Soon there will be nothing left to steal. State Capture, systemic corruption and transactional corruption on a grand scale are all currently features of the landscape in SA.
The Public Affairs Research Institute (Pari) and the Council for the Advancement of the South African Constitution (Casac) ran a workshop in the form of a webinar on 15 November 2024. They deserve congratulations for their pertinacity and sympathy for the poor attendance despite the quality of the presentations and the eminence of those contributing.
Civil society is perhaps becoming weary of the endless debating of “nice-to-have” Zondo recommendations that bind nobody, least of all the government. And equally weary of the government’s failure to get to grips with the “must-have” measures that are so urgently needed if the country is to escape the clutches of the kleptocrats and their grand corruption.
Two of the presenters, Paul Pretorius SC, best known as the evidence leader in the Zondo Commission, and Jonathan Timm, representing the Presidency, gave Powerpoint presentations to set the tone for the panel discussion to follow.
The Public Protector made a guest appearance to put in a plea for more resources. She also made the point that a multiplicity of institutions create a multiplicity of cost centres.
She reminded those present that after her predecessor-but-one asked for a couple of million rand to investigate State Capture, and was declined, revenge was exacted by the appointment of the Zondo Commission, which cost about a billion rand.
The Public Protector reminded delegates of the Asmal Report that recommended the rationalisation of chapter 9 institutions, a step worth revisiting now that it is apparent that there is general agreement that a chapter 9 institution is the right “home” for a body outside of executive control that is tasked with countering corruption.
The two Powerpoint presentations are available on Pari’s website, and YouTube has all 4.5 hours of deliberations faithfully recorded. Engaged citizens are encouraged to acquaint themselves with the materials.
The focus of the discussions was around the implementation of the Zondo Commission recommendations. The debate will be summarised by Pari and similarly posted on its website when ready. A lively Q&A enhanced the exchanges.
Mid-term anti-corruption report
It emerged that an interim or so-called “mid-term” report to the President by the National Anti-Corruption Advisory Council (Nacac) was given to the Presidency in March and was promptly lost.
After it was found, much later, the President ruled against making it public, deciding instead to pass it around the affected departments of state for their comments, none of which has yet been forthcoming. This tactic is called “kicking the can down the road” by the idiomatically inclined. The reform-minded find it infuriating.
Nacac, commendably so, has leaked a “highlights package” into the public domain. It displays much flirtation with the “nice-to-haves” and little of the necessary political will to get on top of implementing the “must-haves” of anti-corruption reforms.
Professor Firoz Cachalia let it be known that his Nacac leadership, in their interactions with the departmentally involved but unnamed public servants, have encountered resistance to their ideas.
This resistance should come as no surprise. The departmental personnel involved were all hand-picked by Luthuli House for their dedication to the tenets of the fundamentally unconstitutional national democratic revolution (NDR), the motive force behind the tripartite alliance that governed during the first 30 years of constitutional democracy in SA.
It is the striving for what is called “hegemonic control of all the levers of power in society” by the “comrades” that would have informed the blowback received by Nacac from the public servants who preferred to don their NDR caps in their interactions on Nacac’s proposed Office of Public Integrity (OPI).
The OPI is the new institution which Nacac wants to make a chapter 9 institution with such limited powers that one must, like the NDR naysayers, but for different reasons, wonder why chapter 9 status is needed for so toothless a body.
Whether the motivation for creating the OPI is to tick the box for independence for corruption busters set up by the Constitutional Court without giving the OPI meaningful powers of prosecution remains to be seen.
David Lewis, vice chair of Nacac, intervening from the floor, expressed anxiety that Nacac’s plans and reform suggestions, so long held back by presidential dithering, will be scuppered by the arrival of the private members’ bills piloted into Parliament by Glynnis Breytenbach in support of the establishment of a new chapter 9 anti-corruption commission that certainly will tick all the Glenister boxes by being a specialist body of highly trained staff, independent, properly resourced and secure in their tenure of office – in a word STIRS-compliant.
When asked when the Cabinet intends honouring international treaty obligations and enforcing the Glenister decisions of the Constitutional Court properly, the representative of the Presidency, Timm, replied that he is not at liberty to discuss Cabinet decisions. How droll.
Treaty obligations and decisions of the highest court in the land are binding on the State. It is the Glenister decisions that gave SA the STIRS criteria.
While the point was made during the webinar that the standard of proof required by a commission of inquiry is far lower than that required by a court tasked with finding facts in a criminal prosecution, the point was not made that the recommendations of a commission of inquiry are not of a binding nature.
Inquiry recommendations
For example, the recommendations of the Farlam Commission of Inquiry into the police shootings at Marikana, all of which were accepted by the government, included an urgent call for the demilitarisation of the police service. Nothing has been done yet to action that recommendation, which aligns with the work that went into the careful formulation of the National Development Plan, despite the fact that it requires no more than the stroke of a pen by the Minister of Police.
It is perhaps understandable that Bheki Cele, for personal reasons related to his dismissal as police commissioner, was averse to signing off on the Farlam Commission recommendation, but it is difficult to see why his successor, Senzo Mchunu, has not taken the step already agreed to by the Cabinet years ago. It is a matter for the Police Portfolio Committee to take up with him when next he interacts with the members of that august body.
Demilitarisation is the first step away from an authoritarian “force” conception of the police towards the “service” notion which informs the content of the Constitution, the NDP and the Farlam recommendation in favour of demilitarisation.
The need to get to grips with the corrupt in our midst is becoming increasingly urgent. Soon there will be nothing left to steal. State Capture, systemic corruption and transactional corruption on a grand scale are all features of the landscape in SA at present.
The concentrated form of State Capture orchestrated by the Gupta brothers has been transcended and made more violent too. Former Chief Justice Raymond Zondo has called for “drastic action”. Not the dithering on display.
It is suggested that the appropriate place to begin is not with the “possibly nice-to-haves” that can be found among the Zondo Commission’s recommendations that were discussed and criticised during the webinar. Far better we all concentrate on enforcement of the law as it is at present.
Examine first the international treaty obligations of the state. At United Nation, African Union and Southern African Development Community levels, treaties have been solemnly ratified and domesticated into SA law. All of them require the establishment of an independent anti-corruption machinery of state.
Secondly, look into the binding findings made in the Glenister litigation, in particular the findings that our Constitution requires that the anti-corruption body should be free of the control of the executive branch of government and STIRS compliant.
The treaty obligations are being honoured in the breach and no STIRS-compliant body exists in South Africa.
Instead we have had, since May 2024, a body within the National Prosecuting Authority (NPA) which is known as the Investigating Directorate Against Corruption or Idac. This new body is structurally and operationally no different from the Scorpions who were consigned to oblivion by the incoming Jacob Zuma administration in 2009 as step one in his failed attempt to capture the state.
Were it not for both Thuli Madonsela and Zondo’s holding the line for the constitutionalists in the land, a different outcome to the forced resignation of Zuma in February 2018 might have been our fate.
One need look no further than the constitution of the uMkhonto Wesizwe (MK) party he formed last December to see the type of future he has in mind for South Africa after the current Constitution is consigned to the dustbin of history, torn up by MK.
No wonder that the President described the ANC, which he leads, as “Accused number one” during his evidence at the Zondo Commission.
There is little prospect of the NPA recruiting suitable personnel for Idac, given the adverse experience of the Scorpions and the undermined state of the NPA.
The latter remains infested with saboteurs who cling to office, resist disciplinary action and protect the corrupt at every turn. Look no further than the recent withdrawal of corruption charges against former national Cabinet minister Zizi Kodwa (a withdrawal that is currently under review).
Strangely, in August 2020, the National Executive Committee of the ANC, its highest decision-making body between conferences, instructed the national Cabinet to establish urgently a stand-alone, independent and permanent body to deal with corruption.
Idac is not such a body because it is not stand-alone, independent or any more permanent than the Scorpions were before their sudden demise.
Idac is, instead, part of the architecture created under section 179 of the Constitution in its eighth chapter. The independent constitutional bodies, other than the judiciary, reside in the ninth chapter. The whole of the NPA is a chapter 8 institution.
It has the Minister of Justice exercising “final responsibility over” it; has the director-general of justice as its accounting officer; is required to get the minister to concur with all policy decisions made in respect of its activities; and like the rest of the NPA, is run as part of a programme within the Department of Justice.
It has to jump through the hoops created for the benefit of the minister in section 33 of the NPA Act, hoops that put meat on the bones of “final responsibility over” the NPA, of which Idac is a part, and suggest control and interference on the part of the minister.
These facts and the law, as set out above, all militate against STIRS compliance. Hence the resolution of the ANC in August 2020 which, had it been implemented, would have been in accord with the position of Accountability Now.
The burning question now is whether the ANC will support the Breytenbach bills, which are imminent in Parliament.
If the ANC caucus is consistent with the NEC resolution of 2020 there will be support for the bills; if not, and the unconstitutional position of the Cabinet – which appears to be Idac oriented – prevails, the bills will not succeed in attaining the necessary two-thirds majority.
This outcome will constitute a setback for the necessary reforms of the criminal justice system, reforms which would render it effective and efficient in countering the corrupt.
It may also precipitate public interest litigation of the kind Glenister embarked on in the wake of the disbandment of the Scorpions.
In the next round of that litigation, the constitutionality of Idac will come under judicial scrutiny and the failure of the government to implement the binding Glenister rulings will be attacked.
Interesting times. DM