It is interesting that in the week in which the nineteenth anniversary of the attainment of freedom in South Africa is celebrated, President Jacob Zuma feels the need to defend the track record of the ANC government on corruption.
The President is quite right to make the connection between the ravages of corruption and the tardiness in delivery of those rights that affirm the freedom of the previously disadvantaged by progressively affording them access to a better life. This happens through delivery of health care, housing, social security and other rights guaranteed to all in the Bill of Rights. The progressive realisation of these rights is dependent upon the available resources of the state. The state itself is obliged to promote and fulfil all of the rights in the Bill of Rights. But delivery of those socio-economic rights that are subject to progressive realisation in the light of such resources as are available to secure their delivery is not going to lead to the celebration of freedom in any meaningful way if delivery is constantly postponed, as it is, because of capacity constraints and shortages of resources brought about by corruption.
The Constitutional Court has said its say on this topic. In the Glenister case it remarked, on 17 March 2011:
“The need and rationale for combating corruption
 There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
It has been estimated by Tendersure that since the dawning of democracy in SA an amount in excess of R675 billion has been lost to corruption. Late in 2011 Willie Hofmeyr, then head of the Special Investigations Unit (SIU) and Assets Forfeiture Unit, told parliament that in the state tender system alone between R25 and R30 billion a year goes to waste on corruption. Now, the new leadership of the SIU tells parliament that it only has the resources and human capacity to investigate corruption to the value of R500 million in the year ahead. Parliamentarians were suitably unimpressed, but they did nothing about it beyond making clucking noises. Medical aid investigations suggest that fraudulent claims to the value of R22 billion a year are present in the health care sector.
The truth is that there was a chance last year for Parliament to take the opportunity to address the scourge of corruption comprehensively and appropriately. This it elected to avoid. The occasion was the consideration of remedial legislation it was required to pass in order to give effect to the majority judgment in the Glenister case. The court had ordered parliament to take remedial steps to create an anti-corruption entity (Ace) which is sufficiently independent of political inference and influence to efficiently and effectively do justice to the business of conquering the corruption that “threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order.” An Ace outside of executive control was advocated in the judgment by the majority of the justices hearing the case. They said:
“As we have already pointed out, corruption in the polity corrodes the rights to equality, human dignity, freedom, security of the person and various socio-economic rights. That corrosion necessarily triggers the duties s 7(2) imposes on the State. We have also noted that it is open to the State in fulfilling those duties to choose how best to combat corruption. That choice must withstand constitutional scrutiny. And, even leaving to one side for a moment the Republic’s international-law obligations, we consider that the scheme of our Constitution points to the cardinal need for an independent entity to combat corruption. Even without international law, these legal institutions and provisions point to a manifest conclusion. It is that, on a common-sense approach, our law demands a body outside executive control to deal effectively with corruption.”
Instead of paying heed to these wise words, the executive presented parliament with a tweaked version of the Hawks, our Priority Crime Investigation Unit, which is part of the police and remains so under the tweaked format. The police service is led by a presidential appointee, the Chief of Police, currently a trained social worker called Rhia Phiyega, previously a politician called Bheki Cele and before him the now disgraced Jackie Selebi.
Ignoring all entreaties by civil society organisations and individual who made representations, the parliamentary committee steadfastly turned its back on any suggestion that the remedial steps could not possibly be properly carried out while the Hawks remained under the control of the Chief of Police who in turn answers to a politician in the form of the Minister of Police. All but one of the representations made to the committee did not favour the retention of the Ace in the SAPS structures. It was suggested that the executive was trying to make a silk purse out of a sow’s ear. All to no avail. The committee was not prepared to countenance sending the executive back to the drawing board. Its dominant ANC members shuddered at the thought of even considering so career limiting a move.
With regard to the Secrecy Bill, the same theme has been re-enacted in the very week in which the nation celebrates its freedom. This is shameful. Those in the ANC who do not see the need for so draconian a bill are silenced by the discipline of the whips and by the fear of losing their comfortable jobs in parliament if they publicly voice their objections. The Secrecy Bill is no more and no less than a charter for corrupt political actors to use its provisions to hide the corruption that is in the process of eroding the freedom of the nation. This threatens to turn us from a prosperous, peaceful and free people into victims of a failed state. The absence of a public interest defence in the bill must surely render it unconstitutional, given that our highest court has already expressed the sentiments quoted in full above. The idea that the Court would endorse a charter for the corrupt, having so recently expressed itself so firmly about the evils of corruption, is laughable.
There is a way of testing the sincerity of the words mouthed by the President in his defence of the anti-corruption stance of the ANC. He can refer the Secrecy Bill to the Constitutional Court to get its endorsement of the constitutionality of its provisions. If he does not do so, the hollowness of what he and his supporters say about fighting corruption will be exposed. Instead of getting a swift and sure answer from the Court, whose function it is to declare invalid any law that is inconsistent with the constitutional values we have embraced as a nation, there will, of necessity, be a long and drawn out process of litigation that will in any event end in the Constitutional Court. Ask Mr Glenister, he has had to do so twice. The Scorpions were given the chop at Polokwane in 2007 and we are still without a suitable successor to them. Their very existence is ignored in the much vaunted national development plan, as is the Glenister judgment. A Stalingrad strategy on the Secrecy Bill (to match the same strategy on the Hawks legislation) will tell the discerning public all it needs to know about the ANC’s professed commitment to fighting corruption. Just join the dots.
Paul Hofffman SC
28 April 2013.