Will a public-private alliance be effective in tackling state capture?

The public-private crime combating alliance announced by President Cyril Ramaphosa could be disastrous if not implemented and managed transparently, but experts agree the National Prosecuting Authority (NPA) is out of its depth.

In the 2022 State of the Nation Address (Sona), the president said government had gratefully acknowledged the offer of support from the private sector to assist in providing government with skills needed to investigate and prosecute crime.

Ramaphosa said to ensure that the NPA remained true to its constitutional obligation and ensure transparency, his regime was developing a structure for private sector cooperation to be managed through National Treasury.
This as the private business sector plays its cards close to its chest on the nature of the capacity and resources that the NPA lacks in prosecuting complex criminal cases.

Helping hand

Business Unity South Africa (Busa) boss Cas Coovadia said they have offered assistance but said modalities of this assistance were yet to be discussed with the NPA, that would decide on its most urgent needs.

“The [NPA] has to decide on its priority needs and we need to respond to those… We will not, and cannot, determine for the NPA what its capacity needs are,” he said.

NPA out of its depth

University of Witwatersrand lecturer in the School of Law, Blake Martin, said the NPA has confessed to its shortfalls in dealing with state capture cases and that this raised concerns for those invested in a just and equitable outcome.

He said the private sector had much to offer in quelling these concerns but said whether the NPA proceeds with or without the help of the private sector, its functions must be applied within its constitutional obligation.

Martin said a public-private alliance in prosecution was a new concept for South Africa that will need vigorous legislation to defend the integrity of the judicial system.

“The independence of the NPA is something the public cares about. But the public also cares about an effective response to corruption and is growing tired of protracted litigation,” he said.

Collaboration could be positive

Deborah Mutemwa-Tumbo, attorney and partner at Tumbo Scott Inc, said the partnership could be a positive and innovative solution as the criminal justice system did not have the capacity required to respond to the scourge of state capture.

However, she said considering the state’s track record when it comes to implementation, it is hard to see how this alliance would be practically carried out.

Mutemwa-Tumbo said government could benefit from the private sector’s expertise and capacity, saying this could also mean government would not need to hire full-time staff to respond to state capture.

“One must hope that the government does not fall to the default position of nepotism or working with untransformed service providers… capacity and resources are certainly a huge factor when it comes to the NPA‘s ability to respond to state capture,” she said.

SA novice in the terrain

Olwethu Majola, doctoral candidate at the Center of Criminology at University of Cape Town, said she was familiar with international agencies providing technical and financial support but said, compared to other African countries, South Africa was new to this avenue.

“I agree that a framework must be thoroughly investigated and designed to suit the context of SA but we would firstly have to assess the state of our institutions and determine what exactly it is that we need – and thereafter look into building the most suitable partnerships,” she said.

Plea for public help

In large parts of his speech, Ramaphosa sought to appeal to public participation in the rebuilding of the country.
The president pleaded for private-public collaboration in fighting the scourge of crime and corruption, the revival of state-owned enterprises, stimulating economic growth and job creation, as well as the protection of public infrastructure.

He said Transnet had developed partnerships with the private sector to address cable theft and vandalism on the freight rail network through advanced technologies and additional security personnel.

Ramaphosa said this collaborative effort was already showing results in reduced disruptions to rail operations but the EFF has accused the president of outsourcing government responsibilities to the private sector.

“The president has given up, and there is nothing that he is doing; the country is on autopilot at the moment,” EFF leader Julius Malema charged.

Rasodi Manyaka, Public Administration Lecturer at the University of Mpumalanga, said as the president has rightfully pointed out, the cable theft and vandalism of the rail infrastructure network has been a concern over the years.

He said government has not been able to nip this in the bud and that the problem has escalated as the results with serious deleterious consequences for the transportation of people and goods.

“It may be a good idea for government to partner with other stakeholders to secure the protection of this infrastructure especially through the development and deployment of advanced technologies. However, one must also caution against always turning to the private sector or the markets whenever there are problems in the public sector,” Manyaka said.

He said this was because the private sector always looked for opportunities to maximise profits, while government in the main sought to promote the wellbeing of citizens.

Manyaka said this is why it is important to build institutional capacity within state institutions so that there was no need to rely on the private sector for solutions.

“The privatisation of public services is not a sustainable solution,” he added.

– siphom@citizen.co.za