Aberratio Ictus on fighting corruption

by | Jun 28, 2024 | Chapter 9, General | 0 comments

Paul Hoffman says there is no need for a separate system of courts to hear corruption cases

For the benefit of readers who have forgotten their Latin, here is a googled definition of the term that is adequate for present purposes:

“Aberratio ictus means the going astray or missing of the blow. It is not a form of mistake. X has pictured what he is aiming at correctly, but through lack of skill, clumsiness or other factors he misses his aim, and the blow or shot strikes somebody or something else.”

The term comes to mind when the discerning reader considers the comments of David Bullard in his column of 19 June, 2024 in Politicsweb. He suggests:

“What needs to happen as a matter of urgency now is that a separate system of courts needs to be set up to hear corruption cases without the usual delays we are used to. The special courts could draw on the unbiased talents of overseas jurists … and cases should take no longer than three days…”

Bullard has pictured that which his mighty pen is aimed at, namely the culture of serious corruption with impunity that is abroad in the land, but his ink strikes the courts, incorrectly so, and not those responsible for the corruption with impunity which he, very properly, would like to see ended. Getting cases court ready is not the work of the judiciary.

There is no need for a separate system of courts to hear corruption cases. We have enough courts in SA already and our entire judiciary is required to be, and is, independent and impartial on pain of being hauled before the Judicial Service Commission. It is the body which is responsible for the recent impeachment of two senior judges who miserably failed to adhere to the high standards that our judiciary proudly observes.

The courts are currently under-utilised; the shadow minister of justice in the sixth parliament claims that they sit on average for an hour and a half a day. This inefficiency is not due to lack of judges or unavailability of courtrooms. Serious corruption cases get tried in the High Court where the judges are quite capable of bringing their unbiased talents to bear without the help of “overseas jurists”. Judges are more like umpires than referees; they hear cases that are brought to them rather than seek them out for adjudication. In the context of the criminal law, it is the work of the prosecution service to institute criminal proceedings once satisfied that a prima facie case exists. The judges adjudicate only in the cases brought to court. Too few at present reach a state of court-readiness.

Corruption is a secretive form of crime. As Prof Max du Plessis SC has observed in his contribution to “Under the Swinging Arch” (google it for free) at page 151 corruption is:

“a crime of the shadows and hard to prove at the best of times.”

The secretive nature of corrupt activities, the fact that victims of corruption are frequently not even aware of the siphoning off of the proceeds of the nefarious activities affecting them taken together with the complexity of the transactions designed to mask or obscure the actions of the corrupt, not to mention the fraught role of anyone brave enough to blow the whistle, are among the factors that make it hard to prove a case.

The reforms actually needed, as a matter of urgency as Bullard rightly notes, are not in the courts, they are in the criminal justice administration which has been crippled by state capture and remains dysfunctional. It is structurally and operationally unfit for corruption-busting, under-resourced and lacking in staff who are sufficiently specialised and experience to work up a proper corruption docket and prosecute those identified in it. Reaching the point of securing a conviction of those accused of corruption by adducing evidence that satisfies the court’s standard of “beyond a reasonable doubt” is simply all too often beyond the capacity of the system.

Before 2009 there was a well-functioning unit within the prosecuting authority called the Scorpions. It worked on what it called the “troika” system of dealing with corruption and the investigations were prosecution led. Crime intelligence, investigators and prosecutors supported by forensic experts all played their roles with great success.

The Scorpions took an interest in political corruption and were summarily closed down for treading on the toes of too many political bigwigs including Jacob Zuma, his advisor Schabir Shaik, police chief Jackie Selebi, the Travelgate fraudsters and John Block, among others. It was legally possible to dissolve the Scorpions by using the simple majority in parliament which the ANC then enjoyed. They were a creature of an ordinary statute without secure tenure of office and lacking the adequate level of independence which the law now (post the Glenister litigation)requires for an anti-corruption entity.

Since 2009 and until May 2024 the work involved in investigating and prosecuting serious corruption has been divided between the police and the prosecuting authority. The police are required to investigate any allegations of corruption which they detect either themselves or through whistleblowers or graft-busters (a wonderful new term Prof Thuli Madonsela has popularised at the recent US Gender and Corruption Symposium). The prosecutors are supposed to institute criminal proceedings if they are satisfied that the Hawks-prepared docket reveals corrupt activities of the many and varied kinds defined by parliament in the Corruption Act (The Prevention and Combating of Corrupt Activities Act).

The system has not worked. The police, both structurally and operationally, do not have the necessary “clout” or sapiential authority, as the HR-folk put it, to pull off proper investigations of the kleptocrats and their fellow travellers. A well prepared docket necessarily precedes a successful prosecution. There are too few well prepared dockets at present.

The NPA for its part is a massive victim of state capture. “Saboteurs” planted in its thinned ranks by those bent on capturing the state still lurk in dark corners to ensure that the impunity of old continues. The leadership of the NPA complains bitterly about shrunken budgets, lack of independence and the presence of the saboteurs, but has not been effective in addressing any of its structural and operational challenges.

The NPA is not an independent body, as it should be in its corruption busting role, was not created to be independent and remains firmly under the “final responsibility” of the minister of justice who also has to concur in all prosecution policy. To make matters worse the NPA is operated as a programme in the department of justice whose director general is its accounting officer. These circumstances are not the stuff of which an independent anti-corruption entity is made.

On 24 May 2024 the president signed into law an amendment to the NPA Act establishing a new clone of the Scorpions, the Investigating Directorate Against Corruption or IDAC. This body does not measure up to the standards set in the Glenister litigation and the timing of its arrival could be seen as an election ploy. It is structurally and operationally no different to the Scorpions and is liable to be shut down just as easily. Nobody worth their salt will join the IDAC ranks due to the bad experience of the Scorpions being dissolved.

The only ray of light in all of this darkness is the announcement, pre-election, by the DA that it intends to sponsor, within 100 days of the commencement of the seventh parliament, new legislation aimed at countering the corrupt. It wishes to establish a new Chapter Nine Institution as an independent body, insulated from executive control, influence and interference to prevent, combat, investigate and prosecute corruption of a serious kind as well as organised crime.

Now that we have a GNU and no majority party in parliament, it remains to be seen whether the ANC, with its decisive 40% of the seats in parliament, will support its new partner in this endeavour. It should. A failure to pass the DA’s bills introducing the Chapter Nine Anti-Corruption Commission could have the effect of scuppering the entire GNU. As a two thirds majority is required to set up the new anti-corruption entity, it is one of the first tasks of the GNU to support the bills with its 68% plus support in the National Assembly. If the ANC does so, it will reinforce its stated commitments to the rule of law and constitutionalism, upon which the GNU is founded and indeed was invited into existence by the president. If it does not, the ANC will be exposed as soft on corruption and unwilling to implement court judgments properly that are a decade or more old.

Bullard would do well to read “Under the Swinging Arch” and come out swinging himself, on the topic of ending the endemic corruption which threatens to end our hard won constitutional order. This step would surely be a more valuable use of his column than his amusing discourse on John Maytham’s discombobulation or his misplaced criticism of our judiciary.

Paul Hoffman SC is a director of Accountability Now and was lead counsel in the Glenister litigation

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