By Paul Hoffman
05 Jul 2022
Paul Hoffman SC is a director of Accountability Now.
President Cyril Ramaphosa is right — accused number one when it comes to State Capture is the ANC. The voters will have to decide, when next they vote, whether or not they are willing to support a criminal enterprise as identified by the State Capture Commission.
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The long-suffering taxpayers of South Africa have spent roughly a billion rand on the State Capture Commission (SCC). It has considered about eight million pages of documents, heard the testimony of 300 or so witnesses and sat for around 400 days. The report pulling together the findings of fact and the recommendations of the SCC covers over 5,000 pages.
All of these facts point to a monumental effort on the part of the evidence leaders, the investigators and the commissioner himself. All South Africans of goodwill are in their debt. It is however incumbent upon all people of goodwill, all active democrats, to act on the findings and recommendations that withstand due scrutiny.
Many topics worthy of inclusion were omitted from the SCC report. The omissions were made to avoid an endless task. So, for example, the hollowing out of the criminal justice administration to facilitate State Capture is not considered in any detail and the many instances of the phenomenon at municipal level are obviously too numerous to investigate.
The report is focused on the “whodunit”, when and where issues which are adequately dealt with in sufficient detail to point the criminal justice system toward the scented trails of the obvious wrongdoers and those deserving criminal investigation too.
The issues around why State Capture befell South Africa and how to avoid its repetition are less pertinently addressed in the report.
The confirmation by the SCC of the long-standing high court findings that the ANC’s practice of cadre deployment is unlawful and unconstitutional is welcomed. The pernicious practice of putting loyal members of the ANC into positions of power and influence in the public administration and the state-owned enterprises is one of the basic causes of the State Capture phenomenon. Party loyalty has been allowed to trump the principles and values set out in section 195 of the Constitution to the detriment of the public good. Under-qualified deployees have been preferred to properly qualified candidates; merit as a criterion for appointment has been side-lined and the inherent conflict between serving the public weal objectively and being loyal to a political party has been ignored.
As a consequence of cadre deployment the scene was set for the looting of the public purse that followed with enthusiastic help from the likes of the Guptas, Watsons, Bains and McKinseys, ably abetted by lawyers, accountants and bankers, all of whom should have known better.
Between cadre deployment and the gutting of the criminal justice administration, the verdant playing fields for State Capture were readied by the Jacob Zuma administration in which Cyril Ramaphosa served as chair of the Luthuli House cadre deployment committee of the ANC. It met in secret and insisted on the use by the state of the time and talents of the most loyal of cadres. As a result between R1-trillion and R2-trillion has been looted and ought, in the aftermath, to be recovered from the looters.
Obviously ending State Capture must entail ending cadre deployment. Yet, the president pleaded for its retention when he gave evidence to the SCC. He wants four months to consider his Cabinet’s response to the SCC recommendation and the report itself. This attitude is a further illustration of the presidential propensity to dither. After “farmgate”, the dithering can only grow worse.
It is salutary to pause to consider the status of the findings of fact and the recommendations made by the SCC. The SCC must in law be regarded as a tool of the executive branch of government, used to cool and dissect the political hot potato called “State Capture”. Its findings of fact are not binding and are not directly helpful in any prosecutions that may be instituted as a result of its recommendations. The recommendations themselves are of the “take it or leave it” kind, which means that government can ignore, reject or refuse to follow the recommendations made; or, if it follows previous form, it can pretend to accept recommendations but then fail to act on them.
(This strategy was followed in the official response to the Marikana Inquiry, as a consequence of which insufficient preparation for the July 2021 insurrection was in place. Police were held back for fear of a repetition of the massacre at Marikana. Public Order Policing has not been reformed in line with the Marikana report nor in accordance with the 136 recommendations made by the panel of experts engaged to advise the police on the way forward from that disaster. This failure may yet come back to bite South Africa as the faction fighting within the crumbling ANC becomes more heated.)
Sadly, the SCC report is at its weakest when it comes to addressing the question of how to avoid the repetition of State Capture.
Clearly, the dissolution of the Scorpions in 2009 made State Capture a lot easier for those perpetrating it. However, the reinstatement of the Scorpions will not suffice, nor will the planned bolstering of the prosecution service. The Hawks do not have the necessary clout to investigate serious corruption. The Scorpions were vulnerable to closure because they were a creature of an ordinary statute. The NPA is so hollowed out and saboteur-infested that it will take many more years to recover than South Africa has available to accommodate the necessary processes.
Only the most idealistic of recruits have rejoined the NPA after the demise of the Zuma administration.
In short, the type of personnel actually required to counter serious corruption in the form of State Capture and kleptocracy are not prepared to work for the NPA. They point to the experience of the Scorpions as their basis for steering clear. Recruitment of the specialists needed in investigative, prosecutorial and forensic capacities is crippled by the state of the landscape and working conditions in the NPA.
These factors are best addressed by the establishment of a new body to deal with serious corruption. The main political parties seem to acknowledge, pragmatically and sensibly from their various standpoints, that a new body is the optimal way forward.
The IFP was first to reach this conclusion in March 2019 when it pleaded during presidential parliamentary questions for a Chapter Nine Integrity Commission (Ch9IC) with a mandate to prevent, combat, investigate and prosecute serious corruption. The president found the idea “refreshing” and undertook to “mull over it”.
The NEC of the ANC was next to take up the idea of reform. In August 2020, it instructed Cabinet to set up a single standalone, specialised, permanent and independent body to deal with the corrupt as a matter of urgency.
When, by August 2021, no urgent response from Cabinet had materialised, Accountability Now gave the reform process a boost by making public suggested drafts of the necessary constitutional amendment and enabling legislation. In June 2022 the Constitutional Review Committee of the National Assembly unanimously decided to give Accountability Now the opportunity of making a comprehensive presentation to it on the Ch9IC. The previous parliament had done so too in April 2016.
Earlier in 2022, the DA joined the chorus for a Ch9IC in which the investigative and prosecutorial functions relating to serious corruption come under the same roof. Previously the DA sought only to reform the limping investigative capacity of the state. Now it supports the removal of serious corruption from the mandates of the NPA and the somewhat underwhelming Hawks.
All of these facts concerning the political and civil society responses to the need for reform were public knowledge by the time the final report of the SCC saw the light of day. None of them is mentioned in the report.
The necessary reform ought to be welcomed by the NPA because it will assist the healing and rebuilding process which it requires to recover from its gutting. A gutting during which it was disabled from investigating corruption by the dissolution of the Scorpions, decapitated by the removal of Mxolisi Nxasana as its leader and weakened by budget cuts and cadre deployment of what its good staff call “saboteurs”.
These evil cadres were planted in its ranks by the ANC cadre deployment committee out of concern to prevent those involved in State Capture and other forms of corruption from being held to account and from paying back the money they have looted. These facts justify the description of the ANC as a criminal organisation centrally involved in State Capture and racketeering. The official Opposition has laid a criminal complaint against the ANC. The complaint is worthy of investigation and prosecution. It has instead not been acted on since it was made in 2019 and amplified more recently in the light of the SCC findings against the ANC. These findings have already been commented on widely.
Today no one suggests that the Hawks are up to the task of investigating serious corruption. Their “priority crime” mandate is wide and onerous. Removing serious corruption from the investigative work the Hawks are required to perform will enhance the productivity of the police unit as regards other priority crimes on which it already enjoys greater success.
The approach of the SCC report to reform is informed by a most unfortunate misinterpretation of what Professor George Devenish described as the seminal Constitutional Court “Glenister II” decision on the requirements of the law for efficient and effective anti-corruption machinery of state that is adequately independent.
In the first volume of the report of the SCC published in January 2022, the majority decision in that case, depicted in the joint judgment of then Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron, is misconstrued as a minority judgment. It is nevertheless praised in the report. As minority judgments do not bind the parties affected, the whole approach of the SCC to the reforms now required gets off to a false start.
Had the SCC appreciated the binding nature of the joint judgment, it could have invoked the constitutional obligation of Parliament to exercise oversight of the implementation of legislation it passes. The remedial legislation it passed in response to the orders made in the joint judgment was intended to put in place effective and efficient adequately independent machinery of state to counter corruption. This appears from the debate in Parliament that preceded the adoption of the amendments to the law.
As a consequence of the failure of the implementation of the legislation to address the order of court properly, State Capture and widespread corruption befell South Africa. It is plain that our anti-corruption machinery is not up to the task of preventing, combating, investigating and prosecuting those guilty of serious corruption. As a result, impunity is the order of the day. The freezing and seizing of loot has hardly occurred: some R5-billion in a sea of between R1- and R2-trillion of loot is hardly a freezing rate to bandy about proudly.
The powers conferred on the National Assembly by Section 55 of the Constitution require it to maintain oversight of the implementation of legislation and initiate or prepare legislation itself, excluding money bills.
It is also trite that Parliament is bound by the rulings made in the joint judgment. An order or decision issued by the majority of our highest court clearly binds all persons to whom and organs of state to which it applies. Parliament is a pre-eminent organ of state.
Mindful of its onerous duties, the Constitutional Review Committee of the National Assembly resolved to invite a discussion of the draft laws suggested by Accountability Now that address the need for reform of the criminal justice administration in a constitutionally compliant manner. The resolution was unanimously passed before the final tranches of the SCC report were handed over to the president by the Chief Justice in June 2022.
The reasons the court gave for granting the orders it made are best relayed in the court’s own words, collected under relevant headings here.
The criteria set by the court and recognised as such in the National Anti-corruption Strategy have been dubbed the Stirs criteria: Specialised, Trained, Independent, Resourced and Secure in their tenure of office. These criteria are binding on the state.
The sorry history of law enforcement in the corruption field since the demise of the Scorpions proves that there is an urgent need for radical reform of the criminal justice administration to better equip it to deal with serious corruption. Our “circumstances” currently are that the system in place was not able to counter the State Capture project. Hence the need for further remedial legislation.
As regards operational and structural independence; security of tenure of staff and their remuneration, and as regards accountability and oversight, the Hawks are not constitutionally compliant and never have been. Without rigorous investigation of the allegations uncovered in the SCC report, successful prosecution of the corrupt will remain illusory or beyond the grasp of the criminal justice administration as currently configured.
It is wrong to expect too much of the SCC report and its recommendations. It is unfortunate that the status of the judgment quoted from above was misconstrued. The judgment is binding and it should be enforced. The way to do so is via remedial legislation that establishes a Stirs-compliant entity. It is suggested that the Ch9IC is the best practice way of doing so. Neither the Hawks nor the NPA, functioning as they currently do, can cut it within the time frame the survival of the democratic project in South Africa requires.
The error in the SCC report that reflects the joint judgment as a minority judgment was drawn to the attention of the evidence leaders in the SCC in January 2022. It remains uncorrected in any of the tranches of the report published since the error was highlighted. However, given the nature of the report and the status of its findings, there is no great harm done. The joint judgment is what it is and it ought to be enforced properly. If the legislature and executive are not prepared to do so, the judiciary may be approached to intervene to secure proper compliance.
Parliamentarians know these facts and ought to be properly advised on what the law requires. They are acting accordingly but with less urgency than the situation demands. Ours is a participatory democracy. Active citizens ought to apply themselves to securing the reform of the criminal justice administration so as to achieve proper compliance with the seminal judgment of the Constitutional Court.
The judgment stands, notwithstanding the tinkering that took place in 2014. The Stirs criteria are still the yardstick and Parliament is still obliged to make the reasonable decision of a reasonable decision-maker in the circumstances. The SCC report sketches the relevant circumstances in great detail.
The president is right – accused number one when it comes to State Capture, is the ANC. The finding of the SCC is that the ANC is guilty as charged.
The voters will have to decide when next they vote, whether or not they are willing to support a criminal enterprise as identified by the SCC. The voters were warned in 2019 shortly after they last voted in a general election.
There are elements in the ANC who still plead not guilty to the charges. They will challenge the SCC findings, appeal the unsuccessful reviews they bring (as many times as the law allows) and then ask (repeatedly) for the rescission of any adverse findings. This tactic may buy time but it won’t undermine the main thrust of the SCC findings. Good people in the ANC are abandoning ship, others are defending our democracy and many must or should be rethinking their political allegiance.
The new South Africa is aimed at honouring human dignity, respecting human rights and promoting the achievement of equality so that a better life for all is achieved. The better life has proved elusive under the governance of the ANC. We all now know why from a study of the report of the SCC. It is up to each individual engaged South African to act on this knowledge.
There is still hope that the best life for all is possible if we make the right choices. DM