By Paul Hoffman

27 Nov 2022

The debate over reform is long overdue. It is plain to all that the system is not working as it should since the demise of the Scorpions. It was all too easy to close them down, a new anti-corruption approach is needed.

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At Daily Maverick’s The Gathering held on 24 November 2022, Anton du Plessis, the likeable and erudite Deputy National Director of Public Prosecutions, participated in a panel discussion chaired by Judge Dennis Davis. Anticipating the worst, Du Plessis took the wise precaution of setting out his stall in an essay for Daily Maverick published in good time for the bunfight.

Judge Davis, never one to pull his punches, was critical of the puny work rate of the prosecution service, rightly so. He let Daily Maverick journalist Caryn Dolley know that her latest book on corruption, Clash of the Cartels, left him feeling like slitting his wrists. Judicial hyperbole perhaps, but a sentiment that is shared by too many sentient South Africans.

Marianne Thamm reports Du Plessis as conceding that “there was no way the country could ‘prosecute our way out of this problem [organised crime]’.”  The best-known form of organised crime is popularly called “State Capture”. While this reported statement by Du Plessis may be true of the prosecution service in its current gutted state, it is not true of the country, provided the necessary political will can be mustered to do what is necessary to counter the most popular form of organised crime we have: the repurposing of institutions of the state to serve the private interests of crooked elite groups – State Capture.

By applying the 80/20 principle to which Du Plessis refers both in his essay and at The Gathering, it is possible to turn the tide using the resources currently available to the country, but not to the National Prosecuting Authority (NPA).

In effect, the “saboteurs” lurking in dark corners of the NPA to ensure impunity for their corrupt associates have cut it off from the skilled, experienced, properly trained and highly effective personnel who were formerly at the disposal of the Scorpions.

Most of the truly expert corruption-busters in the Scorpions left as soon as it was announced that the ANC wished to dissolve the unit back in 2007. The expertise is now spread between the private sector, academia and other institutions of state that are not part of the prosecution apparatus, such as the Special Investigating Unit and Financial Intelligence Centre. We need to find a way, and there is one, to bring the expertise available to bear upon the seriously corrupt in our midst.

Talk of resuscitating the capacity of the Scorpions in the “permanent” Investigating Directorate (ID) of the NPA (as contemplated in the presidential response to the Zondo report) is futile. The ID on steroids will not attract the right talent and will fail in its efforts at holding the feet of enough of the seriously corrupt to the fire.

The political will to generate the right kind of reform of the criminal justice administration can be generated, even in the ranks of the governing alliance, if the right form of emphasis on the rule of law is brought to bear. All of The Gathering panellists stressed the centrality of the rule of law, but none of them paused to consider how it impacts on the impasse we have reached in our national efforts to counter corruption.

If the rule of law means anything, it means that binding decisions of the courts are respected fully and implemented properly. The necessary respect and implementation have been absent in respect of the enforcement of the decisions, rulings and orders made in the Glenister litigation as followed up in the Robert McBride case. This is understandable on the watch of Jacob Zuma, but not so much so on that of his successor.

The Zondo Commission initially dropped the ball on the enforcement of the criteria set in the majority judgment in Glenister, but recovered admirably when it dealt with the status of the Inspector General of Intelligence elsewhere, later in the report. Consider its words in Volume 5 part 1 of the report which refers to the McBride case:

“937. The case affirmed the principles set out in the Glenister case with regard to the importance of the independence of an anti-corruption entity. At issue was the power of the Minister of Police over and in relation to the Independent Police Investigative Directorate (IPID), in particular the power to unilaterally suspend its Executive Director and to institute disciplinary proceedings against him. The Court referred to and agreed with the majority judgment in the Glenister II judgment, that a corruption-fighting entity will have the requisite independence if it can be established that the ‘reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy protecting features’.

“938. It is recommended that the Inspector General of Intelligence should enjoy adequate independence in line with the guidelines set out above.”

The NPA is not independent at all. That may not matter much in the ordinary course of the discharge of its mandate, but, when it comes to anti-corruption work, it is vital. All the more so when the corruption is of the kind that is perpetrated by people in high places and their associates in the world of business of tendering goods and services for the state and of influence peddling.

The NPA is run as a programme in the Department of Justice and is subject to the “final responsibility” of the minister of justice. Its accounting officer is the director general of justice. So much for its independence. None of its leaders have ever seen out their terms of office. So much for their independence.

The solution to the impasse is to create a new body which does, ab initio, comply with the Glenister criteria. The political will to do so is evident in opposition ranks and in the efforts of the Defend our Democracy campaign all supported by the Catholic Bishops’ Conference, the Archbishop of Cape Town and Thuli Madonsela. It is even evident in the resolution of the NEC of the ANC recorded on 4 August 2020.

Make no mistake, the ANC is alive to the solution to the weaknesses in the system. It seems to want to spin out solving the problem until the next elections in 2024. That may be too late, not only for the ANC but also for the country.

The task of those who seek peace, progress and prosperity in SA is to generate the political will to reform the criminal justice administration so that it is capacitated to deal with the overlapping concepts of serious corruption and organized crime. Parliament itself is critical in this process.

The ANC-led alliance needs to take on board that it is necessary to be proactive about countering serious corruption on pain of losing the majority of votes it has enjoyed since liberation. All elements of the loyal opposition also need to make anti-corruption reform a plank of their election manifestos and their policy positions in the period preceding the next elections due by 2024.

The way toward reform has been advocated by Accountability Now for some considerable time. The outline and direction of the necessary amendments to the law have been presented to both the executive and legislative branches of government as long ago was August 2021. Parliament has responded positively by calling for submissions on reform of the criminal justice administration.

The written part of those submissions has been available to the government and the public since August 2022. The draft legislation not only suggests a new and separate anti-corruption body located in the safe architecture of Chapter Nine of the Constitution, it also suggests reforms which will enhance the independence of the NPA itself. Anyone can examine the suggestions critically and be considering and commenting here.

Sadly, the executive remains unresponsive to the entreaties of Accountability Now. The president is preoccupied and his minister of justice is more interested in statecraft and a tilt at the deputy presidency of the ANC than in involving himself with compliance with the binding requirements of the Constitutional Court.

The debate over reform is long overdue. It is plain to all that the system is not working as it should since the demise of the Scorpions. It was all too easy to close them down, a new approach is needed. That new approach is advocated in the drafts put up for discussion and refinement by Accountability Now.

It is not impossible to stimulate the necessary political will. All politicians want to win elections. It will be difficult if not impossible to win the next general election in SA if the political image is one of being soft on corruption.

It is accordingly in the interests of all political parties to be seen to be serious about the rule of law, the implementation of the Glenister principles (as confirmed in the McBride case) and the conquering of the corrupt via the establishment of a new entity housed in Chapter Nine with a mandate to prevent, combat, investigate and prosecute serious corruption of all kinds, including organized crime.

It is a great pity that the debate at The Gathering did not refer at all to either the Glenister or the McBride cases and also did not give the necessary consideration of how best to implement the binding rulings of the highest court in the land made and confirmed in those cases. This exercise is required not only by the Constitution itself but also by the decisions in the Glenister litigation.

There is no need to contemplate slitting one’s wrists, as retired judge Davis put it. The correct way forward on reform of the justice administration is to ask:

What does the law require?

Answer: Proper compliance with the Glenister decisions.

Is there proper compliance?

Answer: No, not since the all too easy closure of the Scorpions. Hence the falling around between NPA and Hawks.

What is to be done?

Answer: Establish a Chapter Nine anti-corruption entity to tackle the seriously corrupt, no ifs, no buts.

If these steps are taken, the reforms are urgently implemented and the Zondo report taken seriously, then the rule of law will prevail and the corrupt will be routed. SA can do so, it is just a matter of generating the necessary political will or revisiting the courts to obtain relief in the public interest that is aimed at properly implementing Glenister. DM

One or other of the directors of Accountability Now was in court during all three of the Glenister cases. The McBride decision vindicates representation made by Accountability Now to the legislature on the meaning of “independence”.