I would like to provoke a discussion about where we are on the journey to remaking the interactions between ourselves and the transformation of society.

So let me start with a “nostra culpa”. My generation stands accused of walking away from an incomplete transition.

Perhaps we considered that the adoption of the Constitution was an end-point, not fully realising that rules needed to be scribed and institutions built. Or perhaps it was just that the struggle had been too long and arduous, and that we would resolve the incomplete business in the fullness of time. Or perhaps it was that in our youthful enthusiasm, our political education was focused on the “withering of the state”, leaving too few texts on statecraft.

Read more in Daily Maverick: The Gathering 2024

Whatever the reason, we should have an honest discussion about the aspects that remain undone. My contention is that it will never be too late for that discussion. Curiously, when we were assigned the task of convening a National Planning Commission, we saw it as an opportunity, to re-energise a discussion about constitutional values, some 14 years after the Constitution was first adopted.

When we adopted the Constitution we were very pleased that the Preamble describes us as “freely elected representatives” and sets out a few basic tasks.

The Constitution does not actually set out what the duties of members of Parliament are.

There are powers related to legislation, holding the “executive organs of the state” accountable and maintaining oversight of executive organs of state, without defining what any of their means.

What is probably the greatest deficiency is to define how MPs represent the interests of “the people”. So, what does “the people shall govern” actually mean in this context? And in respect of the objectives articulated in the preamble – “heal the divisions of the past”; “lay the foundations for a democratic and open society… “and every citizen is equally protected by law”; “improve the quality of life of each citizen” and “build a united and democratic SA able to take its rightful place in the family of nations”… what does all, or any,  of this mean?

Since the NDP was drafted, there have been significant advances in artificial intelligence and technology platforms. Yet, the SAPS has still not been able to introduce a digital biometric system

By what instruments will these objectives be addressed and how will citizens know that it is being done? Our idea of what the representative functions and duties of public representatives remains incomplete , at best.

Yet, the lists of prospective MP’s for various parties for the seventh elections have just been published. Shall we talk about competencies and attributes, should we know who they will account to?  Could it ever have been envisioned that an individual, a tiny coterie of individuals who lead parties, should be allowed to determine who the “people’s representatives should be? Or that the power should exist to summarily replace serving public representatives?

It has often been stated that we created a Constitution in the naïve hope that all of our heads of state would act like Nelson Mandela. So how should we engage with that vast area of presidential prerogatives – they include the unfettered power to  appoint of Cabinet and deputy ministers; the appointment of premiers; the appointment of the heads of all of our security and intelligence services and the appointment of all of our foreign representatives, without query or oversight. Is this vast area of practice consonant with the spirit of our Constitution?  Now we all appreciate that open-ended and protracted negotiations were obviously not in the interests of democracy, but should we not have returned to these matters later?

Is it too late to amend the practice?

Trevor Manuel at the Gathering Twenty Twenty-Four on 14 March 2024. (Photo: Shelley Christians)

Early in democracy, we applied our best endeavours of statecraft to how a democratic state could exercise its control over the organs of state. We were convinced that such control would be best established by allowing managers control over their key resources , being people and finance. We passed the Public Service Act (1994) and the Public Finance Management Act (Act 1 of 1999). The approach was on the disassembling of the highly centralised organs that had hitherto existed for the purpose of advancing the Broederbond agenda – the Public Service Commission (that made all appointments, at whatever level in government), as then constituted and the Department of State Expenditure , or Exchequer, that organised central control over expenditure and controlled procurement through the State Tender Board.

I have a sense that the greatest weaknesses in the state at present, as confirmed by the Zondo Commission are Human Resources management, (or cadre deployment) and Financial Management, with an emphasis on Supply Chain Management. (I should advise that various attempts were made to reorder these matters, but the efforts always tended to come up against the imperatives of the electoral cycle and its marauding caucuses).

I could talk about the manifestations of these matters across many organs of state, in all three ‘spheres’ of government. But, I’d like to tee up a discussion on crime and corruption, so let me talk about the criminal justice cluster.

When we drafted the National Development Plan 12 years ago, we included a seven-point plan to strengthen the criminal justice system that has now been seemingly forgotten. By the way, the same proposals had been adopted by Cabinet in 2007 ( at a time when the Scorpions, remember them?] still existed.

The seven points are:

• Adopt a single vision and mission, including performance-measurement targets for the criminal justice system;
• Establish, through legislation or by protocol, a new and realigned single coordinating and management structure for the system;
• Make substantial changes to the present court process in criminal matters;
• Put into operation priorities identified for the component parts of the system;
• Establish an integrated and seamless information and technology database for the national criminal justice system;
• Modernise, in an integrated and holistic way, all aspects of systems and equipment; and
• Involve the public in the fight against crime by introducing changes to the community police forums.

The document proceeded to detail how to professionalise the police service, a range of measures that includes, importantly, the demilitarisation of the police force.

Since the NDP was drafted, there have been significant advances in artificial intelligence and technology platforms. Yet, the SAPS has still not been able to introduce a digital biometric system – other departments, including the notoriously challenged Department of Home Affairs, have done so. So, with the SAPS for a task as uncomplicated as getting fingerprints, they continue to use ink, rollers and pads just as they did a century ago.

There is no application of voice-recognition, or any similar software so an individual reporting a case has to sit before a poorly-equipped police officer dictating a statement where a charge has been laid. Can any person think of why this archaic method is preferred? 

We do not need a minister who boasts about working from home, thus avoiding an uninhabitable office, when the SAPS officials have no such luxury.

The proposal to have digitalised dockets transferred seamlessly between the local and regional police, the prosecutorial service, the courts and correctional services remains far too modern, if that is what you wish to believe, or more than likely the reality that digital dockets leave an electronic footprint that cannot easily be sold.

Yet we know that life has so advanced that, for example, when one makes an online purchase, even of a small, inexpensive item of food, the purchaser would know what has happened every step of the way – when the order was received, produced, collected by the courier and when to expect delivery. Generally, one can also map the progress between the supplier and the delivery point.

Trevor Manuel speaks at the Gathering Twenty Twenty-Four on 14 March 2024. (Photo: Shelley Christians)

For a budget of R109.4-billion, South Africa employs 188,000 SAPS personnel (municipal police are in addition) yet we have no idea what they do every day; what progress has been made with, say, investigations; who has arrived for work; or what the productive output is. Should taxpayers not know what functions these good people are employed to perform and what progress they are making?

Interestingly, the  Estimates of National Expenditure also references the fact that there are 39 801 detectives, yet we are informed that each investigator carries about 100 case-dockets at any point in time. What is the success rate of investigations and prosecutions? Something does not add up.

Moreover, it is unclear what the anticipated focus of the police service is. When one looks at the scale of contact crimes, where or what does the SAPS do to educate to prevent the execution of these crimes, and when they, unfortunately, do occur, what strategies are in place to speedily and successfully prosecute the perpetrators?

Read more in Daily Maverick: 2024 elections

But perhaps more importantly, what has the SAPS done to equip the highly specialised units to arrest and prosecute the “modern” crimes such as cyber, sophisticated corruption, money-laundering and high-end narcotics trafficking and trans-shipment and a range of similarly innovatory crimes of dishonesty and abuse?

More basically, what strategies have been developed to counter a range of specialised contact crimes, such as those related to taxi-wars and assassins?

We do not need a minister who boasts about working from home, thus avoiding an uninhabitable office, when the SAPS officials have no such luxury. We need a minister of police who will comply with S206 (1) of the Constitution and be responsible for policing and for determining national police policy.  Similarly, we do not need a police minister who stomps all over crime scenes, contaminating evidence, or who pitches up, selectively, at high-profile court cases.

Let me conclude, my general submission is that our revolution was horribly disrupted

We need a minister who will be focused on improving the efficiency of the service and ensures that the organisation and deployment of personnel are optimal. We need a minister who will collaborate closely with a group of competent managers to ensure that the letter and spirit of the constitution and relevant legislation is applied.

I cannot understand how the police can hope to exercise their mandate with community relations as generally poor as it is, and crime intelligence as decrepit as it has been since the destruction of the function by people such as Richard Mdluli.

Importantly, because the police service is as poor as it is in the discharge of its responsibilities, the criminal justice cluster cannot function. The point raised earlier on the need to “adopt a single vision and mission” now appears more necessary than ever before.

Turning then, to the National Prosecuting Authority, I want to assert that the NPA was hollowed out, or white-anted, during the tenure of people such as Shaun Abrahams, Nomgcobo Jiba and Lawrence Mrwebi.

Thank heavens for the work of the Investigating Directorate, but to be successful the NPA has to operate across a broader spectrum than those reported to the ID and accepted for prosecution. As indicated earlier, the skills within the NPA must be speedily rebuilt, or to quote Anton du Plessis “methodically rebuilding the NPA is crucial”. The attention has, surely, to be on the method. After the 1994 elections, it was relatively easier to attract professionals into various parts of the public service because the desire to be part of a great project to democratise a new nation and succeed at it, was so overwhelming.

But as with a focused SAPS, there are also a number of supporting agencies that have to come into play. Occasionally we lose sight of how interconnected the various parts of crime prevention are. An article earlier this week  told the story of an individual in the SARB Financial Surveillance Department that appeared to support the actions of some at Steinhoff and weaken the ability of the state to successfully prosecute wrongdoers. What other fissures exist in the SARB?

Read more on Daily Maverick: Steinhoff: Reserve Bank manager signed off on billions in alleged unlawful cross-border transactions (Part One)

The SA Revenue Service has a set of responsibilities related to rooting out crime. Granted there are some systems, such as the “tax clearance certificate”, that are already very dated. I am sure that the SARS is rebuilding after its hollowing out during the State Capture years. They may be making reasonable progress, but the gaps still appear from time to time.

I have to draw Home Affairs into this discussion. Just pause and consider the advantages that a single national identity system would offer – think of the Aadhaar system in India, for which 1.3 billion cards have been generated. Not only the biometric details are contained but also address, email address, mobile number and tax status. The same card will be used to receive grants, pay taxes, receive tax refunds etc.  Within the same system will be recorded which tenders will have been awarded. The system is smart enough to outfox  tenderpreneurs and return the country to clean administration. What are we waiting on?

The Financial Intelligence Centre similarly has a significant role to play. When the FIC Act was first conceived of, the idea was that whilst the FIC could not be an actual investigative body, it would need to close out the avenues that corrupt monies, laundered monies and the proceeds of crime would generally find resonance.

On the list were real estate, expensive motor vehicles, luxury goods, investments, gambling establishments and similar activities. The rationale has been that such proceeds of crime need an outlet, so target the outlets. My sense is that whilst we are all required to regularly be “Fica’d” billions of rand flowed out of the country illegally. My recommendation would be that there be a Very High Level engagement looking back on what may have been and what, apparently, went wrong. I still cannot appreciate that the inappropriately named “Money Laundering Advisory Council” provided for in the legislation has been abandoned. The discussion and debate need to be very public to ensure that we collectively own the removal from the FATF grey list as a national victory and a first step.

We also need a discourse on the amount of cash in the system. In a recent press report, an individual (tenderpreneur) went into the branch of a bank and on one day drew R250,000 and on another R200,000 to allegedly pay a bribe to a minister.

So while, hopefully, this matter will be speedily investigated and successfully prosecuted, the larger problem appears to be that individuals can walk into a bank branch and draw such large sums of cash. Surely the regulators can determine a limit and in the event that a greater sum is required, individuals could apply to do so, with a cooling-off period before disbursement. Similarly, bank records can reveal instances of unusual activity, such as salaries that are deposited by employers and then not drawn upon without a rational explanation.

Former finance minister Trevor Manuel at the Gathering Twenty Twenty-Four on 14 March 2024. (Photo: Shelley Christians)

Let me, finally, turn to the courts. I want to repeat that the courts cannot perform miracles if the institutions upstream are incapable. Whilst we have an ongoing obligation to ensure that all are equal before the law and that each has the “right to equal protection and benefit of the law”,  there have to be limits applied. We now know that the costs of impeaching John Hlophe were approximately R10 million and that the former Public protector Busisiwe Mkhwebane notched up legal costs of R 30 million. I cannot even calculate what the legal costs, on both sides – his and those of the state – Jacob Zuma has cost the taxpayers.

Also in particular high profile cases, such as the Senzo Meyiwa murder trial, the amount of time, money and effort that has been consumed, especially since the investigations appear to have been botched from the very beginning. And while those are instances that we are aware of, there are cases unnecessarily protracted that impact on the everyday lives of very poor people who have to return to court day after day because of incompetence in the system.

On the one hand, the maxim of “justice delayed” arises, but more importantly there are too many cases that do not make the roll because the system is snarled up. South Africa is in desperate need of a fresh approach to rebuild trust in the legal system.

Let me conclude, my general submission is that our revolution was horribly disrupted. I referred to the fact that our political textbooks referenced Lenin on the withering of the state. Even those who would still adhere to the doctrine would recall that Marx once wrote of the “Revolution in Permanence”. That is the spirit we now need.

The rupture of the Zuma and Ramaphosa years cannot be interpreted to require us to give up on the very fine values that bind us as a nation and are articulated in our Constitution. Part of the message here is that we identify what is wrong and convene across political lines to seek the remedies. With the best will in the world these matters will not be addressed in a new Parliament, however constituted, from June. We need to debate with, but also beyond, the political parties. DM