SA could use the loot it will recover to get the lights working again
20 January 2023 – 18:14 Paul Hoffman SC
Last Thursday the “Judge for Yourself” television show, hosted by retired judge Dennis Davis, saw Anton du Plessis of the National Prosecuting Authority (NPA) and Caryn Dolley, an investigative journalist, quizzed on the serious topic of countering organised crime in SA.
Very properly, Du Plessis conceded that the main manifestation of organised crime in SA is serious corruption. There is perverse logic in this concession: why embark on organised crime if not to enrich the criminal syndicates? Dolley was hopeful that something could be done about the parlous situation in which serious corruption is such a scourge, but she offered no solution.
Nobody on the show paused to consider what the courts have said on the topic of effectively and efficiently tackling the corrupt, being those involved in state capture, kleptocracy and other forms of organised crime in which the looting of public resources is felling our nascent constitutional democracy under the rule of law at its knees.
What the law requires, in terms that bind government, is a body of fully trained specialists who are free of the executive and of political control, truly independent (not quasi-independent like the NPA), fully resourced in guaranteed fashion, and secure in their tenure of office.
Du Plessis rightly pointed to the good work of the Scorpions, to show that SA has the notional capacity to do the necessary. But the Scorpions lacked secure tenure of office. Ordinary legislation to promote the current Investigating Directorate (ID) of the NPA to the same status as the Scorpions will not be helpful because, like the Scorpions, the ID will be vulnerable to closure following a simple majority vote in parliament.
A mechanism exists to address this chink in the armour of the new body. It is one the law requires (secure tenure) and government is edging towards it. That mechanism is Chapter Nine status. A currently unattainable two thirds majority in parliament would be required to close such a body down. The NPA itself is too broken to harness the skills and capacity required to see off the seriously corrupt.
As chief justice Raymond Zondo has observed, an “army” of highly skilled prosecutors, which the NPA does not have and cannot possibly attract, is required urgently. As revealed by the state capture commission, the NPA is to this day littered with “saboteurs” who make it their business to undermine all NPA efforts to end the impunity the seriously corrupt and politically connected have enjoyed for so long.
The time for hopeful hand-wringing is long past. It is time to establish a Chapter Nine anti-corruption entity to investigate and prosecute serious corruption. SA could use the loot it will recover to get the lights working again.
Paul Hoffman SC,
Director, Accountability Now