David Lewis is on a dangerous, unconstitutional, and ill-informed trajectory when it comes to formulating the long-overdue reform of the anti-corruption capacity of the criminal justice administration in SA (“Anti-corruption agency — legal niceties offer scant protection from state capture”, February 11).

He needs to bring it closer to the front of the stove on which the National Anti-Corruption Advisory Council cooks that SA has international treaty obligations, at the UN, AU, Sadc and Organisation for Economic Co-operation & Development levels, to keep an adequately independent anti-corruption body.

Moreover, the courts have repeatedly embraced the single agency approach in the binding decisions they have reached in the Glenister litigation, which Lewis prefers to ignore or, perhaps, just wish away. The necessary reform must be sourced in the Glenister decisions, which also include the so-called STIRS criteria laid down for the anti-corruption body.

Any new law must, of necessity, heed what the courts require, namely, in 2011: “a body outside executive control to deal effectively with corruption”, and again in 2014: “We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption … that entity must enjoy adequate structural and operational independence to deliver effectively on its core mandate”.

What happens elsewhere in the world is of no concern when the state is bound by two judicial precedents as clear and concise as the words quoted above. Neither parliament nor the National Anti-Corruption Advisory Council can ignore these pellucid statements of our highest court in the Glenister litigation. The single agency approach is simply our law.

Implementation failure

Parliament has failed thus far to properly implement the binding court findings, and has not overseen the implementation of the limping system currently in place with fealty to the rule of law, the international obligations of SA, and the binding judicial precedents in Glenister.

Hence state capture, still ongoing, with tenderpreneurism and a bout of unresolved “covidpreneurism” too. Urgent and drastic action is required, not a shuffling of the deck. The Special Investigating Unit is not even part of the criminal justice administration. It collects debts for the presidency.

In August 2020 the ANC itself called urgently for a single, stand-alone, permanent and independent body to deal with corruption. The cabinet, like Lewis, has ignored this instruction, while its leader admits the ANC was “accused number one” at the Zondo state capture commission. Lewis does not even mention the instruction, which apparently was swept under the Luthuli House carpet.

Any concerns Lewis may have about appointment mechanisms are met by the judgment of justice Cameron in the last Glenister case. It is presumably because our constitution concentrates too much power in the executive that the courts have come up with the single agency outside executive control approach that is fully embraced in the Breytenbach bills.

It is laughable to suggest that the current crop of politicians do not interfere with corruption-busting. The Zondo records are being kept from investigators; all attempts to get the likes of Jacob Zuma and Bheki Cele charged for Nkandla malfeasance and those inflated 2010 World Cup soccer leases have come to nothing.

The Zondo commission named and shamed 97 ANC bigwigs, none of whom has stood trial years down the line. Thembi Simelane’s correspondence with the presidency remains firmly under wraps.

While it is appropriately difficult to discharge the onus of proof the state bears in corruption cases, the Scorpions were adept at doing so. SA still has the expertise necessary to secure convictions that will discombobulate the crooks and deter them from their secretive and calculated crimes of corruption. The necessary political will is the missing ingredient, and is sadly also absent from the letter from Lewis.

Parliament should embrace the Breytenbach bills.

Paul Hoffman
Director, Accountability Now