The Madlanga commission of inquiry has been a “devastating” wake-up call, not only for the country but for Business Against Crime South Africa (BACSA), says CEO Anton du Plessis.
“For a long time, we’ve seen from the fragmentation of our criminal justice system that something drastic was wrong. Madlanga has shone a spotlight on that.”
It has also shone an uncomfortable spotlight on an underwhelming performance by BACSA, which was launched 30 years ago by President Nelson Mandela in the fond hope that the private sector would help government rid South Africa of organised crime and corruption and make it a safer place.
Judging by the Madlanga horror show, it hasn’t even scratched the surface.
Du Plessis, the former deputy national director of public prosecutions who was appointed to head BACSA in January, says while it’s done “a lot of important things” over the years, given the Madlanga revelations it needs to adjust its strategy and take its performance to a new level.
“But government has to lead. You need accountability, prosecutions, disciplinary action and institutions with capable leadership and a culture of professionalism that perform consistently. We believe the best shot we have at this right now is through this partnership, harnessing our collective brains trust and capabilities. We’ve seen this with how South Africa was able to get off the Financial Action Task Force (FATF) greylist.”
Except that Ismail Momoniat, the former acting director-general of the National Treasury who led this effort, says there’s a good chance the country will be greylisted again. “What FATF is looking for is: Do the reforms help investigators and prosecutors build serious cases faster? Do they take powerful people to court?” says Momoniat.
The only way to make this happen is to “prioritise ruthlessly” the most high-impact cases, says Du Plessis. “We saw the impact of that when the Scorpions were created. Then you need to find ways to deal with these cases more effectively.”
The best, if not only, way to do this, says the man who was deputy head of the National Prosecuting Authority (NPA) until December last year, is to make the NPA financially and operationally independent. BACSA’s impact here has been negligible.
Where it can have more impact is in harnessing the special skills, expertise and technology that exist in the private sector to help the criminal justice system leapfrog into a new technological era so it can keep pace with ever more tech-savvy criminals.
“You can’t continue relying on methods used for the past 30 years that haven’t been as effective as they should have. That really needs to change.”
Contrary to appearances, Du Plessis believes the political will to “prioritise ruthlessly” high-impact corruption exists. “It’s not necessarily just about the ruling party. What we need to realise is that the rule of law has become politically expensive. I think by 2029 you’ll be pretty unelectable in this country if you cannot demonstrate progress on accountability and the rule of law.”
That’s the one thing that’s going to guarantee some level of political will at the top, he says. “We’re seeing it at the moment. If there wasn’t the political will to tackle this, we wouldn’t have a Madlanga commission on national television every day. We wouldn’t have what I regard as pretty strong appointments in some of our key institutions.”
He cites the new director of public prosecutions, Andy Mothibi, even as questions are raised about generous exit packages leading to the early retirement of 47 senior prosecutors from the NPA, which has repeatedly blamed its failure to prosecute high-level cases on a lack of experienced prosecutors.
“The NPA has to find innovative ways to retain and attract the best skills to be able to prosecute these complex cases. It would be a concern if the most experienced prosecutors are leaving,” says du Plessis.
In March BACSA adopted a new strategy that is “very focused” on organised crime and has been “massively ramping up” its interface role between the government and the private sector to provide the skills and resources needed to beat organised crime.
“To get that right, we need technology. We can’t keep relying on witnesses and whistleblowers. It’s not fair on them, and it’s not how crime and corruption prosecutions work in other parts of the world.”
Law enforcement needs to make far more use of digital evidence and AI analysis to shape the way the police do their work. “That’s what the countries that are succeeding in this fight do, and South Africa needs to get to that point,” says Du Plessis, who gained extensive experience in criminal justice reform while working with the UN Security Council’s counter-terrorism executive directorate.
BACSA’s new strategy will see it ramping up support for a whole-of-system approach to fighting organised crime, rather than through isolated projects. “Organised crime groups controlling the illicit economy are operating across different sectors all the time, so the best way to fight them is to get the system to operate as a whole. At the moment, organised crime groups can game the system because it is not functioning as a system.”
Creating platforms where data can be shared and analysed to close the loopholes that organised criminals are exploiting will be another key focus for BACSA.
Du Plessis agrees that Madlanga’s revelations about the extent of criminal infiltration of law enforcement and other state organs raise questions about how secure these platforms will be.
But the fact that the country can watch the Madlanga horror show play out every day “should make us not lose hope in our ability to pull back from the precipice”.