As South African voters ponder their political choices on how, and whether, to cast their votes in the 2024 general elections, it is opportune to highlight the relative absence of corruption where there is good governance in the world and the presence of serious corruption where there is bad governance. The rule of law index of the World Justice Project is instructive in this regard. https://worldjusticeproject.org/rule-of-law-index/?gclid=CjwKCAjwjOunBhB4EiwA94JWsB6cP2JYA-LgLvOps_0NZIpMWeJVlpf6ESjdPFl92P-ax7BS_s06qxoCN9oQAvD_BwE.
The topics “good governance” and “serious corruption” locally have an uneasy and ambivalent relationship since SA left behind the “rule by law” so prevalent during the parliamentary sovereignty of the apartheid era and embraced, at least on paper, the notions of the supremacy of both the Constitution and the rule of law. Since 1994 there have been some attempts to do what is right to deal with the corrupt among us and big waves of doing what is wrong when it comes to countering corruption in SA. Corruption is not even mentioned in the Constitution despite it reading like a manifesto of deliverables in that search for a “better life”.
Serious corruption is a worldwide scourge despite the UN setting “build effective, accountable and inclusive institutions at all levels” as one of its sustainable development goals, namely UN SDG 16 https://www.un.org/sustainabledevelopment/. Strong institutions are indeed necessary to counter corruption.
In SA an overwhelming 81% of people polled early in 2023 favoured the establishment of an International Anti-Corruption Court, such is the local longing for a corruption free environment in which to seek a “better life” as promised in the Constitution. At present an international team of jurists, led by former SA Constitutional Court Justice Richard Goldstone, is meeting in The Hague to formulate the first draft of an international anti-corruption treaty. It will be along the lines of the 1998 Rome Statute of the International Criminal Court which concerns crimes against humanity. SA played a leading role in that process. https://www.dailymaverick.co.za/article/2023-08-01-survey-shows-global-approval-for-establishment-of-international-anti-corruption-court/.
It is convenient to unpack the uneasy relationship between good governance and bad corruption in SA on a presidency by presidency basis:
The Nelson Mandela era of hope and lofty aspirations: 1994 to 1999
The two Thabo Mbeki presidencies encompassing contradictory moves: 1999 to 2008
The short presidency of Kgalema Motlanthe when the Scorpions were exterminated: 2008 to 2009
Nine wasted years of Jacob Zuma presidency with burgeoning state capture and backsliding on the rule of law: 2009 to 2018
The sleight of hand of the Cyril Ramaphosa era in which we dither toward failed statehood: 2018 to date
Nelson Mandela was an exemplary leader of the twentieth century. He emerged from 27 years in jail as a political prisoner of the apartheid regime to lead SA (from 1994 to 1999) to a relatively peaceful transition from the dominance of the National Party to a new constitutional order in which parliamentary sovereignty was terminated and the supremacy of the Constitution was affirmed. The negotiations leading to the final Constitution becoming the supreme law of the land in February 1997 were long and arduous. They may be said to have commenced in February 1990 when the liberation movements were unbanned and the last political prisoners were released. The first elections in which all who live in SA were allowed to participate took place in April 1994. By then the spirit of national reconciliation had been kindled by Mandela and the prospects of the brave new democratic order looked rosy. Mandela acted as a catalyst for reconciliation and staunchly upheld the rule of law after the Constitutional Court reversed decision-making to which he was privy. He even subjected himself to cross-examination in a spat with the SA Rugby Football Union after he ascended to the office of president.
A constituent assembly was tasked with formulating the Constitution and over 2 million citizens gave direct input to the process. The final Constitution, adopted at Kliptown in 1996, enjoyed the overwhelming support of the majority of political parties of the time in SA. It embodies a set of constitutional principles and values that have been hailed as exemplary by lawyers, politicians and academics around the world. Innovatively, it creates Chapter Nine Institutions to bed down constitutional democracy under the rule of law in a population used to passivity under the authoritarianism of the past. Passivity is clearly not preferable to being active participants in the business of government as provided for in the Constitution. The notion of active citizenship includes, as a bare minimum the casting of votes at election time in free and fair elections.
By now South Africans should have learned that it is not enough to have the best Constitution in the world if it is not used by citizens. Apart from exercising their right to vote, the citizenry have free access to the services of the various Chapter Nine Institutions whenever they consider any of their many guaranteed human rights to be threatened or violated. Neglecting to vote is not an option open to responsible citizens.
During the Mandela era unorthodox methods of party political fundraising were indulged in by the ANC. Kickbacks or commissions on procurements, bribes on deals and all manner of skulduggery were permitted in order to swell the coffers of the ANC, which grew into a monster sized political party. What IDASA described at the time as “the litmus test of democratic accountability” emerged, and was failed, as the official reaction to the negotiation of deals with European arms suppliers that characterised the last years of the Mandela presidency did not pass oversight thresholds. SA failed that litmus test by buying arms not needed to defend against enemies not identified while spending money that had to be borrowed at great expense (and illegally so) from foreign banks. No proper regard was paid to procurement requirements laid down in the Constitution. The biggest arms deal, that with BAe for jets is the subject of pending litigation in the Pretoria High Court brought as a test case by the Peace Centre. [ https://accountabilitynow.org.za/?s=Amended+ ] This litigation is pending despite the whitewash given to the arms deals by the Zuma appointed Seriti Commission of Inquiry into the arms deals. Judges Seriti and Musi now face possible impeachment. https://www.judgesmatter.co.za/conduct/judge-willie-seriti-and-judge-hendrick-musi/.
By the end of the Mandela presidency it was already apparent that there are tensions between constitutional values and those of the national democratic revolution (NDR), the ideology which motivates the ANC and has as its central feature a desire for securing hegemonic control of all the levers of power in society.
This feature of the NDR is at odds with the rule of law, the doctrine of the separation of powers, the checks and balances on the exercise of governmental authority built into the Constitution via parliamentary oversight of the executive and the roles of the Chapter Nine Institutions. Hegemonic control does not countenance a free media nor independent and impartial judges. It expects all in the public administration, including prosecutors and police personnel, and those who work in Chapter Nines, to toe the party line. That the NDR is alive and in place in the thinking of the leadership of the ANC appears from the recent announcement by a deputy secretary general of the ANC, Maropene Ramokgopa which makes the denials expressed by ANC veteran Mavuso Msimang ring hollow https://www.politicsweb.co.za/opinion/tell-no-lies-claim-no-easy-victories. And https://www.biznews.com/interviews/2023/08/31/msimang-anc-ndr.
While the Constitution calls for legislation that ensures that the prosecuting authority exercises its functions without fear, favour or prejudice, the NPA Act of 1998 falls far short of creating a body with a degree of independence that would enable it to act without fear, favour or prejudice in any genuine way. The failure to prosecute politically exposed persons over the years, and the blatant efforts of the ANC to shield them from prosecution show an anti-independence mindset.
The Prevention of Organised Crime Act did however come onto the statute book in 1998 toward the end of the Mandela era. This does evidence some degree of pushback against the corrupt.
Mandela stayed in office for only one term. He was succeeded by his deputy, Thabo Mbeki, under whose leadership the Scorpions unit was introduced into the operations and structures of the NPA. The mandate of the Scorpions was both to investigate and to prosecute serious corruption among other things. This brought to an end the separation of these functions with SAPS doing all the investigating and the NPA all the prosecuting. The Travelgate scandal was not exposed and acted on until the relevant dockets were transferred from the police to the Scorpions. The investigations involved 135 parliamentarians with 31 being convicted of fraud. The gory details are on Wikipedia https://en.wikipedia.org/wiki/Travelgate_(South_Africa).
The Scorpions made many powerful enemies as a consequence of doing their work properly in the Travelgate investigations. They also investigated the likes of Jackie Selebi and Jacob Zuma much to the chagrin of the ANC hierarchy. Vusi Pikoli, then NPA head, was suspended for going after Selebi (who was duly convicted of corruption) and dismissed for charging Jacob Zuma, who is still facing charges not unlike those formulated by Pikoli in 2007. It was not till 2017 that the courts ruled that the charges should proceed. Since then a major Stalingrad strategy on Zuma’s part has delayed the commencement of evidence.
It was on Mbeki’s watch that the Prevention and Combating of Corrupt Activities Act was passed in 2004. PRECCA has a most detailed and convoluted definition of corrupt activities. Its expressed purpose was to “provide for the strengthening of measures to prevent and combat corruption and corrupt activities; to provide for the offence of corruption and offences relating to corrupt activities;…” Corruption is a stealthy and secretive form of crime. Often the victims of corruption are not even aware that they have been preyed upon by the corrupt. Some (like Jacob Zuma) contend that corruption is a victimless crime. This is not the case. In SA the main victims are invariably the poorest of the poor from whom resources are siphoned away to satisfy the greed of the corrupt. While the Constitution makes no mention of corruption in express terms, it is plain that corruption is a form of crime that police are mandated to investigate and the NPA is required to prosecute. The internationally accepted definition of corruption is far simpler and less wordy than that used in PRECCA. It is the abuse of public office (sometimes called authority) for private gain. The approach involving the separation of investigative work from prosecutorial functions was deviated from when it became apparent that the police do not have the skill, the will, the authority and the clout to investigate serious corruption. Hence the establishment of the Scorpions.
During the Mbeki presidency the arms deals were concluded, AIDS denialism was in vogue in SA and Mbeki shielded Robert Mugabe from the consequences of stealing elections in Zimbabwe. He will be remembered for these three features of his time in office.
He should also be remembered for countenancing the Hitachi Power Africa deal with Eskom in terms of which the ANC made billions of rands as a consequence of its 25% ownership, via its investment arm Chancellor House, in the boiler contractor for the new Medupi and Kusile mega power stations. Hitachi has been fined heavily in the USA under its Foreign Corrupt Practices Act for entering that deal, the ANC sails on serenely is a sea of impunity.
In 2005, then deputy president Jacob Zuma was dismissed from the Mbeki cabinet due to the conviction of his financial advisor, Schabik Schaik, on charges of corrupting him. This setback did not dissuade Zuma from running for president of the ANC in 2007 and for president of SA in 2009. Despite Schaik’s conviction, and his own narrow escape on a rape charge, Zuma was able to persuade an overwhelming majority of delegates, aka patronage seekers, at the Polokwane conference of the ANC in December 2007 to both support his candidacy and to instruct cabinet to disband the Scorpions as a matter of urgency. At the time Mbeki was still in office and his cabinet was minded to retain the Scorpions. This stance was as recommended by the Khampepe Commission of inquiry into the Scorpions, which concluded that “notwithstanding indications that organised crime is being addressed on a concerted basis, the rationale for the establishment of the DSO (Scorpions) is as valid today as it was at conception.” By September 2008 the continuation in office of Mbeki was intolerable to an ANC that had put its faith in Zuma; Mbeki was recalled by his party and meekly submitted to party discipline by resigning as president.
As a stop-gap measure Kgalema Motlanthe was appointed president until the 2009 elections and the appointment by the National Assembly of Jacob Zuma as his successor.
On Motlanthe’s watch the legislation dissolving the Scorpions was passed after a spirited resistance to the idea both in parliament and in the Glenister litigation aimed at keeping the countering of corruption in SA on an even keel and constitutionally compliant. Despite all efforts to preserve the Scorpions, Motlanthe signed their death warrant by assenting to laws which both ended the Scorpions existence and transferred the investigation of serious corruption to the Hawks or Directorate of Priority Crime Investigation within the police. The constitutionality of doing so was again impugned in the second Glenister case.
After the 2009 general election Zuma, against whom all charges had been illegally withdrawn by an acting NDPP, became president and opposed the second Glenister case. To the surprise of many, Glenister won that case in a judgment handed down in March 2011 in which the majority of the Constitutional Court created the criteria by which anti-corruption machinery of state should be established. The main features of these criteria are known by the acronym STIRS which stands for specialised, trained, independent, resourced and secure in tenure of office. The Hawks were found wanting in respect of these criteria and the court ordered parliament to devise fresh legislation that would be compliant with the STIRS criteria within 18 months.
In September 2012 the second version of the Hawks was established via the amending legislation so ordered. The new legislation tweaked the Hawks operations and structure as little as possible in an effort to comply with the court order. Both Glenister and the Helen Suzman Foundation (which had been a highly successful amicus curiae in the second Glenister case) again assailed the constitutionality of the new law setting up the structure and operations of the Hawks. While the HSF was content to rely on the minutiae of non-compliance with STIRS, Glenister took the bull by the horns in contending that “the reasonable decision of a reasonable decision-maker in the circumstances” could not possibly include a decision to locate the Hawks within the thoroughly corrupt SAPS at a time when the executive branch of government was also thoroughly corrupt. Relying on expert testimony which now reads like a trailer for the Zondo Commission’s report, Glenister impugned the constitutionality of locating the Hawks within SAPS. He failed in this argument, but, like the HSF succeeded on the technical aspects. This led to the court taking the unusual step of correcting the legislation itself rather than again referring the shortcomings back to the care and attention of parliament.
The Hawks have not proved a worthy successor to the Scorpions. They have landed no “big fish” accused of corruption whether in the Zondo report or otherwise. They have failed to rake back the loot of state capture. They lack the sapiential authority to do so.
The Zuma presidencies lasted for what his successor has described as “nine wasted years”. During those years the wheels fell off good governance in all spheres of government in which the ANC has a majority being most municipalities, all but one province and the national spheres of government. The state capture project of the Zuma years has cost the country trillion of rands, most of the loot remaining unrecovered due to a lack of political will to take either civil or criminal steps to recover it. Requests to the NPA to charge Zuma for corrupt activities in relieving Mxolisi Nxasana of his post as NDPP have not been acted on by the new NPA leadership. They have been guilty of foot-dragging in respect of those of their membership who have been implicated in state capture by the Zondo Commission. The report of the Zondo Commission has been in the public domain for over a year.
Complaints in 2016 about state capture to the office of the public protector led to its “State of Capture” report of October 2016 and thereafter the implementation of the recommendation in it that the Chief Justice appoint a judge to lead a commission of inquiry. That inquiry, the Zondo Commission, cost taxpayers about a billion rand; it sat for some 400 days over four years and heard to evidence of more than 300 witnesses. The transcript of their evidence runs to 75,099 pages while documentary evidence was submitted covering 1,731,106 pages. Altogether 1438 persons and companies were implicated in wrongdoing in the evidence led.
The report of the commission covers 19 volumes that take up over 4,750 pages. It is damning of governance standards, the illegal use of ANC deployed cadres in the public administration and SOEs (and even in judiciary) as well as the failure of parliament to exercise proper oversight over the executive by holding it accountable for the decisions it takes and its actions.
The first five and half years of Ramaphosa.
When Zuma was forced by the ANC to resign in February 2018, he was succeeded by Cyril Ramaphosa, his deputy in the ANC since 2012 and in government since 2014. As deputy Ramaphosa was in charge of the cadre deployment committees working out of Luthuli House from 2012 to 2018. He defends cadre deployment despite its illegality and unconstitutionality. He also prefers democratic centralism to constitutional decision-making processes. He does however regard the ANC as “Accused number one” in the proceedings before the Zondo Commission which has clearly, in terms of its report, found the ANC guilty of involvement in the repurposing of the state to serve the private ends of those implicated in state capture. Ramaphosa also once had a couch at his Phala Phala farm that was stuffed with US dollars.
Despite the reservation by legislation of investigation of corruption to the Hawks, upon taking office Ramaphosa decided, by way of proclamation, to create an Investigating Directorate within the NPA to investigate state capture and other corruption related crimes. This step is illegal and unconstitutional but it has been tolerated on the basis that it cannot be worse, as a stop gap measure, than insisting on keeping the all but useless Hawks in charge of investigation of serious corruption. https://accountabilitynow.org.za/?s=Poplak.
In August 2023, after much dithering, and apparently after no consultation with NACAC, (the National Advisory Council Against Corruption) the Ramphosa cabinet produced the most execrable bill designed, by way of an amendment to the NPA Act, to create a “permanent” ID which will be called the Investigating Directorate Against Corruption. Its permanence is entirely illusory.
The bill does not stand a snowball’s hope in hell of passing constitutional muster on any of the criteria set in the second Glenister case, the STIRS criteria, despite these criteria being binding on government. It is not even clear that the Office of the Chief State Law Advisor has certified the bill as constitutional. If he has, he should not have; if he hasn’t, he shouldn’t.
In a letter seeking clarity Accountability Now has pointed out to the said official that:
We respectfully submit that if the bill has not been so certified, it ought not to be for want of compliance with the criteria laid down in binding terms by the Constitutional Court in the decision of its majority on 17 March 2011 in “Glenister 2”.
The Honourable Minister of Justice, Ronald Lamola, has defended the constitutionality of the bill in his media release announcing the bill in which he stoutly, but misguidedly, insists that the STIRS criteria set in the “Glenister” case have been met. He has tried, unsuccessfully in our respectful view, to justify his stance in an interview he gave Chris Barron of the Sunday Times published last Sunday. https://www.timeslive.co.za/sunday-times/opinion-and-analysis/2023-09-03-qa-with-justice-minister-ronald-lamola-on-npa-amendment-bill/
We contend that the minister has misconstrued the applicable judicial precedent that is binding on cabinet. We respectfully suggest that the correct type of reform is foreshadowed in our submission made to parliament on 17 March 2023 which you can review here https://accountabilitynow.org.za/submission-to-the-constitutional-review-committee/.
The private members bills of the shadow minister of justice, The Honourable Glynnis Breytenbach, which seek to establish a new Chapter Nine Anti-Corruption Commission, are also constitutionally compliant, unlike the IDAC bill.
The very notion of locating IDAC within the NPA condemns it to non-compliance with all of the STIRS criteria. The NPA is plainly not an independent body. It is currently broken, saboteur infested by the admission of its own leadership, and gutted by state capture. It looks to the director general of justice for its funding and is under the “final responsibility” of the minister who must also concur in all policy for the NPA. This is not the stuff of which independence is made.
- Few, if any, properly trained specialist prosecutors, of the calibre to match the legal firepower the corrupt can and do muster when charged, will put their hands up to serve in IDAC given the sad fate of the Scorpions who were promptly closed when Jacob Zuma came to power. Their dissolution paved the way for the Zuma era heights of state capture with impunity, an impunity that continues to this day. The loot of state capture, running into trillions of rand has still not been recovered more than five years after Zuma resigned.
- The necessary independence can not possibly be achieved within NPA structures for the reasons sketched in the email to the Chief State Law Advisor, quoted above.
- There is no provision for guaranteed resources in the IDAC bill. In Hong Kong, for example, its commission against corruption receives a set percentage of the budget every year with no questions asked.
- Secure tenure of office eluded the Scorpions and brought about their demise after a simple majority in parliament voted to dissolve them in 2009. Their investigators were moved to the SAPS, where the Hawks (officially the Directorate of Priority Crime Investigation) have not risen to the occasion to clamp down on serious corruption. The operations and structure of the new IDAC are legally indistinguishable from those of the now defunct Scorpions. IDAC is vulnerable to the same fate, the minister’s reassurances notwithstanding.
The IDAC bill is not the stuff of which good governance is made. The longing for hegemonic control of all levers of power in society extends to the longing for control of the NPA the Hawks and the new anti-corruption body IDAC. Both the independence and secure tenure of office of the anti-corruption body and threatened by locating them within either SAPS, or now, the NPA. The constitutionally guaranteed independence of Chapter Nine Institutions is not palatable to the leaders of the NDR in Luthuli House. The fear is that those who should have long since been charged with corruption will be charged with serious impact on the leadership of the ANC. Even its veterans league has had enough of the brazenness of those who cling to office after being named and shamed in the report of the Zondo Commission. https://www.dailymaverick.co.za/article/2023-09-07-exclude-anc-members-named-in-state-capture-report-from-parliamentary-list-veterans-league/.
The conclusion on the theme of this discourse is that serious corruption is doing better than good governance in SA and has been for years. The slide toward failed statehood is accelerating. It is up to the voters of SA, and previously non-voting members of the electorate, to address the issue by registering to vote and actually voting.
Paul Hoffman SC is a director of Accountability Now, he was lead counsel in the Glenister litigation and lead counsel for the applicant in the application to compel the appointment of the inquiry into the arms deals.
7 September 2023.