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We need both long-term and immediate steps in our contentious battle against corruption

John Jeffery
By John Jeffery
26 Sep 2023
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How corruption should be best combatted in South Africa is a complex matter which requires considerable work, reflection and debate. This is something that other countries have also been grappling with and there is no international consensus on the ideal model.

Our fight against corruption requires a comprehensive and rigorous approach across multiple institutions and laws. This cannot be haphazard or roughshod. Yet we also need to strengthen corruption-busters urgently. The National Protesting Authority (NPA) Amendment Bill will intensify our abilities to investigate and prosecute corruption immediately.

For these reasons Paul Hoffman’s article in Daily Maverick of 13 September 2023 is misguided (“NPA Amendment Bill goes from faux permanence to ‘stopgap measure’ in just two weeks”).

I do not doubt Paul Hoffman’s commitment to the fight against corruption. I also agree with him on the importance of prosecuting the “Big Fish”, although high-profile prosecutions are not the only weapon in the fight against corruption.

However, his critique of the NPA Amendment Bill, pertaining to the NPA’s Investigating Directorate in his article of 13 September 2023, is based on faulty logic and incorrect assumptions.

The NPA amendment Bill provides that the Investigating Directorate, which is currently established by Presidential Proclamation, will be a statutory body, thus protected in legislation and will also be able to employ its own investigators.

It will have greater permanence as it cannot be abolished by way of a Presidential Proclamation. It also means that investigators will be appointed and not be seconded, giving the investigators greater security of tenure.

How corruption should be best combatted in South Africa is a complex matter which requires considerable work, reflection and debate. This is something that other countries have also been grappling with and there is no international consensus on the ideal model.

Some advocate for the establishment of a dedicated anti-corruption agency, but the drawback of this is that if it proves to be ineffective for whatever reason, the anti-corruption fight is seriously set back. It also raises the question of whether one dedicated body or different anti-corruption bodies with varying roles are better at fighting corruption.

South Africa currently has a number of institutions that are engaged in the fight against corruption. Bodies such as the Asset Forfeiture Unit of the NPA and the Special Investigative Unit have been very successful. These bodies are equally important in the fight against corruption.

Investigation and prevention of corruption


In August last year, President Cyril Ramaphosa established a National Anti-Corruption Advisory Council (Nacac) made up of representatives of civil society to advise on matters related to fighting corruption, in line with the National Anti-Corruption Strategy 2020-2030.

The council is advising government on the critical preventative measures, the institutional capabilities and resources that are required to proactively curb a recurrence of State Capture and prevent fraud and corruption in South Africa.

They are hard at work looking at the best international practices, considering South Africa’s specific conditions as well as looking more broadly — not just at the investigation and prosecution of corruption cases, but also at systemic investigations and the prevention and combatting of corruption.

Depending on the outcome of their work and if significant changes are to be made, new legislation to establish such a body or bodies will take time. The Constitution already provides for a single National Prosecuting Authority and thus attempts to set up another body to prosecute corruption matters would require a constitutional amendment.

Advancing the NPA


We need to look at ways in which to strengthen and capacitate the NPA right now.

The NPA Amendment Bill is therefore being tabled to beef up the Investigating Directorate so that it can be more fortified in its work on investigating and prosecuting corruption. Once the bill is passed the NPA can implement it and it will have an immediate impact on their ability to prosecute corruption cases.

Adv Hoffman wants a standalone Chapter Nine Anti-Corruption Commission to fight corruption. He wrongly argues that it is either the NPA Amendment Bill or this Chapter 9 Commission. This is not the case — these bodies are not mutually exclusive.

His article refers to several inaccurate facts to support his argument against the NPA Amendment Bill. It is not correct that the NPA Amendment Bill was not certified as constitutionally compliant by the state law advisers. It was certified before its introduction into Parliament.

Chapter 9 emphasis


Adv Hoffman refers to the Constitutional Court’s judgment on 17 March 2011, in other words the Glenister matter. Hoffman appears to be of the view that only a Chapter 9 type body will be constitutionally compliant and cherry-picks from the Glenister judgments on the disestablishment of the Scorpions and the establishment of the Hawks to argue his case.

What his article omits to add is that, while the Constitutional Court did find that certain provisions of the SAPS Amendment Act required further amendments, it did not find the Directorate of Special Operations in the SAPS (the Hawks) to be unconstitutional. That is why the Hawks still exist.

In fact, the majority judgment of Glenister II stated that “the Constitution requires the creation of an adequately independent anti-corruption unit. It also requires that a member of the Cabinet must be responsible for policing. These constitutional duties can productively co-exist, and will do so, provided only that the anti-corruption unit, whether placed within the police force (as is the DPCI) or in the NPA (as was the DSO), has sufficient attributes of independence to fulfil the functions required of it under the Bill of Rights” (my emphasis.)

The Constitutional Court has not said that an anti-corruption body must be placed outside the SAPS or the NPA.

In fact, in a discussion of the Glenister case from 2011 on Adv Hoffman’s Accountability Now website, the late Professor Kader Asmal, who is regarded as by all as South Africa’s expert on Chapter 9 bodies, said that there are three likely locations for an anti-corruption unit, being the NPA, the Office of the Public Protector or a standalone unit.

Adv Hoffman, with respect, incorrectly equates “sufficient attributes of independence” as demanded by the court in Glenister as meaning that such a unit can only be a Chapter 9 institution.

Of course, as we now know, some Chapter 9 bodies are not without challenges either. Being a Chapter 9 body does not, by virtue of itself make a body or institution perfect. Having Chapter 9 status does not automatically preclude an institution from having problems, be it operational issues or issues of independence.

Adv Hoffman also does not see the bigger picture in the anti-corruption fight. He is suggesting that the NPA Amendment Bill be withdrawn immediately. How on Earth will this help the fight against corruption?

And what does that mean for other bodies such as the SIU and the Asset Forfeiture Unit? Do we get rid of them too, while we create Adv Hoffman’s new suggested Chapter 9 body?

Clearly, the issue of the best institutional arrangements to fight and combat corruption is not something that can be rushed, and the task of finding the best institutional model for South Africa is ongoing.

Depending on the outcome of the Nacac report and the deliberations that will follow thereafter, there may well need to be further changes or improvements within the state machinery in its fight against corruption.

We need a two-pronged approach. We need a systemic and comprehensive response to corruption. This needs to be done carefully. Yet this does not mean we should delay providing urgent support to our corruption busters.

The NPA Amendment Bill will be an immediate measure to strengthen the prosecution and investigation of corruption cases as the Investigating Directorate will then be established as a statutory body with investigating powers. DM

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