By Paul Hoffman
It is legally inappropriate to locate the anti-corruption machinery of state within the National Prosecuting Authority while it remains structured as it is at present, and while it is infested with saboteurs.
Stephen Grootes has written an excellent review of the lack of political will of the ANC to effect long-overdue and seriously necessary reforms of the criminal justice system. These are the types of reforms that will capacitate it to deal with serious corruption and organised crime, be it in the form of State Capture, tenderpreneurism or kleptocracy.
Three additional points need to be made about the apparent paralysis of the executive around the topic of countering the corrupt.
First, there is a fundamental difference between the findings of a court of law and the recommendations of any commission of inquiry appointed by the President to do the work of the executive branch of government on the topic of the inquiry. The difference is that the court findings are binding on those to whom they apply. This fact appears from Section 165(5) of the Constitution, our supreme law. It reads:
“An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”
The findings of fact and the recommendations of a commission of inquiry bind no one. They may be, and frequently are, taken on judicial review and may be set aside or corrected by the courts that are seized of the review proceedings.
When, on the other hand, a court of law has finally pronounced on a dispute adjudicated by the judiciary, the order or decision issued by the courts is final and binding. While avenues of appeal are open to litigants who litigate their disputes, there is no appeal from the final decision of the Constitutional Court, which is our apex court.
When that court has pronounced upon the issues brought to it, in the absence of a demonstrable error on its part, the pronouncement is final and binding on the parties to the case.
In the Glenister litigation, the issue taken to the Constitutional Court was whether or not the then-new anti-corruption machinery of the state and its operational parameters were adequately compliant with the Constitution after the Scorpions were hastily closed down by the incoming Zuma government.
The plan was to separate the investigation of corruption from its prosecution. The Hawks were called into being to do the investigation. They have failed to do so effectively and efficiently as required by Section 195(1)(b) of the Constitution. This is common cause now; government seeks to move the investigative work required to the National Prosecuting Authority (NPA) via an amendment to the existing legislation commonly called the Idac Bill (Investigating Directorate Against Corruption Bill).
Our Bill of Rights requires the state to respect, protect, promote and fulfil the rights guaranteed to all in it. This is an expensive exercise which cannot be carried out when the coffers of the state are being looted on the grand scale seen in South Africa in recent years.
In this way, fighting corruption becomes a human rights issue because the state is unable to deliver the services needed to give effect to the Bill of Rights when its resources are being diverted into the pockets and foreign bank accounts of the corrupt.
The Constitution further requires the state to be bound by international agreements concluded by the national executive after they have been approved by a resolution of both the National Assembly and the National Council of Provinces. This is all set out clearly in Section 231 of the Constitution.
Among the international agreements that bind SA is the UN Convention against Corruption. Article 5 of the Convention reads as follows:
Article 5. Preventive anti-corruption policies and practices
- Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.
- Each State Party shall endeavour to establish and promote effective practices aimed at the prevention of corruption.
- Each State Party shall endeavour to periodically evaluate relevant legal instruments and administrative measures with a view to determining their adequacy to prevent and fight corruption.
These provisions, taken together with the Bill of Rights, informed the decision of the majority of the court in the Glenister litigation. The nub of its binding decision has been accurately summarised by the minister of justice in his media release that accompanied the release of the text of the wholly inadequate reform currently proposed by the Cabinet.
He said his Bill “creates a specialised entity within the National Prosecuting Authority staffed with trained individuals who enjoy the requisite level of independence, resources and security of tenure to tackle corruption head-on”.
In fact, the Bill falls far short of what is required in law.
Any failure to have proper regard for the criteria the minister lists would undermine the important work of the National Anti-Corruption Advisory Council and imperil efforts to counter corruption in the various ways recommended by Chief Justice Raymond Zondo.
This brings us to the second point of criticism of the Stephen Grootes article. He makes no mention of the National Anti-Corruption Advisory Council (Nacac). This council was appointed by the President in August 2022 to “work alongside government to prevent and stamp out wrongdoing” (as the President put it).
Under the leadership of its chair, Prof Firoz Cachalia, the members of Nacac and their researchers are hard at work preparing a report due for delivery to the President early next year; certainly before the general election likely to be held in May, or at least before August 2024.
Either Grootes has implicitly dismissed Nacac, characterising its creation as a means of kicking the can down the road when it comes to initiating the reforms actually needed, or he has no faith in the ability of Nacac to cleave to the law and insist upon compliance with the binding criteria mentioned by the minister of justice as quoted above.
It is true that Prof Cachalia managed, during a PowerPoint presentation at a conference in the last week of October 2023 held under the auspices of Pari and Casac, and lasting more than half an hour, to avoid any reference to the binding Glenister criteria. This omission is worrisome but can be corrected when Nacac reports.
It is not as though the ANC is unaware of or blind to the binding Glenister criteria. As long ago as August 2020, after the “New Dawn”, its National Executive Committee passed a resolution instructing Cabinet to prepare, as a matter of urgency, legislation establishing a permanent, stand-alone, independent anti-corruption body able to act without fear, favour or prejudice.
The best Cabinet has been able to come up with since then is the miserably inadequate Idac Bill, which, in essence, recreates the Scorpions. The Achilles’ heel of the Scorpions is that they were too easily closed down. As a creature of an ordinary statute, the repeal of that statute required no more than a simple majority in Jacob Zuma’s first Parliament.
The new Idac, to be upgraded from a mere creature of a presidential proclamation to a statutory body, suffers from the same disability as the Scorpions as regards secure tenure of office.
The recruiting of suitably skilled staff to Idac will be bedevilled by this flaw in its makeup. Only the most idealistic or ill-advised personnel will regard it as “permanent”, all puffery on the part of the executive aside.
The net result of this will be that Idac will fail because the right experts will shun working for it. It is also likely to be attacked for its lack of constitutionality because it lacks the necessary independence for its staff. It also does not enjoy guaranteed resources, as required by the Glenister decision.
The third and final point not raised by Grootes is that the failure of government to properly implement the Glenister criteria is actionable in law. The executive is bound to implement court decisions that apply to it. The legislature at national level is constitutionally obliged to ensure, by maintaining proper oversight, the implementation of legislation.
The remedial legislation considered in the Glenister cases was passed to make the law comply with the court decisions. These requirements are all spelt out in Section 55 of the Constitution.
What is clear is that the ingredients of the constitutionally compliant anti-corruption machinery of state have been prescribed by the courts.
The attempts by government to comply with the court order have failed so dramatically that State Capture, kleptocracy and grand corruption are rife in South Africa and have been for more than the decade that has passed since the court ruled in Glenister 2 on 17 March 2011.
It is clear that the location of corruption investigation in the SAPS (in the form of the Hawks) has failed and that it is necessary to relocate that function. The national Cabinet wishes to relocate it within the structures and operations of the NPA, which has been devastated by State Capture.
“Saboteurs” (the description coined by Shamila Batohi, the National Director of Public Prosecutions) lurk in the corridors of the NPA – their function is to undermine its efforts to counter serious corruption. The NPA remains under the final responsibility of the minister of justice and he must concur in prosecution policy.
The NPA is run as a programme within the Department of Justice and its accounting officer is the director-general of justice. None of these features is compatible with the rulings in Glenister 2. It is accordingly legally inappropriate to locate the anti-corruption machinery of state within the NPA while it remains structured in the manner described above and while it is infested with saboteurs.
These circumstances ought to be taken into account when fashioning remedial legislation.
If the Ramaphosa government is unable to get to grips with the factors outlined above, it will become necessary to litigate the failure of the state to comply with the “loud and clear” binding ruling of the courts as they appertain to the structure and operations of the anti-corruption machinery of state of South Africa. That litigation will have all the hallmarks of shooting fish in a barrel.
In the 2024 elections, no voter should vote for a party that is not clearly committed to the proper implementation of the Glenister decisions.
All political parties should make their positions on the matter clear in their manifestos. Corruption will continue to bedevil peace and progress, jobs and service delivery in South Africa while properly tackling the corrupt is left in abeyance.
The lack of political will to do the right thing in countering the corrupt that is evident in the ANC is due to the prevalence of corruption in its upper ranks.
Frank Chikane has bravely called out the ANC leadership on this topic and seeks to clear the upper deck of the ANC of its corrupt officials. If he succeeds, the paralysis may be eased sufficiently for the ANC to support the reforms suggested by the DA in the private members’ bills it is piloting through Parliament for the establishment of a Chapter Nine Anti-Corruption Commission.
The DA graciously admits that its bills are based on those put into the public domain by Accountability Now in August 2021, after it became apparent that the Cabinet was ignoring, or at least not acting on, the resolution of the NEC of the ANC taken in August 2020.
A proper debate on the issues is long overdue.
Parliament, which has the power to initiate legislation, owes it to the people of South Africa to hold that debate now, whether before or after it rejects the Idac Bill because it is unconstitutional. DM