Opinionista • Paul Hoffman • 13 June 2021
With swift civil recovery procedures available worldwide, the harnessing of lawyers in private practice to supplement the efforts of the Special Investigating Unit ought to have a back-straightening effect on those who are taking their time about repaying the loot they accumulated through State Capture.
President Cyril Ramaphosa is acutely aware of the need to put a stop to the grand corruption and attendant looting by the racketeers at work in South Africa both in recent years and at present.
He is reported to have remarked, after Ace Magashule tried to suspend him, that: “Many steps are being taken to rid our country of corruption. And those who are corrupt, who have pursued corrupt ways, will continue to fight and fight to the end because their life revolves around corruption. But we will end it and they will go where they belong.”
More recently, he told the National Council of Provinces on 10 June 2021 that “we want to remove the temptation for corruption. We want to remove corruption completely and therefore we want all levels of government to work transparently, to be accountable”.
Removing the temptation for corruption involves both deterrence and the application of the law of diminishing returns. Corruption is a calculated and greedy form of crime. Those who calculate that they can get away with it let their greed run riot on the funds of the public. These are invariably funds better spent on combating the pandemic, alleviating poverty, promoting equality and ensuring the enjoyment of the various rights and freedoms guaranteed to all in the Bill of Rights.
The state is obliged to respect, protect, promote and fulfil everyone’s rights as set out in Chapter Two of the Constitution. Corruption has been characterised as a human rights issue in the Glenister litigation because the loot extracted by the corrupt diminishes the capacity of the state to deliver services to the public in the effective and efficient manner contemplated by the Constitution. The judgment in question, penned jointly by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron (both now retired) informs the attitude of the president in making the utterances quoted above:
“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence, and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the bill of rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
Now that more than half of SAA has effectively been privatised and electricity generation of less than 100MW has also been opened to the private sector, it is time to consider the options of the state in relation to the objectives so clearly spelt out by the president in recent weeks, as quoted above.
It has long been the stance of Accountability Now that the best-practice way of implementing the Glenister decisions is to establish a new Chapter 9 Institution to prevent, combat, investigate and prosecute corruption. Whether the mandate of the new body should be all corruption (as desired by the NEC of the ANC), or only grand corruption, is a matter for Parliament to decide in the course of the necessary legislative process which will, as is usual, include public participation.
In the meantime, and as a short-term solution to the racketeering with impunity that is impoverishing the public purse, urgent consideration should be given to the civil recovery of loot, wherever it may be in the world, using the services of the private-sector lawyers who are registered with the Legal Practice Council (LPC) in SA. The expertise needed is available, the opportunity for entering into contingency fee agreements approved by the LPC exists and the prospect of recovery of the loot of State Capture is tantalising.
An evidence leader in the Zondo Commission, Matthew Chaskalson SC, has let it be known that there are 17 corporates in the same position as the international management consultants, McKinsey, which has volunteered to disgorge its loot. None of the others has done so yet. With swift civil recovery procedures available worldwide, the harnessing of lawyers in private practice to supplement the efforts of the Special Investigating Unit ought to have a back-straightening effect on those who are currently backsliding or taking their time about repaying the loot that they have accumulated during the State Capture activities in which they have been involved.
The big corporates are sitting ducks for a well-briefed and highly motivated team of SA lawyers in private practice who have the necessary expertise in international debt collection that is related to racketeering. The possibility exists of a competitive process in respect of the recovery of the loot of all 17 recalcitrant corporations who are retaining their loot instead of following the precedent set by McKinsey.
It needs to be noted that many firms of attorneys and counsel will be willing to act on a contingency fee basis to restore the country to fiscal health via the civil recovery of loot. This means that a great deal of legal work can be put in hand in a short period of time leading to an inflow of looted funds that will enable the state to make an informed decision about the necessary reform of the criminal justice administration.
The reformed corruption-busters will be able to take criminal action against those from whom loot has been successfully recovered. The racketeers will be suitably discouraged when the war to recover loot swings into action, as it could within a matter of weeks, if the right political will can be mustered and converted into nimble action against the racketeers.
It is apparent that the president does have the necessary political will. The resolution of the NEC of the ANC in August 2020 is to the same effect. In that resolution, the national Cabinet is instructed urgently to establish a stand-alone permanent entity to deal with corruption independently and on a multi-disciplinary basis. The funds raised by roping in the private sector legal firms will stand the new body in good stead.
It is laudable that the NEC has taken the Glenister decisions to heart and has instructed Cabinet to set up a body that complies with the STIRS criteria that the courts have set in binding terms that were never properly honoured during the Zuma era for reasons that become more and more obvious as the evidence presented to the Zondo Commission unfolds.
As far as the looting of SOEs is concerned, it has long been a problem that junior staff tasked with recovering loot are fearful of their lives and apprehensive of their careers should they be identified by the (still powerful) looters and racketeers they are required to sue. The creation of a Special Purpose Vehicle to take cession of the claims to loot is a means of allaying these fears and apprehensions. It could be part of the civil recovery process that is long overdue and readily achievable, if the president is taken at his word.
The inflow of recovered loot can make a real difference to the proper financing of anti-corruption efforts in SA. The civil debt recovery processes available internationally are swift and sure. Very often the looters do not even oppose the cases brought against them as they realise their game is up and that deposing to false affidavits to oppose their disgorging of the loot only makes matters worse for them.
The Hawks have plenty of other priority crimes to attend to and the NPA does not have the necessary specialised skills available to it to tackle corruption as extensive and as grand as that which SA now has to counter. Using the recovered loot to set up the new STIRS compliant Chapter 9 Institution has a measure of poetic justice to it. DM