By Paul Hoffman Follow 05 Dec 2021
It should come as no surprise that Hermione Cronje has, like the Hawks before her, landed no ‘big fish’ from the murky waters of State Capture. It is not her fault. She was plagued by shrinking budgets, a hollowed-out NPA and saboteurs in the ranks of the NPA.
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The announcement by National Director of Public Prosecutions (NDPP) Shamila Batohi that head of the Investigating Directorate of the National Prosecuting Authority (NPA) Hermione Cronje has resigned her post and will depart on 1 March 2022, less than three years after accepting her appointment, is worthy of analysis.
In terms of the Constitution, the objectives of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the population of South Africa.
During the Thabo Mbeki era, his appointees, the minister of justice and NDPP, identified corruption as a crime deserving of specialised attention. The Justice Minister Penuell Maduna and the first national Director of Public Prosecutions in South Africa Bulelani Nguka piloted new legislation through Parliament to create the Directorate of Special Operations (DSO), or Scorpions, launched in September 1999 and abolished in January 2009 after the ANC resolved to disband the entity located within the NPA. This development occurred in December 2007 at its Polokwane conference at which Jacob Zuma prevailed over Mbeki for the leadership of the ANC.
The investigative functions of the Scorpions were ceded to the Hawks, a police unit whose official name is the Directorate of Priority Crime Investigation. The location of the Hawks within the police was unsuccessfully impugned as unconstitutional by Johannesburg businessman Hugh “Bob” Glenister in litigation that culminated in 2014 with a judgment of the Constitutional Court that begins with the words:
“… Corruption is rife in this country and stringent measures are required to contain this malady before it graduates into something terminal.
“We are in one accord that SA 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 reference by the learned Chief Justice, Mogoeng Mogoeng, to being “in one accord” is a reference to the entire court sitting in Glenister III.
Between 2009 and 2019, it became increasingly and ever more clear that the Hawks are not up to the task of being a specialised, properly trained, independent, fully resourced corruption-busting entity that enjoys the necessary security of tenure of office to acquit itself of its anti-corruption mandate. It has landed no “big fish” looters, kleptocrats or State Capturers during its entire existence. Its work on corruption has dwindled away to a mere trickle. No one seriously suggests today that the Hawks are a patch on the Scorpions. Nor do they measure up to the task set for them by Parliament and by the Chief Justice in the passage quoted from the last Glenister judgment above.
The constitutional mandate of the NPA is to prosecute crime. It has the power to institute criminal proceedings on behalf of the state, and “to carry out any necessary functions incidental to instituting criminal proceedings”.
An argument raised in the first Glenister case, that the last-quoted phrase from section 179(2) of the Constitution gave the Scorpions constitutional recognition, was given short shrift by the Constitutional Court in its unanimous judgment in that case.
A friend of the court, the Centre for Constitutional Rights (CFCR), had, as then Chief Justice Pius Langa put it: “submitted that the effect of the [Polokwane] decision will be to place the DSO within the SAPS, which is not independent. Moreover, if the NPA does not have the DSO to do its ‘incidental’ work, it too cannot function independently and this will render government in breach of its international obligations, which require the establishment and maintenance of independent specialised agencies to fight corruption.”
The unanimous court in Glenister I concluded in 2009 that:
“… should the legislation as enacted be unconstitutional for the reasons proffered by the CFCR, appropriate relief can be obtained thereafter. This argument must thus also fail.”
In Glenister II, decided in 2011, the constitutionality of the Hawks was successfully impugned because their structural and operational independence was insufficient to render them an effective and efficient corruption-busting entity capable of protecting human rights and discharging the international treaty obligations of the country.
The Stirs criteria for anti-corruption machinery of state were born in the majority judgment in Glenister II.
The Hawks of today are not Specialised (indeed they attend to all manner of priority crimes); they are not given appropriate Training (the Scorpions were sent to the FBI and Scotland Yard once recruited); they are not Independent because they report to the chief of police and via him, the minister of police; they are not fully Resourced; and they do not enjoy Secure tenure of office. In short, the Hawks are not Stirs compliant in any way.
Mindful of these shortcomings, President Ramaphosa issued a proclamation creating the Investigating Directorate of the NPA in April 2019 as part of the new dawn of renewal of the fight against the corrupt. He appointed Hermione Cronje as first director of the new unit. She serves for a limited period at the discretion of the president who is able to withdraw his proclamation at any time. This is not the form of independence that is required by the treaty obligations and the court rulings on the topic.
It should come as no surprise that Cronje has, like the Hawks before her, landed no “big fish” from the murky waters of State Capture, her specialised niche in corruption-busting.
It is not her fault. She is known as a feisty and fearless skilled campaigner; had she been properly clothed with the Stirs criteria, the necessary structural and operational attributes, she would have had a fighting chance of heading off the dire prediction of Chief Justice Mogoeng in Glenister III, quoted above. Instead, she has resigned.
Whether the advertisement calling for nominations for the president’s “Anti-Corruption Advisory Council”, first published on 23 November 2021, was the final straw for her, we will never know. What is clear is that it is the intention of the Cyril Ramaphosa administration to kick the can down the road for three years, until 2024, on the question of the urgent and necessary reform of the criminal justice administration to better capacitate it to deal with serious corruption. This typically dithery response to an urgent issue may have been more than Cronje, quite understandably, can stomach.
The NEC of the ANC in August 2020 issued an urgent instruction to Cabinet to establish a permanent, standalone, multidisciplinary and independent entity to deal with corruption. That would have given hope to Cronje and to all who desire to see a Stirs-compliant entity in place, one able to end the current rampant serious corruption with impunity. The advertisement shows that it is not to be, at least not until after the 2024 elections, during which the ongoing work of the advisory council will be used as an excuse for the ANC government doing nothing to tackle the problem of corruption in SA. Whether there will be anything left for the corrupt to prey on by 2024 is an open question.
It is also not known if the NEC is prepared to do anything about the dithering and the ignoring of its instruction. Both Parliament and the presidency have failed, since August 2021, to respond to draft legislation and a constitutional amendment presented to them by Accountability Now, which address the need for reform with viable suggestions.
With the necessary political will, cross-party cooperation and an end to the dithering, a new specialist body could be in existence to implement the expected findings and recommendations of the State Capture Commission within a matter of months. As matters stand, parliamentary oversight, good governance, and the creation of a strong institution of the kind contemplated by UN SDG #16 will all be put on hold while the advisory council deliberates endlessly in a context in which binding decisions of the highest court already point the way forward and drafts for discussion gather dust in Cabinet and Parliament.
It is no wonder Cronje, plagued by shrinking budgets, a hollowed-out NPA and saboteurs in the ranks of the NPA who are determined that she should not succeed in holding the corrupt to account, has opted instead to throw in the towel.
Hopefully, her resignation will prompt some productive introspection in the presidency, the NEC, Parliament and Cabinet. The loyal opposition, civil society, faith-based organisations, academia and the business sector have a role to play. Use International Anti-Corruption Day on 9 December to show support for the need for urgent anti-corruption reform instead of delaying, deferring and dithering.
May Cronje not have resigned in vain. DM