A webinar this week on the future of democracy ‘post Zondo’ was marked by the avoidance of any serious discussion of the law and the Constitution as both apply to dealing with serious forms of corruption that have degenerated into rampant kleptocracy.

On 22 June 2023 the Human Sciences Research Council held a hybrid webinar titled “Post Zondo: The Future of Democracy.”

The keynote speaker was Chief Justice Raymond Zondo, who chaired the Commission of Inquiry into State Capture. He confirmed that constitutional democracy under the rule of law is definitely at risk in SA in the wake of his findings of the endemic and peculiarly local forms of State Capture to which the country has been subjected by the leadership of the ANC and in particular, Jacob Zuma, who was singled out for severe judicial criticism for the nature of his relationship with the Gupta brothers.

The learned Chief Justice is in good company. Judge Dennis Davis, a professor at the UCT Law School, has recently penned an article called “Autocratic legalism: The South African Experience.” In it, he remarks that:

“It is now widely predicted that the ruling party will seek a coalition with a profoundly anti-constitutionalist party, the Economic Freedom Fighters (EFF).

“This then is the likely scenario for 2024 when a new national election must take place. If current opinion polls are accurate (which reflect that the ANC may struggle to obtain more than 45% of the electorate), autocratic legalism (i.e. the exploitation of legal reforms and doctrine to undermine the rule of law) is in sight. An increase of appointments to the judiciary of those deeply sympathetic to a populist project can be projected. Protection of private property can be severely weakened so that arbitrary confiscation can take place.

“In addition, the nationalisation of the Reserve Bank and arguably commercial banks will be implemented, as well as the eschewing of any private sector involvement in the reconstruction of the crumbling infrastructure of the country, notwithstanding almost non-existent public resources.

“The present constitutional project will be dismantled, supported no longer simply by a small vocal minority but by the government of the day, under a discourse that the Constitution is a Eurocentric construct…”

The colloquium was opened by a communist Cabinet minister, Blade Nzimande, who was quick to raise the question of whether State Capture was caused by the decision of the Mbeki Cabinet to follow the Washington Consensus. So neat to blame the Yanks for the greed and lack of integrity of the leadership of the ANC. Needless to say, the views of Judge Davis received nary a mention.

This strange state of affairs was made more curious by the avoidance of any serious discussion of the law and the Constitution as both apply to dealing with serious forms of corruption that have degenerated into rampant kleptocracy, organised crime syndicates and the capture of all of the fattest state-owned enterprises by those intent on repurposing the state to serve their greed and that of fellow travellers on the gravy train, up to their elbows in the gravy.

The Constitution requires the state to respect, protect, promote and fulfil a wide range of human rights guaranteed to all in the Bill of Rights. These tasks are impossible when public funds are frittered away by the denizens of State Capture. It is for this reason, and also to comply with our international anti-corruption treaty commitments, that the courts have insisted on a high standard of effectiveness and efficiency for the anti-corruption machinery of state in SA.

The Stirs criteria set in the Glenister litigation (specialised, trained, independent, resourced and secure in tenure) are well known to the public and they are binding on the state. It is obliged, in the structuring and operational functioning of the anti-corruption entity, to implement the criteria so set.

If that had been done during the Zuma years State Capture would have been a non-event. That it has not been done since the Zuma years ended in 2018 is a disgrace that needs to be addressed if the risks to the continuation of the form of democracy spelt out in the Constitution are to be avoided in the future.

It is neither controversial nor unusual to expect a party on the receiving end of decisions of the courts to comply with those decisions. Yet, in the structure and operations of the anti-corruption machinery in place since the start of the first Zuma presidency, very little has been done to comply with the criteria set in the Glenister rulings.

The colloquium appeared to do its best to avoid any serious discussion of this disastrous omission. Nobody suggested that the Hawks have it in them to be Stirs compliant. Nobody would.

The unspoken reason is not hard to find. Cabinet labours under the false impression that the minority judgment in Glenister 2 is the majority judgment and accordingly reflects the law applicable, free of any mention of the Stirs criteria. All attempts to set the record straight with those involved have been rebuffed.

Instead, Cabinet plans to elevate the puny Investigating Directorate in the National Prosecuting Authority to what it calls “permanent” status, up from serving at the pleasure of the president under a proclamation that gave birth to the ID.

This is not constitutional, it won’t be effective and any possibility of efficiency is remote. The “permanent” ID, if it is, as planned, a creature of an ordinary statute, will be liable to closure in the same way as the Scorpions were closed by a simple majority in Parliament. This is not the stuff of which secure tenure of office is made, yet the term “secure tenure of office” was not heard all day at the colloquium.

Keeping the anti-corruption entity within the NPA is also problematic. The NPA is under the “final responsibility” of the minister of justice and its accounting officer is the director general of justice. This is not the stuff of which independence is made. Yet the courts require for good and obvious reasons that the anti-corruption entity must be independent of executive control, influence and interference. This cannot be achieved as long as it remains a unit within the NPA.

The only glimmer of light in this regard came from Professor Firoz Cachalia, who was door-stopped by programme director Ferial Haffajee on the topic of the progress being made by the National Anti-Corruption Advisory Council which he chairs.

While remaining generally non-committal the learned professor did indicate that his council is alive to the need to comply with the rules laid down in the Glenister litigation, as summed up by Chief Justice Mogoeng Mogoeng:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

“We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The best way to implement the Stirs criteria would appear to be the establishment of a new Chapter Nine body to prevent, combat, investigate and prosecute serious corruption cases of all kinds, including organised crime, which, as former NDPP Vusi Pikoli pointed out, is just another form of corruption. The Chapter Nine institutions report to Parliament, not the executive, and they enjoy greater security of office than the NPA.

The colloquium did not get as far as discussing the implementation of the Glenister rulings, which is a pity as it is urgent that steps be taken in the current Parliament to effect reforms which the next parliament may not be able to effect for the reasons set out by Judge Davis.

There is always the Pari/Casac webinar in October to look forward to for progress in the necessary public debate on the overdue reform of the criminal justice administration to render it both constitutionally compliant and fit for purpose, a state of affairs that has not been in place for years, if ever. DM