By Paul Hoffman
14 Aug 2022
Paul Hoffman SC is a director of Accountability Now.
The National Democratic Revolution is inconsistent with the Constitution, the doctrine of the separation of powers and the exercise of checks and balances in governance. It is at the root of the corruption issues in South Africa.
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It is more than 11 years since the Constitutional Court spelt out, “loud and clear”, in the words of one of the justices involved, the requirements for effective and efficient anti-corruption machinery of state in South Africa.
The matter was the second Glenister case (this worthy litigant found his way to the Constitutional Court on three separate occasions for the purpose of preventing the explosion of corruption that turned into an almost successful capture of the state in the Jacob Zuma years) and it gave birth to the criteria by which the anti-corruption machinery of state must be measured. These have become known as the Stirs criteria, in which:
- S is for specialised personnel;
- T is for properly trained experts in corruption-busting;
- I is for independence, both operational and structural that enables personnel to function without fear, favour or prejudice in a context in which political and executive influence and interference are not countenanced;
- R is for resourced properly and in a guaranteed fashion; and
- S is for secure in tenure of office, insulating the personnel against being fired capriciously or worse, the unit being closed down for no legitimate purpose of government.
It is now common cause that Stirs-compliant anti-corruption machinery of state does not exist in South Africa and has not since Zuma swept to power in December 2007.
The leadership of the National Prosecuting Authority (NPA) complains of a backlog of more than 10 years of anti-corruption work and the Chief Justice has remarked that “an army of prosecutors” will be needed to work its way through the corruption cases recommended by the State Capture Commission (SCC) which he chaired.
Rather optimistically, it was expected in April 2012 that Parliament would take the orders made against it in the March 2011 judgment of the Constitutional Court more seriously than it did.
As matters stand, the investigation of corruption is the sole legislated mandate of the Hawks or, to give them their official name, the Directorate for Priority Crime Investigation. Without proper investigations, no prosecutions can follow.
The prosecutorial function is constitutionally reserved to the NPA, an institution which, before the Zuma presidency, housed a unit known as the Scorpions or Directorate of Special Operations. The Scorpions were good at what they did to counter corruption. They enjoyed an enviable 94% success rate and in their last year of existence seized contraband to the value of more than R4-billion. Their own success bred their downfall because they fearlessly targeted top politicians and their fellow travellers.
The ANC resolved to disband the Scorpions as a matter of urgency in December 2007. Despite the best efforts of Hugh Glenister and others, the Scorpions were soon dissolved and their staff fled to greener pastures.
Today the NPA does not have enough staff with the necessary expertise to specialise in anti-corruption work and is unable, due to toxic working conditions, to recruit experts capable of the type of work the SCC requires it to do.
Planting of ‘saboteurs’
The toxicity of working conditions is largely attributable to the planting of “saboteurs” in the ranks of the NPA for the sole purpose of ensuring that the Zuma faction of the ANC and its fellow travellers are never prosecuted for corrupt activities.
The sabotage takes many forms: dockets disappear, documents can’t be found, witnesses become recalcitrant and whistle-blowers are killed or frightened into exile once they are identified by prosecutors as essential witnesses. Diligence is absent despite the constitutional injunction that the work of the NPA has to be done “diligently and without delay”.
Justice Richard Goldstone, one of the original Constitutional Court justices, has remarked that the NPA is “gutted”. This verb is an accurate choice for the understaffed, inadequately resourced and dispirited ranks of the NPA, which, owing to the presence of the saboteurs, faces intractable problems in righting itself any time soon to recover from the gutting carried out in the Zuma years.
The Zuma years ended in February 2018. He was succeeded by the current President, Cyril Ramaphosa, who vowed to renew the ANC and clean up corruption. He has failed in both respects.
A gutted structure, even if it is one created by the Constitution, needs to be rebuilt, brick by brick (this is the image used by the National Director of Public Prosecutions, or NDPP, Shamila Batohi, as she struggles to recover the former glory of the NPA) and in any democracy under the rule of law, the rebuilding has to be done in terms of the law.
In April 2019, Ramaphosa issued a presidential proclamation creating a new body within the NPA, the Investigating Directorate (ID). In so doing, he gave investigative powers back to the NPA (they were removed when the Hawks were created) in contravention of the applicable legislation which clearly requires the Hawks to investigate all priority crimes including corruption. The ID serves at the pleasure of the President and can be closed down by the stroke of his pen.
So much for independence and secure tenure of office, two of the key Stirs criteria.
Unsurprisingly, the ID has not been a success. It is understaffed, underfunded and unproductive. The first head, Hermione Cronje, was asked to leave and did. Her successor, Andrea Johnson, was, until recently, unaware that the NDPP had instructed Cronje to investigate the minister of police, Bheki Cele, for corruption and she is still trying to locate documents that ought to be in the file relating to the matter.
So much for effectiveness and efficiency.
These features are required by section 195(1)(b) of the Constitution and by the rulings in the Glenister cases. As the then Chief Justice, Mogoeng Mogoeng, remarked for the majority in the November 2014 case:
“Corruption is rife in this country and stringent measures are required to contain this malady before it graduates into something terminal.
“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
By August 2020, it was plain that the ID was no answer to the problems posed by rampant corruption with impunity in SA. During the first weekend of that month the National Executive Committee (NEC) of the ANC, its highest decision-making body between conferences, deliberated on the matter and passed a resolution that was made public on 4 August 2020. It is worth quoting from a contemporaneous press report:
“‘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,’ said [Secretary-General Ace] Magashule.”
This was hailed by Accountability Now as the “eureka moment” of the ANC. Not so fast…
The resolution was in fact an urgent instruction to the Cabinet to establish the new body. Nothing has been done: not by the Cabinet, not by Parliament and not by the ANC to follow up on the worthy ideas in the resolution. This inactivity raises the question of whether the ANC is serious about countering corruption. More than two years have passed and no legislative activity on the part of the ANC, the Cabinet or Parliament is apparent.
By contrast, the DA has the parliamentary drafting personnel working hard on its private member’s bill aimed at addressing the corruption with impunity problems of SA.
Those concerned about the ravages of unchecked corruption in SA approached the policy documentation discussed by the ANC at its July 2022 policy conference with some trepidation. While it is true that the Cabinet, via an interview given by Deputy Minister of Justice John Jeffery, is apparently seized with a sense of urgency about corruption, the ANC itself, as the party which has deployed the Cabinet, is strangely opaque and unresponsive on the topic.
The policy documentation, described by Professor Susan Booysen as a reason to abandon hope in the ANC, does not refer to the urgent resolution announced on 4 August 2020 at all. Instead, platitudinous paragraphs are included in the policy documents. For example, the Peace and Security chapter kicks off, on page 109, with these chilling words:
“An assessment of the global balance of forces and shifting power dynamics remains a critical pillar of any discussion pertaining to Strategy and Tactics. For it is through a deeper understanding of the global power configuration that the National Democratic Revolution (NDR) could be pursued in a more pragmatic manner. The reality is that the African National Congress (ANC) remains the only viable vehicle with which meaningful economic transformation and development of the South African society can be driven.”
Further on in the document, on page 114, the following passage appears:
“Former liberation movements because of their historic positions provide a nation-building binding effect, however, there is a danger of nepotism and corruption especially where checks and balances are weak. In some areas Executive and, particularly, parliamentary oversight often remains weak in practice and corruption, nepotism and informality remain rife.”
Eventually, on page 118, crime and corruption are discussed in the following anodyne terms:
“A critical element is the strength of institutions in the criminal justice system. The ANC must ensure that whoever dares to try their hand at corruption and crime must pay. The ANC is like a fully grown tree, if the worms are eating the tree and are not treated, it will eventually wither away. This results in a trust deficit with the electorate because of our perceived inability to deal decisively and cure the cancer that has eroded our moral and ethical leadership role.
“Our tough stance on corruption as resolved by a number of our conferences will never soften but has affirmed our grasp. No exception is made for any organisation or individual. We have to [be] unequivocal in proclamation and deeds with zero tolerance. Our efforts should be intertwined with focus on political degeneration and corruption.
“Those officials involved in illegal activities and those in leadership positions who have been strongly suspected of wrongdoing, who have been repeatedly reported by the public for malpractice, and who are holding important offices (step aside policy to [be] implemented without fail).
“The ANC should make in-depth analyses of typical cases in violation of organisational and party discipline and the law. We need to create a deterrence on corruption and political education should include educating our members on anti-corruption. Greater efforts to hunt down corrupt individuals, even those who have fled, and recover the money stolen including illicit financial flows.
“Will promote international cooperation under multilateral frameworks and the UN convention against corruption. Enforce organisational discipline across all levels. Many ANC members are good but some are still prone to misconduct and corruption, the number has risen and in scale of their influence. We must correct and punish those accused of corruption and the abuse of the justice system within our structures, safeguard the National Democratic Revolution, the people’s expectations and interests and deliver concrete results in our efforts against corruption.”
Eventually, on page 121, the following hopeful signs appear in broad brushstrokes:
“We have to build a resilient, coordinated and independent institutional capability that can hunt down the foxes and tigers in a mode of Anti-Corruption Commission of PRC or FBI of USA.
“Dedicated courts’ capability has to be enhanced for speedy prosecution and recovery of assets. Review and strengthen all anti-corruption related legislation like: Prevention of Organised Crime Act (POCA), Special Investigating Unit and Special Tribunals Act (SIU does not have powers to conduct preliminary investigations and reporting processes.); new or amending legislation pertaining to unexplained wealth: unexplained wealth relates to a civil process to investigate income as against assets, and call upon those with unexplained wealth to show proof of income; Extradition Act and Mutual Legal Assistance Act: amendments to bring about improvements eliminate court delays, and to improve processes for greater efficiency.”
When it comes to “Strategic Policy Interventions”, one finds on page 122: “ensuring that existing State institutions set up to fight corruption and ensure public accountability work efficiently and effectively; and, adding new such institutions if necessary”.
The essential difficulty with the stance of the ANC is that it persists in pursuing the National Democratic Revolution. The NDR is inconsistent with the Constitution, the doctrine of the separation of powers and the exercise of checks and balances in governance. Hegemonic control of all levers of power is contrary to the basic design of the Constitution. This topic has been discussed before in some detail.
The late Professor Kader Asmal, a Mandela and Mbeki Cabinet member, called upon the ANC to abandon the NDR, but his call went unheard in the corridors of Luthuli House.
The persistence with the NDR and in particular with its cadre deployment policy, criticised as illegal and unconstitutional by the SCC, is at the root of the corruption issues in South Africa. If those in positions of power are advancing a revolution that is incompatible with the values of the Constitution, the door to corruption and conflict of interest is wide open. Cadre deployment is a cause of State Capture, as was pointed out as long ago as 2017.
So, is the ANC serious about countering corruption? While the jury is out, the answer at this stage has to be: yes and no. Yes, because corruption does at least feature in policy discussion documents, and yes because the NEC resolution of August 2020 recognises the urgency of the situation and pinpoints reforms that would be Stirs-compliant.
No, because nothing has been done for more than two years to respond to the NEC resolution in any positive way, signalling the paralysis of ANC factionalism, which appears to be incurable. DM