If South Africa is going to get the lights back on, the trains running again, service delivery in general on track, and the economy growing in job-creating fashion, it is a vital prerequisite that the reform of the capacity of the criminal justice administration to deal with serious corruption be given precedence in the legislative programme of Parliament this year.

The impunity of the politically well-connected must end. It is only in this way that business confidence and trust in government can be restored. Without trust and confidence, much-needed new investment will not materialise. Tax collection will wane and greater hardships will be our national fate.

The government knows that it is imperative to reform the existing system, in which a 10-years-plus backlog of corruption cases has built up during the worst of the State Capture period. Chief Justice Raymond Zondo, after delivering his report on State Capture, remarked that “an army of prosecutors” will be needed.

Endemic and systemic corruption in South Africa does indeed require a well-trained, seasoned and specialist army, not a cohort of wet-behind-the-ears new recruits to our gutted prosecution service which now has a shambolic staff complement of a mere 6,000 personnel.

The President, in his State of the Nation Address, announced that the intention of the Cabinet is to make the Investigating Directorate (ID) of the National Prosecuting Authority (NPA) a permanent feature of the NPA. He doubled down in his newsletter of 13 February 2023 in which he said:

“As we announced in the State of the Nation Address last week, we are about to take yet another important step forward by making the Investigating Directorate a permanent entity within the NPA. This is so that it can deepen its collaboration with other entities in the criminal justice system and enrol more cases in the courts.

“Consultations are under way on the legislation to give effect to this and to prescribe its powers and safeguard its independence. This also has implications for its funding and operational capacity.

“Currently, the Investigating Directorate’s investigators are seconded from the Directorate for Priority Crime Investigation, the Hawks. Once it’s made permanent, the Investigating Directorate will be able to improve the capacity of its existing team of specialist investigators and prosecutors and recruit new ones.”

The minister of justice, Ronald Lamola, has let it be known that the government does not intend housing the anti-corruption entity, so sorely needed, within the framework of Chapter Nine of the Constitution.

The government is bound by the requirements of the criteria stipulated by the Constitutional Court in the Glenister litigation. These criteria are not just “nice to have”. They must be put in place to achieve compliance with the rule of law by respecting and implementing the decisions laid down in the majority decisions in the last two Glenister cases.

Ineffectiveness of the Hawks

There has been no political appetite for doing so in the past. Hence the ineffectiveness of the Hawks, a mere police unit, working in tandem with our hollowed-out NPA infected with “saboteurs” (their own description) who see to it that prosecutions of the well-connected never occur.

All successful prosecutions anywhere in the world are preceded by competent investigations. Currently, we have none on the scale required to get on top of corruption, to recover the loot of State Capture and to issue orange overalls to all deserving of them. Only investigators who are secure in their tenure of office dare to investigate corruption in high places. Without that security such investigations become career, and life, threatening.

The notion of achieving “permanence” via ordinary legislation is problematic. The Scorpions were a successful anti-corruption entity within the NPA which was established by ordinary legislation. To do away with the Scorpions, all that was needed was a simple majority in Parliament. In a Parliament littered with Travelgate fraudsters who the Scorpions had prosecuted, it was easy to get the necessary majority. The lack of security of tenure of office of the Scorpions was their downfall.

The reforms currently put on the table by the government will, if they ever see the light of day, place the “permanent” ID in no better a position than that in which the Scorpions found themselves when they were summarily dissolved. Making the same error twice is not good governance, competent statecraft or even just plain sensible. Far more sensible are the words of former Chief Justice Mogoeng Mogoeng in the majority judgment in Glenister 3 in 2014:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

“We are in one accord that South Africa needs 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.”

It is now nine long and hard years since those words became law; it ought to be very clear to the government that the objectives spelt out by the former Chief Justice, “the containment and eventual eradication” of corruption, far from being achieved, are now more necessary than ever if South Africa is to avoid greylisting, mafia-state status and possibly even failure as a state.

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The Glenister criteria were highlighted at a conference held at the Gordon Institute of Business Science (Gibs) on 16 February during input given by Paul Pretorius SC, the chief evidence leader in the State Capture Commission. He said, according to News24 reportage:

“‘Despite what has been promised, the independence of the Hawks — which resides within the South Africa Police Service — and the investigating directorate in the NPA, that independence is not yet secure.’… To be truly independent, South Africa needed ‘specialist, highly trained investigators’ with modern resources and complete security of tenure. ‘None of these are fully operational yet, despite the promises,’ he said.

“Pretorius said that for all its faults, the (Zondo) commission had succeeded in changing the national attitude towards corruption: ‘It drew the big picture out of the darkness and showed these patterns of criminality, how they cooperate, what the relationships between private and public were, and who was in control at the top.’

“He warned that new patterns of criminality are establishing themselves. ‘This time around we are not asleep. It seems that society is awake, or at least awakening to deal with the threats to our democracy.’”

Cabinet under a misapprehension

The current Cabinet, led by the President, appears to be under a misapprehension as regards the law by which it is bound. At a conference at UCT dubbed “Countering the Corrupt”, Justice Minister Lamola quoted from the non-binding minority judgment in Glenister 2 as if it was the binding majority judgment. It is not.

The mistake is understandable. The minority judgment, which dealt with all the issues in the case, is called the “Main Judgment” in the law reports.

The majority judgment, handed down jointly by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron, differs from the main judgment as regards the duty of the state to counter corruption as a human rights issue and on the implications of South Africa’s treaty obligations for the structure and functioning of our anti-corruption entity.

The majority found, in binding terms, that the criteria it laid down are compulsory to comply with international obligations and with the state’s obligation to respect and protect human rights. Flowing from these findings, the criteria for a constitutionally compliant anti-corruption entity were spelt out in the terms alluded to by Pretorius SC at Gibs. They are called the Stirs criteria (specialisation, training, independence, resources and security of tenure).

The misstatement of the law by the minister was highlighted immediately during the Countering the Corrupt conference by Pretorius SC, who addressed the conference next after the minister, and in follow-up correspondence directed to both the minister and the President on 7 and 8 February.

No adjustment of the stance of the government has been made; instead, the attitude taken in the President’s newsletter, as quoted above, perpetuates the unconstitutional “dwaalspoor” on which the government’s legislative programme is headed, with both the President and the minister barking up the wrong tree when it comes to secure tenure of office for the entity.

Much work is needed inside Parliament and in civil society to change the direction in which the ship of state is being steered by the government. NACAC (the National Anti-Corruption Advisory Council) has a role to play.

The DA has prepared a private member’s bill which envisages a Chapter Nine institution for countering the corrupt. The IFP has long supported the notion of a new Chapter Nine institution to act as an anti-corruption commission. Smaller parties are unlikely to back the government’s plans for reform in their current unconstitutional form.

The government’s envisaged new status for the ID is unlikely to inspire any experts, those with the skills and experience required, to join the ID. Who in their right mind would want to join a body vulnerable to the same fate as that of the Scorpions?

All wise politicians are surely aware that the voters of South Africa are sick and tired of the levels of corruption that have so impoverished their country in the last decade or more. By the admission of the President, the ANC is “accused number one”. Not only did the State Capture Commission implicate many loyal cadres of the ANC in malfeasance, it also recommended that cadre deployment be outlawed.

Voters will be voting for parties that have a clear and constitutional plan for the reforms that are needed to bring the operations and structure of our national anti-corruption entity into line with the Stirs requirements of the Glenister litigation. The mere tweaking of the status of the ID is not the constitutionally compliant way in which to go about that vital task.

If the ANC persists with the course on which it is steering, it will lose votes even if it does not steer the ship of state into the iceberg that will surely sink it. Its proposed legislation will be impugned as unconstitutional.

Parliament, to its credit, is taking the Chapter Nine route proposed by Accountability Now seriously. Fortunately, the Cabinet is subject to the oversight of Parliament, which also has the duty to ensure that the legislation it passes is properly implemented. The current legislation has not achieved its purpose in any way, shape or form, hence the universally accepted need for reform. It is important to get that reform right.

Basing it on a misstatement of the law that applies is not indicated. The minister should take a long, hard and critical look at the Accountability Now suggestions. Here they are. DM