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It’s not the job of CEOs to improve the anti-corruption capacity of the state

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Paul Hoffman SC is a director of Accountability Now.

It is difficult to believe that hard-earned money is being thrown at non-viable solutions to the problems that arise from cadre deployment and kleptocracy, both of which manifest themselves in State Capture and tenderpreneurism in South Africa.

An article in Daily Maverick on 8 July 2023 titled “Business and government’s master plan to rid South Africa of its R1-trillion crime and corruption headache” has attracted many comments from readers.

Accountability Now hesitated at first to comment on the master plan — at least in public – until more about the initiative and the intentions of its authors in the business sector became known. Instead we posed questions, still unanswered, to the leaders involved in tackling this thorny topic.

Via the good offices of a friendly and like-minded NGO, we reached out for answers to the following questions on topics related to the seemingly worthy initiative:

  • Will the unsuitability for office of the minister of police form any part of the plan?
  • Will the “dwaalspoor” on which the minister of justice is wandering in relation to proper implementation of the Glenister rules be addressed? (See here and here);
  • Are the business leaders aware that two private member’s bills are in the works at the Justice Portfolio Committee of the National Assembly that will, if successful and supported by business, bring about radical reform of the capacity of the criminal justice administration to counter serious corruption with good knock-on effects too?
  • Does the master plan take cognisance of the facts and circumstances mentioned in the Accountability Now submission to Parliament in March 2023 (cc-ed to Cabinet and the NPA) on the topic of the bills?
  • How will the master plan accommodate the rule of law by ensuring the proper implementation by government of the Glenister rules?
  • Does the master plan distinguish serious corruption, to which the Glenister rules apply, from other forms of crime? If so, how?
  • Is cadre deployment in the criminal justice administration recognised as unconstitutional and illegal in the master plan as per the Zondo Commission findings; and, if so, what steps are envisaged to replace cadre deployment with merit-based appointments that comply with Section 195 of the Constitution?

It is difficult to believe that hard-earned money is being thrown at non-viable solutions to the problems that arise from cadre deployment and kleptocracy, both of which manifest themselves in State Capture and tenderpreneurism in SA.

According to a recent report, nothing will be made operational until after as yet unseen legislation to make the Investigating Directorate of the NPA what is called “permanent” reaches the statute book. The process will be contested, long and drawn out and any law that emerges will have its constitutionality challenged. In other words, nothing is going to happen either for a long time or ever.

Cadre deployment is a cause of corruption and is itself illegal, unconstitutional and often at the root of failures in service delivery. Our president was in charge of cadre deployment between 2012 and 2018. These facts are findings of the Zondo Commission. If the government/big business master plan does not address these facts and those highlighted in the references above, the fear is that it will fail in its noble objectives while enriching and protecting deployed cadres.

After waiting for a response for a reasonable time, a follow-up email to our questions above was dispatched. Here are some extracts from it:

“You will be aware that the CEO of the FMF (David Ansara) gave an important speech to the 1926 Club which has been reproduced in full by Politicsweb. In it he warns of the dangers of business engaging with government, pointing out that: Through “dexterity in tact and firmness in principle” the NDR seeks by incremental stages to move South Africa away from capitalism towards socialism. To achieve this end, Dr Anthea Jeffery writes, capital must be “disciplined” and “directed” by the ruling party.

“The NDR has played out in a number of key policy domains, including:

  • EWC – insecure property rights is the death knell to any economy, let alone a highly fragmented society like South Africa;
  • Employment equity – which amounts to racial engineering by the state and effectively empowers the minister of labour to determine the composition of a company’s payroll;
  • NHI – public healthcare has fallen apart, and government believes the solution is to effectively nationalise private healthcare. I am pleased to note that Busi Mavuso of Business Leadership South Africa (BLSA) has come out strongly against this policy; and
  • Prescribed assets – government has staged a strategic retreat on this, but it will be back.

“In the meantime, Glynnis Breytenbach has given an interview to Biznews. In it she appears to be reversing away from her claim at the Press Club that a committee bill supported by the ANC JPC caucus is in the offing on the subject of the Chapter Nine Anti-Corruption Commission she is now punting along the lines suggested by Accountability Now. We all know that a committee bill is a far more powerful instrument than a private members motion.

“There is a well-grounded fear that big business has been co-opted by government to put Band-Aids on the Hawks and NPA when what is required is radical surgery. David Ansara warns against this approach by big business in his speech quoted above.”

Big business remains unresponsive to this correspondence. The CEOs have met with government officials again and “joint committee working streams” are in the process of being set up. This has been reported on in the press, notably in Business Maverick and Business Day.

In their joint podcast on Business Maverick on 1 August Mark Barnes of Post Office fame and Tim Cohen are scathing about the joint work streams idea and also challenge the notion of CEOs being involved in the initiative.

Somewhat caustically, Barnes regards CEOs as administrators of other people’s wealth. He suggests that the best way forward is for the owners of capital (not many in the ranks of the hundred or so working on the project) to sit down and make a conditional offer to government: “we will put in Rx billion if you make the following reforms and get rid of …”. Or “cede SOE’s claims to the refund of loot of State Capture to an SPV [special purpose vehicle] and we will look after raking back the loot via civil proceedings”.

According to Google, the five wealthiest men in SA are Johann Rupert, Nicky Oppenheimer, Patrice Motsepe, Koos Becker, and Michiel le Roux — none of them are directly involved “hands-on” in the initiative.

Barnes and Cohen seem confident that the initiative will come to nought and will serve only to lend undeserved credibility to the ANC in an election year. The fact that any go-forward is contingent upon the passing of highly contested and futile reform of the Investigating Directorate suggests they may be right.

Assuming that the rule of law and the concomitant duty to respect court orders inform the CEOs’ initiative, the deal on corruption should be an offer from business that requires the government to support the notion of a new Chapter Nine body to deal with serious corruption, a notion already supported by the DA and IFP, whose lead those in the moonshot pact in the making are likely to follow. Add the ANC and the necessary two-thirds majority is within reach.

The background to and basis for such a deal are not difficult to explain but may have been lost from view by the CEOs.

The Scorpions were set up by our first chief prosecutor and the Minister of Justice of the time, Bulelani Ngcuka and Penuell Maduna, as a specialised unit in the NPA to tackle serious corruption using the troika method in which prosecution led crime intelligence and criminal investigations were conducted all under one roof within the NPA. Investigators, intelligence personnel, forensic experts (where necessary) and the elite prosecutors teamed up to take on corruption.

The system worked so well that a chief of police, over a hundred Members of Parliament, the chief whip of the ANC, and the financial advisor of Jacob Zuma were all successfully prosecuted via the Scorpions or Directorate of Special Operations as they were officially known.

Upon the 2007 election of Zuma to lead the ANC at Polokwane, steps of an urgent nature were put in place to dissolve the Scorpions and transfer investigative personnel to the SAPS. This move was completed in 2009. It paved the way for State Capture.

The constitutionality of the changes was assailed. The closure of the Scorpions was held to be rational and constitutional (if the courts and the litigants knew then what we all know now, irrationality may have been proved).

The formation of the Hawks or Directorate for Priority Crime Investigation (DPCI) was held, on 17 March 2011, to be unconstitutional for want of compliance with the now famous Stirs criteria laid down by our highest court. Parliament was sent back to the drawing board to fashion remedial legislation to address the shortcomings of the original DPCI.

Without being prescriptive about the “how” of it, the court required, in binding fashion, that the new investigative unit be Specialised, Trained, Independent, Resourced in guaranteed fashion and Secure in its tenure of office — “Stir compliant” in two words.

The remedial legislation was produced in September 2012 and was again attacked as unconstitutional. Eventually, in November 2014 the court took a scalpel to the second version of the Hawks and produced the third version, all the while insisting on Stirs compliance.

And that is almost the situation at present: the NPA has to await dockets from the SAPS, prepared by the Hawks in any priority crime case. The investigative function is exclusively that of the Hawks in terms of the finally amended SAPS Amendment Act and prosecution remains the function of the NPA.

The system has not worked. Not a single “big fish” has been successfully prosecuted since the inception of the Hawks. No one is suggesting that they are the answer to corruption investigation in SA today.

Recognising the weakness of the Hawks, President Cyril Ramaphosa, shortly after assuming the presidency, proclaimed the Investigating Directorate of the NPA to tackle that which the Hawks had failed to do. This move is unconstitutional, given the legislated silos created in the wake of the Polokwane resolution of December 2007 as described above. Parliament makes the laws; conduct inconsistent with them is unconstitutional.

Doubling down on the unconstitutionality of the ID, the Ministry of Justice now promises new legislation to render the ID what it calls “permanent”. The ID will remain located within the NPA and will be given legislated capacity to investigate serious corruption and organised crime cases. Ill-advisedly, big business appears to have bought into this notion. SA will be no better off than when the Scorpions were disbanded.

The SAPS Amendment Act referred to above, which reserves all of the investigative work in question to the Hawks, is apparently not under consideration for amendments that would be needed if the “permanent” ID is to be regarded as adequately off the first base of constitutionality and Stirs compliance.

Because the NPA has been hollowed out by State Capture, it cannot attract Scorpions standard personnel. And because its independence and the security of tenure of its leadership is questionable, the “permanent” ID notion will not pass constitutional muster.

The NPA is subject to the “final responsibility” of the minister of justice and is run as a programme of the Department of Justice with the director general of justice as its accounting officer.

These are not the hallmarks of the institutional independence which is required by the Glenister rulings. The minister of justice is confused as to what the Glenister case means because he regards the main 2011 judgment as binding as regards the Stirs criteria, whereas the majority joint judgment is the binding statement of the law.

No good can come of making the ID permanent within the NPA. Both the independence and secure tenure of office criteria cannot possibly be met. No amount of expertise or money can fix these fatal flaws.

It is an undeniable fact that no National Director of Public Prosecutions (NDPP) has ever finished his or her term of office. The NPA is a site of contestation for the elusive “hegemonic control of all the levers of power” which is the hallmark of the National Democratic Revolution.

The Cabinet does not want to see corruption busters who are free of executive control, influence, interference and impedance. Just ask Vusi Pikoli who was suspended for going after police chief Jackie Selebi and dismissed for charging Jacob Zuma with most of the counts he now faces in the trial that never starts.

In these circumstances, it behoves big business to do a rethink of its position. As advised at present, it seems the answers it would give to the questions posed in July, above, would all be in the negative when the opposite should be the case. DM

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Comments - Please in order to comment.

  • Carsten Rasch says:

    Absolutely agree with this article. The CEOs involved with this project are doing it for selfish reasons concerning their bottom lines. How can anyone trust this utterly corrupt government – and the State that it has captured – to do what is required to rid this country essentially of itself? And all the while, by stealth and otherwise, Ramaphosa is boiling the frog, like he promised he would. Big Business is passing on the one chance we have to leverage this failing government into the change we need.

  • Jane Crankshaw says:

    What Biz SA should be doing is insisting that racist BEE policies be removed and we resign our BRICS membership. These two things would be a great place to start!

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