Opinionista Paul Hoffman 29 May 2018

Trevor Manuel’s Moseneke/Mogoeng Masterclass Moment Missed

Veteran of the Struggle and former Cabinet minister under every former president in the new SA, Trevor Manuel, was recently given the honour of delivering the Thabo Makgoba lecture at the University of the Western Cape. He did not disappoint. Much has been made of his assertion from the podium that the Zuma era was a “total disaster” for South Africa. Not because this statement is obviously true, but because he served in the first Zuma Cabinet.

These are the words he used to explain his position as reported by News24:

Many are aware that I served in his Cabinet until May 2014, charged with the responsibility to draft the National Development Plan (NDP). Granted, president (Jacob) Zuma did not interfere with the work of the planning.”

Manuel said Zuma “did not even attempt to soften our recommendations in a whole chapter devoted to fighting corruption or the very critical chapter on building a capable and developmental state”.

He said many people would argue that Zuma merely ignored the NDP, while paying lip service to having initiated the process.

It’s clear his attention and priorities lie elsewhere,” he said.

While it is so that the NDP has become the policy of the ANC led government (adopted at its Mangaung conference in December 2012) as also many other political parties, it is nevertheless necessary to interrogate its recommendations regarding corruption and Zuma’s alleged failure to “soften” them.

It is now clear, with the benefit of hindsight, that the ANC’s resolution taken in Polokwane in 2007 to disband the effective and efficient Scorpions anti-corruption unit of the NPA and to replace it with the police unit called the Hawks was the first major step on the path towards state capture trodden by successive Zuma administrations. Not only did this resolution, once it was implemented by the legislature and executive, completely emasculate the investigative capacity of the NPA, it also, through the unsatisfactory reporting lines to the minister of police, rendered the machinery of state in SA unequal to the task of combating grand corruption, kleptocracy and the attempt to capture the state – all of which are features of the Zuma years.

The period of the process of replacing the Scorpions with the Hawks overlapped with the period during which the NDP was prepared. In 2008 a challenge to the rationality and propriety of the ANC Polokwane resolution was dismissed on procedural grounds by the Constitutional Court. It showed deference to other spheres of government by allowing the process of legislative change to continue. When the new laws, one dissolving the Scorpions and one establishing the Hawks, were put in place they were challenged with partial success. The seminal Glenister judgment of March 2011, which predates the publication of the NDP, found that the Hawks were not an adequately independent replacement for the Scorpions and sent parliament back to the legislative drawing board with a list of criteria that define the type of anti-corruption machinery that the law and the international obligations of SA require. These criteria have been dubbed the STIRS requirements: Specialised, Trained, Independent, Resourced and Secure.

The court required Parliament to make the decision of a reasonable decision-maker in the circumstances in its prescribed task of amending the initial Hawks legislation. Using up all the time given to it, parliament eventually, in September 2012, passed amending legislation which did no more than pay lip service to the criteria listed by the court.

The amending legislation was successfully impugned by the Helen Suzman Foundation and Hugh Glenister (who litigated alone in the first two rounds of his campaign against corruption) for its want of compliance with the STIRS criteria which had been laid down in March 2011. Instead of referring the matter back to parliament, the Court, in November 2014, edited out the words and clauses that rendered the legislation unconstitutional. Consequently, the third incarnation of the Hawks is what the country has had ever since.

This is what the Chief Justice Mogoeng Mogoeng posited to be the aim of his judgment:

(1) All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

(2) We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. And this in a way is the issue that lies at the heart of this matter. Does the South African Police Service Act (SAPS Act), as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?”

The structural and operational independence, to which the Chief Justice refers, involves adherence to the STIRS criteria in a single entity, what he calls “an adequately independent anti-corruption agency”. His opening comment reaffirms the findings of the Moseneke/Cameron judgment in the seminal Glenister case. They pointed out:

(166) There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law, and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence, and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

The attempt at the capture of the state has taken place on the watch of the Hawks. Its lack of complete success is in no way due to the efforts of the Hawks. On the contrary, the Hawks have been less and less productive year by year. Shamefully so, they were used in a scurrilous campaign against Pravin Gordhan, now restored to Cabinet, and they allowed the Guptas to escape instead of taking any timeous action to effect arrests, preserve assets captured and to investigate crimes revealed in the #Guptaleaks, PARI and SACC reports and several books written by investigative journalists. Civil society, the faith based sector, the investigative media, academia and active citizens who turn to the courts have been instrumental in avoiding the capture of the state while the Hawks hibernated during the disastrous Zuma years.

It is not clear whether the corruption chapter of the NDP was written before or after the judgment in the Glenister case in which the Moseneke masterclass is set out and the STIRS criteria are established. The text of the NDP makes no reference to the litigation, nor has it been adjusted in any way following the two judgments quoted from above. The names “Glenister” and “Helen Suzman Foundation” are nowhere to be found, not even a footnote, in the “Fighting Corruption” chapter of the NDP.

What the NDP does recommend is that “the country needs an anti-corruption system that makes public servants accountable, protects whistle-blowers and closely monitors procurement”. Superficially, there is nothing wrong with that, but, the devil is in the detailed proposals which read:

  • Strengthen the multi-agency anti-corruption system;

  • Strengthen the protection of whistle-blowers;

  • Greater central oversight over the awarding of large tenders or tenders with long duration;

  • Empower the tender compliance monitoring office to investigate corruption and the value for money of tenders.

In practice, the multi-agency system revolves around the little known Anti-Corruption Task Team which is drawn from the legally recognised bodies such as the Hawks, SAPS, NPA, Special Investigations Unit, Assets Forfeiture Unit and Public Service Commission. The team, formed in 2010, has never taken a corruption case to trial. With the likes of Adv Jiba (as she then was) and General Ntlemeza at its helm, this ought not to be surprising.

The fundamental difficulty with the multi-agency system recommended by the NDP is that it is not consistent with the Constitution as interpreted by the courts in the litigation concerning the establishment of the Hawks. A single agency system is what the courts require. They do so in a manner that is binding on the state which was the losing litigant in each case. While the NDP does recognise the successes of the single agency system in places like Hong Kong, Botswana, Australia and Singapore, it concludes, with dubious logic, that “the country does not have the institutional foundation to make the (single agency system) a viable option”.

This attitude demonstrates a lack of faith in the NDP’s own recommendations for a capable developmental state.

It is no wonder Zuma did not act to “soften” the unconstitutional recommendations of the NDP on corruption. They hold no terror for him and his fellow travellers.

Unless and until the state pays greater heed to the binding findings of the courts in the anti-corruption litigation and actively addresses the essential lameness of the Hawks, the county will continue to be exposed to the societal ill identified in the NDP as corruption.

What is needed is a single agency fully imbued with the STIRS criteria. Nothing less will do, as has been demonstrated amply during the Zuma years. Observe the dysfunctional Hawks turning a blind eye to multiple shenanigans at various levels. Note the Anti-Corruption Task Team producing nothing more than a few plea bargains of the kind the travelgate fraudsters enjoyed. An Integrity Commission established under Chapter 9 of the Constitution to prevent, combat, investigate and prosecute corruption can hardly do worse than this lamentable record.

It is a source of sorrow that Trevor Manuel did not use his opportunity at UWC to take a sober look at the causes of the disaster he described, one of which is surely impunity from any adverse consequences for acting corruptly.

Lack of attention to the details of the findings of the courts in the cases in which their requirements for our anti-corruption system have been laid down is not helpful; nor is boasting about unworkable recommendations of the NDP that are in essence unconstitutional.

Manuel needs a Moseneke/Mogoeng masterclass on the “how to” of countering corruption before he speaks in public about the evils of corruption again. All he needs to do is read the judgments, they are available and explained on the website of the Constitutional Court, and then encourage the implementation of their findings. Hopefully, the Ramaphosa administration is better informed. DM

Paul Hoffman SC is a director of Accountability Now

Gallery

While we have your attention...

An increasingly rare commodity, quality independent journalism costs money, though not nearly as much as its absence can cost global community. No country can live and prosper without truth - that's why it matters.

Every Daily Maverick article and every Scorpio exposé are our contribution to this unshakeable mission. It is by far the most effective investment into South Africa's future.

Join our mission to become a Maverick Insider. Together we can Defend Truth.


THE BANKERS

Looting secrets and shady tactics of banks and auditors revealed in hard-hitting report

By Steve Kretzmann

Human birth control pills are as effective for gorillas. Why anyone would give that a test is an absolute mystery.