Critical action needed to keep South Africa afloat on its pool of corruption

by | Oct 7, 2021 | Chapter 9, General | 0 comments

Opinionista • Paul Hoffman • 28 September 2021

No one is suggesting that the Hawks are the answer to the problem of corruption with impunity. The National Executive of the ANC has required Cabinet ‘urgently’ to set up a new permanent entity that has its tenure protected. The Cabinet has done nothing to execute on this instruction, despite ANC adherence to ‘democratic centralism’ as was explained by the president to the Zondo Commission.

During recent public engagements, the team at Accountability Now has found itself unpacking the “Stirs criteria” to a wider audience than those who are regular consumers of its written output. Those familiar with the acronym will already know that it describes, in the shortest possible way, the criteria by which the effectiveness and efficiency of the anti-corruption machinery of state must be measured.

“Must” is the right word because these criteria have been laid down (and confirmed in later litigation) by the justices of the highest court in the land, our Constitutional Court in Braamfontein. Decisions of the courts are binding on those to whom they apply; in the cases concerned, now known as the “Glenister litigation” the majority of the justices bound government to comply with the Stirs criteria.

Stirs stands for specialised, trained, independent, resourced, and secure in tenure of office.

The acronym was invented for a presentation made at an Ubuntu Breakfast of the Amy Biehl Foundation that was held in 2011 in Woodstock, Cape Town, shortly after the judgment in Glenister II was handed down. The acronym did not feature in the accompanying slides because it was conjured up in the adrenalin-fuelled final preparations for that presentation.

The difficulty faced by anyone seeking to unpack the Glenister judgments is that they are lengthy and contradictory; except in Glenister I. In this case, the court unanimously decided that it was premature of Mr Glenister to seek to impugn the 2007 Polokwane resolution of the ANC and the government’s plans to dissolve the Scorpions unit of the National Prosecuting Authority which was tasked with the type of anti-corruption work that found Jackie Selebi, Schabir Shaik, Tony Yengeni and Jacob Zuma in the crosshairs of the NPA armoury of the time.

With the benefit of hindsight, the court would have done well to strike down the plan as irrational and not one that serves any legitimate purpose of government. The deference due by the courts to other branches of government precluded that option on the facts then available. Had the Scorpions survived, it is unlikely that State Capture would have been as bad as the evidence at the State Capture Commission (SCC) reveals and it is improbable that Jacob Zuma would have become president.

In Glenister II there were two judgments in March 2011, the main judgment of the minority four justices and the majority judgment which binds the state to the Stirs criteria.

In Glenister III, the case revisiting of the scheme according to which the Hawks operate and are structured, there were several judgments, three of which were minority judgments by dissenting judges on some aspects and one of which, penned by the Chief Justice in November 2014, is the binding judgment of the court of that year.

It is salutary to note that all of the justices who sat in Glenister III will have retired by the time any follow-up litigation that may be required is heard in the Constitutional Court, with the possible exception of Justice Mbuyiseli Madlanga, who was one of the dissenters in 2014. All of the justices in Glenister III were agreed that the Stirs criteria must be applied. Their judgments, like those in Glenister II, are long and wordy, but the take-home message is loud and clear, as appears from the language used. Two examples suffice:

In Glenister II, the 2011 case in which the court decision was split 5-4, the majority remarked that “corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order.”

The position was stated more trenchantly in Glenister III in the Chief Justice’s majority judgment (he had dissented in Glenister II, but was obviously zealously converted by the time he wrote these words):

“… 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.”

The reference by the learned Chief Justice to being “in one accord” is a reference to the entire court sitting in Glenister III. Those who dissented, unlike the dissenters in Glenister II, all agreed with the sentiments expressed by the Chief Justice that an agency is needed to contain corruption, one that is, in short, Stirs compliant.

The Glenister litigation is discussed somewhat misleadingly on page 48 of the National Anti-Corruption Strategy document published by government. The Stirs criteria are however acknowledged as a fair summary of the findings referred to above.

The problem today is that the scourge of corruption is burgeoning in SA; containment is not being effected and the “eventual eradication” remains nothing more than an aspiration of a binding kind. The evidence given at the SCC is damning, as is the investigation of ‘covidpreneurism’.

No one is currently suggesting that the Hawks are the answer to the problem of corruption with impunity. The National Executive of the ANC has required Cabinet “urgently” to set up a new entity that is both permanent and Stirs compliant. The Cabinet has done nothing to execute on this instruction, despite ANC adherence to “democratic centralism” as was explained by the president to the SCC when he gave his evidence.

The IFP has called for the establishment of the Chapter Nine Integrity Commission that Accountability Now has been championing for a decade. Archbishops Desmond Tutu and Thabo Makgoba support the notion, as did the late Kader Asmal, an ANC grandee. Professor Thuli Madonsela, whose experiences as Public Protector eminently qualify her to have an opinion, has said that the idea is a good one. Vusi Pikoli, a former National Director of Public Prosecutions, supports the notion too. The DA is on board, save that it prefers not to transfer prosecutorial functions to the new entity. Well, not yet anyway.

Accountability Now, disturbed by official acceptance of the ongoing unconstitutional and obviously inadequate structures and measures in place, has taken the unusual step of preparing suggested draft legislation to bring about what the court has ordered government to do, with due regard to the circumstances now prevailing.

The court will not be prescriptive about the new dispensation. It expects no more than the reasonable decision of a reasonable decision-maker in the circumstances. The current circumstances being rampant corruption, inadequate Hawks investigations, a hollowed-out and sabotaged NPA (their own self-description) and impunity for those involved in serious corruption, all militate against allowing the status quo to continue. To do so is to regard the directions of the court and its Stirs criteria with contempt.

It is fervently to be hoped that all concerned, across all political divides, will unite in addressing the scourge of corruption without consequences in SA. The prospects of recovery from the pandemic, the creation of investment opportunities, more jobs and life-giving business confidence all hinge on countering corruption effectively and on raking back the not inconsiderable loot too. 

Grinding poverty and exacerbated inequality in the new SA can be addressed in this way. The rights guaranteed to all in the Bill of Rights can hardly be delivered while the looting continues and while so little is done to recover the loot and use it to promote the public weal.

Accountability Now has taken the national horse to water by producing its suggestions for remedial legislation for debate in Parliament. If the horse will not drink voluntarily, it will be necessary to return to the Constitutional Court on the issue for a fourth time, this time to complain that government is in breach of the binding Stirs criteria (which seems to be common cause) and should be held in contempt of court for its failure, over the years of State Capture and covidpreneurism, to address what needs to be decided by reasonable decision-makers in the circumstances that now prevail as a matter of urgency if not national life and death.

Kicking the can down the road endlessly because Cabinet perhaps feels beholden to crooks involved in grand corruption is no excuse for failing to comply with the binding decisions of the court. It is not enough to set up an unnecessary advisory council (as contemplated both in the National Anti-Corruption Strategy and in the Sona of 2021) when all the council can possibly do is “advise” that the decisions of the courts bind government to put Stirs-compliant machinery of state in place.

Mark Heywood, editorialising in Maverick Citizen on 21 September 2021, has described the offering of the draft legislation as follows:

“… do we need a new Chapter Nine Integrity Commission, as proposed by Accountability Now: ‘[without] a specialist body to prevent, combat, investigate and prosecute the corrupt, the downward spiral will take the country to oblivion.’ Accountability Now argues that ‘Only a specialised and well-trained Chapter 9 Integrity Commission, that is independent, well-resourced and secure in its tenure of office, will have the power to bring the corrupt to justice.’ Several judges and senior lawyers I spoke to, who worry about the fatal weaknesses in current institutions, agreed with this approach.

“In a clever act of advocacy, Accountability Now have already developed and presented an example of a draft Bill to set up an Integrity Commission to Parliament, which Parliament has studiously ignored — violating the constitutional spirit of public participation.”

It is, unfortunately, true that a month has flown by since the drafts were submitted to the presidency and to the appropriate committee in Parliament. The latter, despite repeated requests, has not so much as acknowledged receipt; the former has, but there has been no substantive response.

The presidency’s press release in response to damning Afrobarometer findings on the perceptions of corruption in SA put out on 20 September 2021 is somewhat underwhelming. It is really nothing more than confirmation that some serious and urgent action is required if failure as a state due to the ravages of corruption is to be avoided. This time in our history is not one for “fiddling while Rome (or KZN or Gauteng) burns” it is a time for action, reform and the renewal of the new dawn promised in 2018, but not yet in evidence.

It is understandable that politicians are currently preoccupied with local government elections. The first order of business after 1 November’s vote has been taken must be addressing the proper implementation of the Stirs criteria.

The National Anti-Corruption Strategy is quite wrong to suggest that these criteria are for the Hawks, they are in fact for specialists who are well trained, independent, properly resourced and secure in their tenure of office. The Hawks are none of these and everyone knows it.

A new entity has been called for by the NEC of the ANC. It seems to be on the same page as that on which the courts have written in words that bind the state. How difficult can it be to do what the NEC requires of Cabinet?

With cross-party cooperation, the reforms so urgently needed could be in place in a matter of months. The only missing ingredient is the political will necessary to make it all happen. Active citizens who participate in their constitutional democracy have a role to play in kindling the necessary will. All active constitutional democrats in SA will know what, according to their talents, connections and preferences, they can do to help save their country from the corrupt.

Inaction is not an option; doing nothing is an invitation to destroy the hopes of “the better life for all constitutional democracy” promises. Remaining passive increases the risk of failure as a state and all its attendant misery. At a minimum, asking government what it is doing with Accountability Now’s draft suggested legislation is within the power of all who can write a letter or an email. Eternal vigilance is the price of freedom.

Accountability Now relies on the support of those who do value their freedom to say out loud: “Mr President, what are you actually doing to stop corruption killing us?” DM

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