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Business Unity SA needs to rethink its uncritical embracing of the unconstitutional Idac Bill

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Paul Hoffman SC is a director of Accountability Now.

Busa has apparently lost sight of what the law and the Constitutional Court require when it comes to preventing, combatting, investigating and prosecuting serious corruption in South Africa.

Prior to the delivery of the State of the Nation Address (Sona) by President Cyril Ramaphosa on 8 February 2024, Business Unity South Africa (Busa) put out a media statement which read:

“Here is a list of expectations from the business community:

  1. A clear acknowledgement from the President of the partnership between government and business on Energy, Logistics and Crime and Corruption.
  2. On the back of this, a clear indication that government and the private sector must collaborate to address the crises in SA.
  3. A commitment from government to open up space for greater participation by the private sector in building, operating, and maintaining critical logistics networks and to generate energy. There is some progress in this, particularly in Energy and also in Logistics, with the recent announcement of Transnet Freight Rail taking delivery of seven sets of batteries procured by Richards Bay Coal Terminal. This is an example of partnerships between business and government working.
  4. A clear commitment to ensure that critical pieces of legislation, like the National Prosecuting Authority Amendment Bill will be processed with speed. This is part of a broader commitment to consider legislation that promotes partnerships between the public and private sector in order to enable the private sector to assist government to build its capacity to be an enabling government and deliver critical priorities.
  5. An indication that municipal government will be prioritised, with a view to enabling political and administrative structures that focus on service delivery and infrastructure, moving away from the current shambles caused by political fighting.
  6. A further commitment to deal decisively with corruption, bring people to account and ensure prosecutions.

Issued by Cas Coovadia, CEO, Business Unity SA, 7 February 2024.”

It is reported in Daily Maverick that Coovadia responded to the president’s Sona in a “glass half full” manner on television: “Coovadia seemed cautiously upbeat in an interview with Newzroom Afrika, emphasising the progress made from public-private partnerships”.

This article is confined to the falling around apparent in the media release and in the response by Coovadia as regards the vital response of government, as assisted by the “crime and corruption” workstream set up by big business and government in the joint plans to deal with the ravages of serious corruption in SA today.

There was nothing for the comfort of sentient citizens of SA in the manner in which the president dealt with the spectre of serious corruption in his Sona. Busa made things easier for him by insisting on the rapid passage of the patently unconstitutional Investigating Directorate against Corruption (Idac) Bill which is the subject matter of the draft legislation mentioned in its fourth expectation (the National Prosecuting Authority Amendment Bill) and set out fully in paragraph 4 of the media release quoted in full above.

Read more in Daily Maverick: Idac — a complete solution to countering corruption is preferable to a ‘significant step’

Busa should be aware that the bill is a thoroughly underwhelming response to the damage done to the economy and to the prospects of SA becoming a thriving constitutional democracy. The unavoidable truth is that business confidence is not stimulated by puny pretences at combating corruption. Fresh and much-needed investment is not attracted and the jobs that will help lift half of the population out of poverty will not be created.

How long the unemployed youth of SA will be prepared to passively accept their lot and hope for social welfare grants is an open question. When their patience runs out, expect trouble, big trouble.

Busa has apparently lost sight of what the law and the Constitutional Court require when it comes to preventing, combatting, investigating and prosecuting serious corruption in SA.

The point of departure is the obligations shouldered by South Africa when it became a party to the UN Convention Against Corruption (Uncac) and domesticated that important international treaty in its law.

Article 6(2) of Uncac requires of SA that it:

“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”.

This treaty was considered by the Constitutional Court in the Glenister litigation. The fundamental principles of SA’s legal system were spelt out by our highest court in terms that are binding on government. The court adopted the binding criteria of the wording of Article 6 of Uncac as quoted above and added a local flourish to them by laying down the Stirs criteria as they have become known. The acronym stands for specialised, trained, independent (both structurally and operationally) resourced (in adequate and guaranteed fashion) as well as secure in tenure of office.

The problem SA faces at present is that no entity exists that is compliant with these criteria which bind the state. The creation of Idac, as what Deputy Minister of Justice John Jeffrey admits is a “stopgap measure”, under the bill that Busa insists be passed “with speed” will not be constitutionally compliant and will not address the lack of specialist skills in such short supply in the NPA.

Question of independence

The ex-Scorpions who are up to the task at hand will not be tempted to rejoin the NPA when Idac is just as vulnerable to summary closure as the Scorpions were back in 2009.

No one suggests that the police are independent. The Constitution does not require their independence, only objectivity in their performance of their duties. The Hawks lack the sapiential authority to get to grips with serious corruption as investigators. Without a successful investigation there can be no successful prosecution.

As for the NPA: it is under the final responsibility of the minister of justice, its accounting officer is his director general and no prosecution policy can be formulated without his concurrence. There is nothing in the bill that Busa is so anxious to be made law that addresses any of these obstacles to the independence of the anti-corruption machinery of state in SA. This is not the material from which to construct an entity that complies with the treaty obligations set out above nor with the rulings in Glenister’s famous case.

A perusal of para 166 to the end of the joint judgment of Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron in Glenister Two reveals what the law actually is in SA. The lip service paid to the various criteria laid down in 2011 by that court paved the way for the State Capture project of the Zuma administration and beyond. SA is still without any entity that measures up to those criteria.

The police and their Hawks unit are universally regarded as not up to the task of countering those involved in all forms of serious corruption and organised crime in SA, whether as kleptocrats, tenderpreneurs, professional advisers to crooks and all involved in the interlocking patronage networks that the ANC has set up as part of its “sins of incumbency” in national government over 30 years.

RW Johnson recently observed in a piece published by Biznews on 8 February 2024 that “at this point it’s best to pause and think of the general situation. Poll after poll is coming out showing the ANC at well under 50%. The ANC is in a panicky state: too many careers, livelihoods, crooked deals and criminal networks all depend on the ANC keeping power”.

He might have added that retaining control over the criminal justice system is central to the continuation of the patronage project which the mafia-style ANC has become over its 30 years of incumbency.

Busa should also be aware that civil society and the main opposition parties in Parliament have not been idle in the face of the ANC’s desire to maintain hegemonic control over the levers of power in the criminal justice administration.

All of the bigger opposition parties favour the establishment of a Chapter Nine entity that will prevent, combat, investigate and prosecute serious corruption. The official Opposition has two private members’ bills in the works at Parliament that will create and enable such an entity.

Busa, if it was paying attention properly, would be throwing its weight behind these initiatives which were started as long ago as 2012 when Accountability Now first suggested them. The private members’ bills could be law before Parliament rises to attend to the forthcoming general election. Political will is the missing ingredient in the ranks of ANC politicians who stand to lose their positions as the slide in the popularity of the ANC continues.

The new book Under the Swinging Arch, available electronically for free download, tells the story of anti-corruption efforts in SA from the first Glenister case to the presentation to government in 2021 of the suggested legislation upon which the DA’s private members’ bills are based. Appendix 2 is the judgment referred to above.

Busa should be ashamed for including its reference to the Idac Bill in its list of expectations. It should instead use its influence to get the ANC government to take more seriously its obligations both under Uncac and in terms of the binding rulings of the Constitutional Court in the Glenister litigation. The Chapter Nine route removes the executive from the loop and appears to be the best-practice solution to the corruption woes that make poverty and inequality so persistent.

Corruption as it manifests in SA is theft from the poor; it is also a killer, as Justice Navi Pillay has observed. DM

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  • Wayne Holt says:

    Totally agree with you Adv. Hoffman. Business has been as much a part of the problem. For every corruptee there has to be a corruptor. I believe many of these business corruptors are also on the same side as the ANC and many of these businesses having among thier ranks member of the ANC. The fact that business has for the best part of 30 years been absolutely silent on the ANC’s performance says everything. Only a change in government will start to bring change however we all know that business donates to and lobby’s political parties and they will expect something in return. There are no free lunches. So sadly this may continue even with a new government. Let’s hope not.

    • Rob Fisher says:

      As always Paul Hoffman is on the money.
      The same old story is “power corrupts, absolute power corrupts absolutely”
      The only way to make anyone accountable is to have a coalition government where there is someone with real power to hold the all powerful accountable.
      ANC or DA both need to held accountable.

  • - Matt says:

    Thank you Paul Hoffman for continuing to bang this drum. This was such a vital oversight in the different world of hope that surrounded the drafting of the constitution. The opportunities to get these changes through seem so limited now, and the bit you do well is continue to “show the road” to those in power, seeking to take the easy road and avoid their responsibilities.

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