The sine qua non of a 10-point plan to rescue South Africa

by | Jul 21, 2020 | General, Glenister Case, Integrity Commission | 0 comments

Opinionista • Paul Hoffman • 21 July 2020

Colin Coleman has presented an important plan for how to turn South Africa’s fortunes around, but without the immediate, effective, well-resourced implementation of a war on kleptocracy and rampant corruption, it will fail. This is the sine qua non of his plan.

Lawyers love to sprout Latin phrases, it gives them a veneer of learnedness (often unearned) and impresses audiences whether or not they recognise the phrase. In the present context, sine qua non, meaning “without which not”, the use of Latin is apt: both for its succinct accuracy and also for the necessary emphasis on point three in the 10-point action plan proposed by Colin Coleman.

Coleman used to head Goldman Sachs in southern Africa; he now enjoys a fellowship at Yale which is suited to the considerable talents he has honed and experience he has gleaned over the years since he qualified as an architect at Wits in 1988. His plan to rescue the economy of SA and turn it into an inclusive and dynamic one has 10 points, only one of which is a sine qua non. If full expression is not given to his third point the rest of the plan is destined to fail. If the third point is taken as seriously as it should be, the plan has every prospect of success and a better life for all in SA will be ushered in by its implementation.

Coleman himself has summarised the lecture he gave to UCT on Monday 20 July. He gives the third point of his action plan as follows:

“A campaign to wage war on the rampant illegal economy in South Africa, and confront tax evasion, fraud, criminality and corruption, and bring an end to State Capture.”

The need for a campaign of this kind is so self-evident to him that Coleman does not regard it as politic to go into the nuts and bolts of what exactly is required to address the issue. He simply calls on the government to do the necessary.

This column explores what needs to be done to wage a winning war of the kind envisaged by Coleman.

In any war, the troops at one’s disposal are a critical factor, the terrain on which the war is fought is important and the moral imperative driving the campaign is often decisive irrespective of the weight of the forces against which the campaign is waged.

The “war” in this case is a war against various forms of crime that have been allowed to run rampant during the last quarter-century and particularly during the Zuma era in SA.

Recognising the war as being one on crime is a significant first step. Countering crime is the work of the state; it is not for citizens to resort to self-help in the war. Confronting the corrupt takes place in properly constituted independent and impartial courts of law; those who are accused are entitled to the benefit of the doubt and are accorded fair trials.

Acting against high-ranking politicians should not be a career-limiting activity. The artificial intelligence and the expertise of forensic experts should be readily available to crack complex corruption cases.

An effective and efficient investigation of all allegations of malfeasance and an expertly run prosecution are the necessary precursors to the issuing of those longed-for orange overalls. The role of the active citizen is to draw the attention of the state to the problems identified in Coleman’s third point and to advocate for the solution to the problems.

Chief among the problems at present is that the anti-corruption machinery of state is broken. The Hawks, who by law must investigate “priority crimes” including grand corruption, have never operated efficiently and effectively. One can see now that they were never meant to do so: they are a creation of the Zuma era State Capture project, inadequately independent in their structure, insecure in their tenure of office (think Anwa Dramat) and lacking in the necessary resourcing and expertise. They were established to fail and were made to fail by ruthless executive interference during the Zuma years.

As far as expert prosecution is concerned: The National Prosecuting Authority has been, to use the term in vogue with Robert McBride and Shamila Batohi – both of whom should know – “hollowed out” by the ravages of State Capture. It started with mendacious Menzi Simelani announcing his intention to impose the vision of the ANC on the NPA at the very time that State Capture commenced in earnest on Zuma’s watch. So much for the constitutional imperative that the NPA should function without fear, favour or prejudice.

Independence of the interference and influence of the executive branch of government was the last thing on Simelane’s mind as he shunted the objective and fair prosecutors out of the way to replace them with deployed cadres of the National Democratic Revolution. These cadres espouse a value system that is wholly inconsistent with the values of the Constitution. The revolutionary longing for hegemonic control of all the levers of power in society is at odds with multi-party democracy under the rule of law.

There is no time available to “fix” the NPA and the Hawks. They are beyond repair in the short term. In the medium to long term a protracted and intricate process will be required to prise the cadre stooges (called “saboteurs” by the new guard in the NPA, with ample justification) from the positions of power and influence that they still occupy in the ranks of both organisations. The notion that they are deployed to do the bidding of the ANC permeates the ranks. It is a false notion and one that needs to be dislodged if SA is to avoid failure as a state.

As there is insufficient time available to cure the defects in the Hawks and NPA, a “workaround” solution is required.

The solution proposed by the Constitutional Court in the early years of the Zuma administration is one that was not palatable to his Cabinet and alliance partners in Parliament. Instead of seeking the best practice implementation of the findings of the court, the approach was akin to a sick dog eating its dinner with “long teeth”. There was simply no appetite for the reform required. If that lack of appetite is carried forward into the Ramaphosa administration, the prospects of healing the nation and dealing with the corruption that stands in the way of that healing are remote.

Coleman’s 10-point plan, good as it is, will fail for want of addressing the sine qua non: a means of addressing kleptocracy, grand corruption and State Capture in all its manifestations in a manner that is executed without delay, effectively and efficiently by warriors in the criminal justice administration who appreciate their constitutional duty to act without fear, favour or prejudice and who are organised and resourced to do so.

The first step the ANC needs to take to get into a position to take up Coleman’s action plan is to shed its outmoded ideological position and align its thinking and policy-making with the proper implementation of the Constitution.

Acting against high-ranking politicians should not be a career-limiting activity. The artificial intelligence and the expertise of forensic experts should be readily available to crack complex corruption cases.

The best-practice means of bringing this about is to create a specialised anti-corruption unit to investigate and prosecute the corrupt. Housed in the institutional protection of Chapter Nine of the Constitution, a unit of this kind will be equipped to deal with the evidence tumbling out at the Zondo Commission and other commissions of inquiry into SARS, the PIC and others.

It is salutary to reflect that had the Scorpions of old been a Chapter Nine institution they would not have been closed down. The ANC did not command the necessary majority in Parliament to do so. The Scorpions would have survived the Polokwane urgent resolution of the ANC to dissolve them. The prosecution of Jacob Zuma would have proceeded, he would not have become president of SA and the need for Colin Coleman to devise and propose his 10-point action plan may never have arisen.

Mustering the political will to effect the changes in the anti-corruption machinery of state is where the active citizen does have a role to play. Anglican Archbishop Thabo Makgoba expressed the wish in his Christmas sermon that 2020 be the “year of orange overalls”. His call was taken up by the Ahmed Kathrada Foundation with the support of more than 30 civil society organisations.

The new social compact being explored by the Foundations movement (the ongoing collaboration between a number of foundations in SA) will obviously require a better way of countering the corrupt among us. In Parliament there is ample evidence of a desire to make the changes necessary to prevent SA from drowning in a heaving sea of corrupt activities. It is even possible to litigate the failure of the government to respect and implement the decisions of the court in the Glenister cases properly and accountably.

Advocacy, lobbying, legislative initiatives and public interest litigation are the tools available to the public of SA.

The first step the ANC needs to take to get into a position to take up Coleman’s action plan is to shed its outmoded ideological position and align its thinking and policy-making with the proper implementation of the Constitution. The decisions in the Glenister cases are no more than the binding interpretation of the inner meaning of the Constitution. It is time that they were implemented with more attention to detail and commitment than that shown during the Zuma years.

A failure to address this aspect of Coleman’s plan will have the effect of stymying the whole plan. That is why it is the sine qua non of the plan that urgent steps be taken to address the corrosive effect corruption is having on SA. The exacerbation of poverty, the gnawing inequality and the long-term joblessness are all manifestations of the failure to address corruption, to prevent the “theft from the poor”.

At the heart of Coleman’s plan is his desire to see SA properly implement the promises of its Constitution. The ANC is duty-bound to align its agenda with those promises.

A war on corruption is urgently necessary and winnable. The war can easily be won if the right political will is cultivated as a matter of national priority.

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