The past, present and possible future of the investigation of serious corruption in SA

by | Nov 21, 2022 | Chapter 9, General | 0 comments

By Paul Hoffman

20 Nov 2022

Paul Hoffman SC is a director of Accountability Now.

The Hawks and the NPA are up to the task of dealing with petty corruption. It is serious corruption that is the problem in SA and that will be properly addressed by the creation of the new body that will function in the same way as the Scorpions did but with greater independence and better security of tenure.

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South Africans have the endearing habit of giving nicknames to their institutions and those who work in them. The national rugby team are all Springboks, the soccer team is called Bafana Bafana. Those who work on the railways are called “Spoories” and the railway police were nicknamed “stasie blompotte” before people realised how much they would be missed once gone.

The most imaginative names have been reserved for those with the unenviable and highly specialised task of countering serious corruption in the land.

First we had the Scorpions, then the Hawks; some day, if our luck holds, we may have the Eagles to deal with serious corruption. Without the Eagles we may be left with nothing but the wreckage of our brave attempt at creating the model constitutional democracy under the rule of law of which our founders could be proud in the second decade of the 21st century.

It is useful to sketch the possible progression toward the establishment of the Eagles because all people of goodwill ought to be concerned with getting them in place sooner rather than later.

The Scorpions, or to give them their formal title, the “Directorate of Special Operations”, consisted of investigators, forensic specialists and prosecutors in the employ of the National Prosecuting Authority (NPA).

They were the brainchild of Penuell Maduna, then Minister of Justice, and Bulelani Ngcuka, then National Director of Public Prosecutions (NDPP). The political will to form the Scorpions was generated during the Mbeki era. The Scorpions consolidated all serious anti-corruption work of the state under one roof. They operated the troika system of investigation, forensic science and prosecution in the independent spirit with which the NPA is nominally imbued.

While Parliament is enjoined to see to it that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice” [C179(4)] the sad truth is that independence has been somewhat brittle due to executive excesses and to the “Cabinet member responsible for the administration of justice” exercising “final responsibility over the prosecuting authority” [C179(6)]. The director general of the department of justice is also the accounting officer of the NPA, a factor which tends to inhibit the independence of the NPA.

The questions around the independence of the NPA have been asked and answered before.

No NDPP has ever seen out his or her term of office, a non-renewable term of 10 years. Vusi Pikoli was suspended by Thabo Mbeki for wanting to prosecute the police chief Jackie Selebi and was later fired by Kgalema Motlanthe for going after Jacob Zuma.

Mxolisi Nxasana was bribed by Zuma to quit after he let it be known that he would prosecute Jacob Zuma if the DA won its review of the decision of Acting NDPP Mokotedi Mpshe not to prosecute  Zuma for corruption, fraud, money laundering and racketeering. Those charges are still pending 17 years after Schabir Shaik was convicted for corrupting Zuma.

Some leading lights in the NPA feature in the report of the State Capture Commission as having been captured themselves, and this without the commission going into the current state of affairs within the NPA. The NPA was hollowed out and gutted by State Capture and it is still infested with saboteurs who extend the impunity of the corrupt.

The Scorpions were a creature of an ordinary statute which amended the NPA Act to give them birth. Therein lay their weakness or Achilles’ heel. Because a simple majority formed them they could also be closed down by a simple majority, which is what happened when they got too close for comfort to some ANC bigwigs (including Jacob Zuma) and their associates in the business world.

When the ANC resolved to dissolve the Scorpions urgently, Helen Zille, then leader of the opposition, met with Gwede Mantashe, then Secretary-General of the ANC, to get an explanation for the decision. He made four points that are worth repeating:

First, the ANC wanted the Scorpions disbanded because they were a “political unit made up of apartheid security branch members who treated the ANC as the enemy”.

Second, the Scorpions’ continued investigation of Jacob Zuma was regarded as an abuse of power by the ANC.

Third, the ANC would ensure that its resolution made at its December 2007 Polokwane conference to disband the Scorpions was implemented fully, and last, the ANC wanted the Scorpions disbanded because they were “persecuting ANC leaders”.

The response of the DA is still instructive: “The government’s decision to disband the Scorpions, in line with the ANC’s resolution is a transparent attempt to destroy the most effective corruption-busting force in the country. The only conclusion to draw is that the ANC wants to get rid of the Scorpions to protect prominent members of the ruling party. Besides the seven convicted criminals on the ANC’s National Executive Committee (NEC), six NEC members are currently [February 2008] the subjects of ongoing criminal investigations.”

Two years earlier the Khampepe Commission recorded that “the history of the establishment of the Scorpions stems from the need to curb rampant organised crime which was threatening the political and economic integrity of the country. Some corrupt elements in the police force which existed at the time necessitated the creation of a de novo entity, designed with the specific intent to pursue the elusive elements of organised crime.”

The Zuma administration ploughed on with the dissolution of the Scorpions and their replacement by the Hawks. The first version of the Hawks was impugned by the Constitutional Court as lacking the necessary independence.

It held, in a seminal majority judgement penned jointly by Judges Dikgang Moseneke and Edwin Cameron, that “the power given to senior political executives to determine policy guidelines and to oversee the functioning of the Hawks, goes far further than ultimate oversight. It lays the ground for an almost inevitable intrusion into the core function of the new entity by senior politicians, when that intrusion itself is inimical to independence.”

The second version of the Hawks, produced 18 months later, also needed to be tweaked by the court to pass constitutional muster. The Hawks have not been a success. No “big fish” have been landed by them in their entire existence.

The statistics are damning. The number of new investigations initiated by the Hawks fell by 85% on the Scorpions figures while the contraband seized plummeted by a staggering 99.1%. The raw numbers show that goods seized fell from more than R4-billion in the last year of the Scorpions to a mere R35-million in the first year of the Hawks.

No one seriously suggests today that the Hawks are the answer to the problems posed by rampant serious corruption in SA.

Government proposes the upgrading of a new unit in the NPA called the Investigating Directorate to make it a permanent body with a focus on corruption. This step would take SA back to where it was before the Scorpions were disbanded, with a unit as vulnerable to disbandment as they were and accordingly no more secure in tenure or truly independent than the Scorpions were in their time.

It will be exceedingly difficult to recruit suitably trained and specialised staff to the new body. Once bitten twice shy, former Scorpions will baulk at the risks of further disruption of their careers and they simply won’t sign up for the permanent ID. Indeed, few self-respecting and suitably qualified specialists will be tempted to join the permanent ID and it will continue to lack the right kind of staff.

Accountability Now has long proposed that our anti-corruption entity should be a Chapter 9 Institution protected constitutionally against easy closure and with its independence secured by the provisions of C181 and also by the regular Chapter 9 reporting lines to Parliament, not the executive.

The Defend our Democracy campaign, the DA and the IFP are in favour of this reform. So is the Catholic Bishops’ Conference and the Anglican Archbishop of Cape Town. Professor Thuli Madonsela has, at the time of exiting the office of the Public Protector, expressed support for the notion.

The proposal in its current form takes the shape of two new pieces of legislation, a constitutional amendment creating the new institution and the enabling legislation for it. The nickname for the new body is “The Eagles”. They are fish eagles because they prey on big fish. Indeed, they go after bigger prey and fly higher than the Hawks.

In order to move from Hawks onward and upward to Eagles, the necessary political will needs to be generated. The support of Defend Our Democracy and others is important. All voters should insist that the party of their choice should endorse the idea on pain of losing their votes.

All political parties, as an act of self-preservation, should work toward urgently establishing the anti-corruption entity as a Chapter 9 Institution with a mandate to prevent, combat, investigate and prosecute serious corruption. The delegates at the ANC conference next month should seek candidates who support the Eagles.

The Hawks, who do good work on other aspects of their mandate, and the NPA are up to the task of dealing with petty corruption. It is serious corruption that is the problem in SA and that will be properly addressed by the creation of the new body that will function in the same way as the Scorpions did, but with greater independence and better security of tenure.

Those contemplating serious corruption will be deterred. The loot of State Capture will be recovered and used to get the lights on and clean water back in the taps of SA. In short, the better life for all the Constitution promises will beckon.

The executive and Parliament have had the drafts since August 2021. A detailed submission called for by the Constitutional Review Committee of the National Assembly has been available to the committee and the world since August 2022. It has unanimously decided to receive a full presentation from Accountability Now. The written part of the submission is available to the public.

If you want to live happily ever after in South Africa, get behind the moves to establish the new anti-corruption entity as a Chapter 9 Institution. The Accountability Now suggestions are a good starting point for the national debate on how best to end rampant corruption before it has what the Constitutional Court has described as “terminal” consequences. DM

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