Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.
The overwhelming impression is that the NPA investigations head quit in frustration or desperation at being unable to do what is required to get on top of rampant serious corruption, the ravages of State Capture, the calumny of insurrection and ‘covidpreneurism’, all fueled by the kleptocrats of the Zuma era and beyond.
A rare and lengthy media conference was held by some in the leadership of the National Prosecuting Authority on Monday 6 December 2021. Conspicuously absent was Hermione Cronje, head of the Investigating Directorate set up by President Cyril Ramaphosa’s proclamation in 2019 to plug the yawning gaps in the anti-corruption machinery of state he was shocked to find on taking office.
Cronje has resigned for many reasons, none of which were revealed or discussed in anything like the detail the media questions demanded during and before the conference.
A visit to the website (undertaken in a vain effort to find the time of the conference) of the NPA is as underwhelming as the content of the media briefing. There is not a word about it to be found; it hasn’t been updated since October and the media statement of Shamila Batohi, National Director of Public Prosecutions, on its “quick links” section is dated February 2019.
Her statement then, marking her appointment, was upbeat and full of eager anticipation of the tasks ahead. Her performance on 6 December is markedly different. There are those who measure the efficiency and effectiveness of organisations by the state of their websites. Visit www.npa.gov.za and make your own assessment, however bleak you decide it should be.
Perhaps the most remarkable feature of the uninspiring media conference is the failure of all participants to get to grips with the real issues. It is common cause that anti-corruption work is specialised, difficult and urgently needed if South Africa is to avoid falling into failed state status. The overwhelming impression is that Cronje quit in frustration or desperation at being unable to do what is required to get on top of rampant serious corruption, the ravages of State Capture, the calumny of insurrection and ‘covidpreneurism’, all fueled by the kleptocrats of the Zuma era and beyond.
Cronje’s repeated refrain that her work was being undermined by saboteurs within the NPA, planted there to ensure ongoing impunity, was, for the first time, denied by Batohi who, contradictorily so, admitted to the existence of pending disciplinary matters involving disloyalty in her staff. She ducked giving details.
There are three fundamental issues that should have been and still need to be addressed but weren’t.
The relevant topics can be raised by parliamentarians when the minister of justice joins Batohi to explain the mess to them on Wednesday 8 December. Less obfuscation and more focus can be extracted, if the right topics come up for discussion, which did not happen on 6 December.
The first of these topics is the decisions of the courts as they appertain to the corruption-busting responsibilities of the state via the criminal justice administration. These decisions set out, loudly and clearly, the binding requirements (known as the Stirs rules) of the law; they specify the criteria by which an anti-corruption entity is to be measured and they set the parameters of an effective and efficient structure whose operations are capable of discharging the treaty obligations of the country and its commitments to respect and protect the human rights of its population, especially those human rights that are expensive to deliver to the poor.
The loot of State Capture is diverted away from social grants, healthcare, housing, education and other human rights that are intended by the Constitution to create a better life for all. Corruption busters are meant to reverse the flow of the loot and hold the looters to account in court. These good outcomes are simply not happening in SA because a blind eye is being turned to the basic and binding requirements for success in corruption busting.
The Glenister trilogy of cases, fought hard between 2008 and 2014, set out what is needed. They did not feature in the discussions of the NPA leadership at all. On the contrary, some revealed a mindset that harkens back to the dark days of the Zuma era during which the fragmentation and destruction of the corruption-busting capacity of the state was the order of the day.
The numbers are revealing: the Scorpions had over 500 members, the ID has about 120, many of whom will follow their leader into resignation unless urgent action is taken now to reassure them. The ID is not permanent, it serves at the pleasure of the president, Cabinet and Batohi; it lacks independence, resources, skills needed and freedom from political influence and interference in its work. It ought to have a reporting line directly to Parliament, but does not.
The second topic that was shunned by the NPA was a resolution of the National Executive of the ANC taken in August 2020. That resolution has direct bearing on the manner in which the governing alliance wishes to fight the anti-corruption fight. It envisages a scenario that does not exist at present, that will affect the NPA in vital respects, and which is intended to deal a decisive blow to serious corruption.
The NEC instructed Cabinet to establish, as a matter of urgency, a permanent, standalone, independent and specialised entity to “deal with” corruption. If the resolution is implemented by Cabinet, as it should be because it is constitutionally pure and emanates from the highest decision-making body in the ANC between conferences, the NPA will never be the same again. It will lose its prosecuting functions insofar as corruption is concerned and will be able to concentrate on all other forms of crime instead.
It remains unknown whether the NPA welcomes the resolution and looks forward to its proper and swift implementation or whether it would prefer to soldier on bravely with the under-capacitated, headless and limping Investigating Directorate whose leader has just resigned, most likely in dismay, disgust and frustration. There are hints that the latter is the NPA’s position, which is unfortunate because the NEC is in the habit of getting its way. On this occasion, the resolution of the NEC aligns well with what the law, as spelt out in the Glenister cases, requires.
The third topic that the NPA ignored at its ineffably sad media event is the existence of drafts of the legislation and constitutional amendment that are required to put flesh on the bones of the NEC resolution. These drafts have been suggested by Accountability Now and have been “noted” by the NPA. They posit the strengthening of the independence of the NPA, freeing it from the shackles of the ministry of justice.
These drafts will be discussed by the Constitutional Review Committee of the National Assembly this week. That committee is informed by an opinion that was given by Parliament’s chief legal adviser, which is discussed critically here.
The NEC resolution is overlooked or ignored in the opinion. This may be a mistake or the dynamics of factionalism in the ANC playing themselves out in the workings of Parliament. Either way, it is surely difficult for parliamentarians of all parties and all factions within parties to simply ignore so important a resolution of the leadership of the governing alliance that governs in Parliament, in all but one province, and in most municipalities too.
A heavy onus rests on the shoulders of parliamentarians who find themselves seized with the issues set out above. The constitutional duty of all parliamentarians is to exercise oversight and make laws. Parliament also passes budgets. Budgets used to pay 536 Scorpions (back in the days before the Zuma era dawned and they were scuppered) and 120 ID staff now.
It is high time Parliament put its best foot forward to address the issues around countering corruption in a proactive and constructive way.
The topics so assiduously avoided during the media conference on Monday need to be tackled in the upcoming parliamentary engagements this week. DM