By Paul Hoffman

The final outcome of the elections may have the effect of dampening the ANC’s enthusiasm for the Idac legislation, which is likely to be struck down as unconstitutional if it is challenged in public interest litigation.

On the eve of the elections for national and provincial parliaments, at 11:50 on 24 May 2024, President Cyril Ramaphosa assented to the National Prosecution Authority Amendment Act thereby bringing into being the Investigating Directorate Against Corruption (Idac).

This he did despite a spirited last-ditch attempt to dissuade him from the course desired by his parliamentary caucus at national level, but apparently not by the National Executive Committee (NEC) of the ANC, which has very different ideas about what is actually required to counter corruption properly.

Back in August 2020, the NEC passed an urgent resolution calling upon Cabinet to process a law that would bring into being a stand-alone, permanent, independent body of specialists for the purpose of countering corruption, one which would be empowered to act without fear, favour or prejudice.

The cabinet, unusually so, appears to have been unresponsive to this resolution. The decision to bring Idac into existence does not tick the boxes set up by the NEC, nor does it comply with the similar requirements of the law as spelt out loudly and clearly by the Constitutional Court in the second Glenister case back in 2011.

On the very morning of the decision to sign Idac into law, the President received an email from Accountability Now pleading for him not to so assent. The request was ignored; it was not even acknowledged. Here is the text of the request:

Subject: Assenting to the Idac Bill will be unconstitutional and counter-productive

Dear Mr President,

URGENT

1. The announcement that you intend assenting to the Idac Bill leaves those of us at Accountability Now who have advocated the establishment of a constitutionally compliant anti-corruption entity with the feeling that we have let you, and the country, down by not pursuing our cause adequately. Please reconsider your intended assent.
2. Assenting to the Idac Bill is a wrong step. It will leave you looking soft on corruption, tolerant of kleptocrats and deaf to the warning of the Chief Justice that drastic steps are urgently needed to arrest the slide to failed statehood after State Capture is re-asserted in the wake of his report on the devastation wrought by State Capture during what you have rightly called the nine wasted Zuma years. Establishing Idac is not such a step.
3. Idac is a wholly inadequate and deeply unconstitutional response to the urgent need for radical reform of the capacity of the criminal justice administration to counter serious corruption and organised crime. It is common cause now that the DPCI has proved to be unequal to this task for the reasons put forward by Mr Glenister in his last appeal to the Constitutional Court.
4. Here is why both Idac and the DSO (Scorpions) do not adequately comply with the Stirs criteria laid down in terms that bind you and government:

(a) Both are creatures of an ordinary statute passed by a simple majority in Parliament.
(b) Both are vulnerable to dissolution at the instance of a simple majority which wishes to repeal the said legislation.
(c) Both are located as a unit within the NPA and not within an independent structure such as the judiciary and Chapter Nine Institutions.
(d) The NPA is not independent and has been so badly gutted by State Capture that it will take years to recover from the ravages of the saboteurs deployed in its ranks to protect the corrupt.
(e) The NPA is operated as a programme within the Department of Justice, not independently.
(f) The NPA is subject to the minister of justice having final responsibility over it in terms of C179.
(g) The minister must concur in all prosecution policy, also in terms of C179.
(h) The NDPP and other leadership of the NPA are executive appointees, the former in your sole discretion.
(i) The accounting officer of the NPA is the director general of justice who is not even a member of the NPA.
(j) Due to its gutted state, the NPA will be incapable of recruiting the trained specialists needed to populate Idac. They will baulk at possibly facing the same fate as the DSO.
(k) The NPA is grossly underfunded due to the ravages of State Capture and the general state of the economy, which corruption has largely caused.

5. The constitutionality of Idac will be impugned in public interest litigation that will bedevil its functionality by rendering it incapable of recruiting the trained specialists it needs.
6. The concept of Idac will come into conflict with the concept of a Chapter Nine Anti-Corruption Commission (ACC) of the kind foreshadowed in the private member’s bill advertised by the shadow minister of justice. The public’s perception of Idac will be that it is a weak response to the need for reform, indicative of a lack of political will to counter corruption efficiently and effectively as required by C195(1)(b) read with C 7(2) and Glenister 2.
7. The DA plans that its private member’s bill on the ACC will be debated in Parliament within 100 days of the commencement of the seventh Parliament and is supported by most opposition parties. You regarded the notion of an ACC as “refreshing” when it was first put to you by the chief whip of the IFP in Parliament in March 2019. In August 2020 the NEC of the ANC called for a permanent, independent, stand-alone, specialist body to counter corruption. Idac does not fit that description. The DA’s proposed ACC does.

Yours in accountability

Paul Hoffman SC
Accountability Now.

At the time of writing it is not clear how the support of the various parties contesting the general elections will eventually pan out once all the votes are counted. It seems likely that the ANC will not enjoy the absolute majority that it previously had in the national political arena.

Read more in Daily Maverick: 2024 election results dashboard

This may have the effect of dampening the ANC’s enthusiasm for the Idac legislation which is patently not in accordance with what the law requires and which is likely to be struck down as unconstitutional if it is challenged in public interest litigation aimed at impugning it.

Should the ANC go into coalition with the left, it may be able to maintain its position on the Idac legislation. However, if the coalition that emerges from the maelstrom of the election includes any party or parties that are part of the Moonshot Pact or Multi-Party Coalition initiated by the DA, then a deal will have to be struck. This would be as to whether the Idac legislation will be allowed to survive the formation of the ANC-led governing coalition, or whether it will be overtaken by the debate on the establishment of a new Chapter Nine Anti-Corruption Commission which will replace Idac in the firmament of anti-corruption machinery of state.

Read more in Daily Maverick: Time for government to get serious about dire levels of corruption and organised crime

A new body that is up to the task of efficiently and effectively countering corruption by its prevention, combating, investigation and prosecution is urgently required if SA is to survive, get off the FATF greylist and prosper in the future.

Should no such deal be struck in the negotiations to form a new government that is representative of those in the coalition, it can be expected that public-interest litigation will follow in which relief will be claimed aimed at striking down the Idac Act as unconstitutional.

In the same case, it will be possible to claim mandatory, declaratory and supervisory relief designed to ensure that there is proper compliance with the criteria laid down in terms that bind government in the Glenister litigation.

The law requires a specialised and properly trained body of independent operatives who are properly resourced and enjoy secure tenure office. Idac is not such a body, but the DA’s Anti-Corruption Commission will be able to fit the bill, as set by the highest court in the land.

Interesting times lie ahead for those who recognise that corruption is the biggest issue in the land. DM