Omissions will have to be corrected in the approach adopted by the National Anti-Corruption Advisory Council when it reports next year
The webinar hosted by the Public Affairs Research Institute and Council for the Advancement of the Constitution on October 25 and 26 on the implementation of the Zondo state capture commission recommendations reflected the concern of the organisers over the need to prevent a repetition of the scale of state capture during the “nine wasted Zuma years”, as President Cyril Ramaphosa has dubbed 2009 to 2018.
The webinar was most timely given that the ongoing lack of capacity of the state to counter serious corruption and organised crime is a major existential issue and was certainly worthy of the attention lavished on it by delegates given the confusion that reigns in business circles.
A somewhat jarring note was struck when Firoz Cachalia, chair of the National Anti-Corruption Advisory Council, appointed by the president in August 2022 to “work alongside government to prevent and stamp out wrongdoing” (as the president put it) took the floor. His Power Point presentation and oral content managed to avoid any reference to the binding criteria applicable to effective and efficient anti-corruption machinery of state laid down by the Constitutional Court in 2011.
This is a serious omission that will have to be corrected in the approach adopted by the council when it finally reports next year. Even the minister of justice acknowledges the centrality of the criteria that bind both parliament and the national executive. The minister claims that his National Prosecuting Authority Amendment Bill “creates a specialised entity within the National Prosecuting Authority staffed with trained individuals who enjoy the requisite level of independence, resources and security of tenure to tackle corruption head on.”
In fact, the bill falls far short of what is required in law. Any failure to have proper regard to the criteria the minister lists would undermine the important work of the National Anti-Corruption Advisory Council and imperil efforts to counter corruption in the various ways recommended by chief justice Raymond Zondo. The recommendations of his commission bind no-one; the binding findings of the court, on the other hand, cannot be ignored or wished away.
Paul Hoffman, SC