CAPE TOWN — Founding director of Accountability Now, Paul Hoffman, SC, applies his considerable legal acumen to the newly-popular call for KPMG to ‘make good,’ on its country-devastating Zuptoid collusion by funding and setting up a private corruption-busting unit. It’s a bracingly cold reality check for the passionate proponents of the idea by a man who’s devoted much of his life to the very ideals they share. Hoffman brings us back to the fundamental legal and evolved Constitutional principles that the State is ultimately duty-bound to set up such a unit, one which meets all the criteria of independence, security of tenure, specialisation, training and resources. He comes back to what is arguably the core mission of his organisation, that is; holding the correct people accountable. He says this is government’s job, as described by legal precedent via hard-won litigation (by businessman and campaigner Bob Glenister). Government must set up a single anti-corruption entity that meets the above criteria. That it hasn’t is hardly surprising, given that it’s led by a man who now seems highly likely to end his infamous career in front of a judge answering 783 charges of corruption, fraud, money laundering and racketeering. Hoffman explains why. – Chris Bateman
Pravin Gordhan, former South African finance minister, looks on during a news conference in Pretoria, South Africa, on Friday, March 31, 2017. Photographer: Waldo Swiegers/Bloomberg
By Paul Hoffman*
It is necessary to take a step back from the interaction between the KPMG international leadership and the former minister of finance, Pravin Gordhan. Biznews reported last week that the latter has demanded that KPMG form an anti-corruption unit to employ about 100 SARS personnel who lost their jobs during the Zuma / Moyane inspired purge of SARS in which KPMG SA was complicit.
Corruption is a crime. The prevention and combating of crime is a function of the state, not the private sector. The manner in which corruption is dealt with in SA is a matter for the Constitution, the law, the courts and the executive and legislative branches of government. It is not a matter for demands on an international firm of auditors and accountants, no matter how powerful the firm is perceived to be and no matter how attractive the notion of a private independent anti-corruption unit may sound.
In fact, our courts have interpreted the Constitution to mean that the state must create and maintain a single adequately independent anti-corruption entity in order to meet its human rights commitments and so as to comply with international treaty obligations to deal appropriately with the corrupt. Even before this was expressly laid down, by the courts, as part of our supreme law, we had the Scorpions, a crack unit within the NPA, which was tasked with anti-corruption work. After the dissolution of the Scorpions ( a dastardly step which Gordhan supported with his parliamentary vote) pursuant to a resolution taken at Polokwane in December 2007 when Jacob Zuma swept into power in the ANC, the tame Hawks were legislatively given the responsibility to combat corruption as part of the functions of the SAPS.
The decision to close down the Scorpions and to replace them with a mere police unit, the Hawks, was litigated furiously by Johannesburg businessman Bob Glenister, who approached the Constitutional Court on three occasions, impugning the validity of the steps taken by the Zuma administration and parliament. The litigation succeeded to the extent that the law now requires a single anti-corruption entity which is clothed with the STIRS criteria, namely, specialization, training, independence, resources and security of tenure of office.
The Zuma government has not taken kindly to the judgments of the courts that have examined the legislation pertaining to the Hawks and found it wanting. Instead of properly embracing and complying with the findings applicable, as little as possible has been done to make the Hawks constitutionally compliant. Indeed, a case can be made out that the conduct of government, the SAPS and the Hawks in recent years is inconsistent with the STIRS criteria and accordingly invalid for want of compliance with the Constitution as interpreted in the Glenister litigation.
President Jacob Zuma meets with Finance Team on 10 April 2017 (photo from BizNews)
Instead of demanding what would be an essentially unconstitutional or toothless anti-corruption body, Gordhan should give serious consideration to getting KPMG to support efforts to secure compliance with the law and the STIRS criteria laid down and confirmed in the last two Glenister cases. It is strongly arguable that the way in which the Hawks are structured and currently function is not compliant with any of the STIRS criteria. The law requires that the single anti-corruption entity should comply with all of them.
It is not helpful to seek “work around” solutions to the inadequacy of the Hawks. Respect for the rule of law requires that the findings of the courts be implemented. For obvious reasons there has been no political will to do so on Zuma’s watch, which, mercifully, is coming to an end, perhaps sooner than most expect.
If, as seems probable, the Supreme Court of Appeal sets aside the decision to withdraw the 783 charges of corruption, fraud, money laundering and racketeering that have been hanging over Zuma’s head for more than a decade, the charges will stand. This means that Zuma will be an ANC public representative who is facing criminal charges. The ANC has said that members who find themselves in this position should step down from public office until the criminal law and procedures have taken their course. This rule would include making representations to the NPA to again withdraw pending charges. Whether this internal ANC rule will be enforced by the disciplinary structures headed by Derek Hanekom, an active Zuma critic, remains to be seen. If it is, SA will have a new president next month. Either way, Zuma’s oft expressed opinion that “the ANC comes first” will be put to the test, as will his somewhat shattered credibility.
- Paul Hoffman SC is a director of Accountability Now
Article published in BizNews.com on 27 September 2017