Dear Editor,

Your correspondent STUART THEOBALD | Did South Africa pass a crime test it didn’t deserve to? (24 June) raises the possibility of SA being placed on the FATF “greylist” again, having escaped the setbacks greylisting brings only last year in October.

The FATF has been created to counter money laundering and terrorism financing. These corrupt activities caused our greylisting in the first place.

As was so often the case when the ANC was the dominant party in SA politics, as little as possible was done to address the FATF’s concerns. The issues around dealing effectively and efficiently with the corrupt have been with us since the demise of the Scorpions unit within the NPA in 2009. These issues, still not addressed properly by government, led to the Glenister trilogy of cases in the period between 2008 and 2014. The upshot of the litigation was that a single adequately independent body is needed to “deal effectively with corruption” as the Constitutional Court put it in its seminal judgment in 2011. The words used were loud and clear:

“Our law demands a body outside executive control to deal effectively with corruption”. This finding was confirmed by the same court in 2014 when further litigation concerning the adequacy and constitutionality of the remedial legislation passed was questioned by the Helen Suzman Foundation and by Glenister himself, again.

In the words of the then chief justice in the opening lines of the majority judgment in the last  Glenister case:

“Corruption is rife in this country and stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The sad truth is that there is no single corruption fighting body in SA that is “outside executive control”. Indeed, ANC elements in government persists with the failed multi-agency approach and resist any suggestion that the binding prescription of the law that requires a body outside executive control must be acted on as a matter of respect for court findings and for the doctrine that judicial precedents set in the apex court are binding.

The recent falling around between SAPS and IDAC (prosecution authority based anti-corruption unit) as illustrated by the blood-curdling and unseemly spat between General N Mkhwanazi and Andrea Johnson, head of the Investigating Directorate, is illustrative of the operational and structural dysfunction in our anti-corruption machinery of state. The left hand knows not what the right hand is doing.

The FATF is aware of the judicial findings quoted above. It now has the dysfunction in the system demonstrated to it by the leaders involved in the day-to-day anti-corruption work. The personnel in the FAFT will surely realise that they had the wool pulled over their eyes by SA last time round and that remedial steps of radical nature are needed to turn the binding words of the courts into the reality of anti-corruption work in SA.

The bills proposed by Glynnis Breytenbach, chief whip of the DA, for the establishment and enablement of a new Chapter Nine Anti-Corruption Commission are the answer. It will take charge of anti-corruption efforts and work beside its fellow bodies: the AG, the OPP and the SAHRC to counter the corrupt more effectively instead of squabbling internally as the SAPS and IDAC do. None of our Chapter Nine Institutions are under executive control and all of them operate independently and impartially.

The last thing SA needs now is to be placed on the greylist again. We did not deserve to pass the FAFT test last time round; this sad fact could return to bite SA unless we act to remediate the current mess promptly. The corruption eruptions in SA continue unabated as can be seen from the Zondo Commission report and from the evidence gushing out before the Madlanga Commission. Parliament should process the Breytenbach bills urgently to pre-empt and FATF measures.

Yours in accountability,

Paul Hoffman SC