By Paul Hoffman

There are those who might say that the MK party dare not support the bill to establish a Chapter 9 Anti-Corruption Commission as its leadership ranks would be decimated by the work that an efficient and effective anti-corruption body would do.

The Daily Maverick “Democracy ’24” newsletter published on 28 November 2024 has no fewer than three different contributions giving perspectives on Jacob Zuma’s recent political gyrations, his resistance to being expelled from the ANC, his similarities to Donald Trump, and his new MK party’s rejection of the Constitution in its efforts to effect a reverse takeover of the ANC to form a “black front” (sic) in our non-racial democracy.

Tom Eaton’s brilliantly acerbic essay on Zuma’s antipathy to democracy and the rule of law is referenced in the newsletter. Zuma’s misbehaviour from the 2006 Khwezi rape case to the current harassment of journalist Karyn Maughan is detailed in her new book “I will not be silenced”.

In the rape case, Zuma’s defence that he had consensual sex with the daughter of his Struggle-era comrade, all but four decades his junior, psychologically troubled, and to his knowledge HIV positive (he did take that famous prophylactic shower that earned him the Zapiro showerhead) was found to be reasonably possibly true.

The trial judge admonished Zuma to have regard to the words of Rudyard Kipling’s famous poem “If”. He has not done so. Zuma has never “filled the unforgiving minute with sixty seconds worth of distance run”. He prefers attempting to perfect his many and varied Stalingrad strategies.

It should come as no surprise that his new venture in politics, the MK party, has rejected the bill to amend the Constitution in order to find a way to bring it into line with South Africa’s treaty obligations and the binding findings of the Constitutional Court in the Glenister litigation by the creation of a Chapter 9 Anti-Corruption Commission.

The bill was introduced to the Justice Portfolio Committee of the National Assembly on 26 November 2024 as a private member’s bill in the name of former shadow minister of justice, Glynnis Breytenbach of the DA. She graciously acknowledged that the bill is based on the suggestion made by Accountability Now in August 2021, a suggestion that is discussed and set out in the e-book “Under the Swinging Arch”, which is available for free download.

Five points raised by MK

There are those who might say that the MK party dare not support the bill as its leadership ranks would be decimated by the work that an efficient and effective anti-corruption body would do. It is nevertheless instructive to critically consider the five points raised by MK in its parliamentary objection to the bill for establishing the Chapter 9 Anti-Corruption Commission, because none of them are sound.

The first objection is that the bill duplicates the mandates of the National Prosecuting Authority (NPA) and the Hawks. MK says that there will be overlap between the mandates of the three entities. This is simply not so.

The Chapter 9 Anti-Corruption Commission will be tasked with giving specialised attention to serious cases of organised crime and corruption. Parliament will decide a cut-off value or other criteria for the commission to swing into action. The Hawks and the NPA will retain jurisdiction over petty cases. The commission will do the heavy lifting as an entity outside executive control, as is required by the rulings in the Glenister cases.

A mechanism for determining which side of the line between petty and serious cases any particular matter falls will be built into the enabling legislation in a way that will not engender turf wars of the kind waged between the police led by Jackie Selebi (before he was jailed for corruption) and the Scorpions led by Vusi Pikoli (before he was unlawfully suspended for going after Selebi and equally unlawfully dismissed for charging Zuma in 2007 with 783 counts of corruption).

These are charges he is still facing or, more accurately, seeking to Stalingrad indefinitely. Maugham’s book chronicles the litigation against Zuma and his retaliation against her for doing no more than faithfully reporting journalistically to the public on the lack of progress in the case.

The second objection is that the Chapter 9 Anti-Corruption Commission will undermine the NPA. This criticism is rich coming from Zuma’s party. He is the undisputed world champion at undermining the NPA.

To protect him, the ANC resolved to disband the Scorpions, who were doing a good job of holding errant politicians and their crooked friends in business to account. Once he became president, Zuma hollowed out the NPA. He wrecked it with unsuitable senior appointments.

He tried, illegally so, to appoint mendacious Menzi Simelane to lead the NPA and later irregularly appointed Shaun Abrahams to succeed Mxolisi Nxasana, who Zuma bribed to leave the leadership of the NPA after Nxasana announced that he would act without fear, favour or prejudice should Pikoli’s charges against Zuma be reinstated.

Justice Richard Goldstone has described the NPA as a “gutted institution”. Paul Pretorius SC, the Zondo Commission evidence leader, uses a vivid metaphor. He describes the current NPA as an ancient VW Beetle that has been entered by government in a Formula One Grand Prix season to compete against the corrupt in court in their Ferraris, Mercedes and Aston Martins.

This objection does not seem to realise that the best talent in the NPA, and it still has good people, would be able, if interested in countering the corrupt, to apply for a job in the Chapter 9 Anti-Corruption Commission.

The third MK objection is based on the cost of establishing a new institution. The inwardness of this issue is to be found in the question: “Would it be worth it?” Retired chief justice Raymond Zondo answered the question in November 2023 thus: “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.”

Ways to keep costs in check

There are many ways to keep costs in check. The Special Investigating Unit, which is not part of the criminal justice administration, could be disbanded with its staff, resources and infrastructure repurposed if suitable for service or use in the Chapter 9 Anti-Corruption Commission.

The same applies to the new investigating directorate within the NPA. It has only 22 investigators at present and some of them may qualify to serve in the commission. Anyone in the NPA at present is potentially a recruit of the new body.

There are a few Chapter 9 institutions that could be amalgamated to cut costs, as suggested by Professor Kader Asmal in a report that is gathering dust in the parliamentary vault.

The fourth objection is that there is a risk of the abuse of power if the new body is set up by the government. That risk, always present in power dynamics, is minimised by the type of appointment procedures preferred by Justice Edwin Cameron in his judgment in the last Glenister case 10 years ago. Sound appointment procedures, the integrity testing needed, and the intended ethos of the new body that will report to Parliament and be kept in check by its accountability mechanisms already in place for all Chapter 9 institutions.

The final objection boils down to “fix the NPA” as a solution to the issue. The NPA is broken. It will take more time than is available to “fix” it. The NPA is infested with personnel who make it their business to see to it that corruption cases fail or don’t get off the ground.

The most recent example of this toxic phenomenon is the decision to withdraw corruption charges against Zizi Kodwa, a former Cabinet minister implicated by compelling evidence led during the Zondo Commission hearing. This decision, mercifully so from an accountability perspective, is being reviewed by the leadership of the NPA.

The new body is not a “parallel structure” as suggested by the MK party. It is a new institution that will be able, unlike the NPA, to tick the boxes created in the Glenister litigation by setting up an entity that satisfies the Stirs criteria set in binding terms. These criteria have never been implemented either during the Zuma presidencies or while the current president has led Cabinet and the country. The criteria are:

• Specialists housed in a dedicated entity who work only on countering the corrupt.
• Trained in their craft to a high standard not seen since the demise of the Scorpions.
• Independent of all outside influence and interference, truly enabled to act without fear, favour or prejudice, free of the existing constraints on South Africa’s police and prosecutors.
• Resourced properly and in guaranteed fashion.
• Secure in their tenure of office.

These attributes, which current structures all lack, are not “nice to haves”, they are the binding requirements of the law and they will make it possible to honour solemnly undertaken treaty obligations of South Africa to keep independent anti-corruption machinery in place that exist at the UN, AU, Southern African Development Community and Organisation for Economic Co-operation and Development levels in terms of the treaties that are part of the law of the land.

The National Executive Committee of the ANC has expressed itself to be in favour of a new permanent standalone and independent structure like the Chapter 9 Anti-Corruption Commission.  The existing Investigating Directorate against Corruption, a unit set up in May 2024 is, like the Scorpions, within the NPA. It does not comply with any of the binding requirements set out above and laid down by the highest court in the land.

The bill deserves engaged, participative and universal support from all who wish to avoid the fate foretold by the retired chief justice a year ago, as quoted above, and instead to live in peace that is secure, with progress that is sustainable, and prosperity that is shared. The Chapter 9 Anti-Corruption Commission or a body that respects treaty obligations and court decisions is a sine qua non for a brighter future for South Africa. DM