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The case for disbanding the Investigating Directorate

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Paul Hoffman SC is a director of Accountability Now.

As the ID can be shut down more easily than the Scorpions were dissolved, it cannot become the suggested Chapter 9 body required to counter corruption effectively and efficiently. Its track record over the past three years of its existence has hardly seen it cover itself in glory in pursuit of the corrupt, the kleptocrats and those who sought to capture the state.

Justice Minister Ronald Lamola has suggested in Parliament that President Cyril Ramaphosa may announce in August – when he tables his report in Parliament on the Zondo report recommendations – that the Investigating Directorate (ID) of the National Prosecuting Authority (NPA) would become a permanent structure.

Let’s all hope that wiser counsel prevails.

According to press reports, Lamola told Parliament last week during questions to the security cluster ministers that the ID would employ 91 investigators and prosecutors. He said it was clear that some of the investigations would go beyond two years:

“We will need a structure that is going to evolve organically into a permanent structure to handle these matters as we move forward, including some of the corruption matters, and we are looking at what has come as a recommendation from the Zondo Commission in terms of corruption and procurement corruption in institutions. We are looking at all those factors to look at what then should be the permanent structure that must handle all these matters going forward. It’s something on top of our minds and we intend that by the time the President comes to Parliament to report on the recommendations of the Zondo Commission, he also brings the recommendations as to what we are going to do with the permanent structure in this regard.”

When the ID was first announced during the State of the Nation Address of 2019, Accountability Now questioned its legality, constitutionality and utility.

This free advice, given in February 2019, was ignored and the proclamation of the ID followed on 4 April 2019.

There is a common misconception in the media that the ID was set up for five years. This is not so. Advocate Hermione Cronjé was appointed to head the ID for five years, but quit in December 2021. Her replacement, Andrea Johnson, a long-standing member of the permanent staff of the NPA, has been appointed to replace Cronjé.

The proclamation creating the ID is of indefinite duration. It can be terminated at any time. As the convoluted wording of Section 7(2) of the NPA Act reveals, the proclamation of the ID “may at any time be amended or rescinded by the President on the recommendation of the Minister, the Cabinet member responsible for policing (sic) and the National Director”.

In effect, the ID exists at the pleasure of the executive and (perhaps) the NDPP. Therein lies the rub. The Constitutional Court has ruled that the anti-corruption machinery of state should be free of executive control. It held in March 2011, in the second Glenister case, that “… our law demands a body outside executive control to deal effectively with corruption”.

As the ID can be shut down more easily than the Scorpions were dissolved (after a fiercely contested parliamentary process) by rescinding its mandate under Section 7(2) of the NPA Act, it is indubitably under executive control and is accordingly neither a legal nor constitutional means of countering the corrupt who currently enjoy almost seamless impunity in South Africa.

As to the utility of the ID: ponder its track record over the past three years of its existence to see that it has hardly covered itself in glory in pursuit of the corrupt, the kleptocrats and those who sought to capture the state. Indeed, the ID has barely scratched the surface of serious corruption in South Africa. It has taken most of its three years to secure Interpol “red notices” for the Guptas, who remain at large.

Civil society clamouring for Bheki Cele to be charged for his role in those hugely inflated soccer World Cup police headquarters’ leases, Malusi Gigaba to be held to account for his perjury, Jacob Zuma for corruptly decapitating the NPA by bribing Mxolisi Nxasana to leave office prematurely and for his Nkandla “home improvement” escapade at taxpayers’ expense, have all fallen on deaf ears.

The inference of executive control of the activities of the ID is inescapable, even if this control is achieved by starving the ID of the personnel and resources necessary to fulfil its mandate.

The ID is often regarded as a successor body to the Scorpions who were disbanded in 2009 to make way for the State Capture project of the Zuma era. The main weakness of the Scorpions was that they lacked secure tenure of office. Any effective successor body should not suffer the same flaw, and possibly the same fate, as the Scorpions.

At the time of its dissolution there were 536 Scorpions and there had been plans to expand the staff complement of the Scorpions, investigators, prosecutors and experts in forensics, to a total of 2,000. The paltry additions to the ID staff announced last week hardly inspire confidence in the political will of the government to get serious about ending impunity for the corrupt. The ranks of the corrupt have grown in the past decade; the ranks of the corruption-busters have shrunk.

The government should be aware of the binding nature of the decisions in the Glenister litigation. The court ordered Parliament to put in place an adequately independent anti-corruption body to perform its mandate effectively and efficiently. Instead, two bodies, the Hawks for investigating, and the NPA for prosecuting, have failed miserably to counter corruption since 2009.

The Scorpions, on the other hand, were a highly motivated and successful body, “The People’s Advocates”, with an esprit de corps that the leadership of the ID can only envy from afar, a commendable strike rate and a sound work ethic.

No one is currently suggesting that the Hawks fit the bill for seeing off serious corruption, not even the Hawks themselves. Their mandate, as the Directorate for Priority Crime Investigation, is overly broad and their location within the police renders them susceptible to executive influence and interference. There are many priority crimes being committed currently, the Hawks should be allowed to busy themselves in solving them and should be relieved of any mandate that relates to serious corruption.

The government should not be looking to the published tranches of the State Capture Commission (SCC) report for guidance on what reforms are needed in the criminal justice administration. The SCC has misread the Glenister trilogy of cases. It is under the false impression that the majority judgment in the second Glenister case is a minority judgment. This has coloured the advice given in the first tranche of the SCC report. The majority decision of the highest court in the land is binding on the government, and the criteria set in it for the anti-corruption unit should be implemented in any reform that is now required.

It is hoped that the SCC will correct its error and adjust its recommendations when it realises the deleterious effect of its error concerning the status of the joint judgment of Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron in the second Glenister case.

The need for reform to counter serious corruption appears to be common cause among the bigger and responsible political parties in Parliament. Doing so in ways that do not involve the turf wars between the police under Jackie Selebi and the NPA under Vusi Pikoli is desirable.

The ANC resolution announced on 4 August 2020 is in line with the Glenister criteria; the IFP has long been in favour of the best-practice solution suggested by Accountability Now – a Chapter 9 Integrity Commission; and the DA has recently come around to removing anti-corruption work from the limping NPA.

It is questionable, and this point has been raised by its leadership, that the NPA is sufficiently independent of the executive to perform its overall constitutional mandate adequately. This shortcoming in the Constitution itself ought to be addressed when reforms come up for discussion in August. It is already addressed in the draft legislation suggested by Accountability Now.

One of the weaknesses in the system that has been highlighted by the work of the SCC is that the “civil law only” mandate of the Special Investigating Unit (SIU) leads to duplication of work, delays and to cases (like that against Bosasa) dropping through cracks in the system created by the “saboteurs” made infamous by Hermione Cronjé.

The suggested establishment of a Chapter 9 body to do the work required to counter corruption effectively and efficiently could be accompanied by the dissolution of the SIU and the transfer of qualifying personnel of the SIU to the new body.

It is also obvious that deserving staff in the Hawks, the ID and the NPA generally could be applicants for posts in the new body and that recruitment from the ranks of former Scorpions now in the private sector or elsewhere in the public sector could swell the ranks to the size of a unit that is required to supply what Acting Chief Justice Raymond Zondo has called “an army of prosecutors”. The ID is not that army and never will be while it serves at the pleasure of the President. The ID cannot attract and successfully recruit the right calibre of specialists.

If the new body concentrates initially on the raking back of the loot of State Capture, it will be able to justify the cost of setting it up in a short space of time. The SIU is already equipped with the skills to freeze and forfeit loot, but it has to rely on the executive to proclaim the matters it must investigate, a weakness that the new body will not have.

The Hawks, stripped of their serious corruption investigation mandate, will be better able to give proper attention to the other priority crimes that fall within their mandate.

It is respectfully suggested that the government would do well to have regard to the suggestions made to it by Accountability Now in August 2021 concerning the establishment of the constitutionally compliant corruption busters, the reform of the NPA and the alleviation of the lot of whistle-blowers.

It is not known how much organic-evolution expertise is available to Cabinet. What is certain is that organically evolving the ID into an effective, efficient, constitutionally compliant unit of corruption busters is as likely as successfully crossing a hawk with a scorpion.

What is known is that the reform of the criminal justice administration so as to better enable it to counter corruption, is urgent. Even the NEC of the ANC says so. DM

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