The following statements made by important South Africans in recent days need to be reconciled with the law, and with each other. This task is urgent.

Retiring chief justice Raymond Zondo: “My hope is that mechanisms will be put in place to ensure we will never have a repeat of state capture.”

New justice minister Thembi Simelane: “I would like to think that the National Prosecuting Authority (NPA) is part of [my] department.”

On the retirement of the chief justice, the minister looked forward to opening “the window for consequence management and closing a curtain on the deplorable culture of impunity”.

Also in response to the retirement of the chief justice, President Cyril Ramaphosa said: “The Zondo commission has more clearly defined the ethical underpinnings of our democratic state. Our task is now to follow in your direction.”

All politicians should know, and all good lawyers do know, that the Constitutional Court has ruled that: “…our law demands a body outside executive control to deal effectively with corruption” [Glenister 2 paragraph 200].

Since May, when the president signed it into law, the new anti-corruption body in SA is the Investigating Directorate Against Corruption (Idac), a unit within the NPA, which is under the executive control of the department of justice. It is clearly unconstitutional to locate it there given the ruling by our highest court quoted above.

The government is obliged to treat this decision of the court as binding on it under section 165(5) of the constitution. As the new government of national unity is committed to constitutionalism and to upholding the rule of law, the task at hand for the president is to establish a body that is better placed than the Idac to deal effectively with corruption.

There are private members’ bills pending in parliament that set out to do just that. They should be processed without delay.

Paul Hoffman
Director, Accountability Now