed. This includes ensuring the NPA exercises its functions without fear, favour, or prejudice.
The courts must apply the law impartially, without fear, favour, or prejudice, and protect the public interest. They must also promote respect for and compliance with the principles of justice and fairness.
The Constitution bolsters the importance of the independence of the NPA and their freedom from outside influence to ensure the proper functioning of the legal system. This brings to the fore the obnoxious and legally flawed private treaty between the NPA and ABB.
The documents highlight a private treaty between the National Prosecution Authority and ABB South Africa, signed on December 1, 2022, which compromises the separation of powers and the independence of the judiciary. This treaty seeks to bind the court’s constitutional power to determine a suitable sentence, thereby subjugating the court’s independence to the views of an organ that forms part of the executive and to the influence of a company that engaged in illegal activities such as corruption and other crimes of dishonesty.
The private treaty between the NPA and ABB is unwise and compromises the separation of powers and the independence of the judiciary. The private treaty allows the NPA to fine ABB R2.5 billion for “serious crimes” committed at Eskom without judicial oversight. This means that the sentencing decision ultimately rests with the NPA rather than the courts. This undermines the principle of impartiality and fairness in the legal system.
The companies that use their wealth and political connections to gain advantages and engage in illegal activities threaten the country’s well-being and the functioning of the legal system. Those who commit white-collar crimes must be punished appropriately by the courts. They should not enter into non-prosecutorial private treaties with the prosecution authority without judicial oversight.
The NPA is not authorised to grant ABB any amnesty from criminal prosecution. The Constitution obliges the NPA to prosecute where there is a strong case and adequate evidence. If need be, the NPA can only conclude agreements as envisaged in sections 204 and 105A of the Criminal Procedure Act.
The private treaty between the NPA and ABB is evidence of an extreme form of favouritism by the NPA over other affected parties in the ABB matter. The practice of the NPA giving unfair preferential treatment to corporate companies must be rooted out. The rooting out of this practice in the legal system is crucial for upholding the principles of justice, equality, and accountability. It will help maintain public confidence in the legal system and ensure justice is served fairly and impartially.
The legal system is built on the principle that all are equal before the law. If preferential treatment is given to specific individuals or companies, it undermines the fundamental principle of equality and erodes public trust in the legal system.
Favouritism leads to unequal treatment and unfair outcomes. Justice must be served impartially and without bias, regardless of a person’s social status, political connections, or personal relationships. The NPA must treat all the implicated parties in the ABB matter equally. The law does not have sacred cows or blue-eyed boys.
It is trite that the legal system relies on public confidence to function effectively. If there is a perception that the system is biased or unfair, it will erode public trust and undermine the legal system's legitimacy.
Favouritism creates an environment conducive to corruption, as individuals and companies may believe they can use their influence or connections to receive special treatment. Rooting out favouritism in the legal system sends a strong message that law enforcement agencies will not tolerate corruption and helps deter individuals and companies from engaging in corrupt practices.
Holding all individuals and companies accountable to the same standards helps to ensure that no one is above the law. Rooting out preferential treatment helps to promote accountability and ensures that individuals and companies are responsible for their actions, regardless of their status or connections.
The private treaty between the NPA and ABB is now before the courts to be reviewed and set aside. Unconstitutional conduct and non-compliance with the rule of law are visited with nullity. The NPA cannot be a law unto itself.
For lawlessness to flourish, it only requires good men and women to do nothing.
Matshela Koko is the former Eskom Group CEO. He is currently the Managing Director of Matshela Energy.
The Star