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Willie Hofmeyr: Cut president’s sweeping powers or risk state capture

01 December 2019 – 00:01 By QAANITAH HUNTER (TimesLive)

The recently retired head of the Asset Forfeiture Unit, Willie Hofmeyr, says SA is at risk of state capture again unless the president’s sweeping powers are cut.

Hofmeyr told the Sunday Times he recommended the constitution be changed in an affidavit filed at the Zondo commission.

He said the change is needed “because the president has unqualified powers to appoint anybody in all positions in the criminal justice system”.

These powers, he said, are what led to the capture of the criminal justice system, including the National Prosecuting Authority (NPA), where Hofmeyr worked for 20 years.

“We were a bit naive when we wrote it, because the president has unqualified powers to appoint anybody in all positions in the criminal justice system.”

The head of the South African Police Service, the head of the Hawks, the head of the NPA and the four deputy directors of public prosecutions and provincial directors of public prosecutions are all appointed by the president.

Judges, too, are appointed by the president on the recommendation of the Judicial Service Commission.

Hofmeyr has submitted an affidavit to the Zondo probe on how the criminal justice system was “captured” – which, he argued, began under former president Thabo Mbeki.

“I don’t think people must underestimate the damage Mbeki was doing to law enforcement at the time,” he said.

Corruption Watch and other civil society organisations have told the commission that the capture of the state began with the destruction of the criminal justice system.

We were a bit naive when we wrote it, because the president has unqualified powers to appoint anybody in all positions in the criminal justice system

Willie Hofmeyr

Earlier this year, President Cyril Ramaphosa fired top prosecutors Nomgcobo Jiba and Lawrence Mrwebi after the Mokgoro commission found the pair had compromised integrity, lacked leadership, were dishonest and failed to maintain a high standard of professional ethics.

The commission further found the NPA is vulnerable to executive and political interference and the constitution does not ensure the independence of the prosecuting authority.

Hofmeyr said: “One of the strong things I am pushing in my affidavit is that the [Zondo] commission should say that the constitution should be changed and the law should be changed about appointment mechanisms because of just … too many really bad appointments.”

He told the commission that he believed that bad appointments had led to the decay of the criminal justice system.

“As the systematic nature of the looting firmed up, there was a much more concerted effort to deal with people in law enforcement,” he said.

Hofmeyr is not the first person to suggest that the constitution gives the president unfettered powers.

Former deputy chief justice Dikgang Moseneke said in 2014 that too much power rests in the presidency.

In reflecting on the NPA, Hofmeyr said while the new NPA head, Shamila Batohi, is a good appointment, there are many “rotten apples” still in the system.

In his affidavit before the Zondo commission, Hofmeyr said that corruption has become endemic in the ANC and it may be too late to reverse that.

“The thesis I put forward essentially is that individuals don’t capture states, political parties capture states,” said Hofmeyr.

“To capture a state you have to capture a political party first and this is what happened here.”

He is expected to tell Zondo that the “ANC and corruption go hand in hand” because of how big a part money plays in party politics.

“It’s not right to blame Zuma for all of it. It wasn’t just his people who were stealing. Both sides of the divide were stealing,” said Hofmeyr. “I think democracies tend to be built on patronage. Politicians have to deliver something for their constituencies.”

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