Big business ought to be concerned about reports that the NPA is being starved of the data gathered by the Zondo Commission. That data is the lifeblood of the many prosecutions needed to hold those responsible for State Capture to account.
In his After the Bell column of 13 August 2024, Ray Mahlaka offered some sound advice to those in big business who have sought to assist government on the burning issues around energy, logistics, crime and corruption via the presidential ‘workstreams’.
In what follows, particular attention will be paid to the well-meant efforts by big business to counter serious corruption by donating a tidy sum of R50-million to the National Prosecuting Authority to “help law enforcement agencies investigate and prosecute complex corruption-related crimes”.
This initiative will not be money well spent given the nature of the dysfunction in the criminal justice system. The NPA’s battered and ancient VW Beetle will not transmogrify into an F1 racing machine, well able to compete with the seriously corrupt, simply because the latest slicks on circuit, sponsored by big business, replace the balding tyres on the system’s old VW.
Unfortunately, and this has been the position since before 2011, the VW is not up to the tasks involved in holding the seriously corrupt to account. The issues are both structural and operational; merely throwing money at them is not helpful.
In 2011 the Constitutional Court ruled that the criteria by which the anti-corruption machinery of state should be known were (and they are still) not in place in SA.
Constitutional delinquency
In an act of constitutional delinquency, the ANC government in office until 2024 simply could not generate the political will necessary to comply with that judgment that is binding upon it. The corrupt within its ranks saw to that.
The result has been that the country has been without an effective and efficient anti-corruption capacity since the demise of the precariously placed Scorpions in 2009.
The delinquency means that all ANC politicians in the Cabinet and Parliament have played fast and loose with their oaths of office and have, instead, protected those of their comrades (and their cronies in the business of tenderpreneurism) from being held to account for their looting and pillaging of the coffers of the nation.
The donation of R50-million amounts to throwing good money after bad unless the donation is made conditional upon the radical reform of the justice system to bring it into line with the rulings of the courts in the Glenister litigation that was waged between 2008 and 2014.
It is not as though there are no proposals for the reform required.
Anti-Corruption Commission
The suggestions made in 2021 by Accountability Now have been adopted by most parties represented in Parliament today and form the basis of private members’ bills proposed by the DA, which it has undertaken to present in Parliament within 100 days of 18 July 2024. The bills are aimed at establishing a new Chapter Nine entity, the Anti-Corruption Commission, to prevent, combat, investigate and prosecute serious corruption and organised crime.
The bills chime perfectly with the resolution of the ANC NEC that was passed in August 2020 upon which the ANC Cabinet unfortunately did not act. Big business funding should go to this new outfit instead of being wasted on the NPA.
In the place of the implementation of the binding Glenister rules, Cabinet perpetrated the Investigating Directorate Against Corruption (Idac), an inadequate replica of the Scorpions of old; an outfit that is equally vulnerable to closure by the likes of Jacob Zuma despite being inaccurately touted as “permanent” by the former minister of justice. It is located within the NPA where it cannot be clothed with the attributes the courts require.
These facts were explained to the president before he signed the Idac Bill into law. Accountability Now wrote to him on the day he signed the Bill:
“Here is why both Idac and the DSO (Scorpions) [its very similar predecessor which was dissolved in 2009 at the behest of Jacob Zuma, who was charged in 2007 with corruption, embezzlement and money laundering] do not adequately comply with the Stirs criteria laid down in terms that bind you and government:
(a) Both are creatures of an ordinary statute passed by a simple majority in Parliament.
(b) Both are vulnerable to dissolution at the instance of a simple majority which wishes to repeal the said legislation.
(c) Both are located as a unit within the NPA and not within an independent structure such as the judiciary and Chapter Nine Institutions.
(d) The NPA is not independent and has been so badly gutted by State Capture that it will take years to recover from the ravages of the saboteurs deployed in its ranks to protect the corrupt.
(e) The NPA is operated as a programme within the Department of Justice, not independently.
(f) The NPA is subject to the minister of justice having final responsibility over it in terms of C179.
(g) The minister must concur in all prosecution policies, also in terms of C179.
(h) The NDPP and other leadership of the NPA are executive appointees, the former in your sole discretion.
(i) The accounting officer of the NPA is the director general of justice who is not even a member of the NPA.
(j) Due to its gutted state, the NPA will be incapable of recruiting the trained specialists needed to populate Idac. They will baulk at possibly facing the same fate as the DSO.
(k) The NPA is grossly underfunded due to the ravages of State Capture and the general state of the economy, which corruption has largely caused.”
It is into this morass that the leadership of big business wishes to inject R50-million.
Starved of data
Big business ought to be concerned about reports that are emerging to the effect that the NPA is being starved of the data gathered by the Zondo Commission of Inquiry into State Capture. That data is the lifeblood of the many prosecutions that are needed to hold those responsible for State Capture to account.
The data has either been negligently lost in cyberspace or it's being deliberately kept away from the NPA in a manner that amounts to defeating the ends of justice, if not sedition.
It is urgent that the new Government of National Unity gets to the bottom of the problem without delay. If gatekeeping is the issue the gatekeepers must face the consequences; if the loss is due to a lack of skill in keeping the data safe, efforts should be made to recover it and to make it available to the appropriate anti-corruption body.
That the NPA is not the constitutionally appropriate body is clear from the judgment of the Constitutional Court in the Glenister case. That judgment is available as Appendix 2 to Under the Swinging Arch.
Big business would do well to study it before parting with any donation intended to capacitate the NPA to do anti-corruption work. It has not done any worth mentioning for years and is unlikely to be able to do so any time soon because of its structural deficiencies which were timeously drawn to the attention of the president and are not in any way controversial or even up for debate.
The two bills the DA intends to promote require a two-thirds majority in the National Assembly. The ANC commands 40% of the seats there and is accordingly in a position to veto the bills even if all other parties represented in Parliament favour the reform posited in them.
However, if the ANC decides not to support the bills, despite their patently wholesome content, it may precipitate the collapse of the coalition between the ANC and the DA and a possible early election.
Could spark litigation
Facing the electorate again so soon after the reversals of May 2024 is probably the last thing the ANC wants to do. A nay vote from the ANC will certainly precipitate public interest litigation impugning the constitutionality of Idac and requiring proper implementation of the Glenister rulings.
David Makhura, former Gauteng premier, has given the ANC a stark choice: “Renew or perish!” The term “renew” is ANC code for shedding the corrupt in its ranks and getting real about countering the rampant corruption that is destroying the very fabric of SA society.
Big business is surely aware that new investment in SA will not flow while the risks of rampant serious corruption are as huge as they currently are.
To foster the necessary business confidence, it is imperative to demonstrate that SA has turned the corner on corruption and has a viable, constitutionally compliant plan to rake back loot and hold the corrupt to account in other ways, whether they be non-trial resolutions or prosecutions.
The best-known constitutionally compliant plan is the one foreshadowed in the DA’s bills. Big business should insist that they be passed into law with the minimum of delay.
The days of pandering to the corrupt are long gone; the GNU presents an opportunity to get real about taking the rule of law seriously. It is an opportunity that big business should not pass up. DM