The President’s address to the nation that was televised live on Sunday, 23 October 2022 has been widely commented on in the media. This article concerns three connected topics raised in the recommendations of the State Capture Commission’s (SCC) report that were not adequately dealt with by President Cyril Ramaphosa and in respect of which it is fair to comment that he was paying mere lip service to the rule of law which ought, in our constitutional dispensation, to be regarded as both supreme and binding on him.

The three topics are whistle-blower protection, cadre deployment and reform of the criminal justice administration to better capacitate it to deal with serious corruption.

The lot of whistle-blowers in South Africa

On whistle-blowing, the President correctly pointed out that our whistle-blowers play a vital role in countering State Capture and other forms of serious corruption. The fact is that corruption is a crime that is carried out in secrecy, with victims (usually the poor or those in need of services such as a reliable supply of electricity and water or protection against crime) unaware that they are victims of a crime.

It was whistle-blowing that led to the Guptaleaks, upon which the complaints by the Jesuits and DA to the Office of the Public Protector were based. The recommendations made by Thuli Madonsela at the end of her term of office in October 2016 led to the eventual appointment of the SCC and its report that was finalised, by way of corrections, during October 2022.

It is obvious that whistle-blowers bravely put themselves at risk when they report what they suspect to be malfeasance or misfeasance in the form of grand corruption or unethical practices, very often in the procurement of goods and services by the state. Equally obvious is that the Bill of Rights guarantees to all, including whistle-blowers, the right to life, to human dignity, to bodily and psychological integrity, to fair labour practices and to choose their trade, occupation or profession freely.

All too often these rights of whistle-blowers are trampled by the corrupt and their fellow travellers.

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The Bill of Rights obliges the state to respect, protect, promote and fulfil all of the rights guaranteed in the Bill of Rights, including those singled out above in respect of whistle-blowers. The evidence of persecution of whistle-blowers is commented on in the SCC report and is often highlighted in the media, as occurred when Babita Deokaran was gunned down in her own driveway by hitmen who wanted to cover up the procurement irregularities she reported at a Gauteng hospital.

It is beyond question that the state is in breach of its human rights obligations to our brave and beleaguered whistle-blowers.

The best the President was able to come up with in his Sunday evening address was that the matter has been referred to the Department of Justice for attention. The department has let it be known that it intends tabling remedial legislation in March next year. The legislative process is a long and thorough one that will probably take at least a year to complete. In the meantime the South African whistle-blowers remain a vulnerable and isolated minority. It need not be so.

The President has been made aware of a system that works well in Germany. This system involves the informal creation of an office called The Ombudsman for Whistle-Blowers. It exists to protect the identity of whistle-blowers and the confidentiality of information that the German whistle-blowers make available to the ombudsman.

The ombudsman solution could be applied in South Africa in a matter of weeks, not years, by enlisting the services of retired judges to act as ombudsmen at all the seats of the high court in South Africa. Whistle-blowers could make their initial reports to their local ombudsman for confidential investigation.

Once the report is the subject of a pending criminal case the machinery of the existing legislation for the protection of whistle-blowers can be engaged. The system, populated by retired judges, who are part of the national treasure of South Africa, need not cost much as judges enjoy full salaries for life and are often frustrated by being obliged to retire when they still have the desire and the energy to serve.

Even if the system is only put in place temporarily pending the reform of the legislation, it will alleviate the lot of the whistle-blowers of the land and end the violation of their human rights which the state is supposed to be protecting, but manifestly is not.

There is not a word about this idea in the President’s statement despite the dire circumstances in which whistle-blowers find themselves because the state is in default in relation to its manifest obligations to whistle-blowers. That default is a breach of the rule of law that ought to be attended to immediately by any government which genuinely upholds the rule of law.

The rule of law has been defined by the World Justice Project as having the following elements:

• “Accountability: The government and private actors are accountable under the law;
• “Just Laws: The laws are clear, publicised, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights;
• “Open Government: The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient; and
• “Accessible and Impartial Dispute Resolution: Justice is delivered timeously by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the make-up of the communities they serve.”

Whistle-blowers have a slam-dunk case that the rule of law is not being honoured and upheld in respect of their activities in South Africa. One would have hoped that the President would at least explain why the ombud system has no place, not even a temporary stop-gap place, in the responses he gave to the SCC report.

His silence on the topic speaks of lack of accountability and responsiveness and gives the lie to his professed commitment to upholding the rule of law.

Cadre deployment

On the topic of cadre deployment in the public administration and state-owned enterprises, it is clear that the ANC is determined to continue to seek to put the hands of its loyal cadres on all the levers of power in society. This revolutionary agenda is grossly at odds with the tenets of our Constitution.

It flies in the face of the doctrine of the separation of powers, the principles of good governance laid down in section 195 of the Constitution, the need for checks and balances on the exercise of power and the obligation that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies” (section 165(5) of the Constitution).

It creates conflicts of interest for the deployed cadres that are unmanageable and it flies in the face of a binding decision of the high court in the matter of Mlokoti v Amathole District Municipality and others.

In that case cadre deployment was outlawed in the public administration. The court held it to be illegal and unconstitutional. No appeal was filed despite the serious and widespread ramifications of the decision. Instead the ANC created the pretence that its cadre deployment committees make recommendations and defer to the decisions of the proper authorities tasked with making appointments of personnel.

That this stance was mendacious was revealed when the SCC obtained a batch of minutes of meetings held by the ANC’s national cadre deployment committee under the chairmanship of Deputy President David Mabuza. Not only are decisions of that committee regarded as binding, it feels free to trespass on the territory of the Judicial Service Commission when it comes to appointing judges, a gross abuse that undermines the independence of the judiciary.

The SCC agreed with the Eastern Cape High Court and declared the use of cadre deployment to be unconstitutional and illegal. The decision in Mlokoti has never been appealed.

The commitment of the President and his political party to the rule of law is revealed to be threadbare when it comes to persisting in cadre deployments. The matter is already the subject of high court litigation in which the DA seeks relief outlawing cadre deployment for the third time.

The recommendation of the SCC, because it repeats the high court decision, ought to be regarded as binding by any government that takes cognisance of the rule of law and the doctrine that judicial precedents are binding.

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Instead the President was silent on the topic, from which it is possible to infer that he was too embarrassed to mention it because his party remains committed to a practice that is illegal as well as unconstitutional. This is not the demeanour of a president who has respect for the rule of law and who regards judicial precedents as binding.

The DA can expect the opposition to its application in the high court to continue despite the recommendation of the SCC that cadre deployments of the kind under discussion be dropped.

Capacitating the state to counter serious corruption effectively and efficiently

It is in the area of reform of the criminal justice administration that the most brazen lip service to the rule of law is evident from the President’s televised address. He must surely know that the criteria applicable have been set in stone by the Constitutional Court in the Glenister litigation?

He ought to see the need for a best-practice solution to the problems posed by a 10-year backlog in corruption prosecutions (admitted by prosecution management), by the hollowing out of the Hawks and National Prosecuting Authority, by the reduction in police personnel during this century from more than 200,000 to a paltry 172,000; and by the presence of crooked operators in both institutions, called “saboteurs” by those who lead the NPA.

The function of these saboteurs is to ensure that no participant in State Capture is ever charged or convicted.

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By some form of magic that is not easily discerned, the President says he proposes to make the Investigating Directorate (ID) of the NPA a permanent body, thereby solving the inability of the system to convict the seriously corrupt.

Delusional thinking is on display.

The President’s proposal is no more than a reinstatement of the Scorpions unit that was dissolved immediately after Jacob Zuma came to power. While it is true that the Scorpions met most of the criteria for countering the corrupt laid down in the Glenister litigation, their Achilles heel was their lack of secure tenure of office, an element that is vital to the independence of any anti-corruption entity anywhere in the world.

The President knows that the NPA reports to Cabinet, yet he promised an anti-corruption entity that reports to Parliament in his 2021 State of the Nation Address. Now he wishes to locate that entity in the NPA, which, according to the existing legislation, has no mandate to investigate corruption, a task reserved for the Hawks and one that they are institutionally, structurally and operationally incapable of performing.

Months ago, the ID referred the investigation of the police headquarters leases in which Bheki Cele was involved to the Hawks. Nothing further has been heard since, nor can anyone reasonably expect as lowly a body as the Hawks to genuinely investigate the minister of police who has been investigated previously by both the Public Protector and the Moloi Board of Inquiry.

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Cele sails on in a sea of impunity, a status which ANC royal game enjoys because we have no effective and efficient anti-corruption entity.

The reasons for not putting this entity into the NPA have been explained in detail already and need not be repeated here. They have been explained to the Ministry of Justice but have been ignored in the President’s statement.

Once again lip service to the rule of law is on display. The Glenister litigation creates the legal framework within which the government is obliged to create the anti-corruption entity. This has never been implemented properly and locating a new permanent unit in the NPA will not fit the bill.

Parliament has a role to play in this morass of evidence that the executive is a stranger to the rule of law. Parliament has the power to initiate legislation itself and it has the obligation to monitor the implementation of existing legislation. The existing legislation is not proper implementation of the Glenister rulings, which are binding on the state.

It is up to Parliament to respond to the dithering and delaying, the ducking and diving of the President by taking a strong pro-rule of law stance in the face of the lip service highlighted above in respect of all three topics.

We will find out in December, once the results of its elective conference are known, whether the ANC is prepared to tolerate the lip service the President gives to the rule of law. DM

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