According to a press report, on 19 February 2019 President Cyril Ramaphosa again vowed his government would recover money stolen through State Capture and bring those involved to book when he addressed the National House of Traditional Leaders in Parliament. He also touched on a need to strengthen Chapter 9 institutions. He said this was necessary in the fight against corruption and to ensure checks and balances in a democracy. While both of these statements are welcome, they both require interrogation.
Many experts in the field of debt recovery are by now cynical about the prospects of recovering the loot stolen through State Capture. Too much time has elapsed since the misappropriations took place, too little energy is being devoted to civil debt recovery proceedings both in and outside the country, too few freezing orders have been sought and obtained and no loot has yet been declared forfeit to the state.
Some of the looters have already fled the country, probably tipped off by corrupt elements in the criminal justice administration, and others are proving hard to find, whether inside the country or elsewhere.
No attention is given to the civil remedies available worldwide to facilitate recovery of the loot. Instead, the Hawks, who only investigate priority crimes, and the SIU, severely capacity constrained, have been tasked with recovering the loot. No civil proceedings are pending, no attempts have yet been made to civilly freeze assets squirrelled away by the looters, no following the money with the help of international agencies specialising in the field has taken place and no political will at the coal face is in evidence yet.
Not only has the letter gone unanswered, nothing has been done to take the simple steps suggested. Efforts to interest the SIU in civil debt recovery processes have been made, all to no avail.
It is possible that a lack of the specialised skills required in officialdom is to blame for this serious omission. There is no good reason for not seeking outside help, which is readily available. It is the bread and butter business of the US Homeland Security agency and the Serious Frauds Office at Scotland Yard to deal with recovery of proceeds of crimes like State Capture. They stand ready to help, in accordance with the interventions by the US, UK, German, French and Swiss ambassadors to SA.
It is possible that the lack of political will to take the civil action needed to freeze funds is based on fear of reprisals from the looters, many of whom still haunt the corridors of power. Then there is the issue of treating the R40 million donated to the ANC by Bosasa as an illegal transaction, reversible at the instance of the liquidators of Bosasa in the interests of its creditors, who are mainly the long-suffering taxpayers of SA. At present the ANC is unable to pay to keep its website going, its ability to repay the sum of R40 million in an election year is therefore also questionable.
The Minister of Public Enterprises, when approached in relation to recovering the loot stolen from Eskom, Transnet and other SOEs demurred with a “we have processes we must first follow” type of dilatory response.
If the processes involve tenders from debt collectors, call for them; if they involve commissions of inquiry, don’t wait for their reports; if they involve the ability to vasbyt, then nyamezela! Without the necessary political will and leadership required, nothing will be done to recover the loot. The suspicion that the ANC has become a criminal enterprise will be reinforced and its ability to govern will be completely undermined.
The words of the President will be revealed as more ‘smoke and mirrors’ talk with no concomitant action, an action which is already overdue and is certainly required now. There is no rocket science involved in recovering the loot: let the international debt collectors loose and take advantage of the lower standard of proof required in civil proceedings for debt recovery. Freeze accounts wherever they are found and do so swiftly, secretly and ruthlessly without fear or favour.
The presidentially proposed strengthening of Chapter 9 Institutions, in order to secure checks and balances on the exercise of political power, is most welcome. These institutions are all constitutionally required to act without fear, favour or prejudice. With their independence secured in this and other ways, they could become a source of reinforcement of the integrity needed to govern in the manner contemplated by the Constitution: openly, accountable and responsively.
There is more than a need for the proper resourcing of the Chapter 9 Institutions. Their independence needs to be audited. Patronage appointees, deployed cadres of the National Democratic Revolution and slackers should be ruthlessly eliminated from all these institutions. Loyalty to the revolution conflicts with the constitutional independence required.
A new Chapter 9 Institution, the Integrity Commission, tasked with the prevention, combating, investigation and prosecution of grand corruption, State Capture and kleptocracy, is the first and best way to strengthen the hand of Chapter 9 Institutions and to bring the looters to book in our criminal courts. There is already in existence draft legislation that can be processed for the purpose of creating an anti-corruption body of this kind. This will ensure proper compliance with the rulings of the courts in litigation aimed at securing effective and efficient anti-corruption machinery of state that is adequately independent. The president, and anyone else interested in beefing up Chapter 9 Institutions may visit the Glenister case page on www.accountabilitynow.org.za for more information and the draft legislation on the topic. The report prepared by the late Professor Kader Asmal, with the assistance of Professor Pierre de Vos, should be dusted down and reconsidered in order to rationalise the various Chapter 9 Institutions. Better use of scarce public resources is appropriate in these times of fiscal belt-tightening.
The most heartening aspect of what fell from the lips of the President in Parliament is his acknowledgement of the need for checks and balances on the exercise of political power. This puts him firmly in the constitutionalist camp in the ANC and sets him against those who still misguidedly seek “hegemonic control of all the levers of power in society” in accordance with the revolutionary tenets that really have no place in a constitutional democracy under the rule of law, one in which the separation of powers holds pride of place. A free media, an impartial judiciary and the full enjoyment of the rights and freedoms guaranteed to all in the Bill of Rights are also hallmarks of the intended new order in SA. It is an order in which there is no room for revolutionary claptrap of the “hegemonic” kind that does not countenance checks and balances on the exercise of political power.
The first test of the presidential resolve to strengthen Chapter 9 Institutions will arise in the Justice Portfolio Committee of the National Assembly later this month. The committee has the fitness for office and competence of the Public Protector coming up for debate. If the ANC continues its long filibuster on this issue, know well that the president was not being sincere; if the merits of the matter are tackled, take heart – the Constitution will be upheld in a manner consistent with the oath of office of those in the debate and those who lead them politically.
Quite apart from her competence, which is under attack by the Democratic Alliance, the committee has before it a complaint about the lack of integrity of the Public Protector, whose prima facie mendacity remains unexplained by her and unaccounted for by the committee which received the complaint more than two years ago and has yet to respond to it. The complaint is accessible online here.
The first test of the credibility of the professed presidential resolve to strengthen Chapter 9 Institutions will come rather sooner than he may have anticipated. Here’s hoping he passes it will flying colours. DM
Paul Hoffman SC is a director of Accountability Now.
As long ago as 12 October 2018, Accountability Now wrote to the Minister of Finance, Tito Mboweni, in the following terms: “One of the aspects of State Capture which needs urgent prioritisation by your ministry is the recovery of public funds and assets misappropriated and taken off-shore by the perpetrators of State Capture. There appears to have been a lack of political will, or perhaps the necessary expertise, to effect recovery of public wealth squirrelled away by miscreants. If necessary, engage outside expertise, readily available in SA, to follow the money and recover it wherever it may be found. Huge recoveries can and should be effected to swell general revenue. The SWIFT banking system and the Reserve Bank’s IT make it possible to track funds if the political will to do so can be mustered. The longer this task is left unattended, the harder it will be to track down and recover funds.”