By Paul Hoffman
11 Jan 2023
Paul Hoffman SC is a director of Accountability Now.
Until serious corruption is properly addressed, with fealty to the criteria set by the Constitutional Court in the Glenister judgment via the proactive reform of the criminal justice system, there will be no renewal in South Africa.
0:00 / 9:34 BeyondWords
Much time and many deliberations have been devoted to the idea of “renewal” in South Africa, at the ANC elective conference, its 8 January celebrations and in the commentary on both events.
The essential promise to ordinary folk in our 1996 Constitution is “a better life” in which the state respects and protects guaranteed human rights for all and seeks to put in place a system of governance that is open, accountable and responsive. The public administration and state-owned enterprises are meant to exemplify ethical conduct, efficient and effective use of resources and sound human development of personnel who behave honestly, accountably and with fairness to all. Procurement of goods and services by the state should be done fairly, equitably, competitively, transparently and in a cost-effective way.
None of the above is abundantly evident in the way in which most facets of government at national level and in most provinces have been conducted. The State Capture Commission’s voluminous report is a long litany of governance failure and an authentic, authoritative account of the State Capture to which the country has been subjected since its liberation from the yoke of apartheid.
The archbishop of Cape Town, Thabo Makgoba, speaks eloquently of the “New Struggle”, and talk of a government of national unity is supported by him. There is also speculation that a coalition of some sort will somehow prevail in the 2024 general elections and that this may or may not include the tripartite alliance that has won every election at national level since the first one in which all were allowed to participate.
The President himself speaks in eloquent terms of the need for renewal of his party and the need for renewal in the country. Sometimes party and state are elided in the ANC’s striving for hegemonic control of all levers of power in society. This striving comprehensively rubbishes constitutional notions such as the separation of powers, the rule of law and the exercise of checks and balances over the use and abuse of power.
Our Constitution is supreme; when challenged, conduct and laws inconsistent with its tenets are liable to be struck down as invalid and unlawful by our (still) independent and impartial courts. All too often challenges of this nature are successful. Some Cabinet members, notably Dr Nkosazana Dlamini Zuma and Lindiwe Sisulu, have broken with constitutionalism, others call for a sovereign Parliament, and insurrection bubbles over when it is not brewing and stewing under the surface of national politics.
Many of those who work to undermine the gains of liberation do so out of fear that their own misfeasance and malfeasance will get them into trouble with the law, relieved of their ill-gotten gains and even incarcerated for their participation in State Capture. The attempts on the lives of the CEO of Eskom and the vice-chancellor of Fort Hare University are symptoms of the desperation of those involved in corruption as a full-time means of self-enrichment at the expense of the taxpayer, to the detriment of the poor, and as a way of life that is marked by nepotism, cronyism and kleptocracy. Unbridled greed is the cause of these phenomena and they have been allowed to spread due to the unwillingness of the decision-makers in Cabinet to address the weaknesses in the criminal justice administration.
Those weaknesses are not accidental. They have been deliberately created via the closure of the Scorpions, the defanging of the prosecution service, the inadequacy of the Hawks and the pervasive control of the levers of power in the criminal justice administration by politicians who ought to know better than to undermine ethical and honest governance by making room for corrupt activities.
The National Executive Committee of the ANC is alive to the dangers inherent in executive control of the criminal justice administration’s anti-corruption capacity. The “final responsibility” of the minister of justice and the management of the Hawks by the minister of police make it difficult for those employed to counter corruption to discharge their mandates properly. The NEC resolved in August 2020 to instruct Cabinet, as a matter of urgency, to establish a standalone and independent corruption-busting body. The instruction has not been acted upon by Cabinet.
The President has instead appointed an entirely unnecessary National Anti-Corruption Advisory Council (Nacac) for a three-year term. This amounts to kicking the can down the road. He has already indicated a willingness to create an anti-corruption entity that reports to Parliament and not to Cabinet. Taxed in 2019 on the topic of making the new body a Chapter 9 institution, he has undertaken to mull over what he calls this “refreshing” notion. This notion has been embraced by the IFP since 2019 and by the DA since 2022. In August 2021, Accountability Now supplied both the legislature and the executive with the draft legislation and constitutional amendment that might address the weaknesses in the current system.
The executive remains unresponsive to the suggestions of Accountability Now, but the Constitutional Review Committee of the National Assembly has unanimously resolved to consider comprehensive representations on the suggested drafts. These were made in writing in August 2022.
The essential ingredients of the reform required have already been specified in binding terms by the highest court in the land. Hence the superfluity of Nacac. In the Glenister litigation, the need for an effective and efficient anti-corruption entity was made into a human rights issue and also a question of adhering to the obligations assumed by the state in its international treaties on the topic of countering corruption. The court held that the government is obliged to come up with a system that is adequately independent, properly resourced and secure in tenure of office. Properly trained specialists of probity and integrity should operate the entity and it should be free of executive control.
The government tried to comply with these criteria by amending the mandate given to the Hawks. The court found the amendments wanting in various respects and fixed the legislation itself – an unusual step. The legislation so fixed has been in place since November 2014. The findings of the Zondo Commission illustrate that the system is not working as it should, so much so that State Capture is an ongoing scourge in the land. Somewhere between R1-trillion and R2-trillion has been gobbled up by the corrupt during the course of kleptocratic corrupt activities in South Africa. All of the loot of State Capture should be recovered for the benefit of the poor from those who participated in the looting, whether as deployed cadres of the ANC or as their fellow travellers in business and industry.
Be assured that until serious corruption is properly addressed, with fealty to the criteria set by the Constitutional Court, there will be no renewal in South Africa. The economy will continue to struggle, our GDP is in danger of shrinking by a calamitous 1% if the Financial Action Task Team decides to greylist South Africa. The shortage of funding for electricity, healthcare, education and social services will become ever more dire if the levels of corruption in the land are not proactively addressed by a suitably independent entity that has the structural and operational capacity to recover loot, prosecute wrongdoers and dissuade those contemplating living off the proceeds of corruption.
It is a simple matter to approach the courts for suitable relief due to the failure to implement the binding rulings of the courts. It is infinitely better to persuade decision-makers to do the right thing when reform of the criminal justice administration is proactively addressed.
To help generate the political will necessary to counter serious corruption in South Africa, a hybrid webinar conference will be held, auspiciously so, in the OR Tambo moot court at UCT on 6 February 2023. Experts are being assembled to address four main themes in their deliberations. First the proper implementation of the anti-corruption findings of the Constitutional Court, second, the better protection of whistle-blowers, third the introduction of Non Trial Resolution for complex corruption cases, and last, the acceptance of the need for an International Anti-Corruption Court, working on the basis of complementarity in instances in which local solutions are legally impossible.
It is only when South Africans of goodwill have the protection of effective, efficient anti-corruption machinery of state that it will be possible to address the other issues in the “New Struggle” of which the archbishop speaks. The recovery of the loot of State Capture can be used to address the creation of a better life for all in South Africa. DM