The significance of the announcement by the DA Shadow Minister of Justice, Glynnis Breytenbach, in her Opinionista column for Daily Maverick ought not to be underestimated.

The substance of her criticism of the current state of play on countering corruption cannot be faulted. Her solution, an anti-corruption commission, is eminently sensible and constitutionally sound.

The notion of a Chapter Nine entity to counter corruption has long been advocated by Accountability Now in the wake of the success of the second Glenister case in the Constitutional Court in March 2011. The parliamentary committee tasked with remediating the initial unconstitutional legislation that gave birth to the first incarnation of the Hawks, a police unit tasked with countering serious corruption, was not amenable to the Chapter Nine entity solution.

At the time, the ANC caucus was firmly in the grip of the Jacob Zuma-led executive. His State Capture project was at an early stage and a robust, sound response to the court order was not on the agenda of the ANC. Instead, as little as possible was done to tweak the Hawks legislation to make it appear constitutionally compliant in accordance with the precepts laid down in the binding judgment of the court.

The remedial legislation produced in 2012 could not possibly pass constitutional muster. It was successfully challenged by the Helen Suzman Foundation (HSF) and Hugh Glenister. The latter took the issue to the highest court for an unprecedented, and unlikely to be repeated, third time.

The challenge by the HSF was largely technical in nature and resulted in the court taking the unusual step of adjusting the limping legislation itself in its November 2014 judgment.

Glenister also challenged the location of the Hawks within the police, which he claimed was an unsuitable and unconstitutional way of addressing the complex issues that arise when serious corruption is rampant.

Relying on the court’s insistence that the legislature should make the reasonable decision of a reasonable decision-maker in the circumstances, Glenister pleaded that the location of the Hawks within the police in the circumstances then prevailing was not a reasonable decision due to the levels of corruption both in the police and the executive branch of government.

His challenge was dismissed as the rantings of an unhinged litigant who was found by former Chief Justice Mogoeng Mogoeng to be indulging himself in “odious political posturing” rather than sane and sensible litigation.

With the benefit of hindsight, it is easy for Glenister (who has wisely retired from litigation) to say “I told you so” to all three spheres of government. It may still be necessary to do so, in spite of the lessons learned from the findings of the Zondo Commission and its recommendations as regards the necessary and urgent reform of the criminal justice system.

Hawks at risk

The unarguable point is that the division of work between the Hawks (investigation of serious corruption and organised crime) and the National Prosecuting Authority (prosecution) has just not worked out as it should have done. The Hawks investigations are lacking both in speed and in specifics. Without a swift and sure investigation, a successful prosecution cannot follow.

Government has reluctantly recognised that this issue needs to be addressed and has sought to do so initially via the Investigating Directorate and latterly via the proposed Investigating Directorate Against Corruption (Idac).

The difference between the two entities is, in essence, that the ID operates at the pleasure of the President having been created by presidential proclamation while Idac, if it sees the light of day, will operate as a legislated entity within the NPA. The executive has promoted the notion that Idac is permanent whereas the ID is not.

There is some sleight of hand in this distinction. It is true that the presidential proclamation creating the ID can be withdrawn at the stroke of the presidential pen. Idac, as a creature of statute, can only be closed down by a simple majority in Parliament.

This feature of its structure makes it just as vulnerable to closure as the Scorpions or DSO were. Should Idac incur the ire of sufficient crooked politicians, like the Scorpions did, a simple majority in Parliament will ensure its demise. This fate befell the Scorpions after Travelgate, the successful prosecution of Schabir Shaik and Tony Yengeni and, most significantly, the investigation of Jacob Zuma.

The latter is still facing trial on the criminal charges that saw Shaik go down for corrupting him. In 2005 Shaik was convicted and sentenced to 15 years in prison. All appeals failed.

‘Slapdash’ Idac unconstitutional

Breytenbach has correctly described the legislation calling Idac into being as “slapdash”. Insufficient attention has been paid to the well-known criteria, laid down in the Glenister judgments.

Idac will not attract specialists who are properly trained to deal with the corrupt; it will lack the necessary independence because it will be located within the NPA. The budget of Idac will be under the control of the Department of Justice and its staff will not enjoy the security of tenure that is needed to avoid the sad fate of the Scorpions.

These features all render Idac unconstitutional and an invalid step in the wrong direction should the President sign the Idac Bill into law.

It is furthermore obvious that the Hawks/NPA combination has not been efficient and effective at countering serious corruption. Hence the efforts to create both the ID and Idac. These steps would surely be unnecessary if the existing system was working to eventually eradicate corruption, as required by the courts.

The two private members’ bills to be introduced by Breytenbach are designed to achieve constitutional compliance and to bring into being machinery of state that is capable of preventing, combatting, investigating and prosecuting serious corruption and organised crime. John Steenhuisen promises that the bills will be introduced within 100 days of the next Parliament taking office after the May elections.

Read more in Daily Maverick: Business Unity SA needs to rethink its uncritical embracing of the unconstitutional Idac Bill

All of the parties that succeed in the elections and are represented in Parliament will have to take a position on the Breytenbach bills. The bills are not going to disappear into thin air, indeed they are long overdue.

Support for the two bills is likely to become an issue in possible coalition negotiations after the elections. Breytenbach’s determination to introduce them is commendable. It will pose a test of the commitment of other parties represented in Parliament to the rule of law and the respect required for judgments of the courts as well as upholding solemn treaty obligations undertaken by SA.

It would be salutary to require political parties to take a position supporting or opposing the Breytenbach bills (or to oppose them) before the elections are held so that voters are informed as to the level of commitment of the politicians and their parties to countering the corrupt, both within their own ranks and in society in general.

Corruption continued

The ANC has long used sleight of hand in relation to its position on corruption. President Ramaphosa came to power promising a “new dawn” in which he would organise the renewal of the ANC and its unity.

These commitments have been proved chimeric. The renewal involves dealing with corruption properly. This objective has seen the dismissal of an ANC Secretary General, Ace Magashule, the resignation of the Speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, and the downfall of a few other lesser leaders of the ANC, far too few if regard is had to the findings of the Zondo Commission.

Unity remains elusive because unity between the corrupt and those who are not corrupt is difficult if not impossible to achieve.

As long ago as August 2020, the National Executive Committee of the ANC passed a resolution calling upon the national Cabinet to establish urgently a stand-alone specialised and independent entity to deal with corruption. This instruction has been ignored.

Instead, tinkering with the ID and Idac has been the order of the day. This fools no one. A deputy minister of justice regards the Idac Bill as a “stopgap measure”. Why that should be necessary 13 years after the judgment is not explained because it is not rationally explicable.

Glenister findings to the fore

In an effort to show some seriousness about corruption, the President in August 2022 called into being the National Anti-Corruption Advisory Council (Nacac) chaired by Professor Firoz Cachalia. The advice needed is simple: devise a constitutionally compliant way to implement the Glenister findings. A report by Nacac was promised by its chair by February 2024. Later, the President indicated he expected the report by March 2024. No report has been forthcoming.

Instead, the Idac Bill awaits the signature of the President having passed through the legislative process. Civil society has put a lot of begging, cajoling and pleading into asking him not to sign because the Idac Bill is not constitutionally compliant. It is liable to be struck down as invalid if the courts are again asked to intervene. The advice of Nacac ought to be to the same effect as that given by civil society.

If the President, even at this late stage, declines to sign, the seventh Parliament can be left with the task that was assigned to its long-gone predecessor in 2011.

The circumstances revealed by the report of the Zondo Commission suggest that it is high time for government to stop playing with smoke and mirrors and to get serious about measures needed for countering the dire levels of corruption and organised crime in the country. If this entails highly placed comrades in the ANC facing charges, so be it. The sky did not cave in when the Speaker was charged with corruption.

The renewal promised by Ramaphosa cannot possibly take place while a culture of criminality with impunity is allowed to fester in the halls of government and in the deliberations of tender boards, state-owned enterprises and municipalities that display symptoms of failure to deliver services they are legally and constitutionally obliged to deliver. Water, electricity and housing, education and healthcare are all in disarray in too many areas around SA.

Signing the Idac Bill into law sets up a clash between it and the Breytenbach bills; in effect the President, if he so signs, is signalling that he is turning his back on the possibilities of a coalition with the DA or even the slimmer possibility of a government of national unity.

The issue of unchecked corruption and the ongoing failure of the ANC to address countering corruption properly is central to the future of government in South Africa. By announcing the bills during the election campaign, the DA has drawn a straight line in the sand; a line that divides those soft on corruption from those who take the rule of law, the Constitution and the international obligations of SA to counter corruption effectively and efficiently as a serious matter that is worthy of consideration by all who genuinely seek a better life for all in SA.

Peace that is secure, progress that is sustainable and prosperity that is shared are all unattainable while serious corruption continues to run rampant in SA.

It’s your move Mr President! DM