A clash of values deprives SA of the capacity to counter serious corruption

30 January 2024

When the ANC resolved in December 2007, at its elective conference in Polokwane, to dispense with the services of the Scorpions, an anti-corruption unit in the National Prosecuting Authority (NPA), and when parliament replaced them in 2009 with a police unit called the Hawks, the ability of the state to counter corruption was severely prejudiced if not gutted.

Closing down the Scorpions and transferring their investigative functions to the Hawks was opposed by many in civil society and all the opposition parties then in parliament. Stung by the Travelgate saga, and the ongoing investigation and prosecution of its then leader, Jacob Zuma, the ANC dug in and insisted that its resolution be adopted by parliament. As it enjoyed a majority in parliament at the time, the ANC was able to ram through the legislation needed to establish the Hawks and close the Scorpions.

The Hawks are now in their third incarnation due to their legislated architectural design not passing constitutional muster, not once, but twice. Despite the tinkering undertaken to supposedly comply with the rulings of the Courts, the Hawks remain unable to perform the anti-corruption work required of them due to a lack of resources, inadequate independence and infrastructure that is also sub-optimal. Their security of tenure of office also leaves much to be desired. There are turf wars between the Hawks and the NPA which engender further inefficiencies and a lack of progress with the prosecution of those identified as possible wrongdoers in the report of the Zondo Commission, among others.

The processes involved in state capture took place under this unsatisfactory dispensation, as did “covidpreneurism” and other modern manifestations of grand corruption, kleptocracy and organised crime in SA. A culture of serious corruption with impunity remains firmly in place in SA. Corruption is a killer, in SA it often takes the form of theft from the poor. Service delivery and the promotion of the achievement of equality and human dignity are prejudicially affected by corrupt acts.

There is a crying need to prevent, combat, investigate and prosecute those who are seriously corrupt. Raking back their loot, entirely possible in law, could also be undertaken, if not by the state, then by the use of lawyers in private practice. The NPA claims that SA cannot prosecute its way out of corruption. The harsh reality, and the need for deterrence, are somewhat different according to the Chief Justice, Raymond Zondo, who chaired the eponymous commission of inquiry into state capture. He observed last year:

“The levels of corruption in our country have reached completely unacceptable proportions, and unless something very drastic and effective is done soon, we will have no country worth calling our home.”

Lord Peter Hain delivered a lecture at the UCT Summer School on 25 January 2024 in which he quoted the Chief Justice in support of his advocacy of the establishment of an International Anti-Corruption Court to counter kleptocracy. His lecture is available electronically both as a recording
 THE INTERNATIONAL ANTI-CORRUPTION COURT-20240125_183556-Meeting Recording.mp4 and as written text https://www.biznews.com/global-citizen/2024/01/25/peter-hain-justice-international-anti-corruption-court.

For SA further “drastic and effective” measures could and should include:

- Urgently setting up a Chapter Nine Anti-Corruption Commission as proposed by the DA.

- New legislation introducing Non Trial Resolution of complex commercial corruption cases, whether local or transnational https://www.dailymaverick.co.za/article/2022-07-06-corruption-amnesty-south-africa-must-look-to-non-trial-resolutions/.

- Resort to alternative dispute resolution (ADR) strategies such as those used by the American department of justice against Swiss based SAP, a multi-national corporation that paid bribes to SA officials. SA recouped billions in the deal struck with SAP as a result of the invocation of the USA’s Foreign Corrupt Practices Act. An NPA policy for its own routine use of ADR is long overdue but would, as the law stands, require the concurrence of the minister of justice. ADR is a great way to rake back loot efficiently, especially from those who, like SAP, own up to the malfeasance involved.

- Refinancing the criminal justice administration by allocating recovered loot, either in whole or in part, to its underfunded anti-corruption activities.

The existing requirements of the law pertaining to the anti-corruption machinery of state of SA have received the attention of the Constitutional Court on three occasions between 2008 and 2014 in the trilogy of cases now known as “The Glenister litigation”. The name is that of the applicant, a public interest litigant with a prodigious public spirit, Bob Glenister, a Johannesburg businessman.

The orders of court and its decisions arrived at in the three cases bind the state and all persons to which they apply in terms of Section 165(5) of the Constitution.

The state is bound to put in place effective and efficient anti-corruption machinery which complies with the criteria laid down in the second Glenister case. The main criteria have become known as the STIRS criteria, an acronym for Specialised, Trained, Independent, Resourced (adequately and in guaranteed fashion) and Secure in tenure of office.

Had these criteria been embraced, as they should have been by government, the Chief Justice may not have found in necessary to issue his grave warning last year, as quoted above.

Not only is government not onside as regards the court orders and decisions made, it is also in breach of international law undertakings it has given in treaties that have been domesticated by SA and now form part of our law.

By way of example, the UN Convention Against Corruption includes as its Article 6 a binding provision in these terms:

Preventive anti-corruption body or bodies

1. Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such means as:

(a) Implementing the policies referred to in article 5 of this Convention and, where appropriate, overseeing and coordinating the implementation of those policies;

(b) Increasing and disseminating knowledge about the prevention of corruption.

2. Each State Party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions, should be provided.

There are similar provisions in other treaties that bind SA at both AU and SADC levels.

In the Glenister litigation the fundamental principles of SA law (as referred to in sub-article 2 of article 6 of UNCAC) have been authoritatively spelt out by the highest court in the land. The anti-corruption machinery should not be answerable or accountable to the executive branch of government. Sadly, the government remains in dereliction of its duty to implement the court orders and to honour its international obligations.

The mere fact that the President calls the ANC, which he leads, “Accused number one” in the disaster that is called state capture, is proof enough that there is a crying need for reform of the kind that would render the capacity of the state to counter corruption constitutionally compliant. The record of the Zondo Inquiry is a litany of instances of serious corruption involving all manner of well-connected politicians from the cabinet down, their associates in business and all manner of foreign interests too, including banks and professional advisers in different spheres. Due to capacity constraints the commission barely scratched the surface of corruption in SA. It took no evidence and made no findings in relation to most provinces, all municipalities, the police and the NPA itself.

The Minister of Justice, Ronald Lamola, who serves in the cabinet that replaced the last Zuma led cabinet, has the obligation to attend to the necessary reform that is needed to achieve STIRS compliance.

Less than a year ago he was under the impression that the non-binding minority judgment in the second Glenister case sets out the law and that there is accordingly no obligation on government to achieve STIRS compliance. He was promptly and politely corrected on this misapprehension at the conference held at UCT in February 2023 by Paul Pretorius SC, the chief evidence leader at the Zondo Commission. Lamola now recognises the STIRS criteria in the media release that accompanied remedial legislation aimed at upgrading the status of the Investigating Directorate of the NPA. The ID was brought into existence during the honeymoon period of the “New Dawn” punted by the new ANC leadership (that replaced Zuma and his ilk). The ANC government committed itself to ending serious corruption that so bedevils peace, progress and shared prosperity in SA. It has not delivered on this commitment.

Minister Lamola is mistaken if he imagines that what he has in mind to achieve the necessary STIRS compliance, the so called “Investigating Directorate Against Corruption”, is constitutionally compliant with the Glenister trilogy rulings. Locating IDAC within the NPA is contra-indicated due to the lack of independence of the NPA itself. It functions under the “final responsibility” of Lamola, has the Director General of Justice as its Accounting Officer, and requires ministerial concurrence with the prosecution policies that are put in place by it. The NPA is run as a programme in the department of justice. This is not the stuff of STIRS compliance. A proper anti-corruption agency would report to parliament, not cabinet.

The newly asserted commitment of the ANC to the rule of law and to honouring international treaty obligations ought to inform its approach to reforming the anti-corruption machinery of SA. The rule of law, at a minimum, requires that the STIRS criteria be put in place and that our treaty obligations as a nation are met. These are constitutional obligations that ought to be performed diligently and without delay under Section 237 of the Constitution. The minister, his colleagues in cabinet, and all members of parliament are bound to uphold the Constitution and the rule of law. Their oaths of office (or solemn affirmations they make) require no less.

The lack of political will to do what the law and the Constitution require in relation to anti-corruption reform is attributable to the mindset of the governing alliance which seeks to assert what it calls “hegemonic control of all the levers of power in society”. An independent anti-corruption entity free of the interference, influence and impedance of the executive branch of government does not fit into this world view and indeed clashes with the values that inform the court decisions creating the STIRS criteria.

For reasons now obvious, on Zuma’s watch there was even less appetite for the reforms that are so urgently still needed to give effect to the Glenister litigation decisions. The rule of law and the binding nature of treaty obligations both require that the lack of effective and efficient anti-corruption machinery in SA be addressed urgently. Understandably, but unadvisedly, the ANC wishes to protect those of its members who are involved in serious corruption, those actively involved in being what the president calls “Accused number one”.

The need for STIRS compliant reform is, or ought to be, obvious. Governance by sleight of hand and feigned acceptance of the binding nature of the STIRS criteria won’t do. Pulling the wool over the eyes of the public is neither accountable nor responsive to their needs. Those who persist in doing so ought to be punished at the polls when the general elections for national and provincial parliaments are held later this year.

As we are entering the manifesto season of this election year, opposition parties are well placed to make capital out of any failure to implement the treaty obligations and court orders discussed above. These requirements are referred to in greater detail in the recently published book on the subject of the Glenister litigation called “Under the Swinging Arch”. This book is available electronically for free download from www.accountabilitynow.org.za. It includes the operative parts of the judicial contribution to the law and also some suggested amendments to the law to achieve the constitutional compliance currently lacking. These details are set out in the appendices to the book.

“Under the Swinging Arch” is a compilation of essays by the lawyers involved in the three cases that Bob Glenister took to the Constitutional Court. In the foreword Justice Johann Kriegler refers to the “danger unleashed by the short-sighted folly of the ruling party at Polokwane” while expressing optimism that the situation in SA is capable of remediation. The danger to which he refers is summed up in the quote from the Chief Justice that is set out in full above. Justice Richard Goldstone, an Accountability Now trustee, observes that “they [the authors] force us to realise that in the end it is political will and the moral judgment of our leaders that are essential to making our world a better one.”

It is good politics in an election year to demonstrate credible, constitutionally compliant political will to reform the criminal justice administration so that it can really prevent, combat, investigate and prosecute serious corruption and organised crime. All honest voters can support this approach, whatever their previous party affiliation.

Minister Lamola should scrap the IDAC bill, which cannot possibly pass constitutional muster, in favour of a truly STIRS compliant reform of his choice, one of the kind that is likely to be recommended next month by the National Anti-Corruption Advisory Council. He will face a constitutional challenge if he persists with making the IDAC bill law.

It is incumbent upon all opposition parties and independent candidates to demonstrate to voters that they have a plan in place in their manifestos to get on top of corruption before the Chief Justice’s predicted future for SA comes true. All such plans should be STIRS compliant.

Voters must, in their own self-interest, ensure that the party of their choice is a party that recognizes the inadequacies of the present system and is willing to effect the changes needed in order to address the scourge of corruption.

The ANC’s desire for hegemony ought not to prevent it from acknowledging that it is also committed by law and by treaty obligations to take the STIRS criteria as the starting point in any reform efforts it makes to address serious corruption in SA.

Paul Hoffman SC is a director of Accountability Now

28 January 2024.