The expostulation made famous by Professor Henry Higgins in My Fair Lady — after pulling what Dali Mpofu would call an “all-nighter” with his protégé Eliza Doolittle — applies with equal exuberance to the change in stance of the Democratic Alliance on countering serious corruption, as announced by its shadow minister of justice, advocate Glynnis Breytenbach, on 20 February 2022: “By George! She’s got it!”
After years of “ ’urricanes ’ardly hever ’appen”, the DA has, like Eliza, ceased to drop its aitches by fully embracing the meaning and properly applying the import of the decisions of the Constitutional Court in the Glenister litigation.
It will be recalled that Johannesburg businessmen, Hugh Glenister, waged lawfare up hill and down dale in the wake of the dissolution of the Scorpions unit in the National Prosecuting Authority. On three separate occasions he sought relief in the Constitutional Court, with mixed results.
All law-abiding citizens owe Glenister a debt of gratitude. Without his tenacious efforts, the government would not have the benefit of binding court guidance on what to do in order to counter corruption efficiently and effectively in SA.
Ever deferential to the other branches of government, the courts were not prescriptive, declaring only that Parliament is required to make “the reasonable decision of a reasonable decision-maker in the circumstances” when setting up the anti-corruption machinery of state in a constitutionally compliant manner so as to protect human rights guaranteed to all and to honour the international obligations of the state.
The circumstances in South Africa have changed considerably since 2011 when our highest court set the criteria by which to measure the corruption-busting entity.
When the case was revisited in 2014, the Chief Justice opened the majority judgment with these words:
“… corruption is rife in this country and stringent measures are required to contain this malady before it graduates into something terminal.
“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
Some context: these prophetic words were written by a Chief Justice who could not, at the time he wrote, bring himself to accept that which is now common knowledge: Jacob Zuma is crooked, his cabinet was littered with strangers to the rule of law and the police were the most corrupt institution in the country.
The phrase “State Capture” was unknown — or at least not in widespread use in South Africa — when Justice Mogoeng Mogoeng wrote the judgment. Nevertheless, he endorsed the criteria set in the joint majority judgment of Deputy Chief Justice Moseneke and Justice Cameron in the antecedent litigation in which they remarked that:
“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 criteria concerned have become known as the STIRS criteria, an acronym that has saved a great deal of ink in the ensuing debates on whether they are actually in place. It means Specialised, Trained, Independent, Resourced and Secure in tenure of office.
An entity with four of these five characteristics did exist prior to the ascent to power of Zuma. It was called the Scorpions or, officially, the Directorate of Special Operations and was located, in terms of ordinary legislation, within the NPA. The missing characteristic was secure tenure. Being a creature of statute, the Scorpions could be, and were, dissolved by a simple majority in Parliament.
Had the Scorpions been housed in Chapter Nine of the Constitution, or had they enjoyed suitable constitutional protection akin to that enjoyed by other Chapter Nine institutions, they would have survived the Zuma-led assault on them and their “assassination” would not have succeeded in 2009.
The trajectory of State Capture and the progress of constitutional democracy under the rule of law in SA might have been quite different if the Scorpions had not been disbanded.
At this stage, the relevant circumstances of 2022 include the reports of the Special Investigating Unit into “covidpreneurism”, the still-to-be-completed final report of the State Capture Commission itself and the increased levels of corruption within the police.
Addressing the Cape Town Press Club on 21 February 2022, the Mayor of Cape Town asserted that the police are the biggest arms dealers in the country. Corruption remains rampant in South Africa and within police ranks. Acting Chief Justice Zondo has found that State Capture is real and has indicated that “an army of prosecutors” will be needed to hold the corrupt to account and to rake back their loot.
Clearly, the circumstances demand a thorough-going reform of the criminal justice system insofar as it relates to dealing with corruption.
For many years, Accountability Now has advocated the establishment of a Chapter Nine body to prevent, combat, investigate and prosecute corruption. The IFP was the first political party to endorse this suggestion.
In 2020, the NEC of the ANC instructed Cabinet urgently to establish a permanent stand-alone, specialised and independent agency to deal with corruption on a multi-disciplinary basis. Nothing has come of that instruction yet.
In July 2021, the DA announced a legislative initiative to reform the capacity of the state to investigate corruption. Now it has gone the whole hog and announced its intention to support the removal of serious anti-corruption prosecution work from the purview of the mandate of the NPA.
It seems that there is a confluence of ideas in relation to the reform of the criminal justice administration, now that the more limited reform advanced by the DA has been taken a step further in a way that puts the ANC, DA and IFP on the same page regarding the need for reform.
The ANC is not moving with the necessary urgency. The advance in the position of the DA may well prompt excellent multi-party co-operation in the parliamentary processes needed to effect the reform required.
When Accountability Now presented its draft reforms in August 2021, no response was received from the executive or from Parliament. The editor of Maverick Citizen, Mark Heywood, did mark the occasion on 21 September 2021:
“Accountability Now argues that ‘only a specialised and well-trained Chapter 9 Integrity Commission, that is independent, well-resourced and secure in its tenure of office, will have the power to bring the corrupt to justice’. Several judges and senior lawyers I spoke to, who worry about the fatal weaknesses in current institutions, agreed with this approach.
“In a clever act of advocacy, Accountability Now have already developed and presented an example of a draft Bill to set up an Integrity Commission to Parliament, which Parliament has studiously ignored — violating the constitutional spirit of public participation.”
As the DA is well represented in Parliament, it is to be hoped that the project of reform aimed at countering serious corruption will receive a boost in the corridors of power and will soon be debated in the context of processing the legislation needed to establish what has been dubbed the Chapter Nine Integrity Commission.
While commendable, the loyalty of advocate Breytenbach to her former employer, the NPA, is now exhausted by the harsh reality that the NPA is incapable of doing what needs to be done about serious corruption.
Acting on that reality, the DA has added its weight and considerable expertise to those who favour radical reform that will enable the state to counter serious corruption effectively and efficiently.
By George, she’s got it! DM