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Corruption: Can we afford to continue ignoring the elephant in the room?

If President Cyril Ramaphosa is serious about “ending corruption”, as he puts it, government will have to create a strong, purpose-built public institution to do the work at hand. He says so himself, but he does nothing.

The analysis in Daily Maverick by David Bruce, independent researcher for the ISS, concerning the state of the anti-corruption machinery in South Africa is both timely and accurate. However, Bruce does not go far enough in his analysis in three important respects.

First, while he is quite right to draw attention to the unsuitability of cadre deployment in the police, including the Hawks, he fails to mention that cadre deployment is illegal and unconstitutional. It is also highly arguable that the deployment of cadres loyal to their “national democratic revolution” is the root cause of the attempted capture of the state by the Zuptoids and others. The ongoing capture-like activities of those now in positions of power and influence is worrisome. They would prefer to see the revolution succeed rather than work hard for the very different transformative (not revolutionary) process contemplated by the Constitution.

The constitutional principle which requires “good human resource management and career-development practices, to maximise human potential” is honoured in the breach by the various cadre deployment committees housed in Luthuli House. The ANC headquarters is not a seat of the public administration.

The law’s sound HR management principle applies not only to the public administration but also to state-owned enterprises and corporations. Deploying those party loyalists who wish to pursue the “revolution” (against whom, one might ask?) seriously undermines the constitutional project because their loyalty to the ANC is perennially allowed to trump their service ethic to the detriment of the people.

Establishing “hegemonic control of the levers of power in society” by “our people” (i.e. cadres) is not the stuff of a multiparty democracy under the rule of law in which there are free media channels, an independent and impartial judiciary, the separation of powers and an ethos of service to the people in a manner that respects, protects, promotes and fulfils their human rights.

There is judicial precedent for the proposition that cadre deployment is illegal. The deployment of a cadre as municipal manager in the Amathole Municipality gave rise to a judicial review in which the cadre deployment was set aside and the meritorious candidate was allowed to replace the cadre as municipal manager. In so doing, the High Court ruled that it is unconstitutional to deploy cadres of the ANC instead of employing public servants in accordance with the democratic principles enshrined in the Constitution, particularly in section 195.

The ANC, well advised for a change, elected not to appeal the decision as it is clearly sound in law. Yet, the practice of cadre deployment continues to ruin the prospects of having proper service delivery, achieving the goals of the Constitution, and establishing an order in which human dignity is respected, the achievement of equality is promoted with human rights being enjoyed by all, not just the chosen few.

Cadre deployment should be officially abandoned out of respect for the wishes of the late Kader Asmal, who famously said, “Scrap the NDR”, in the interests of improving service delivery in general. The “pool” of cadres is far too small to do what is required to ensure a better life for all through efficient and effective public administration.

Second, Bruce is too kind in his analysis of the Glenister litigation in which three hearings in the Constitutional Court took place between 2008 and 2014.

The Court was given the opportunity in 2008 to strike down the plan to dissolve the Scorpions as a scheme that served no legitimate purpose of government and was irrational. Read the persuasive heads of argument prepared on behalf of Glenister by David Unterhalter (then SC, now a Gauteng judge) and weep for South Africa.

The court elected instead to sit on its hands, having been expressly asked not to, while the decks were cleared by the Zuma cabinet for the rape of the nation’s coffers and the pillaging of the assets of South Africa’s state-owned enterprises by the deployed cadres of the revolution and their “friends” in business. All achieved with impunity that continues to the present. The Hawks have not successfully sunk their talons into a single politically well connected person.

In the 2011 round of the litigation, Glenister won a small, but unexpected victory in that the Hawks were not regarded, by five of the nine justices hearing the case, as a suitable substitute for the Scorpions. The majority held that the Hawks were insufficiently independent to be an adequate anti-corruption entity able effectively and efficiently to see off the corrupt.

The court, quite properly, decided to require of the legislature that it make the decision of “a reasonable decision-maker in the circumstances” in creating the legislative framework for an anti-corruption entity (a single entity, mark you) that is specialised, with properly trained personnel, enjoying guaranteed resources and security of tenure of office.

Most importantly, the court so frowned upon political influence and interference in the structure and operations of the entity, it required Parliament to fashion it within 18 months. Independence with a reporting line to Parliament, not the executive, was the ideal.

Instead of facing up to the task at hand, Parliament, already captured by Zuma, took the full 18 months to tweak the Hawks as little as possible while paying lip service to the binding criteria laid down for the anti-corruption entity by the highest court in the land.

No sooner was the remedial legislation published than Glenister, this time simultaneously, but separately, with the Helen Suzman Foundation, was back in court impugning the constitutionality of the revised legislation.

Glenister went further than the Helen Suzman Foundation in presenting his case in the matter. He contended that the location of the Hawks within SAPS, given the corruption in the Cabinet and the police ranks, was not the legally required decision of a “reasonable decision-maker in the circumstances”.

In order to prove the parlous and corruption-threatened circumstances of the country, Glenister took advice from two “canaries in the coal mine” of the nation: Professor Gavin Woods of Stellenbosch University and Gareth Newham of the Institute of Security Studies. Both pointed to the then-known symptoms of State Capture and the crookedness of Zuma and his Cabinet as well as to the endemic corruption within the police.

The court would accept none of this information. The majority struck out the serious, carefully researched and objective expert reports (which the government had not attempted to counter because they were substantially true) and, most unusually so, punished Glenister in costs for what it called his “odious political posturing”, despite the public interest nature of the case.

Instead of grasping the nettle, the court did some of its own tweaking of the limping legislation regulating the Hawks. The net result is that the country remains saddled with an organisation within the SAPS under the political control of the Minister of Police. The current incumbent, Bheki Cele, should have been, but was not, investigated for corruption after he tried to lease premises for the police at ridiculously high rentals. The Hawks have never investigated or caught any big fish, they have never even tried, except in the case of Pravin Gordhan, and we all know what happened in that instance and why he was persecuted so shabbily.

Third, Bruce refers to what he calls “the allegations” against Hawks number three General Zinhle Mnonopi made by Mcebisi Jonas in the Zondo Commission hearings. Not only does her denial of wrongdoing ring hollow, Jonas certainly appears truthful. He may have been naïve to accept the invitation to visit Saxonwold, but, by the time he met the general he had wised up sufficiently to take a heavyweight attorney with him to the meeting.

The attorney is certain to confirm the version deposed to by Jonas, and that means, if justice runs its course, the general will be found guilty of attempting to defeat the ends of justice. Whether she will go the same way as Dina Pule, Bheki Cele and a host of others who, by reason of their political connectivity, enjoy impunity against investigation by the Hawks or the police, remains to be seen. The rot is deep and wide.

Although the president weighed in after Bruce wrote his commentary, it is instructive to take note that in his announcement of the Economic Stimulus and Recovery Plan on 21 September 2018, President Ramaphosa claims that since February he has “taken decisive steps to rebuild investor confidence, end corruption and State Capture, restore good governance at state-owned enterprises and strengthen critical public institutions”.

Really?

While he is right to juxtapose investor confidence with the need to end corruption, he is wrong to say that steps to end corruption have in fact been taken. It is very much “business as usual” in the Hawks, the NPA and the police. Mnonopi has, for example, been suspended, not criminally charged. Having known since December last year that he will have to find a suitable successor to the hopelessly unsuitable Shaun Abrahams, the president has yet to announce his pick.

Instead an obscure acting appointee lingers ineffectually, but briefly, at the desk vacated by Abrahams in August. Nothing has been done to move the anti-corruption machinery of state away from the malign influence of the crooked cadres in police leadership and from the tender mercies of Cele’s political control which has given us the “shoot to kill” meme of a remilitarised police service for the people, which is morphing into a force used against protesting people.

The Anti-Corruption Task Team, an unconstitutional invention of the Zuma administration, rumbles on, all to no good effect. No recoveries of stolen loot have been made and arrests of suspects in grand corruption or State Capture cases are few and far between. The Guptas have been allowed to flee to safe havens in India and Dubai. Only Jacob Zuma faces trial, and that for his hijinks with Schabir Shaik which occurred long before the State Capture project hatched by the Guptas even commenced.

If President Ramaphosa is serious about “ending corruption”, as he puts it, government will have to create a strong purpose-built public institution to do the work at hand. He says so himself, but he does nothing. An institution free of the infestation of cadre deployment, richly imbued with all of the characteristics laid down by our highest court in 2011, but ignored by the legislature, the executive and even the judiciary ever since.

If the ANC leadership is too compromised and conflicted to take this vital step, the court could be asked to step in to remedy the legal situation. The electorate could lose all patience with the corrupt in high office by voting them out.

The elephant in the room is that while the court has clearly spelt out what needs to be done to “end corruption” no one in government is doing anything to implement the steps necessary to do so.

Talking about it is not a “step”; creating the right machinery for the job is what is needed, but no political will to do so is in evidence, yet. DM

Paul Hoffman SC is a director of Accountability Now. He was the amicus curiae in Glenister I, lead counsel in Glenister II and again in Glenister III at High Court stage.

Opinion editorial published in the Daily Maverick on 25 September 2018.

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