Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.
In every crooked deal, there will be at least one public servant and at least one entrepreneur in the private sector. The latter should not be overlooked when it comes to mounting prosecutions.
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Ulfrieda Ho of Daily Maverick has done sterling work analysing the facts around the irregular procurements of personal protective equipment and related services by the state in its urgent response to the pandemic at present plaguing the planet.
It is not necessary to reiterate the sorry facts here, her synopsis will suffice for the purpose of answering the questions around what needs to be done in response to the report of the Special Investigations Unit (SIU) recently made public by the president.
With commendable alacrity, the Standing Committee on Public Accounts (Scopa) in the National Assembly called upon the Presidency to give an account of what it plans to do about the wholesale looting uncovered by the SIU, as reported to the president.
The Presidency has no plan according to the response given in Parliament. That there is much to be done is apparent.
First and foremost, urgent litigation in our well-functioning civil courts to recover the loot from those who are looting PPE funds must be taken. The SIU is well-positioned to do this. The departments of state looted by the “covidpreneurs” can also institute civil proceedings with a view to freezing and later seizing the loot. This topic has been discussed already, the political will to do the necessary is all that is lacking.
Secondly, those public servants involved in the “covidpreneurism” need to be held to account. Those implicated innocently, negligently or because of their incompetence should face disciplinary enquiries and suitable workplace sanctions.
Finally, those corruptly involved (most likely the overwhelming majority) must be charged in the criminal courts of the land and must face trial. If found guilty, exemplary punishment must follow in the form of orange overalls for such periods as the courts deem necessary. In every crooked deal that is investigated, there will be at least one public servant and at least one entrepreneur in the private sector. The latter should not be overlooked when it comes to mounting prosecutions.
It is not appropriate to make do with steps one and two when the evidence available suggests that criminal conduct is involved in the covidpreneurism. The suggestion by the Zondo Commission that a new offence of undermining the Constitution should be created comes too late to be used on those involved in PPE procurement irregularities. New crimes and new punishments only operate prospectively, not retrospectively.
Together with the avalanche of criminal work concerning State Capture emerging from the State Capture Commission (SCC) all indications are that a further avalanche generated by the work of the SIU on PPE procurements is in the making. Investigations by the SIU are still under way.
Both avalanches require a plan. It is unacceptable that the minister in the Presidency should airily say, as he did, “guilty as charged” when he admits to Scopa that his government has no plan.
Any viable plan must involve reform of the criminal justice administration to better equip it to deal with the serious corruption that threatens all we hold dear in our young constitutional democracy under the rule of law. Ours is a new order that we should be nurturing in the interests of peace that is stable, progress that is sustainable and prosperity that is equitably shared by all.
The reform is necessary because the existing institutions have no or little anti-corruption capacity to deal with the twin avalanches of new work emerging from the findings of the SCC and the SIU investigations.
What government should be doing, with an appropriate sense of urgency, is to give consideration to:
- The resolution of the NEC of the ANC announced on 4 August 2020 in which Cabinet was urgently instructed to establish a new, permanent, specialised and independent anti-corruption entity;
- The draft legislation and constitutional amendment proffered by Accountability Now in August 2021 which put flesh on the bones of the ANC resolution in a way that seeks to be constitutionally compliant by recognising the binding nature of the majority judgment in the 2011 Glenister case;
- The efforts of the DA to prepare a private members bill that addresses the shortcomings of the Hawks; and
- The recommendations of the SCC as regards the need to counter corruption in the procurement field (let’s all pray that a recommendation to end cadre deployment in the public service and SOEs will follow in the third tranche of the SCC report due at the end of February 2022).
Bills that synthesise these four initiatives should be placed before Parliament without delay, the public participation process should be started and the cooperation of all political parties must be elicited. With cooperative effort and the goodwill of those who wish to see an end to the impunity which the corrupt currently enjoy, it is feasible to process the bills in a matter of months and have the entity that emerges from the reform initiative operational this year.
No one is suggesting that the Hawks are able to cope with the demands of investigating serious corruption. They have been busy investigating the Nkandla debacle since 2013 and the Nxasana affair (in which the NPA was decapitated) since 2015. It needs to be remembered that Bheki Cele’s escapades on the bloated-rent leases for SAPS headquarters in Pretoria and Durban preceded the 2010 Soccer World Cup. The crooked Hitachi Power Africa deal went down when Valli Moosa still headed Eskom. Hitachi paid a huge fine in the US, the ANC sails on tranquilly in a sea of impunity.
Both structurally and operationally, the Hawks lack the clout required to take on the “big fish” who swim in the corruption waters in SA.
As regards the NPA, it is plain that, with the best will in the world, it is proving to be time-consuming to reconstruct the prosecution service “brick by brick” as suggested by our chief prosecutor, Shamila Batohi. When there is no straw (in the form of human capital) with which to make the bricks, the entire project becomes bogged down and even futile.
The complaints of hollowing out of the institution by state capturers and those concerning saboteurs in the ranks of the NPA combine to make it an institution that is incapable of prosecuting seriously corrupt persons in large numbers and multiple complex cases any time soon. The necessary personpower is not at the disposal of Batohi.
Recruiting new blood is proving difficult because of the large quantity of old blood on the floor. Even one of the “new blood” recruits, Hermione Cronjé, head of the Investigating Directorate (ID) created to counter State Capture, has been asked to quit and has done so with effect from the end of February 2022. No successor has been named.
Those with long memories will recall that there was once a unit within the NPA called the Scorpions or Directorate of Special Operations. This unit, created by an amendment to the NPA Act, was effective and efficient as corruption busters. It had a staff of over 500 at the time of being disbanded in 2009. According to Wikipedia, “their founding complement was 200 staff and, though this was supposed to expand to about 2,000 staff within two years, they employed only 536 staff at the time of their disbanding.”
The Achilles heel of the Scorpions was that they did not enjoy secure tenure of office. They were a mere creature of an ordinary statute and could be closed down by a simple majority vote in Parliament. This is the fate that befell them after Jacob Zuma won the presidential contest at the ANC’s Polokwane conference in December 2007.
When one compares their fate with the gyrations necessary to remove the current Public Protector from office, it is apparent that the protection of Chapter Nine Institution status is valuable. All such institutions are free of executive influence, they report to Parliament, not to any minister, and the Constitution speaks to and guarantees their institutional independence.
It is also instructive to note that the ID, from which Cronje has resigned, has only 17 members and about 100 seconded staff, a far cry from the 539 Scorpions whose work the ID is supposed to be doing.
There is no rocket science in reforming the criminal justice administration. The Glenister decision is loud and clear. The criteria by which to measure the corruption busters are lucidly spelt out and their implementation is not optional because the decision is binding in law.
Instead of dithering, pleading guilty to having no plan and generally doing nothing, government needs to summon the political will to do what is required to reform the criminal justice administration so as to capacitate it to counter serious corruption, be it in the State Capture context, via covidpreneurism or otherwise.
It is the right thing to do. DM