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Ramaphosa’s first major structural reform must be a complete overhaul of the criminal justice system

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Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.

New investment in South Africa is not going to happen until the business community, whether at home or abroad, has more confidence in the ability of the country to maintain a trustworthy legal governance system that is capable of delivering a return on investments made.

Stephen Grootes, writing in Daily Maverick on 30 May 2021, analyses the trends that are emerging as conditions for proper structural and economic reform under the dramatic heading “Lights… Camera… Reform! Ramaphosa’s window of opportunity is nigh”.

It is necessary to write a gloss on the wide-ranging analysis given and to fill in the details that appear to explain some of the anomalies that Grootes highlights in his analysis.

It is not entirely clear what is meant by the phrase “proper structural and economic reform”. As far as the economy is concerned, the ability to attract fresh investment that will kickstart suitable job creation must surely be the most pressing topic on the economic agenda. New investment in South Africa is not going to happen until the business community, whether at home or abroad, has more confidence in the ability of the country to maintain a trustworthy legal governance system that is capable of delivering a return on investments made. Talk of expropriation without compensation (EWC), the stubborn support of SAA and weird choices on energy all conspire to undermine trust in the politics of the day.

The structural reforms needed are also not spelt out by Grootes. The idea of a capable state, often raised by President Cyril Ramaphosa, is one that can be realised in a variety of ways. While the National Democratic Revolution remains the objective of the ANC, it is difficult to see how a capable state can emerge in SA.

The most pressing need for structural reform is in the criminal justice administration. The National Prosecuting Authority (NPA) is a mere shadow of its former self, hollowed out, short of resources, understaffed and infested with “saboteurs” appointed during the Zuma era to ensure that no harm comes to the “Zuptas” and their fellow travellers on the State Capture gravy train.

The Hawks have never measured up to the criteria set for them by the Constitutional Court in the Glenister litigation. They do not specialise in corruption investigations; instead, they are tasked with “priority crime investigation” as their formal name suggests. They do not have sufficiently well-trained staff who have mastered the dark arts of countering the corrupt, whose dark ways are ever more unfathomable. Like the NPA, the Hawks are short-staffed and under-resourced.

The SAPS itself is the most corrupt institution in the entire public service. Independence and secure tenure of office are foreign to the lived experience of the Hawks.

The need for reform is obvious.

So obvious, in fact, that the National Executive Committee (NEC) of the ANC resolved in August 2020 to instruct the national Cabinet urgently to establish a new body to “deal with corruption”. This is how it was put at the time in an accurate news report:

“The NEC called upon the ANC-led government to urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice,” said (Ace) Magashule.

“He said the NEC fully supported its president, who is also South Africa’s head of state, Cyril Ramaphosa’s decision to refer all allegations linked to the procurement of Covid-19 goods and services to the Special Investigating Unit (SIU).”

This resolution shows a proper measure of respect for the decisions made by the highest court in the land in the Glenister cases, it resolves the tension between the Zuma-era multi-agency approach to tackling corruption and the more modern and successful single-agency solution used in countries that do succeed in curbing corrupt activities.

Had the urgency patently required by the NEC been responded to appropriately by Cabinet, we would by now be on the cusp of a new era in corruption busting.

Instead, the National Anti-Corruption Strategy was published in March this year. It has no regard for the NEC resolution and affirms the Zuma-era faith in the thoroughly discredited multi-agency approach that has served the country so badly during that era.

One can but hope that the NEC will crack the whip and remind Cabinet of the instructions given last August to establish the new body. The fall from grace of the so-called radical economic transformation (RET) faction of the ANC has surely made the way toward the establishment of the new entity much smoother.

Grootes chronicles the loss of influence of the Magashules, Yengenis and Gigabas. David Mabuza, the silent deputy president, is hardly likely to be a champion of anything any time soon. He is in court next month in a billion-rand damages action brought against him and others in the Mpumalanga government who sought, illegally, to thwart the dreams of conservationist Fred Daniel to develop a transfrontier wilderness area in the Badplaas region, “The Cradle of Life”.

The evidence that can be anticipated in the matter will cast Mabuza as a corrupt and evil manipulator of the system of government in the province he once led. His preoccupation with the case should keep him out of political intrigue for some considerable time.

The NEC is the highest decision-making body in the ANC between conferences of the ANC. Its resolution should be acted on by those responsible in the Department of Justice for preparing the legislation required to give effect to the resolution of August 2020. As far as can be seen, no such effort is under way.

Instead, in the State of the Nation Address of 11 February 2021, President Ramaphosa spoke of reform in the following terms:

“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to Parliament.”

It would appear that the term “shortly” can mean a long time in SA politics. Nothing further has been heard of the advisory council, which is hardly surprising as it will surely be a superfluous, time-wasting and expensive body that will be thoroughly hamstrung both by the binding Glenister findings and by the resolution of the NEC which aligns so well with those findings. Kicking the anti-corruption can down the road endlessly is surely not the right way to go in an election year (assuming that local government elections will be held) and it is certainly not helpful to economic reform.

The key and first structural reform required is to effect proper and whole-hearted compliance with the Glenister findings. In the absence of this clear and unambiguous step, it will be impossible to nurture the trust in governance that is central to rebooting the economy on the basis of increased business confidence that will flow from the swift implementation of the NEC resolution of August 2020.

The members of the NEC, the ANC rank and file and the public of SA are all owed an explanation for the failure of the national Cabinet to act on the NEC resolution quoted above. The fortunes of the country are not being done any favours by the delay. The interference in the form of the National Anti-Corruption Strategy with its reversion to the multi-agency approach is best seen as the last kick of the dying horse of Zuma-era thinking.

If Grootes is right in thinking that positive reform is in the offing, a move toward implementation of the NEC resolution will have to be discernible soon. This step is inescapable because the structural reform required to see off the corrupt is key to the economic reform that will only emerge with the investments that will not come until trust in government and confidence to invest anew in the business sector is firmly restored by bold action, not false new dawns.

There is no rocket science involved here, just the political will to do what is manifestly the right thing. DM

Paul Hoffman’s new book, Countering the Corrupt, is available on the homepage of www.accounabilitynow.org.za

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All Comments 18

  • Paul, what must be done and what will be done are two totally different matters. It has become apparent in recent years that, like several other similar independent bodies, Accountability Now has little influence on what is necessary to be done. Politicians, especially the ruling party, simply wash their hands of instigating any kind of real action and correction. Thus writing an article as this one is simply a waste of your time. As is reading it.

      • Rubbish? You must be living in a dream world if you think that civil organisations like Accountability Now, Corruption Watch, Helen Suzman Foundation and the Kathrada Foundation, despite all their good work, will result in any meaningful change. Simple reading Paul’s third paragraph is the crux of the matter, despite the truth thereof. It simply will not happen, certainly not in my life time

        • Realistically what is the alternative to simply roll over and accept the situation. No, we have to bring all resources to bear to defeat this rotten system for the benefit of all the people in the country. I’m tempted to say except members of the ANC.

          • Charles, off course you are right. But history over the last 3 years proves one thing….matters got worse, not better. How many books, DM and other news articles about the corruption, declining economy, joblessness, poor service delivery, police brutality/corruption, ministerial failures, etc. have been written. Even Covid-19 vaccination is a failure. Only one thing will help, I think. A countrywide protest (500,000 groups of around 100 people each, across the country, the biggest the world has ever seen. All happening at the same time, covered by all news media, including international media.. Articles are brushed off. Real action is required

        • It’s not over until the fat lady sings, and I haven’t seen one lurking in the wings! CR will get us there – he wants it as badly as SA biz community…he is our only chance of surviving as a viable economy. Withdrawing interest and support means that you’ve already given up and should move on! The dilemma will be at voting time – do we support a ( hopefully) credible opposition or do we throw our lot in with the ANC governed by CR and stop the EFF tide and their empty promises? Great article, thank you.

          • What on earth are you basing your ideas on?? Its this crazy Peter Bruce inspired nonsense that is one of the causes of why we are where we are. And what EFF tide are you referring to? The one receding into the distance??

  • Ace Magashule asking the government to institute a crackdown on corruption is simply an absurd smokescreen. Just BS. We have the laws but not the will nor the personnel to enforce them.

  • Good article and I agree. It’s journalism like this that forces people to wake up, listen and act. Keep going and keep reminding readers (some surely in Parliament) what needs to be done. Politicians get distracted so easily, they need us to keep them focused. Thanks for your efforts!

  • Structural reform is simply another word for more taxpayer funded government employees to oversee the already overseen … when will we as SA citizens realise that the only structural reform required is to remove the current poor government … sadly, will never happen and as a consequence , no hope here …

  • If one projects past experiences into the future there is but one way for SA – going down a stinky drain. Talk is cheap and any promise of improvement is but a last attempt to convince citizens not to revolt. The French Revolution comes to mind.
    Yes, the entire judiciary system needs a masive overhaul. But the other two legs of our democratic system, namely the legislative and executive arms are in dire straits too. I hate to say this, but the SA social society, although showing brilliance every now and then individually, are working in silos and do not make a huge difference to stop the downward trend. We better hold on to our seats as the ride will get much bumpier.

  • Why isn’t a single senior politician, senior bureaucrat or senior businessman yet wearing orange despite many being named daily and nobody being sued for doing the naming. Makes you think doesn’t it?

  • “There is no rocket science involved here….” Well, this is the problem really. Doing the right thing IS actually rocket science for the ANC, so it ain’t gonna happen.

    • One other thing: “… the idea of a capable state..” That really got me rolling around on the floor, laughing hysterically. One of the best gags I’ve heard for a long time. And saying it with a straight face Cyril….priceless!