Publication: Business Day Issued: Date: 2004-07-26 Reporter: Linda Ensor

Ngcuka's Successor Faces Zuma Test



Business Day

Date 2004-07-26


Linda Ensor

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The timing of national director of public prosecutions Bulelani Ngcuka's resignation is significant.

The immediate response from politicians has been that he has succumbed to enormous political pressure because he had the temerity to take on Deputy President Jacob Zuma .

This is a reasonable assumption, given reports last month that the African National Congress (ANC) was trying to engineer his departure, that an "exit package" was being negotiated and he would be out of his job by the end of the year.

But perhaps because he remained undeterred, despite a barrage of investigations, inquiries, slurs and pressure, Ngcuka should be given credit for the courage, independence and integrity that has won him such widespread respect.

This respect, based on Ngcuka's determination to pursue his investigations without fear or favour, was revealed early on when he took up the position with the prosecution of former ANC chief whip Tony Yengeni on charges of corruption.

Why then after all this time and having so steadfastly stood his ground has he suddenly crumbled just as the trial on charges of corruption of Zuma's financial adviser Schabir Shaik is about to get under way?

Has the pressure become too much to bear?

Ngcuka must surely have realised how his resignation would be perceived, coming as it has done after a prolonged political assault on his credibility.

One must assume that his departure can be seen as an expression of confidence in the institution he created. The processes that it has set in motion will continue regardless of his absence.

Ngcuka was not personally involved in preparation for the trial, and his replacement will have a limited ability to influence the outcome.

The real test of whether Ngcuka's confidence in the National Prosecuting Authority is misplaced will be whether or not his successor decides to prosecute Zuma if the evidence emerging from the Shaik trial justifies charges being brought.

Ngcuka, now ending his sixth year in office he was appointed in August 1998 is understood to have wanted to leave last year, but delayed his departure to handle the political convulsions caused by his statements about Zuma. Ngcuka said last August that there was prima facie evidence of corruption against Zuma, but it was not sufficient to prosecute the deputy president.

Having introduced a raft of innovations in the way the prosecuting authority operates, Ngcuka apparently wanted to make way for a new leader to consolidate the system and introduce new ideas.

Ngcuka's public image has been dominated by the authority's high-profile cases, but he leaves a number of other achievements behind him.

These include the establishment of the Scorpions as a special investigating unit; the creation of one national prosecuting structure unified under a common prosecuting policy; the introduction of performance and strategic management; the creation of specialised prosecution authorities for commercial crimes and sexual offences; and the adoption of a multidisciplinary approach to crime investigations, particularly rape.

Over the past year Ngcuka has often been in the public eye. Corruption allegations against former transport minister Mac Maharaj, supposedly "off-therecord" briefings with newspaper editors and Ngcuka's statement about Zuma, contributed to a sustained assault on Ngcuka's position.

He was accused by Maharaj of having been an apartheid spy with the suggestion that his investigations against ANC leaders was a continuation of that same agenda.

President Thabo Mbeki responded by announcing a judicial commission of inquiry under Judge Joos Hefer last September to investigate the claims.

The judge found in January that these allegations lacked foundation.

Ngcuka survived this round, but was not yet out of the woods as Zuma complained to public protector Lawrence Mushwana about Ngcuka's statement that there was prima facie evidence against him .

Mushwana criticised Ngcuka's behaviour, and recommended that he be reprimanded by Parliament.

A special ad hoc parliamentary committee appointed to deal with the issue handed down a mild rebuke.

Whatever Ngcuka's rationale for leaving, public confidence in the prosecuting authority has been dented, and it will be incumbent on his successor to ensure that this is rectified.

Political analyst Steven Friedman stresses that public confidence in the political process and its institutions is crucial for a democracy and a well-functioning economy.

There is a danger that with a government under the control of a party with such a huge majority as the ANC has there is a gradual erosion of the independence of the institutions of democracy and of public trust in them.

With acknowledgements to Linda Ensor and the Business Day.