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The elephant in the room gets fed four words: ‘A crackdown on corruption’

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Paul Hoffman SC is a director of Accountability Now.

Without a crackdown on corruption the prospects of a brighter economic future do not even arise. The crackdown will precede the growth of business confidence, currently at a low ebb, and the rekindling of sufficient trust to lure new investors to put capital into job-building enterprises in South Africa.

Colin Coleman, Pramol Dhawan and Nouriel Roubini definitely have taken the economic problems besetting South Africa to heart and have expended a great deal of effort and energy on addressing them in their thoughtful piece published on 18 October 2021 in Business Maverick.

For those who recognise that the constructive plans put forward for a better life for all are but pie in the sky in the absence of any action against kleptocracy, State Capture and grand corruption with impunity, it is a relief to read the following four words in the part of the piece that suggests what needs to be done to address the doldrums:

“A crackdown on corruption.”

Make no mistake about the future trajectory of the South African economy; it will continue downward to disaster if serious corruption is allowed to continue, it will track upward if the Coleman et al envisaged “crackdown on corruption” eventuates.

It is the “how to” of a crackdown on corruption that is not addressed by Coleman and his collaborators. Either they regard it as obvious, or they consider it to be beyond their areas of expertise.

Either way, neglecting the crackdown on the corrupt that is so sorely needed will leave all the other best laid plans for a brighter future high and dry.

Fortunately for South Africa, the Constitutional Court has given its attention to the need for a crackdown on corruption. Recently departed Chief Justice Mogoeng Mogoeng, writing for the majority of the court in the HSF/Glenister III matter in 2014, remarked with some force that it is necessary to have:

“… 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… corruption is rife in this country… stringent measures are required to contain this malady before it graduates into something terminal.”

In an earlier decision concerning combating corruption the same court, per Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron (both retired from active service) in a case now known as Glenister II, said as long ago as 2011:

“[Corruption] 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.”

It is useful to be reminded that section 165(5) of the Constitution reads:

“An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”

The government was a party to both cases and is accordingly bound by what has been laid down in the decisions quoted from above.

It is part of our law that South Africa has domesticated the UN Convention against Corruption which also obliges the state to establish and maintain independent anti-corruption machinery of state.

When the new South Africa dawned, the task of investigating corruption was left to the police as part of its general crime-fighting mandate. Prosecution of the corrupt was the work of the National Prosecuting Authority.

During the Mbeki presidency, Parliament thought fit to create a specialist body within the NPA called the Scorpions to deal with corruption from detection and investigation through to prosecution. The Scorpions included specialist investigators, forensic experts and well-equipped prosecutors to deal with the scourge of corruption. Among their successes were the prosecution of some of the parliamentary Travelgate fraudsters, Tony Yengeni, chief whip of the ANC, for defrauding Parliament, and Jackie Selebi, national police commissioner, for corruption.

The success in the Scorpions’ prosecution of Schabir Shaik for corrupting then future president Jacob Zuma has emboldened the NPA to charge Zuma himself in his post-president stage of his political life. The trial is pending in the high court, thwarted by delaying tactics and point taking on the part of Zuma, a ploy that has characterised the Stalingrad strategy he brings to litigation, both civil and criminal.

While there are thousands of words in the binding court decisions, the “crackdown on corruption” involves the generation of the political will to implement the criteria by which the anti-corruption machinery of state is supposed to be known, but currently is not. These criteria, commonly called the STIRS criteria, are summed up in the characteristics of specialisation, training, independence (structural and operational), resourcing that is guaranteed, and secure tenure of office.

None of the state institutions currently at work on corruption enjoys all of these characteristics and some of them have none. It is arguable that the Hawks (successors to the investigative functions of the Scorpions) have none of the STIRS attributes. They remain a police unit and have not succeeded, since their formation in 2009, in getting to land a single “big fish” in a serious corruption case. The NPA, still seized with prosecuting serious corruption, complains of lack of expertise, poorly trained junior prosecutors, the hollowing out of the NPA by State Capture and the presence of saboteurs in its ranks – saboteurs who are in place to ensure that no kleptocrat is ever kitted out in orange in South Africa.

Understaffed and underresourced, the leadership of the NPA spends more time explaining why the NPA cannot do its work than it spends actually prosecuting. Its demands for help from the government fall on deaf ears and its budget gets cut in line with the drift of the state coffers towards emptiness.

The ANC cannot be blamed for the lack of political will to crack down on the corrupt. The blame lies with Cabinet. Here’s why.

In August 2020, the national executive of the ANC gave an urgent instruction to Cabinet. That is perfectly in line with how the ANC treats all its deployed cadres. It could normally be expected that Cabinet would act on the instruction as the ANC’s highest decision-making body between conferences is its National Executive Committee (NEC).

The instruction was clear. It was perfectly consonant with the findings of the courts and it was couched in urgent language. Here is how the resolution is recorded in the press:

“The NEC called upon the ANC-led government to urgently establish a permanent multidisciplinary 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.”

Nothing further has been heard in public of the implementation of this urgent resolution. Luthuli House, currently preoccupied with electioneering, may have an explanation for the delay in implementation, but it has not yet made time to share the explanation with the public. It should do so in the interests of transparency, accountability and responsiveness.

When an inordinate delay in implementing the NEC resolution became apparent, Accountability Now took the unusual step of preparing suggested draft legislation that would, in effect, provide a best-practice means on implementing the resolution taken by the ANC’s NEC more than a year ago. At the end of August 2021 it provided the Presidency and the Constitutional Review Committee of the National Assembly with copies of the drafts under cover of an explanatory memorandum which even included an executive summary (see here).

No substantive response has been received to these communications despite the elapsing of a month and a half.

It is up to the voters of South Africa to express themselves at the ballot box with regard to the slow and apparently cavalier attitude of Cabinet to the instruction given to it by the NEC.

One thing is clear: there will be no effective crackdown on corruption while matters are left drifting in the hands of the NPA and the Hawks. The work rate of both institutions is ever slower, their successes against grand corruption are few and far between.

The Special Investigations Unit (SIU) has no mandate to treat its investigations as criminal in nature. It also cannot act unless provided with a proclamation by the President. Its function is to recover the proceeds of corruption in civil proceedings. This mandate could easily be folded into the proposed new Chapter 9 institution that is regarded by Accountability Now as the best-practice means of addressing corruption effectively and efficiently. The duplication of effort and the long delays between a report of the SIU and action on the part of the NPA would be obviated. Think Bosasa and impunity.

Some regard the new Investigating Directorate of the NPA as an answer. It is not. The independence of the directorate is questionable, as is its constitutionality. Its head complains of the saboteurs in the NPA tripping up its work. It is underresourced and not a permanent body at all. Indeed, it serves at the pleasure of the President for a fixed term which he could terminate at any time.

STIRS-compliant corruption busters are what is required. The ANC NEC knows that, the opposition knows that, the people know it, too. Stimulating the political will to get on with the job of making it happen, no matter how many comrades land in hot water, is what is required at this stage.

Without a crackdown on corruption the prospects of a brighter economic future do not even arise. The crackdown will precede the growth of business confidence, currently at a low ebb, and the rekindling of sufficient trust to lure new investors to put capital into job-building enterprises in South Africa. Getting on with the task at hand requires that the urgency for which the NEC called more than a year ago be brought to bear on the reform of the criminal justice administration. It is the right thing to do and the groundwork for it has already been done by the availability to all of Accountability Now’s suggested new laws.

If Cabinet wishes to continue kicking the “crackdown on corruption” can down the road with an unnecessary advisory council (yet to see the light of day) as announced in the State of the Nation Address in February 2021, for the sake of attaining or preserving unity between the crooks and the good guys within the ANC’s orbit, the country will suffer and possibly fail. It is not good politics to pander to the bad guys, whether or not they are your friends, comrades or deployed cadres. Just remember what appeasement achieved for Neville Chamberlain in the UK in 1939.

It is a fact that there is an inescapable consensus that the criminal justice administration is currently incapable of dealing with serious corruption effectively and efficiently as the Constitution requires. There is a binding blueprint that addresses the problem, determined by the highest court in the land, and a suggested, publicly available law-reform package on the table in Cabinet and in Parliament.

Those who have antipathy toward Chapter 9 institutions should consider the roles of the Auditor-General and the Public Protector in highlighting corruption and in the origination of the Zondo Commission. Yes, some Chapter 9s have been less than stellar in their performance, but this is largely due to unsuitable cadre deployment, not the actual legal structure in place. That structure is capable of giving the new body what the Scorpions lacked – secure tenure of office, the last of the STIRS criteria. It is the urgency of doing the right thing that ought to be uppermost on Cabinet’s current agenda. DM

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  • So obvious, and repeated ad infinitum, but it’s turkeys voting for Christmas. This government can’t and won’t take up the challenge. The net, cast wide, will leave few of the leadership standing. The built-in system of patronage creates the culture of self enrichment which the ANC needs to stay in power.

  • A crackdown on corruption is not likely to happen with the present ANC government, unless Cyril Ramaphosa ‘s cabinet and it’s cohorts experience a Damascene moment and see that honesty is the better ( although not so financially rewarding) path. The only way corruption in the state can be ended, is if the ANC materially looses its majority, and is forced into coalitions which keep a wary eye on its activities.Hopefully , these coalitions would be less inclined to thieve.

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