Opinionista Paul Hoffman 7 April 2020

Mo Shaik and me – a cautionary tale

A close encounter with Mo Shaik and the later shutting down of the Scorpions have important parallels for the current debate around how to proceed with corruption prosecutions.

It is conventional for commentators to refrain from writing in the first person; it gives them a veneer of objectivity (often false) and is a convention generally observed by this scribe. On this occasion, the anecdote at the pivot of this piece is a personal one that does not permit the usual third-person treatment. It contains a cautionary tale of relevance today.

The ANC met in Polokwane in December 2007 and passed a resolution which demanded the urgent disbanding of the Scorpions unit in the NPA and the redeployment of its investigators in the police. Shortly thereafter, the ISS called a conference at its Pretoria offices to debate the wisdom of so radical a move. Later it was argued in court that it was irrational to close down the Scorpions. This argument was rejected by various courts including the Constitutional Court.

The benefit of hindsight suggests that the irrationality argument, first put forward by Bob Glenister in his initial but premature forensic foray, was actually a good one; but, which court would have guessed that without the benefit of clear knowledge of State Capture with impunity due to the hobbling of the Scorpions and the capture of their replacements?

At the ISS conference, those favouring and those opposing the dissolution of the Scorpions squared up to duke it out over the efficacy of ending the life of so successful and effective an anti-corruption entity.

I arrived extra early at ISS HQ and was offered a strong cup of coffee by the staff there who took pity on me. Unaccustomed to the effect of so much caffeine in one dose on an empty stomach, I became hyperactive and, using a handy piece of chalk, scribbled across the blackboard in the chosen venue the reasons for disbandment of the Scorpions being a bad idea, legally, practically and constitutionally. The various sections of the Constitution implicated were highlighted and the board was soon full of my scrawl railing against the whole idea of closing down an efficient and effective unit.

The delegates, better informed than I was about the state of the traffic in Pretoria, began to drift in and scrutinised the board with varied degrees of interest and approval. Mo Shaik, at the time a close adviser of Jacob Zuma, then a private citizen and ANC president, arrived a little late, as is fashionable, and soon realised that my scrawl was not to his liking. His brother’s conviction for corrupting Zuma still rankled and the role of the Scorpions in securing that conviction ensured that Mo was an avid supporter of their closure. He had latched on to a phrase in the Constitution prescribing a “single police service” for the new SA and contended that the investigators in the Scorpions ought to be in the police and were unconstitutionally located in the NPA. His argument ignored a binding precedent set by the Constitutional Court which allowed military police and municipal police space to operate in our constitutional architecture.

When Mo had settled himself down and had read the board, he exploded into action by interrupting proceedings and challenging the objectivity of the ISS for allowing its blackboard to be polluted with my notes which he assumed to be ISS approved when they were not. I immediately owned up, assured all present that the board was not used with the blessing of the ISS and generally managed to mollify Mo by blaming a caffeine overdose for my hyperactivity. The discussion continued until the first coffee break. Having experienced the coffee earlier, I avoided it and instead sought out Mo who was still in a thunderous mood outside, sucking on his pipe and tobacco with all his might.

I pointed out to him that the quality of person employed in the Scorpions was such that their fierce independence and integrity, their probity and work ethic would have them resigning in droves rather than haplessly waiting to lose their jobs. Mo stopped sucking on his pipe as he considered my point; a bright light could be discerned above his pate as he visibly relaxed at the thought, which had obviously not previously crossed his mind.

“You may well be right,” he smiled, before resuming his relationship with nicotine.

The Scorpions were dissolved, the Hawks were created to absorb the investigators on the staff of the Scorpions, mendacious Menzi Simelane was appointed by Zuma to “bring the vision of the ANC to the NPA” and droves of Scorpions and prosecutors left the public service, including Shamila Batohi, Hermione Cronje, Scorpions head Leonard McCarthy and then NDPP Vusi Pikoli. The latter was suspended for having the temerity to prosecute police chief Jackie Selebi against Thabo Mbeki’s wishes and was fired for charging Zuma despite his popularity in certain quarters of the ANC. Pikoli’s independence was just too much for the ANC to bear. His decisions have stood the test of time. Selebi was convicted and Zuma is at long last facing trial.

The brilliant suggestion by Simon Mantell that the current NPA should keep matters simple by mounting uncomplicated prosecutions for statutory offences relating to breaches of the Public Finance Management Act and the Companies Act, brought my encounter with Mo to mind.

It is conceded by the leadership of the NPA, and by the politicians responsible, that the NPA is currently not equipped to mount a complex corruption case. The type of investigation and prosecutions skills needed to do so successfully (and failure is not really an option) are in short supply in the NPA with its hollowed out and eroded current status. A status deliberately brought about during the Zuma era and one which persists to this day with plenty of strategically placed “saboteurs” (Hermione Cronje’s term) in the NPA ensuring that all efforts to end corruption with impunity are thwarted.

These challenges are not cured by throwing extra budget or more money at the problem. No experienced, self-respecting and independent operative of the kind that fled the Scorpions in droves would even contemplate joining the NPA in its present state. Starry-eyed idealists might, battle-hardened veterans won’t. So, the welcome fresh funding for the NPA will have to be spent recruiting youngsters and training them up, a process that takes more time than SA has available for confronting the corrupt. Glynnis Breytenbach, the shadow minister of justice and herself an experienced prosecutor, has estimated that it can take as many as 20 years to train up a prosecutor to the point at which the skills necessary to mount a successful complex corruption case have been imparted. SA does not have the luxury of so much time.

The obvious “work around” solution to this problem is to establish a specialised and dedicated unit for the purpose of investigating and prosecuting grand corruption, State Capture and kleptocracy. The new unit will not have the baggage that the NPA is currently carrying and is unable to drop any time soon. It will be seen as the Scorpions reincarnated and will hopefully enjoy similar success. It will be a unit that complies with the criteria laid down by law in the second Glenister case on 17 March 2011.

The one characteristic that the Scorpions lacked, namely security of tenure of office, will have to be present in spades in the new unit. This feature will attract good staff of the calibre which regards the current NPA as a poor career choice. As mere creatures of statute the Scorpions were vulnerable to being closed down by the simple majority in Parliament that Zuma was able to command.

The new unit needs to be insulated against such a fate if it is to be a success. The “best practice” way of achieving this insulation is to give the unit constitutionally guaranteed independence and the ability to function without fear, favour or prejudice. The unit should report to Parliament, a multiparty body, not the Cabinet, a majority-dominated body. It should be free of political interference and influence, like all Chapter Nine Institutions should be.

Locating the new corruption busters under the constitutional umbrella of Chapter Nine Institution status is a no-brainer. It is the right and only way to give effect to the binding court findings that guaranteed security of tenure of office is a requirement of international law for efficient and effective anti-corruption units. There is no better way to ensure such security.

The missing ingredient at this stage is the political will to do the hard yards of amending the Constitution and preparing the necessary legislation. Drafts do exist and can be found on the “Integrity Commission” page of the website of the little NGO Accountability Now. Politicians who are serious about countering corruption in a constitutionally compliant way should be polishing the drafts and presenting them for consideration in Parliament. Now. DM

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