The following snippets appear from the desk of President Cyril Ramaphosa in his letter to “My fellow South Africans” dated 11 March 2024:

“Steady progress has been made in the crime and corruption focal area. Through the Joint Initiative on Crime and Corruption (JICC), the private sector is providing business information and resources to assist with the fight against infrastructure crime. Support has also been provided to modernise the 10111 helpline, with a pilot project initiated at the main call centre in Midrand, and the establishment with the Hawks of a forensics analysis centre.

“Building on this progress, government and business are now focused on actions that will make a considerable and lasting difference over the course of the next few months…”

“An important part of the work to tackle crime and corruption will be the passage of the NPA Amendment Bill, which will strengthen the independence and investigating capacity of the NPA. It will also enable the establishment of additional infrastructure to support the Investigating Directorate as a permanent entity, including a dedicated forensics laboratory. A key focus of the partnership is to secure South Africa’s removal from the Financial Action Task Force grey list by at least June 2025.”

The third paragraph above is separated from the first two by a considerable amount of waffle on the topics of the other two “work streams” set up between big business and government to address logistics and energy deficits relating to the near collapse of Transnet and the ongoing dysfunction at Eskom.

The NPA Amendment Bill to which the President refers makes it clear that the intention is to boost the investigative capacity of the NPA at the expense of the Hawks. The latter, a mere police unit created to replace the investigative functions of the Scorpions, has never been a success when it comes to countering serious corruption and is never likely to become a success due to its structure, reporting lines to the commissioner and minister of police, and its lack of operational independence, so necessary in the fight against the kleptocrats who have a vice-like grip on serious corruption.

As regards priority crimes not involving corruption, the Hawks do have a valuable role to play, but when corruption is involved they are less than effective and efficient, as is required by section 195(1) of the Constitution.

The need for the amendment Bill is predicated upon the lack of current compliance with the criteria for countering corruption laid down by the Constitutional Court. It held in Glenister Two that “on a common sense approach, our law demands a body outside executive control to deal effectively with corruption.”

The issue is, and always has been, does SA have such a body?

The concession by the President that the independence of the NPA needs strengthening requires careful scrutiny, especially if compliance with the law as laid down in Glenister Two is to be achieved.

Several factors militate against the NPA qualifying as being “outside executive control”, which is required by the judgment.

• The minister of justice has “final responsibility” over the NPA;
• He (or she) must concur with all prosecution policies devised by the leadership of the NPA;
• The director-general of justice is the accounting officer of the NPA; and
• The NPA itself is run as a programme within the Department of Justice.

This architecture may work adequately for the run-of-the-mill prosecution of crime in SA, but it does not work for getting on top of serious corruption and organised crime.

The record and recommendations of the Zondo Commission reveal that State Capture was enabled by the closure of the Scorpions.

Several other commissions and boards of inquiry show the breadth and depth of corruption in the criminal justice administration itself.

The post-Zuma leadership of the NPA complains that the institution is shot through with “saboteurs” planted to keep the kleptocrats (including many of the ANC candidates for Parliament) away from charges, prosecutions and prison.

The NPA is underfunded and under-resourced in human capital and under-capacitated by design of a government bent on sheltering those fingered by commissions of inquiry and by our brave whistle-blowers.

Currently, the ANC allows those suspected of corruption to stand for political office unless and until they are criminally charged, whereupon they will be required to stand aside.

The problem is that they will never be charged while the NPA is as broken, gutted and ineffective as it is now.

NPA ‘independence’

The remedial legislation does not address any of the structural matters listed above. The independence of the NPA will, after passage of the Bill, remain a chimera – the unrealised dream of those who long for clean governance that is open, accountable and responsive.

As for the Hawks, they do not even pretend to be independent. As a unit within SAPS, their ability to act against serious corruption is hamstrung by the design of the system.

The fact that the minister of police is a suspect in the World Cup Soccer SAPS HQ leases matter does not assist the Hawks in their quest to counter corruption. Their reporting line is to the commissioner of police who in turn reports to the self-same minister.

No wonder no progress is made in the investigation of his alleged corruption while he was commissioner himself, before being dismissed for his incompetence and dishonesty.

While the NPA Amendment Bill is dished up by the minister of justice as addressing the STIRS criteria laid down by our highest court (specialised, trained, independent, resourced in guaranteed fashion and enjoying secure tenure of office) it does not in fact do so in any way, shape or form.

When the Scorpions were disbanded in 2009, the NPA lost its investigative capacity completely; it became a purely prosecutorial body dependent upon SAPS to provide it with dockets, in apple-pie order, capable of providing the evidence needed for securing convictions in criminal trials.

The separation of functions was not a success, hence the State Capture phenomenon, to which can be added tenderpreneurism, Covidpreneurism, and a host of activities like money laundering and terrorism financing that have caught the eye of the FATF, leading to the greylisting of SA.

The President has tried, illegally so, to stem the tide by establishing the Investigating Directorate within the NPA by proclamation. The legality of this move has been questioned as long ago as February 2019, when the proclamation was announced.

Bill fails to pass muster

The fact that the President is now supportive of legislative changes to give the NPA investigative capacity would suggest that he knows the current set-up limps from a legal and constitutional perspective. His problem is that it will continue to limp because the proposed legislation does not pass constitutional muster.

Nor will investigators magically appear to join the ranks of the investigators within the NPA. They will be no better off than the Scorpions were before they were summarily disbanded.

In essence, there are two reasons for these conclusions. The international obligations of SA under various treaties require, in binding fashion, that the government must “create an anti-corruption unit that has the necessary independence”, as the court put it in Glenister Two.

The second reason is that, once again in the words of the court, “the executive, when exercising the powers granted to it under the Constitution, including the power to prepare and initiate legislation, and in some circumstances Parliament, when enacting legislation, must give effect to the obligations s 7(2) imposes on the State.”

Section 7(2) of the Bill of Rights says the state must respect, protect, promote and fulfil the rights in the Bill of Rights.

The challenges SA faces concerning poverty, unemployment and failure to deliver services that support those rights show that corruption is a key issue and underlying cause of many a dysfunction facing the country.

It is an issue that will not be properly addressed by tinkering with the NPA legislation or by funding forensic laboratories. The issue is structural.

The existing architecture is not fit for purpose in that corruption remains rampant in SA, with the corrupt in high places enjoying impunity because the anti-corruption machinery is kept impoverished and ineffective.

The President and his Cabinet are beholden to those accused of corruption who are not, years after the relevant events, charged with any crime.

The ANC and Cabinet accordingly pay lip service to reform (or renewal as they call it) while protecting those in the ranks of the ANC who should be charged in the criminal courts of the land.

Window-dressing

The CEOs in big business – those who have bought into the charade the ANC is currently playing out to make it appear to be anti-corruption when it is not – ought to hang their heads in shame and withdraw their support of the window-dressing to which the President refers in the paragraphs of his letter of 11 March quoted above.

It is not as though the right way forward is not on the table. Since 2012, Accountability Now has been championing the idea of a new Chapter Nine entity that is equipped to prevent, combat, investigate and prosecute serious corruption. Until such a body – or one with its STIRS attributes swings into action – the chances are that SA will remain on the grey list.

This disgraced status is particularly harsh for the poor and the unemployed. While corruption is rampant it is highly unlikely that job-creating economic development will occur.

Who wants to invest in a country in which the rule of law is so compromised, the government does not respect binding decisions of the courts, treaty obligations are flouted and the corrupt enjoy such perennial impunity?

Compliance with the STIRS criteria is possible in various ways, none of which is contemplated by the President in his letter.

The Bill he touts is not going to achieve constitutional compliance in its present form (see here, here and here).

It is hoped that the report to the President by the National Anti-Corruption Advisory Council, due out by the end of March 2024, will introduce notes of constitutionality, respect for court decisions and compliance with international obligations.

Its recommendations do not bind the government, but treaty obligations and court decisions do. DM