By Paul Hoffman
Because it poses an existential threat to the country, corruption must be treated as much more than a form or type of crime that can be countered like all others.
While the formation of the multiparty coalition that now governs at national level in South Africa is cause for optimism, some of that optimism may be misplaced.
Due to misconceptions around the existential threat that rampant grand corruption poses to the future of South Africa, and a general failure to discern what is actually required to get on top of the corrupt in our midst, they enjoy impunity at present.
Because it poses an existential threat to the country, corruption must be treated as much more than a form or type of crime that can be countered like all other crime.
These misconceptions lead “big hitter CEOs” and think tanks as well as some in the commentariat to fail to distinguish serious corruption from other forms of crime.
The distinction emerges most clearly from the decisions of the Constitutional Court in the Glenister litigation, particularly the second and third appeals, which were heard in 2011 and 2014 respectively. These binding decisions were not properly implemented while the ANC was in government as leader of its tripartite alliance with the SA Communist Party and Cosatu, the trade union federation that consists mainly of civil servants.
Whether their binding nature will now be recognised and acted on in Government of National Unity (GNU) actions remains to be seen.
No ordinary crime
The Constitutional Court has warned that corruption “threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order”. Corruption is no ordinary crime.
The court has prescribed what is required in the clearest of language: “our law demands a body outside executive control to deal effectively with corruption” (Glenister 2, para 200 in “Under the Swinging Arch” page 210).
In Glenister 3, the court opens the majority judgment with stinging remarks concerning corruption as “the malady turning into something terminal” before spelling out that “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 the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate” (the full quote is on page 299 of “Under the Swinging Arch”).
The cornerstones of the GNU are respect for the rule of law and fealty to the Constitution. It accordingly behoves those now in Cabinet to act on the decisions of the Constitutional Court because they are bound by them.
When he addressed the UN General Assembly in September 2024, President Cyril Ramaphosa made the rule of law and commitment to human rights his watchwords. In South Africa, the Constitution requires that the human rights guaranteed to all in the Bill of Rights be respected, protected, promoted and fulfilled by the state.
UN Convention against Corruption
The country has also ratified the UN Convention against Corruption, which obliges it to establish and maintain adequately independent anti-corruption machinery of state. No such machinery exists in South Africa.
The closest we got to it was the Scorpions unit within the National Prosecuting Authority (NPA), which was ignominiously closed down in 2009 after Jacob Zuma rose to the leadership of the ANC in 2007. Unfortunately, the Scorpions were not sufficiently independent and did not enjoy secure tenure of office in the sense that a simple majority in Parliament was all the ANC needed to close them down.
The new Investigating Directorate Against Corruption (Idac) was signed into law shortly before the May 2024 general elections. It is legally indistinguishable from the Scorpions in that it is also a unit within the NPA that is itself not independent. Before the president signed Idac into law he was warned in clear language by Accountability Now that he was painting outside the lines of what is allowed by law:
“Here is why both Idac and the DSO (Scorpions) [its very similar predecessor which was dissolved in 2009 at the behest of Jacob Zuma, who was charged in 2007 with corruption, embezzlement and money laundering] do not adequately comply with the STIRS criteria laid down in terms that bind you and government:
“(a) Both are creatures of an ordinary statute passed by a simple majority in Parliament.
(b) Both are vulnerable to dissolution at the instance of a simple majority which wishes to repeal the said legislation.
(c) Both are located as a unit within the NPA and not within an independent structure such as the judiciary and Chapter Nine Institutions.
(d) The NPA is not independent and has been so badly gutted by State Capture that it will take years to recover from the ravages of the saboteurs deployed in its ranks to protect the corrupt.
(e) The NPA is operated as a programme within the Department of Justice, not independently.
(f) The NPA is subject to the minister of justice having final responsibility over it in terms of C179.
(g) The minister must concur in all prosecution policy, also in terms of C179.
(h) The NDPP and other leadership of the NPA are executive appointees, the former in your sole discretion.
(i) The accounting officer of the NPA is the director-general of justice who is not even a member of the NPA.
(j) Due to its gutted state, the NPA will be incapable of recruiting the trained specialists needed to populate Idac. They will baulk at possibly facing the same fate as the DSO.
(k) The NPA is grossly underfunded due to the ravages of State Capture and the general state of the economy, which corruption has largely caused.”
Corruption, a secretive and calculated form of crime, is rampant in South Africa because the Glenister rulings have not been properly implemented. Until there is anti-corruption machinery of state that is outside of the control of the executive branch of government, there is little hope that the direst consequences of corruption with impunity will not befall South Africa.
Getting our corruption fighters into a Glenister-compliant state requires imaginative reform that addresses the Specialisation, Training, Independence, Resources, and Security of tenure of staff criteria fully and in all respects. A specialised, properly trained and independent entity outside of executive control and free of interference is needed. It must be resourced in guaranteed fashion and it must enjoy the type of secure tenure of office which all Chapter Nine Institutions enjoy.
Glynnis Breytenbach, a former Shadow Minister of Justice, currently has two private members bills in the works in Parliament that address the failure of the government to implement the Glenister rulings.
Relieved of all responsibility
The bills foreshadow the establishment of a Chapter Nine Anti-Corruption Commission that is enabled to see off the scourge of corruption and organised crime. The NPA will be relieved of all responsibility in these matters and will be able to revive its capacity to deal with all other forms of crime once it no longer has responsibility for countering the corrupt.
The best personnel in the NPA, the Special Investigating Unit, the South African Police Service and other institutions — including the private sector — will be brought together under one structure that is fully equipped to operate “effectively and efficiently” (words borrowed from section 195(1) (b) of the Constitution) against the corrupt.
The multi-agency approach of the past, which has clearly not worked effectively and efficiently, will be abandoned in favour of the single entity approach that is required by the courts in terms that are binding on the government.
It is good that there is so much optimism abroad in South Africa in the wake of the formation of the GNU. It will be better for South Africa if the international treaty obligations and the rulings in the Glenister litigation are scrupulously observed in the work required to render the anti-corruption efforts of South Africa constitutionally compliant.
The Breytenbach bills must be accorded priority by Parliament. They must be thoroughly debated, refined and made law as soon as possible.
The debate needs to be informed by the human rights obligations and international treaties that bind South Africa. The days of the government striving for “hegemonic control of all the levers of power in society” are long gone. DM
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