The absence of effective and efficient anti-corruption machinery of state during the two Zuma presidencies allowed State Capture to happen. The Investigating Directorate Against Corruption is neither effective nor efficient.

Let us not forget the “must haves” when debating the “nice to haves” when reforming the criminal justice administration.

It may be useful, for context, to refer to previous comments made after the Pari/Casac webinar on the implementation of the Zondo commission’s recommendations. The Civil Society Working Group on State Capture has reported in its follow-up on the Zondo commission. In the report, the following passage appears on page 16 of its collective response:

We therefore call for urgent, deliberate, and targeted reform in critical law enforcement agencies, where in which there should be a prioritisation of state capture cases. This along with the provision of additional resources through increased budgeting and human resources. 

The NPA Amendment Bill (B29–2023) provides a step in the right direction through the proposed creation of a new, permanent independent investigating body within the NPA. Swift and effective implementation of this key piece of legislation and adequate resourcing will go a long way towards rebuilding public trust and assuring the public that law enforcement agencies are willing and able to effectively tackle corruption and state capture and to act on the findings of the Zondo Commission. 

The opposite is also true, however – failure to act will result in those implicated remaining unaccountable and further loss of public trust. We note, with concern, issues relating to the delayed prosecution of state capture cases.

The need for reform of the capacity of the criminal justice administration to counter corruption effectively and efficiently (as is required by section 195(1)(b) of the Constitution) is indeed a matter of great urgency in SA. However, to regard the reform actually introduced in May 2024 by the creation of the Investigating Directorate Against Corruption (Idac) as “a step in the right direction” is evidence of a complete misapprehension of the situation facing SA, the nature of the reform that created Idac, the requirements of the law reform actually needed, and the unconstitutionality of Idac itself.

SA is on the FATF greylist and remains on that list because we do not have constitutionally compliant anti-corruption machinery of state in SA. This failure is what created the gap for State Capture to take place and that gap still exists, as is evidenced by the paucity of prosecutions of the corrupt who were and are still involved in State Capture. It is the money laundering that is part of State Capture that concerns the FATF. At the Pari/Casac webinar, Paul Pretorius SC confirmed that State Capture is ongoing. He should know as he consults to the NPA.

Idac is not a “step in the right direction” because:

• It is not new – on the contrary, it is the legislatively cloned successor to the Investigating Directorate created in 2019 by presidential proclamation; it is led and staffed by the same personnel and now boasts all of 22 investigators to take on a task that the retired Chief Justice Raymond Zondo described as the work of “an army of prosecutors”.
• It is not permanent at all. Like the Scorpions before it, the new body, Idac, is a creature of an ordinary statute which can be repealed by a simple majority in Parliament. That is not the hallmark of permanence. Idac is just as vulnerable to closure as the Scorpions were before they were summarily dissolved.
• It is not independent because it is part of the National Prosecuting Authority and is accordingly cursed with all of the limitations from which the NPA suffers. These are principally a lack of independence due to its location within the Department of Justice where it functions as a departmental programme with the director-general of justice as its accounting officer. The minister of justice has “final responsibility over” the NPA, must concur in its policies, and is entitled to interfere in its workings (and those of Idac) in the myriad ways provided for in section 33 of the NPA Act.  These features are not the stuff of which the necessary operational and structural independence is made. The recently reshuffled minister of justice feels free to prevent Idac from getting access to the records of the Zondo commission; what her successor will do, time will tell.

Officialdom does not regard Idac as the answer to the challenges of getting on top of corruption. The leaders in the National Anti-Corruption Advisory Council (Nacac) regard Idac as an interim measure and then deputy minister of justice, John Jeffrey, called it “a stopgap measure” when the Bill for it was being debated in Parliament last year. The President was discouraged from signing the Bill into law because of its unconstitutionality, as has been traversed previously in Daily Maverick.

Read more: Grand corruption in SA will not be defeated without an entity that is free of executive control and interference

Ignoring the entreaties to rethink the matter, and shortly before the elections, the President, instead of referring the Bill back to Parliament for reconsideration of its constitutionality, chose instead to assent to it.

The creation of Idac is unconstitutional because the Constitutional Court has ruled, in a manner which binds the state, that the anti-corruption machinery of state in SA must be free of executive control. No part of the NPA is free of executive control.

The findings of the Zondo commission on this aspect of the law leave much to be desired and may be responsible for the confused thinking in the passage quoted above. Unfortunately, the commission misread the majority judgment handed down in Glenister Two in March 2011 as a minority judgment, which it praised.

The error was perpetuated by the then minister of justice when he opened a conference on countering corruption at UCT in February 2023. He quoted the judgment of the minority in the case as if it was that of the majority.

The confusion arises because the minority judgment is called the main judgment in the law reports. It is the main judgment, because it deals with all the points raised in the case.

The joint majority judgment of Deputy Chief Justice Moseneke and Justice Cameron deals with only two points in the case: whether to regard corruption as a human rights issue and whether to oblige the government to honour its international treaty obligations to establish and maintain an independent anti-corruption machinery of state.

The majority of the justices sided with Moseneke and Cameron (a five-four split) and by the narrowest possible of margins the law now is that corruption is a human rights issue in our law and the state’s international obligations are enforceable in public interest litigation.

Due to the provision in the Bill of Rights that the state must respect, protect, promote and fulfil the human rights guarantees in the Bill of Rights, it is incumbent upon it to so locate the anti-corruption machinery of state that it is not under executive control. The NPA, as currently constituted in terms of section 179 of the Constitution, is very much under executive control.

This is how the Zondo commission first alluded to the Glenister Two case in the initial tranche of its report at para 674:

“State Capture has shown that South Africa needs to heed the judgment given by the minority in that case.”

In fact, SA is obliged in law to implement that which is set out in the joint judgment simply because it is the majority judgment, not the minority judgment.

Apart from insisting that anti-corruption work needs to be done by a body free of executive control and interference, the court also created the criteria by which the body must be established. These criteria have become known as the Stirs criteria, the acronym for Specialised, Trained, Independent Resourced in guaranteed fashion and Secure in their tenure of office. The whole judgment is available as Appendix 2 of Under the Swinging Arch. It is accessible simply by googling the title of the book. The relevant part of the judgment starts at para [166] on page 199 of Under the Swinging Arch.

Idac does not tick any of the Stirs boxes and is vulnerable to being struck down as unconstitutional for the reasons given to the President when Accountability Now tried to dissuade him from assenting to the Idac Bill.

All is not lost; there is a Bill pending before Parliament which seeks to implement the rulings in Glenister Two in a constitutionally compliant way.

All South Africans who respect the rule of law, the binding nature of judicial precedent and the duty to honour international treaty obligations should be supportive of the Bill or of alternative measures that tick all the boxes created in the Glenister litigation.

A single Stirs-compliant body that is equipped to honour the treaty obligations mentioned above is what is urgently needed, not only to get SA off the FATF greylist, but also to conquer the corrupt. They currently threaten to leave us in the situation sketched by former Chief Justice Zondo at the dialogue held by Nacac in November 2023 when he pointed out that:

“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.”

More than a year later, nothing drastic and nothing effective has been done. Pretending or, heaven forbid, believing that Idac is the answer or even a step in the right direction is wrong-headed, if not foolhardy. It is certainly a body that will not pass constitutional muster in the light of what was laid down as the law in the Glenister litigation.

Parliament is obliged to ensure that its legislation is properly implemented. The absence of effective and efficient anti-corruption machinery of state during the two Zuma presidencies allowed State Capture to happen. Idac is neither effective nor efficient. There is no known better and constitutionally compliant way forward against the corrupt than to adopt the Bill for establishing the new Chapter Nine Anti-Corruption Commission.

The Anti-Corruption Commission is a “must have” not a “nice to have”.

Universal parliamentary support from all parliamentarians who respect the rule of law and the Constitution is also a “must have”. Any parliamentarian who does not support the Bill will have to deal with the wrath of voters who are fed up with their hopes for peace, progress and prosperity being hijacked by the corrupt. Corruption in the public sector is theft from the poor. It must be brought to an end. DM