1st June 2022by Editor BizNews
A high-level seminar on the ongoing tardiness in the prosecution of Zondo Commission-fingered miscreants in state capture has starkly underscored the incapacity of state bodies. The conclusion reached by participant, Paul Hoffman, SC, founder of the ever-vigilant Accountability Now, is that the Investigating Directorate is a hugely inappropriate alternative to establishing a brand new, stand-alone Chapter Nine Integrity Commission. With impeccable respect, he demolishes seminar participant, director of public prosecutions, Nicolette Bell’s suggestion that capacitating the Investigating Directorate of the National Prosecuting Authority (ID) would enable it to properly deal with serious corruption. Hoffman’s argument suggests Bell is suffering from institutional tunnel vision common to bureaucrats’ intent on strengthening their own turf to the detriment of a wider, more effective solution. Complete with real-time illustration, this piece buries the belief that tinkering with existing institutions will help close a sordid chapter of institutional, politically engineered, industrial-scale corruption. Whether the ruling ANC can summon up the political will to do the obvious right thing will prove instructive. – Chris Bateman
Is the Investigating Directorate a viable alternative to establishing a new Chapter Nine Integrity Commission?
By Paul Hoffman SC*
The seminar held by the Catholic Parliamentary Liaison Office, with the assistance of the Hanns Seidel Foundation, on 30 May 2022 in Cape Town was attended by civil society activists, academics, foreign guests, members of the staff of the director of public prosecutions in Cape Town, including the DPP, Nicolette Bell, in person and others. It was addressed by the shadow minister of justice, Glynnis Breytenbach, herself a former prosecutor.
The organisers deserve congratulations for getting together so diverse a group and for maintaining decorum throughout, despite the burning nature of the issues around the National Prosecuting Authority or NPA, the Judicial Service Commission and the electoral system that were on the agenda. Active citizens participating in a discussion about the core issues on the day is of the essence of functional democracy under the rule of law. Participation was seen in action at the seminar.
This note is devoted to one part of the lively debate at the seminar and it seeks to answer the questions around the Investigating Directorate of the National Prosecuting Authority.
Early on, DPP Bell intervened to ask: why not capacitate the Investigating Directorate of the National Prosecuting Authority (ID) to deal properly with serious corruption instead of establishing a new body, a Chapter Nine Integrity Commission (Ch9IC), to prevent, combat, investigate and prosecute serious corruption?
The short answer is: consider the fate of Hermione Cronje, the first head of the ID who was asked to and did resign almost two years short of the end of her fixed term contract in a manner that does not evidence her independence and permanence in office.
The longer answer, which Bell deserves but did not get, is more complicated but nevertheless important in the context of the debate relating to the correct, constitutionally compliant way forward with the anti-corruption machinery of state in SA.
The starting point of a discussion of Bell’s question is the judgment of the majority (incorrectly labelled minority in tranche one of the Zondo Commission report) judgment of Deputy Chief Justice Moseneke and Justice Cameron in the Glenister case which ended on 17 March 2011. The judgment remains binding and resolves all questions around the structure and operations of anti-corruption machinery of state.
In the judgment, the human rights commitments of SA under the Bill of Rights and the international obligations assumed by government to keep adequate anti-corruption machinery in place are cited as the reasons for finding the original Hawks to be an inadequate substitute for the Scorpions, their high-functioning predecessor. The court considered the criteria by which the anti-corruption entity must be judged. The main characteristics of well-functioning anti-corruption entities have become known as the ‘STIRS criteria’. While government can, in giving effect to the judgment, make the reasonable decision of a reasonable decision-maker in the circumstances, it must comply with the STIRS criteria set by the court in binding terms. A specialist, properly trained, independent fully resourced body is required in law and it must enjoy secure tenure of office. Had the Scorpions been clothed with the protection of secure tenure of office by their formation as a chapter nine body, rather than a mere creature of an ordinary statute, they would have survived the Zuma-era assault on them and would still be with us today. The whole state capture debacle would not have happened as it did, and Jacob Zuma would have faced the trial he is now facing way back in 2009. No such permanent status existed for the Scorpions and the simple majority the ANC was able to amass (Kader Asmal resigned rather than vote for the dissolution of the Scorpions) was enough to ensure their dissolution.
From 2009, the Hawks have been through three legislative regimes and under all three they have not succeeded in becoming an efficient and effective corruption-busting entity. As Hermione Cronje learnt, security of tenure is not a feature of the leadership of the ID.
President Cyril Ramaphosa set up the ID in 2019 as a stop-gap measure by way of a presidential proclamation that he is able to withdraw at any time that suits him. This is not the stuff of permanent tenure of office. Technically speaking, the ID – as a part of the NPA – has no business, as the law stands, doing any of the investigative work that it does. That work is reserved for the Hawks in terms of legislation passed by parliament as the remedial legislation required to remove the blemishes in the original version of the Hawks, remedial legislation that did not pass constitutional muster and had to be further tweaked by the Constitutional Court in 2014. Unfortunately, but perfectly rationally, no one is today suggesting the Hawks are up to the task of investigating complex commercial criminal activities such as those at the heart of state capture. The sapiential authority of the Hawks is not of the standard required. The operational and structural environment of the SAPS is not one conducive to the success of the anti-corruption part of the mandate of the Hawks. The minister of police has been found to be dishonest and incompetent by the Moloi board of inquiry; he should be facing corruption charges for his role in the irregular leases for SAPS headquarters. SAPS itself is riddled with corruption.
The Hawks are required to investigate other priority crimes and would no doubt be relieved were responsibility for serious corruption to be removed from their mandate.
Are the investigators that the ID has been able to attract since 2019 of the necessary calibre? It would seem not. The track record of the ID is hardly stellar and its work rate is such that many years will be needed to get around to prosecuting all of the 1,438 miscreants already named by the State Capture Commission. Its final report may identify more kleptocrats and is now due for publication on 15 June 2022.
At present, the minister of justice, acting under the Constitution, exercises ‘final responsibility’ over the NPA and his director general of justice is the accounting officer of the NPA. The NPA is run as a programme of the department of justice. This is not the type of independence envisaged by the court in its majority judgment of 17 March 2011. None of the Chapter Nine entities are subjected to indignities of this nature. They report only to parliament, not to the executive branch of government.
The various gyrations of the public protector show how difficult it is to remove from office persons appointed to lead Chapter Nine Institutions.
Brigitte Mabandla, purporting to exercise her “final responsibility” as minister of justice engineered the dismissal of Vusi Pikoli as national director of public prosecutions because he was so bold as to charge the chief of police with corruption. The latter was later duly convicted, but Pikoli was forced to find another job. That is the quality of the secure tenure of office that the head of the NPA enjoys under the Constitution, as interpreted by the executive branch of government. The interpretation is clearly wrong and is not STIRS compliant. If the ID is retained as part of the NPA, it too assumes the risks that Pikoli endured. He settled favourably the civil litigation that followed his wrongful dismissal, but the damage to the fabric of the NPA and the example set live on in the imaginations of the leadership of the NPA.
When the Scorpions was closed down, there were 539 members on its staff. There were also plans to expand it to 2,000.
The ID is a tiny fraction of the size of the Scorpions. It has not been able to attract enough specialists or former Scorpions to its ranks, given the ‘endangered species’ status they have, as illustrated by the fates of many constitutionally faithful public servants who have met fates similar to those of Cronje and Pikoli.
Breytenbach, who is one of their number, on the basis of her experience in the NPA, estimates that it takes 20 years to reach the level of skill, competence and dedication required to be a successful prosecutor of the corrupt. Complex issues, a great deal of paperwork and the wiles of highly experienced senior counsel briefed to defend the corrupt have all to be dealt with well to be a successful corruption prosecutor.
Bell boasted that on her staff she has many prosecutors with 15 years’ experience. This is a good thing, but it will not be enough for at least five years on Breytenbach’s calculations. These are five years SA does not have. A way to attract back from their current jobs those who were in the Scorpions has to be found. It will not be found by fixing the ID.
The ID is even more vulnerable to closure than the Scorpions who had to be dissolved by an act of parliament after an acrimonious debate in which some members of the NPA (the Concerned Members Group) participated on the side of retaining the Scorpions. Their prediction that closing the Scorpions would set back anti-corruption efforts by 20 years in SA had better not come true, but might, if decisive action is not taken urgently. The ID can, of course, be closed at the stroke of the presidential pen without any debate in parliament and without any legislative intervention at all.
The president is a former chairman of Glencore, a mining company, which featured as an alleged victim of state capture in the hearings of the State Capture Commission. Glencore has paid a substantial fine in a plea bargain in the USA because its activities over many years in many countries have been infested with corruption. SA is not part of the plea bargain. Glencore SA claims on its website that:
We are a major contributor not only to South Africa’s local, provincial and national economies, but also to the development of the communities where we operate. We collaborate closely with our communities, prioritising their health, safety and well-being and working to create strong and resilient societies that will thrive long after our operations close.
Glencore International admits in the plea bargain that its traders bribed foreign officials to secure contracts and cargoes, bribed bureaucrats to avoid audits, and bribed judges to make lawsuits disappear. Its fine under the Foreign Corrupt Practices Act will amount to $430m, with forfeiture of $270m of ill-gotten gains. Whether the activities of Glencore in SA under the chairmanship of Ramaphosa involved similar conduct is not covered by the plea bargain. The EFF has publicly claimed Glencore SA is corrupt and should be investigated.
The current chairman of Glencore claims he is running a clean operation he says:
“Glencore today is not the company it was when the unacceptable practices behind this misconduct occurred. The board and the management team are committed to operating a company that creates value for all stakeholders by operating transparently under a well-defined set of values, with openness and integrity at the forefront.”
His claims, like the admitted corruption elsewhere in Glencore, need to be investigated as well.
By whom is the question.
A limping and gutted NPA, a vulnerable to closure ID, a flight of Hawks who have not landed a single ‘big fish’ since 2009? The NPA is so infested with saboteurs put in place to protect the corrupt in high places that it will take many years and much work to recover its former levels of effectiveness and efficiency. The Hawks have always been a non-starter when it comes to anti-corruption work. They lack the sapiential authority to do it. The ID is of questionable constitutionality, it is manifestly not STIRS compliant, and it will not be able to attract the calibre of recruits required to operate in the manner required in binding terms in the Glenister judgment.
The only constitutionally compliant way to assure secure tenure of office such as enjoyed by the Chapter Nine Institutions is to make the task of serious corruption-busting that of a new Chapter Nine Institution.
The NPA cannot be made into such an institution. Its head, the NDPP, has policymaking powers under Chapter Eight of the Constitution. No Chapter Nine Institution has policymaking powers. As Breytenbach pointed out, the NPA is too large and unwieldy to become or be converted into a Chapter Nine Institution.
The case for a Ch9IC has been made again and again since 2012 when the first draft legislation for an anti-corruption commission saw the light of day. More recently, in 2021, Accountability Now updated its suggested offering in a very different context to that which existed in 2012. The IFP accepted the need for a Ch9IC as long ago as 2019. The ANC has instructed cabinet in 2020 to establish a body that has – in its own language – all the hallmarks of STIRS compliance; and the DA has come around in 2022 to accepting the need for a Ch9IC that not only investigates, but also prosecutes serious corruption. The deputy minister of justice has revealed his ministry is seized with a sense of urgency on corruption matters.
The stage is set for a debate in parliament leading to a constitutional amendment of the kind suggested by Accountability Now in August 2021 and the passage of enabling legislation for the Ch9IC. It is feasible to do this before the end of the year, provided the necessary political will can be generated via pressure from civil society, business, academia and the faith-based sector. Political will in politicians is generated best by fear of failure to be re-elected. That is the power of the people who vote. It needs to be exercised by insisting the urgent establishment of a Ch9IC be the policy position of all political parties and independent candidates for high political office in SA.
- Paul Hoffman SC is a director of Accountability Now, he was lead counsel in the Glenister litigation. The draft bills for the Ch9IC are available electronically on www.accountabilitynow.org.za.