It is reported in the media that the Secretary General of the African National Congress, Gwede Mantashe, told a town hall meeting in Evaton on 3 January, 2017 that:
“Corruption is not curing (sic). This practice is stealing. If it is real, abantu must be arrested. It’s simple.”
Corruption is real. The Anti-Corruption Task Team reported to the Standing Committee on Public Accounts last year that in the last six year R250 billion has been stolen, misappropriated, irregularly spent and paid out without authority in the government procurement system. This is a staggering sum. There would be huge dents in the challenges around funding education, health-care and housing were the government to take action to recover the stolen funds and to put a stop to the continuation of the looting of state coffers.
Mantashe went on to concede to his lively audience that:
“At this stage we cannot say that it is a perception. There are people in the ANC who loot the state, and when you loot you destroy the ability of the state to deliver services.” This truism drew loud applause. A keen appreciation that corruption is a human rights issue has come to Evaton, hence the enthusiasm of the crowd.
The problem is that the rate at which the state is being looted is accelerating rapidly each year and now exceeds R46 billion annually according to the most recent report of the Auditor General. “Abantu” stealing from the state are however not being arrested in sufficient numbers. Some are apparently being regarded as “royal game” and above the reach of the law.
The rate at which the Hawks have effected arrests on all priority crimes, including corruption, has in fact decreased from a total of 14793 in 2010/11 to 5847 in 2014/15 with shrinking numbers in the intervening years. The total number of convictions in 2010/11 was 7037 while in 2014/15 this number was down to only 1176. In the period April to September 2015 (the latest available figures) a pitiful 1038 arrests were effected by the Hawks and only 288 convictions secured. These figures speak of gross dysfunction at the coalface of the criminal justice administration.
In the meantime, the Auditor General has investigated looting by public servants and has handed 3000 “slam-dunk” dockets over to the National Prosecuting Authority with a request that the public servants involved in the corrupt activities uncovered by him be arrested and charged. This is the very process that Mantashe advocates.
The problem is that in the last two years the NPA has, according to its latest annual report, secured a measly 151 convictions of public servants. At this rate it will take 20 years to work off the backlog of dockets awaiting attention, assuming (without any justification for doing so) that corruption magically ceases overnight. Experience teaches that the impunity that comes with a 20 year backlog is more likely to encourage increasing numbers of public servants to involve themselves in the looting because there are no consequences of any kind let alone an arrest.
It does not help to lay charges. No investigation follows. The Nkandla “Secure in Comfort” report of the Public Protector contains a great deal of prima facie evidence of theft, fraud and corruption. The complaints to the police about the Nkandla debacle have gone nowhere since 2013. Initially the dockets were kept away from the Hawks by top management in the police.
Then, after the Constitutional Court widened the powers of the Hawks and the head of the Hawks, General Anwa Dramat, promptly called for the dockets, he was immediately suspended and eventually pressured to resign.
There is no suggestion that the dockets have ever reached the Hawks or have ever been investigated. Dramat now faces trumped up charges of kidnapping, which were known to all and sundry before he was paid his golden handshake to resign.
The charges are based on the same factual matrix as those of defeating the ends of justice that were brought against Robert McBride and other IPID officials and had to be ignominiously withdrawn for want of evidence late last year. Despite this set back, the NPA soldiers on against Dramat and his co-accused in the related kidnapping or “rendition” to Zimbabwe case.
No discernable progress has been made on the complaints concerning the goings on at Nkandla. Even the loyal opposition parties, the DA and EFF, do nothing to correct the obvious error in the Constitutional Court judgment on Nkandla. The correction in question will relieve taxpayers of a debt of many millions of rand.
This is not an isolated instance. Read the story of the career of General Johan Booysen, head of the Hawks in KZN for many years, and weep. Jessica Pitchford’s book “Blood on their Hands” leaves the reader in no doubt that the chief activity of the Hawks these days is political intrigue and the protection of crooked politicians, their friends and business associates. This is how Booysen sees it:
“If the last thing I do is to expose those destroying the criminal justice system, I’ll be happy. I’m not the only one who thinks Jiba [a reference to Nomgcobo Jiba, DNDPP, since struck from the roll of advocates for her mendacity] and her cabal have blood on their hands. It’s now widely acknowledged that they are protecting themselves and their cohorts from prosecution.
Complacency will allow people like her and Richard Mdluli [suspended Crime Intelligence chief appointed 2009, suspended 2011, re-appointed March 2012, suspended May 2012 to the present] to capture vital state institutions to advance their own financial and other interests. That’s why I won’t back off. Many people turn silent when faced by injustice, but it’s apathy that creates the breeding ground for the evil monsters that will in the end devour us all…
The Irish statesman Edward Burke once said: for evil to triumph, good men must do nothing.”
If any doubt remains, the content of “Rogue” by Johann van Loggerenberg and Adrian Lackay of SARS erases all thought of propriety and functionality on the part of the leadership of the Hawks. Justifying his decision to write the forward to the book, retired Justice Johann Kriegler puts it thus:
“Ultimately, though, I was motivated by a personal sense of outrage at what these dirty tricks said about the rule of law in our country. For, however opaque and perverted this Kafkaesque tale, there was a discernable pattern – discernable across a number of public institutions – where key individuals, experienced, reputable and independent-minded public servants, have been cynically shunted aside, or out. Typically, the process starts with some or other alleged transgression, relatively trivial and/or outdated. That then triggers well-publicised suspension and disciplinary proceedings with concomitant humiliation, harassment and, ultimately, dismissal, constructive or actual. Then, with breath-taking speed, a hand-picked acting successor steps in and cleans out senior management; and when you look again there is a brand new crop of compliant and grateful faces.
In the process, honourable women and men have been ground down, ignominiously kicked out, their reputations ruined and their life savings exhausted. Often even the most feisty individual has been driven to exhaustion, physical, emotional and, of course, financial. Examples of broadly the same pattern of administrative abuse are to be found in a whole range of parastatals: think, for instance, of South African Airways, Denel, Eskom and the SABC. And of numerous senior public servants – Vusi Pikoli, Mxolisi Nxasana, Glynnis Breytenbach, Anwa Dramat, Shadrack Sibiya, Johan Booysen and Robert McBride, to speak only of the criminal justice sector – who’ve been hounded out of office.”
Even as ANC friendly a commentator as Professor Richard Calland in “Make or Break” has been constrained to remark:
“Under Zuma, it just became easier to plunder. Almost by definition the right-wing nationalists are unconcerned by this because they are part of the rot. There is no crisis of conscience about the harm that has been done – to the ANC, to the government and to the country.
On the left, however, there is a wailing and gnashing of teeth. There is angst and fretfulness, and, yes, at least in some quarters, a crisis of conscience. Some feel guilty that they were accomplices to this project of ‘state capture’ and the deepening of a culture of impunity and corruption in and around the ANC’s control of governmental power. Others grit their teeth and close their eyes and construct in their mind’s eye a narrative that justifies not only their original support for Zuma, but their continued presence in his cabinet.”
Calland concludes that:
“South Africans should not turn their backs on politics. They must engage and get involved. The choice is simple: be a bystander and, thereby, an accomplice to the downward spiral or, rather, be a protagonist, a contestant, …”
It is difficult to discern whether Mantashe is having a crisis of conscience or whether he is waking up to the reality that the electoral support of his party is in jeopardy following the set-backs it suffered in the municipal elections last August.
Either way, if he wishes to restore the credibility of the ANC, it will be necessary to address the issues around the dysfunction in the criminal justice administration. Jackie Selebi was convicted of corruption, his successor as chief of police, Bheki Cele, was found unfit for office after he was involved in trying to lease premises for SAPS at three times the going commercial rate. He has never been arrested or charged, instead he finds himself in the cabinet as a deputy minister. His successor, Riah Phiyega, has also been found unfit for office if leaks of her long awaited board of inquiry report are to be believed.
There are proceedings pending concerning the fitness for office of the head of the NPA, Adv Shaun Abrahams, and the head of the Hawks, General Berning Ntlemeza. Two of the most senior prosecutors in the land have been struck off the roll of advocates because they are not fit and proper persons to enjoy that status.
The Minister of Police, Nathi Nhleko, still believes there is a firepool at Nkandla, his predecessor, Nathi Mthethwa, has a garden wall paid for irregularly out of police intelligence slush funds but does not regard himself as in any way liable. Dinah Pule, she of the red shoes, palpably a cabinet-based looter, has never been required to face criminal charges and has not been arrested.
Mantashe needs to take cognisance of the fact that while cadre deployment in the public administration continues, while the 3000 docket backlog of Auditor General investigations remains unattended and while the Hawks are ineffective, the corruption of the ANC will continue until the state fails shortly after the goose that lays all the stolen golden eggs dies of malnutrition.
What is needed is an Integrity Commission: an independent, specialist entity with dedicated professionals trained to deal with corruption and organised crime exclusively.
Properly resourced personnel who enjoy security of tenure of office, led by persons of integrity and probity. An Integrity Commission will have the clout to stare down those who seek to influence it or interfere in its work. It will answer to parliament, not the executive. It will, if the Constitutional Court is right in setting its binding criteria for our anti-corruption machinery of state, save us all from the corrupt among us.
Paul Hoffman SC is a director of Accountability Now and the author of “Confronting the Corrupt”.