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South Africa’s profound institutional failure

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

Why is it that, come a crisis, the default position is always to establish a new unit or summon a new group of experts to develop a policy document, no different from the last?

The extension of the corruption game, played by an ever-increasing cohort in both the public and private sectors, to the procurement of vital equipment to fight the Covid-19 pandemic, had one surprising consequence. It caused a reaction from the ruling party. But as is the standard South African move, a new body was proposed by way of an inter-ministerial committee and the possible establishment of Scorpions Ver 2.0.

Why is it that, come a crisis, the default position is always to establish a new unit or summon a new group of experts to develop a policy document, no different from the last? The sensible approach is surely to capacitate the existing institutions with adequate resources, or, if management is the problem, place them under new and competent leadership? But that is simply not done by the ruling party, and the result is that at present there is hardly an institution of government that operates with a modicum of efficiency. Other than the Office of the Auditor-General, the Medical Council and SARS (which is slowly being nursed to health), the lack of functionality of almost all the rest is truly mind-numbingly depressing.

The legislature, owing to an electoral system that is more conducive to the wishes of party bosses rather than public accountability, failed the country lamentably during the State Capture years. Unless the electorate can have a greater say in the choice of members of Parliament, little is likely to change. The direct election of the president, rather than the adherence to the adaption of the colonial method of choosing a prime minister (for which now read president) would allow a popular individual far more leverage and give meaningful content to the doctrine of separation of powers. The legislature would be free of the restrictions of the list system that grants extensive power to party apparatchiks, no matter the party. The executive would be accountable to a president who would be the people’s choice.

The latest tsunami of corruption has again cast the offices of the National Prosecuting Authority (NPA) and the Public Protector in the worst possible light. More than 18 months under new leadership and the NPA has not charged one high-profile politician and none are apparently in sight.

The country does not need press conferences about the institutional difficulties inherited from Shaun Abrahams and his predecessors. It wants press conferences which inform the country that people, who have stolen billions that could have prevented starvation and disease and ensured the provision of much-needed infrastructure, are to be held criminally accountable. And if there are senior people still lurking in the NPA intent on subverting the public interest, then dismiss them and if necessary face them in the Labour Court should they contest their dismissal.

Deputy Chief Justice Raymond Zondo has been given a mandate which rendered the achievement of an expeditious resolution of State Capture almost impossible.

The same must surely hold true for the Hawks. And in both institutions, if it is a case of a lack of forensic capacity, then by all means reach out to the private sector to second skilled personnel. We need fewer excuses and some action!

The Office of the Public Protector was designed to curb maladministration in the public sector. Well, thanks to Covid-19, all we seem to have experienced is levels of maladministration. But where is the public protector? If the office pursued corruption with half the zeal it employed to ensure action against Minister Pravin Gordhan, there would be no need for additional bodies to deal with corruption.

And regrettably, there is the judiciary, which for some time appeared to be another exception to the rule. But, alas, that appears no longer to be the complete case. A few examples are illustrative. Many courts in the judicial system have adapted to the pandemic but, by sharp contrast, the Constitutional Court has been silent. According to its official website, the Court has not heard any case for more than five months, which stands in sharp contrast to its counterparts in the United Kingdom and the United States.

Compounding the perception of a court gone absent is the delay in delivering judgments. The judgments delivered in Road Traffic Management Corporation v Tashima took nine days short of a year to deliver. The judgments in AB v Pridwin Preparatory School took even longer, a total of 13 months. Granted that in both cases, there were a few judgments delivered which doubtless held up the disposition of the cases. But for a court which is by far and away the best-resourced in the country, these delays are disturbing.

The judiciary has also been saddled with a range of commissions of inquiry. Not only do they invariably traverse contentious issues, but they often lead nowhere. That can have an adverse effect on the legitimacy of the institution for reasons beyond the judges’ control. For all the diligence of Judge Ian Farlam in the Marikana inquiry, few have faced the consequences of the tragedy.

Deputy Chief Justice Raymond Zondo has been given a mandate which rendered the achievement of an expeditious resolution of State Capture almost impossible. (The decision not to issue interim reports may well have been a mistake.)

Then there is the case of judicial accountability. Notwithstanding the finding of the Judicial Conduct Committee (JCC) some two months ago that Judge Mushtaq Parker should appear before a Judicial Tribunal so that a determination of his conduct can be decided (which the JCC has found to be prima facie impeachable), the Judicial Service Commission has not been convened to consider the recommendations of the JCC. And surprise, even though the Chief Justice has made very strong recommendations that Judge President John Hlophe should face a second tribunal hearing, the silence, this time from the JCC, has been deafening.

A reluctance to hold these hearings so that the public may know of the innocence or guilt of these judges reflects poorly on the institution that is mandated to oversee judicial conduct. This again serves to confirm the earlier claim – there is profound institutional failure in this country, all of which imperils the future of its constitutional democracy. DM

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