Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.
The SA Police are unutterably corrupt, the NPA is hollowed out, infested with saboteurs, under-capacitated and lacking the skills and capability to prosecute serious corruption either effectively or efficiently.
On 17 March 2011, the majority judgment in the second Glenister case surprised many learned observers and also served to stimulate the hopes of those committed to the rule of law, accountability and integrity in governance.
The cynicism of the Jacob Zuma administration, and its preparedness to do as little as possible to implement the binding requirements of the decision in the case, thwarted progress. Instead, the passivity of the populace, unaware that they were being “stolen blind” by kleptocrats, led to further litigation.
The failure to persuade the courts that the circumstances in the Zuma Cabinet and the police were not conducive to locating corruption busters in the police triggered the State Capture phenomenon which has dashed the hope for a well-run developmental state and with it, the “better life” presaged in section 198 of the Constitution which speaks of our resolve as a nation “to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”.
The 2011 judgment is still there, confirmed in the later litigation, still binding on the state and still not enforced properly by the whole-hearted implementation it set with the binding Stirs criteria, an acronym for Specialised, Trained, Independent, Resourced in guaranteed fashion and Secure in tenure of office.
Fast forward to 4 August 2020. The Zuma era is history, a new president promises a “new dawn” in which corruption will be tackled with the necessary political will. On that day the National Executive of his party/movement/organisation, the ANC, announced that it had issued an urgent instruction to Cabinet to establish a standalone, permanent, multi-disciplinary and independent entity to “deal with” corruption.
The NEC exhorted law enforcement to act without fear, favour or prejudice. The uncontradicted reporting of the resolution of the NEC was music to the ears of the constitutionalists who had fought so long and so hard to get government to take the decision in Glenister more seriously and less evasively. The words used by the NEC, as reported at the time in the media, approximate the Stirs criteria:ADVERTISING
“The NEC called upon the ANC-led government to urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice.”
Cynics will not be surprised to learn that nothing, and certainly nothing urgent, has been done to implement the resolution.
Instead, the Ramaphosa administration has contrived to kick the can down the road by seeking to establish a wholly unnecessary Advisory Council on anti-corruption, a process that it has taken almost a year to start with not a single member of the council appointed as of December 2021, some 16 months since receiving the urgent instruction from the NEC. The only sound advice the council could possibly give is to implement the binding Stirs criteria.
Alarmed by the lack of progress, Accountability Now, which has for a decade championed the creation of a new Chapter Nine Institution to counter serious corruption, prepared the draft legislation and constitutional amendment necessary to put in place a best practice response to the rulings by the courts and the decision of the NEC. The suggested drafts were made available to the presidency, Parliament and the leadership of the National Prosecuting Authority in August 2021.
The NPA “noted” the suggestion, the Constitutional Review Committee of Parliament engaged in desultory correspondence but did not meet to discuss the proposals by Accountability Now, nor earlier similar proposals made shortly before the NEC resolution was passed.
The Justice Portfolio Committee has been advised of the suggested drafts. It has done nothing by way of a response to them.
The ministry of justice has, via the deputy minister, taken an interest in the drafts but has yet to respond to them since they were first delivered in August 2021.
At this stage, it appears that all hope of countering corruption in SA lies in the righteous anger of the people, asserted courageously and with compassion.
Corruption is a crime. It is the constitutional duty and obligation of the state to prevent, combat, investigate and prosecute crime. The last of these tasks is that of the NPA. It is the police who are constitutionally obliged to perform on preventing, combating, and investigating corruption. The investigation of corruption has been expressly handed to the Hawks by Parliament when it dissolved the Scorpions. The Hawks are not up to the task insofar as serious corruption is concerned. Nobody is suggesting that they are.
The SA Police are unutterably corrupt at present, the NPA is hollowed out, infested with saboteurs, under-capacitated and lacking the skills and capability to prosecute serious corruption either effectively or efficiently as required by the courts and the law.
The idea of hope being associated with anger and courage is not a new one. In the third century of the modern era, a bishop lived and worked in what is today Algeria. He is known as St Augustine and some five million of the words he wrote have survived for modern thinkers to ponder. Some say that among those words are the following thought-provoking phrases:
“Hope has two beautiful daughters; their names are Anger and Courage. Anger at the way things are, and Courage to see that they do not remain as they are.”
The examples set in South Africa by Archbishop Emeritus Desmond Tutu, our first post-liberation president, Nelson Mandela and their associates illustrate vividly and relevantly what St Augustine had in mind when he wrote the words quoted above. Both won Nobel Peace Prizes for their efforts in confronting apartheid with courage and righteous anger. Mandela went to war, Tutu used moral persuasion.
Today the number one issue is no longer apartheid, it is corruption. Note the words of the Minister of Public Service and Administration, Ayanda Dlodlo, who reportedly said on 9 December 2021:
“… The fight against corruption is not the exclusive preserve of the government and (Dlodlo) called on citizens and civil society to fight the scourge posing a great threat to SA’s dream of becoming an ethical and developmental state.
“The National Development Plan, a blueprint to address the country’s socioeconomic challenges by 2030, states the need for the government to build a ‘state that is capable of playing a developmental and transformative role’ in society.
“Speaking during a webinar to mark International Anti-Corruption Day, Dlodlo said the fight against corruption is the ‘most defining struggle of our time’ and the battle is far from over.
“Corruption undermines ‘democracy, rule of law, distorts markets’ and leads to organised crime and terrorism to flourish, the minister said. She called on those in leadership positions to ‘act ethically at all times’.” (As reported in Business Day on 9 December 2021).
It is to be hoped that her colleagues in the police and justice ministries were paying attention to her words.
The role of the citizen in fighting corruption is to live ethically and to help to generate the political will required to effect the type of reform that is needed to render the anti-corruption machinery of state-compliant with the Constitution and with the criteria set in binding terms by the courts. In practical terms, this involves letting government know that the suggestions by Accountability Now are worthy of urgent consideration by Parliament and the Cabinet. A letter or email is all that is required.
More active citizens can engage with their political representatives at local, provincial and national levels to get more energy behind the effort needed to express righteous anger at the brazen theft that is the motivation for much of the greed-based corruption with the necessary courage to confront it.
Supporting the acts of whistle-blowers and corruption busters is a means of harnessing the anger and courage required to counter corruption.
The president needs to lead from the front, not dither and delay on the issue. If his Sona 2022 announcements in February are lacking in anger against the corrupt and are wanting in courage to counter corruption, it will be necessary to reconsider advocacy as the appropriate strategy to follow. A litigation front will have to be opened to bring to book the laggards who are not listening to the courts and the NEC resolution. They are in Cabinet and they have the responsibility to feed hope for a better life, not stoke the righteous anger at the culture of corruption with impunity that is currently abroad in the land. They should be proactively addressing the concerns of Minister Dlodlo with energy and imagination. The tools for doing so in a best-practice manner have already been provided in Accountability Now’s suggested drafts.
Those who see litigation as inevitable should join in funding the court case that will be required if government remains recalcitrant. Curing the deafness to the resolution of the NEC of the ANC is required as is ending the aversion to the suggestions, set out in detailed drafts, that Accountability Now has made. Both are asking for no more than that proper attention be paid to complying with the binding requirements laid down in the Glenister cases.
There is more than a trillion rand in loot awaiting recovery. The Zondo Commission is bound to recommend that steps be taken not only to recover the loot but also to effect reforms that enable recovery effectively and efficiently. The country, heaven knows, could do with the money.
These are the right things to do; it is fervently to be hoped that righteous anger and courageous action on all sides will be the order of the day in urgently addressing what Minister Dlodlo has dubbed “the most defining struggle of our time.” DM