Paul Hoffman, director of Accountability Now, attended yesterday’s address to the Cape Town Press Club by Glynnis Breytenbach, the shadow justice minister of the Democratic Alliance (DA) where she shared how to beat corruption and reform SA’s broken criminal justice system. Hoffman, a Senior Counsel, says the former National Prosecuting Authority veteran covered various issues including dysfunction in correctional services, police malaise, and whistleblowing. Breytenbach’s proposed committee bills aim to establish an Anti-Corruption Commission and enhance the independence of her alma mater, the NPA. Urgent attention and collaboration are needed from government officials and the National Anti-Corruption Advisory Council (NACAC) to expedite these much-needed reforms. Here is Hoffman’s report on the address.

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By Paul Hoffman*

On 5 July 2023 the DA’s shadow justice minister, Glynnis Breytenbach, delivered a seminal and wide ranging speech on the general state of the criminal justice administration in SA. She covered topics as diverse as dysfunction in correctional services, the malaise in the police and whistleblowing. The speech is worthy of wider coverage than merely to the appreciative audience invited by the Cape Town Press Club to the ballroom at Kelvin Grove in Cape Town. It has been recorded for posterity and will be available as a podcast from the website of the club. Those interested in peace that is secure, progress that is sustainable and prosperity that is shared will benefit from the information assembled, marshalled and conveyed by Breytenbach.

This note, for the readers of BizNews, is focused on one aspect of the address given, the vital business of fixing the capacity of the criminal justice system to prevent, combat, investigate and prosecute serious corruption. While investigative journalists are adept at exposing the corrupt and the courts are well equipped to convict and punish, the current system of entrusting the work between exposure and conviction to the Hawks and the National Prosecuting Authority is not functioning and has not done so for years.

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The problem is not only one of under-resourcing the poorly capacitated system in place. The system itself is structurally and operationally inadequate and inappropriate for the task at hand. As the loot of state capture has been variously estimated to be in the range of one to two trillion rand, and as state capture is ongoing, it is critical that reform be accelerated and well-focused. Merely throwing good money after bad on the existing structures will not work. The rebuilding of the NPA is necessary, but it cannot be expected to fly in the stratosphere of big corruption cases when it is having trouble walking in less complex common law crime cases.

It is accordingly good news that Breytenbach has two committee bills in the works in the Justice Portfolio Committee of the National Assembly and believes that her committee colleagues in the ANC will give her initiative their support. The bills are designed to address the current dysfunctional state of the corruption fighting capacity of the state. The first, a constitutional amendment provides for the establishment of a new Chapter Nine Institution, the Anti-Corruption Commission, to deal with serious corruption. It also enhances the independence of the NPA by cutting its constitutional ties to the justice department. The second is the enabling legislation that sets out the framework within which the new entity will function.

The beauty of the reforms unveiled by Breytenbach is that they are true to the requirements of the majority judgement in the well-known Glenister case. These criteria have been summarised in a press release from her leader, John Steenhuisen, issued on the same day as she addressed the press club. (Click here)

As these “Glenister case requirements”, as set out by the Constitutional Court, are binding on parliament, it is right and fitting that they be properly implemented in terms of constitutionally compliant legislation along the lines now suggested in the drafts which are “unashamedly” (Breytenbach’s term) based on the proposals made by Accountabilty Now in 2021. (click here)

Those engaging in the long overdue process of reform, be it cabinet, NACAC, (the National Anti-Corruption Advisory Council) the NPA or BLSA, must give critical consideration to the committee bills now in the works at parliament with a view to improving them. The cabinet, which is currently a long way up a cul de sac on this topic, will also do well to have regard to the Accountability Now submissions and Breytenbach’s new bills. Cabinet, or at least the minister of justice, is under the misapprehension that the minority Glenister judgment penned by Chief Justice Ncgobo is the law. It is not. His judgment does not contain the binding criteria which should inform the legislation now in the making by the Justice Portfolio Committee.

What is clear to all is that neither the Hawks, a mere police unit, nor the NPA,  hollowed out as it is, are up to the tasks involved in successfully working up big criminal cases which lead to corruption convictions and the raking back of the loot squirreled away by the corrupt during the course of their venal and pernicious pursuits. The track record, as reflected in the official annual reports, shows that the abandonment of the troika method used by the Scorpions until they were disbanded in 2009 was a mistake which is measurable in the trillions of rands looted with impunity by kleptocrats and state capturers in both the public and private sectors of SA society.

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Serious corruption in SA is sucking the life out of our brave new constitutional democracy. Failures in service delivery, the Eskom crisis, “tenderpreneurism”, cadre deployment and the strivings of those pursuing the national democratic revolution combine to exacerbate inequality, increase joblessness and undermine the progress of the economy.

The proposed Chapter Nine entity should be the subject of an accelerated legislative process initiated by parliament and made law with the minimum of delay. With cross party co-operation the process can take months, not years.

Breytenbach, who was a prosecutor for 26 years, regards a career as a prosecutor as the best professional job in the world, provided one is able to prosecute honestly. She has a great network of former colleagues in the criminal justice system who have fled state employment for greener pastures but still hanker after the job satisfaction in the cut and thrust of honest prosecutorial work. The fact that the Scorpions did so well during their short existence is proof that SA has the talent and skills to see off the corrupt. Harnessing, properly resourcing and marshalling talented and skilled specialists who will enjoy secure tenure of office is the most urgent task of government. Training the next generation ought not to be neglected.

It is to be hoped that cabinet and the NACAC, appreciating the urgency of the need for reform, will give urgent attention to Breytenbach’s two committee bills, provide input that enhances them, and collaborate in their swift passage through the legislative process. It ought not to be too difficult: as long ago as August 2020, the National Executive Committee of the ANC passed a resolution calling on cabinet to do just what the bills aim to achieve. (Click here)

It is time for action, not talk. The fact that 98 ANC leaders are named and shamed in the Zondo Commission report should not be allowed to slow progress. There is an election next year, no sensible political party dare be seen to be soft on corruption at this juncture. Many more than 98 honest members of the ANC will be prejudiced in their prospects of re-election if the status quo is allowed to stand. Bringing on Breytenbach’s reforms ought to be the top priority of government. Doing so will swell state coffers with recovered loot and help improve the future of the economy by enhancing business confidence and attracting currently scarce new investments in SA.

*Paul Hoffman SC is a director of Accountability Now and was lead counsel in the Glenister litigation.