'How do you prosecute anybody for corruption and you're not prosecuting Jacob Zuma?'

'How do you prosecute anybody for corruption and you're not prosecuting Jacob Zuma?'
CHRIS BARRON | September, 2014

WATCHDOG: Former National Prosecuting Authority prosecutor Glynnis Breytenbach, now a DA member of parliament, with her German shepherd dogs on her Gauteng smallholding.
Image by: WALDO SWIEGERS
Law and Disorder Glynnis Breytenbach puts the NPA's bungled prosecutions down to politics and an exodus of skills


The farcical way in which bribery allegations against an executive director of Pinnacle Holdings seem to have been handled by the Hawks and the National Prosecuting Authority should come as no surprise, says the former top commercial crimes prosecutor at the NPA, Glynnis Breytenbach.

She says the capacity to investigate and prosecute commercial crime has deteriorated to an "unimaginable" extent due to massive demoralisation and a haemorrhaging of skills.

Now, commercial crime syndicates are zeroing in on South Africa, foreign investors are staying away and corruption in the private sector is flourishing, says Breytenbach.

Without having studied the details of the Pinnacle Holdings case, which was sent to court by the NPA but thrown out for want of evidence, she says this is "what happens if you have an inexperienced investigator working with an inexperienced prosecutor".

There are any number of pro-secutions of corporate crimes that have languished, vanished or slowly crumbled.

Breytenbach says the two most egregious recent examples are those of Fidentia founder J Arthur Brown - who was fined R150000 and given a suspended sentence after "losing" R1.4-billion under his care - and Barry Tannenbaum.

Tannenbaum fleeced investors of R12.5-billion in a Ponzi scheme that collapsed in 2009. Since then, no formal extradition application has been lodged to get him back from Australia.

This is a scenario that has played out repeatedly as experienced investigators and prosecutors quit their jobs because of political interference.

Breytenbach herself left after being targeted by the NPA because, she suspects, she refused to halt her prosecution of politically connected crime intelligence boss Richard Mdluli. Now she is justice spokeswoman for the DA.

This week, Breytenbach issued a public call for the person who targeted her - the deputy head of the NPA, Nomgcobo Jiba, who was acting head at the time - to be removed because of her inept handling of the spy-tape saga.

The spy-tape mess, which has already been sharply criticised by the Supreme Court of Appeal, proves that Jiba is unfit to hold such a position, argues Breytenbach.

"The obvious and overt politicisation of the NPA has made many people who are qualified in the area of commercial crime uncomfortable and not happy with the NPA. Instead of confronting the NPA, they've taken the path of least resistance and gone elsewhere."

Skills in prosecuting commercial crime are immensely marketable in the private sector.

"People like myself can get a job in the private sector at five or six times what we earn in the NPA," she says. "The reason we didn't leave was because we believed in what we were doing. I hold the view that prosecuting is the best job in the world - if you can do it honestly. As soon as it became impossible to prosecute with integrity, then experienced prosecutors started leaving."

Those who have stayed are mostly white men in their 50s who feel they won't get a job elsewhere.

"We spent years and years investing huge amounts of time and effort training very good black prosecutors, and I had many on my staff," says Breytenbach. "They have all left. It is easy for them to get other jobs in the private sector and they're not prepared to put up with this kind of crap."

Uncompetitive salaries have little to do with it, she says.

"This is not necessarily what it's about for most of them. It's about being able to do your job with integrity."

Breytenbach says there is "a general feeling" among prosecutors in the NPA that they can't do this any more.

"How do you prosecute anybody for corruption and you're not prosecuting Jacob Zuma? How do you prosecute a metro police officer for taking a R50 bribe when he earns R2000 a month and Zuma earns R3-million and we're not prosecuting him?" she asks.

Morale in the NPA is in tatters. "The reason people are prosecutors is not because they want to get rich, believe me. You prosecute because you believe in the rule of law and you enjoy the moral high ground. If you no longer have that then it is just another job."

But Breytenbach says the lack of prosecutorial skills only explains "to a degree" the apparently bungled prosecutions.

This is because specialist commercial crime investigators are just as marketable as the prosecutors. And, equally disillusioned, they're being head-hunted by private sector auditing companies such as Deloitte, KPMG and EY.

"As soon as a detective becomes close to worth his salt he gets head-hunted by the private sector. So there is a general paucity of skills in the police which makes it impossible for the prosecutors to do their work," she says.

"Even the best prosecutor in the world can't prosecute a case that has been poorly investigated."

As police with specialised commercial crime skills leave for the private sector there are fewer left to impart these skills to others. The same goes for skilled prosecutors.

"You're not born with these skills and you don't learn them at university. It takes 10 years to make a decent prosecutor. It takes 20 years to make a decent commercial prosecutor. It's the hard knocks of life, making mistakes in court and elsewhere, people showing you the ropes - that is how you learn to become an accomplished commercial prosecutor and policeman," she says.

Now, there is nobody left to impart those skills.