TOWARD EFFECTIVENESS VIA COMPLIANCE WITH TREATY OBLIGATIONS, IMPLEMENTATION OF BINDING COURT RULINGS, AND LAW REFORM NEEDED TO COUNTER THE CORRUPT.

1. South Africa has no shortage of laws that deal with corruption, but there is a great shortage of political will to enforce and implement properly those laws, whether they were made by parliament, or by the courts or via treaties and the common law [footnotes 1 to 12 of Glenister 2 on pages 224 to 226 of the e-book “Under the Swinging Arch” available as a free e-book by googling its title].
2. According to the reports of investigative journalists, the Auditor General, the Public Protector, the Special Investigations Unit and various elements of the criminal justice administration (annual reports of the NPA and Hawks or DPCI) serious corruption is and remains an existential issue in South Africa.
3. South Africa is a party to the OECD Anti Bribery Convention, to UNCAC and similar treaty obligations at AU and SADC levels. These anti-corruption treaties have been ratified and domesticated. They bind the state. They prescribe independence as a feature of the body established for countering corruption.[ Glenister 2 paras 191 to 198 on page 208 of “Under the Swinging Arch”]
4. Under the Constitution of South Africa a justiciable and extensive modern Bill of Rights obliges the state to “respect, protect, promote and fulfil” the rights guaranteed to all in it as set out in section 7(2) of the Bill of Rights. These obligations cannot be properly fulfilled when looting of state coffers, whether via state capture, kleptocracy or “tenderpreneurism” (abuse or subversion of the procurement systems set up under Section 217 of the Constitution) is the order of the day.
5. Taken together, these treaty and constitutional obligations form the basis of the binding rulings made in the second of the Glenister trilogy of appeals to the Constitutional Court in the period between 2008 and 2014 (Glenister 2).
6. In Glenister 2, in March 2011, the majority of that court characterised corruption as a human rights issue, an existential threat to constitutional democracy under the rule of law, and regarded the various applicable treaty obligations as enforceable in public interest litigation. [ “Under the Swinging Arch” page 199 para 166 and page 208 para 191]
7. Relying on OECD research then available to it, the court set the criteria applicable to the anti-corruption machinery of state it required, and which it found to be lacking in the first incarnation of the Directorate for Priority Crime Investigation, or Hawks, a police unit to which the investigative functions of the Directorate of Special Operations, or Scorpions, a unit within the national prosecuting authority, were transferred by parliament when the Scorpions were summarily disbanded in 2009. The court found that “ our law demands a body outside executive control to deal effectively with corruption.” [Glenister 2 para 200 and footnotes 41 and 42]
8. The OECD Anti Bribery Convention – as complemented by the 2021 Recommendation (endorsed by South Africa) – stresses the importance of an independent and adequately staffed law enforcement body so that “complaints of foreign bribery are seriously investigated and credible allegations are properly assessed”.
9. As of today, no such body exists.
10. The third incarnation of the Hawks, at least as an anti-corruption body, has not been a success as can be seen from the report of the Zondo Commission of Inquiry into State Capture as well as the annual reports of the NPA and Hawks since 2014.
11. The former Chief Justice, who presided over the Zondo Commission, has indicated that “an army of prosecutors” is required to counter the corrupt and that “drastic action” is needed. At a conference convened by the National Anti-Corruption Advisory Council, NACAC, in November 2023 he said: “The levels of corruption in our country have reached completely unacceptable proportions, and unless something very drastic and effective is done soon, we will have no country worth calling our home,” Polling indicates that half the population of Gauteng, home of a quarter of the population, regards South Africa as a failed state.
12. The record of the commission reveals that the Chief Justice was not exaggerating. The books “Zondo at your fingertips” (Holden) “Days of Zondo” (Haffajee) and “Our poisoned land” (Pauw) provide useful overviews of the main aspects of the work of the commission.
13. In terms of recent national legislation, assented to by the president in May 2024, shortly before the most recent general elections in respect of the national parliament, the body currently seized with anti-corruption functions, the Investigating Directorate Against Corruption (IDAC) came into being in legislated form. It is a unit within the NPA which is structurally and operationally indistinguishable from the Scorpions. IDAC falls under Chapter Eight of the Constitution.
14. IDAC does not measure up to the “STIRS criteria” set for the anti-corruption body in the Glenister litigation. STIRS is a useful acronym for specialised, trained, independent, resourced (in guaranteed fashion) and secure (in tenure of office.) None of these criteria, developed by the OECD, apply to IDAC. There is little prospect of the NPA recruiting suitable personnel for IDAC, given the adverse experience of the Scorpions and the undermined state of the NPA. The latter remains infested with saboteurs who cling to office, resist disciplinary action and protect the corrupt at every turn. Look no further than the recent withdrawal of corruption charges against former national cabinet minister Zizi Kodwa. (A withdrawal that is currently under review).
15. Strangely, in August 2020 the National Executive Committee of the ANC, its highest decision making body between conferences, instructed the national cabinet to establish urgently a stand-alone, independent and permanent body to deal with corruption. IDAC is not such a body because it is not stand-alone, independent nor any more permanent than the Scorpions were before their sudden demise.
16. IDAC is instead a part of the architecture created under section 179 of the Constitution.
17. IDAC has the minister of justice exercising “final responsibility over” it.
18. IDAC has the director general of justice as its accounting officer.
19. IDAC is required to get the minister to concur with all policy decisions made in respect of its activities.
20. IDAC like the rest of the NPA, is run as part of a programme within the department of justice.
21. These facts and the law, as set out in paragraphs 15 to 19 above all militate against STIRS compliance. Hence the resolution of the ANC in August 2020, which, had it been implemented, would have been in accord with the position of Accountability Now. [https://accountabilitynow.org.za/paul-hoffman-has-anc-finally-had-its-eureka-moment-on-corruption/.]
22. Since 2012 Accountability Now has advocated for the establishment of a new Chapter Nine body to prevent, combat, investigate and prosecute serious corruption cases. The said advocacy, aimed at proper enforcement of the binding Glenister court decisions, is summarised in “Under the Swinging Arch” an e-book freely available on the internet. Appendix Six [page 297] is a useful overview of the situation as at August 2022.
23. The beauty of Chapter Nine of the Constitution is that it constitutionally entrenches the independence and security of tenure of all of its institutions in the accountability and integrity sectors of governance as set out in Section 181 of the Constitution.
24. In March 2019 the IFP, (Inkatha Freedom Party) a small opposition party, raised questions in parliament concerning the adoption of Chapter Nine based reform of the kind advocated by Accountability Now. The president undertook to “mull over” the “refreshing” (as he put it) reform suggested in the questions.
25. In 2022 the DA, (Democratic Alliance) then the official opposition, now a party in the GNU (Government of National Unity) that has governed since its formation after the May 2024 elections, embraced the idea of a Chapter Nine Institution. The DA would like to see countering serious corruption and organised crime become the mandate of the new Chapter Nine body, which it calls the Anti-Corruption Commission, leaving the NPA to prosecute all other crime.
26. The DA has prepared the necessary legislation in the form of private members bills establishing and empowering the Chapter Nine Anti-Corruption Commission it has in mind. In doing so it has borrowed freely from the work of Accountability Now that is set out in Appendices three to six of “Under the Swinging Arch.”
27. As at 11 November 2024, these DA sponsored bills are pending in the National Assembly. The bill that envisages the necessary constitutional amendment has been formally introduced and is awaiting the allocation of a date for debating it which could be later in 2024 or possibly in early 2025.
28. It is by no means clear that the necessary support for these bills will be forthcoming from the ANC which commands 40% of the votes in parliament. The bills will require the support of two thirds of parliament, so without the support of the ANC they will not be passed.
29. If the ANC does not support the bills aimed at setting up the Chapter Nine Anti-Corruption Commission, it will become necessary to give consideration to reverting to public interest litigation in the mould of the Glenister cases. The IDAC will have its constitutionality impugned for want of STIRS compliance and further relief aimed at the remediation of the failure of government to implement the Glenister rulings properly will be sought in the same or, possibly, separate applications.
30. In this context it would be highly desirable for all attendees at the PARI webinar on 15 November 2024 to raise the importance of this issue and to press the authorities to align with the scope and purpose of UNCAC and the OECD Anti Bribery Convention.
31. This outcome, it is submitted, could best be achieved by debating, refining and adopting the intended legislation establishing and enabling the Anti-Corruption Commission so that it is made law in good time to assist in getting SA off the FATF greylist and on the path to seeking a better life. (Section 198 of the Constitution).
32. It is an error to set too much store by the recommendations of the Zondo Commission. Its findings and recommendations bind no one. All commissions of inquiry are tools of the executive branch of government and their findings are not court judgments.
33. The treaty obligations and judicial precedent referred to above are binding on government and ought to be the focus of advocacy of reform of the capacity of the criminal justice system to counter corruption in a manner that is effective and efficient, as required by Section 195 of the Constitution.