It is instructive to juxtapose two articles published in Daily Maverick on 7 February 2024. The first describes a work-around solution devised by the National Prosecuting Authority (NPA) to cope better with its inability to mount complex corruption prosecutions and the second is a broadside from mining magnate Neal Froneman in which he decries government’s attachment to the notion that it must exercise control over all aspects of society, including the criminal justice system.

It is not up for debate that the NPA is not properly equipped to deal with complex commercial matters that involve corporate cross-border corruption.

Hollowed out by the ravages of State Capture, underfunded due to the looting of state coffers throughout the 30-year incumbency of the ANC-led alliance in national government, and short of the skills required to match the firepower of the kleptocrats, the NPA habitually moves from excuse to excuse for not doing its work on serious corruption cases properly, diligently and without delay. Those in the corporate sector who own up to corrupt activities are few and far between, so the new policy of the NPA is likely to have very limited applicability.

It is also obvious that Froneman has correctly identified the source of the malaise in law enforcement in big corruption cases. The government’s desire to control corruption-busters is at the heart of the problem.

So entrenched is government planning and policy-making as it relates to this topic that it is possible to recall:

• The demise of the crack Scorpions unit within the NPA at the hand of an urgent ANC resolution passed at its Polokwane elective conference in 2007;
• The replacement of the investigative functions of the Scorpions by the setting up, within the police, of a Hawks unit to take on serious corruption cases;
• The demise of the first version of the Hawks in 2011 due to their failure to measure up to the legal criteria that the Constitutional Court created in the second Glenister case;
• The passing of remedial legislation in 2012 that paid no more than lip service to the requirements laid down in binding terms by that court;
• The success of the impugning of that remedial legislation in 2014 which led to adjustments to the 2012 legislation that were effected in 2014 by the court itself in its exasperation with the other branches of government;
• The entirely predictable success of the Zuma-era State Capture project in the wake of these reforms. The Hawks never left their nests to do their work;
• The puny efforts of the presidentially proclaimed Investigating Directorate of the NPA since 2019. Think of the reverse in the Koko case and the disaster in the prosecution of Nulane;
• The appointment of the National Anti-Corruption Advisory Council (Nacac) in 2022, whose long awaited report is due by 29 February 2024; and
• The obviously unconstitutional new plans to upgrade the ID in ways that still do not pass constitutional muster, plans introduced even before Nacac has reported as a “stopgap measure” according to a deputy minister, though why a stopgap is indicated is never explained.

This potted history of the lowlights of lack of progress in getting on top of serious corruption illustrates that government has no interest in properly implementing the binding Glenister criteria for preventing, combating, investigating and prosecuting serious corruption. Its perspective is that it should continue to control the institution(s) involved in pursuit of its ideological preferences.

The Hawks are firmly under the control of Minister of Police Bheki Cele, himself a suspect in a serious corruption case involving police HQ leases for the 2010 World Cup Soccer tournament. The ID has asked the Hawks to investigate the matter following adverse findings by then Public Protector Thuli Madonsela and the excoriation of the minister by the Moloi Board of Inquiry which found him dishonest and incompetent.

Needless to say, the Hawks have made no visible progress in their investigation of their own ultimate boss. To do so would be career-threatening or worse. The minister sails on unperturbed.

The NPA is under the final responsibility of the Minister of Justice and is run as a programme in the Ministry of Justice. The Minister of Justice has to concur in all prosecution policy and his director general is the accounting officer of the NPA.

All of these control arrangements in respect of both institutions are not conducive to effective and efficient anti-corruption activities by the state using independent actors to do the heavy lifting.

SA is a party to the UN Convention Against Corruption. Its Article 6(2) obliges SA “to grant [its anti-corruption machinery] the necessary independence, in accordance with the fundamental principles of its legal system” to enable that machinery to “carry out its functions effectively and free from any undue influence. The necessary material resources and specialised staff, as well as the training that such staff may require to carry out their functions should be provided.”

The supremacy of the rule of law is a fundamental principle of our Constitution. The government is bound by the orders and decisions of the Constitutional Court in the Glenister litigation in which the criteria applicable to our anti-corruption entity are set out in detail.

Chief Justice Mogoeng Mogoeng put it thus in the last Glenister case a decade ago:

“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 SA 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.”

Time for SA to step up

Having invoked international obligations and the rule of law in the case of SA v Israel before the International Court of Justice, it is high time SA honoured its UN Convention Against Corruption obligations via reforms of the kind that incorporate the criteria required by the courts.

Sentient citizens who value the rule of law as a bulwark against the abuse of power should pray that the efforts of Nacac will reveal that there is a need to dispense with executive control of the anti-corruption machinery of SA by the establishment of what the former chief justice calls “an entity [which] must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate”.

This goal will not be achieved by tinkering with the ID structures and operations.

Accountability Now has long suggested that the best-practice reform would be to establish a new Chapter Nine institution for the purpose of preventing, combating, investigating and prosecuting serious corruption matters. Such a body would be insulated from executive control and would report to Parliament instead.

The advocacy work began in 2012 and involved engagements with Parliament repeatedly over the years, all to no avail. A draft suggested constitutional amendment and the draft of enabling legislation has been presented to government and the NPA as long ago as August 2021.

It is all set out in Under the Swinging Arch a book which tells the story of the Glenister litigation via the litigators involved and sets out the advocacy that has followed. The book is available for free download from www.accountabilitynow.org.za. It has been given to Nacac and it is hoped that it will not go unnoticed in the Nacac report that is due before the end of February 2024.

It should be noted that all three of the biggest opposition parties in Parliament favour the sort of reforms advocated by Accountability Now. The DA has gone further by using the drafts prepared by Accountability Now as the basis for two private member’s bills that support the introduction of an Anti-Corruption Commission.

Neal Froneman has put his finger on the cause of the malaise in anti-corruption work. He is involved in the crime and corruption workstream set up between government and big business. Accordingly, he is well-placed to point out the synergies between his remarks and the reforms discussed above.

Unless and until the corruption with impunity that is abroad in the land is addressed head-on, business confidence will wane, new investments will not eventuate, joblessness will continue or even worsen, hunger and starvation will stalk the land, the lights will stay off while Eskom leaks an estimated (by its former CEO who should know) R1-billion a month to corruption and the R2-billion a month that is needed to service the national debt will increase until the burden is intolerable and SA fails as a state.

The bailout that will follow the intervention of the IMF to rescue the people of SA from their chosen government will come with conditions. One of those conditions is likely to be that the reforms suggested above be put in place.

The ANC needs to forswear its attachment to and need for hegemonic control in favour of effecting the type of reforms that can reverse the poverty, inequality and wretchedness that are the consequences of corruption with impunity. The fact that some cadres will be held to account in the process of so doing is a small price to pay; protecting them does not serve the public interest.

The voters of SA should be careful to check the anti-corruption position of their chosen party and only vote for a party that is willing wholeheartedly to effect the reforms required to rescue the country from the kleptocrats, the tenderpreneurs and the crooks.

New parties need to make it clear in their manifestos that replacing the Hawks with the Eagles (the suggested nickname of the entity the courts require) is a priority of their platform. No one is currently suggesting that the Hawks are up to the task of countering serious corruption, not even the ANC. The Hawks’ structural and operational limitations have, in the last decade, exposed them as inefficient and ineffective when it comes to countering serious corruption. If any confirmation is required, read the report and recommendations of the Zondo Commission.

After all, Eagles fly higher, see further and go after bigger fish than Hawks can ever hope to do, whether or not they remain in their nests. DM