By Paul Hoffman

The success or otherwise of the efforts to counter corruption worldwide is dependent on the political will of those involved, not on whether the structure is of one kind or another. Perennially so, it is a lack of political will to counter corruption that allows impunity to flourish.

The doctrine of judicial precedent is well-known to lawyers. It is a valuable component of the glue that holds the legal system together. The doctrine is easily summarised, but less easily understood.

The doctrine of precedent not only binds lower courts but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. If the summary above is less than satisfactory, consider this article on the topic written by Jason Brickhill.

Reaching the point at which a decision is regarded as “clearly wrong” is a high bar to clear, but where a decision of the majority of our highest court has been confirmed by a later decision in the same court, then it is highly unlikely that the two decisions will be departed from or overturned in any material way.

The Glenister litigation and binding decisions made in it

It is an undeniable fact that the majority decision of the Constitutional Court in Glenister 2 in 2011 was affirmed in all material respects in Glenister 3 when the dispute about the status of the anti-corruption machinery in SA again reached that court three years later. In the first case, it was held that “our law demands a body outside executive control to deal effectively with corruption”.

In Glenister 3, the point of law so set out was affirmed in resounding terms by then Chief Justice Mogoeng Mogoeng, who, as it happened, was in the minority in Glenister 2, but was writing for the majority in Glenister 3. He put it thus in the 2014 majority judgment:

“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 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 background to both decisions is to be found in the oft-quoted words of Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron in their joint majority judgment in Glenister 2:

“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.

“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

It is inescapable that, given the context set out above, the later judgment in referring to “structural and operational independence” was alluding to the need to be outside executive control. That is the relevance of being free of executive control, influence or interference of the officially sanctioned kind.

In South Africa, the police, who investigate corruption, and the prosecutors, who prosecute it, are not, generally speaking, outside executive control as experience has taught all who wish to learn. Both institutions are not delivering effectively and efficiently on their core mandates when it comes to countering corruption. In other respects, as Marianne Thamm has vividly pointed out in Daily Maverick, they are successful. On countering serious corruption, they are not.

Chapter Nine Anti-Corruption Commission bill

This unhappy state of affairs provides the context in which the private members’ bills currently being piloted through the legislative process by Glynnis Breytenbach, who was shadow minister of justice in the pre-GNU days, must be seen.

The objective of the Breytenbach bills is to achieve constitutional compliance by properly implementing the two judgments quoted from above, both of which are binding on the government.

This objective can be achieved, according to the bills, by locating the anti-corruption entity within the Chapter Nine architecture of the Constitution. Not only is secure tenure of office assured (ask Busisiwe Mkhwebane), but independence is constitutionally guaranteed and no executive control is possible. The Chapter Nine Institutions all report to our lively multi-party Parliament, not to Cabinet.

It is true that the court, on both occasions and very properly so, has adopted a deferential approach, asking only that the government come up with the reasonable decision of a reasonable decision-maker in the circumstances when it sets up new anti-corruption machinery.

How to get to a reasonable decision when making laws or policy was discussed previously by the same court in the Rail Commuters’ Action Group case, para 84 to 88, where a unanimous bench observed that:

“[88] What constitutes reasonable measures will depend on the circumstances of each case. Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer – the closer they are, the greater the obligation on the duty bearer, and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result. The more grave is the threat to fundamental rights, the greater is the responsibility on the duty-bearer.”

Corruption was correctly described in the Glenister 2 decision as a threat to the fundamental human rights guaranteed to all in the Bill of Rights. The duty of the state to respect, protect, promote and fulfil these rights is called into question whenever corruption is rife. Funds intended for the poor end up in the pockets of the crooked.

Countering corruption webinar

It should, in the light of the learning set out above, come as a surprise that none of the cases, principles, precepts and legal requirements summarised above were mentioned during the webinar organised by the Institute for Security Studies on 28 August 2024. The webinar was moderated by Days of Zondo author Ferial Haffajee of Daily Maverick, with Ivor Chipkin, and is available here.

The main speaker was an ISS researcher, Colette Ashton, who had prepared a paper on the topic of the webinar called, “A single anti-corruption agency is a high-risk option for South Africa”.

One of the panellists was Prof Firoz Cachalia, currently chair of the National Anti-Corruption Advisory Council (Nacac), and, before he joined academia in 2010, a Gauteng MEC for the ANC. He currently serves on the disciplinary appeal committee of the ANC and is a member of the SA Communist Party, according to Wikipedia.

Some may suggest that the learned professor is wearing too many hats; be that as it may, what he said in favour of the advisability of the multi-agency approach to countering serious corruption in SA is truly worrying.

The decisions of the Constitutional Court referenced above make it clear that the single-agency approach is what the court requires – in spades.

Single-agency approach

Academic musings and interesting discussions of the practice in Eastern Europe and elsewhere in Africa do not take the work of Nacac and the need for anti-corruption reform in SA any further. Nacac’s main task is, or should be, to find with alacrity the best way of putting the Glenister decisions into legislation and thereby create a best-practice response to serious corruption in SA.

To be clear: any attempt to introduce a multi-agency approach flies in the face of the binding precedents set in the Glenister litigation.

As that litigation determined the extended meaning of the Constitution itself by “reaching into the heart of the Constitution” in Glenister 2, it would be unconstitutional to introduce legislation foreshadowing the multi-agency approach.

It is for this reason that the Breytenbach bills favour a single-agency approach. Any law that is inconsistent with the Constitution is invalid and is liable to be struck down as unconstitutional under Section 2 of the Constitution.

The arguments in favour of the multi-agency approach are in any event weak. The success or otherwise of the efforts to counter corruption worldwide is dependent on the political will of those involved, not on whether the structure is of one kind or another. Perennially so, it is a lack of political will to counter corruption that allows impunity to flourish.

Our courts have – given the status of the ANC as self-described “State Capture accused number one” by its current leader – wisely relied implicitly on the notion that “too many cooks spoil the broth” in opting for the single-agency approach reflected in the quoted sections of the judgments set out in the opening paragraphs above.

Given the factionalism involved in politics in general in SA, and in the State Capture debacle in particular, it is not propitious to suggest a multi-agency approach.

The dangers posed by creating opportunities for playing one agency off against another are reason enough to reject the multi-agency approach. This is, mercifully, not a topic for debate in SA given the findings and decisions of the courts. Under the Constitution, the decisions highlighted above are binding on the government in terms of Section 165(5) thereof.

Behind the red herring that the multi-agency approach constitutes, lies the ongoing desire of the ANC (and SACP) to secure hegemonic control of all the levers of power in society, including in government, and particularly in anti-corruption work.

The thought of a Chapter Nine Anti-Corruption Commission that is independent of the executive sends shivers down spines in the darker corners of Luthuli House and other places within the tripartite alliance that used to govern in SA before the GNU took over after the May 2024 election.

The basis upon which the GNU was brought into existence at the invitation of the NEC of the ANC is that it will rely on the rule of law and the Constitution. Properly implementing the decisions of the Constitutional Court referred to above would be a good start. And long overdue.

Nacac should be astute and come up with a final report that takes the expressed mindset of the GNU into account. DM