Wits law Professor Firoz Cachalia, chairman of the National Anti-Corruption Advisory Council, NACAC, participated in a lively panel discussion on 15 November, 2024 that was put together by PARI and CASAC in webinar format as part of their series of engagements concerning the implementation of the recommendations of the Zondo Commission of Inquiry into State Capture. The whole event is available on You Tube via PARI. The value of debating the non-binding recommendations, whether accepted by government or not, when there are binding international treaty obligations and also the binding findings of the Constitutional Court that ought to feature in any debate on the topic of countering corruption, but did not, is questionable.
It is clear that there is little political appetite within the ranks of the ANC actually to implement the solemn international undertakings by SA to establish and maintain independent anti-corruption machinery of state and even less willingness to pay attention to the criteria set in the second and third Glenister cases which reached the Constitutional Court on appeal in 2011 and 2014. The binding effect of these cases receive detailed treatment in “Under the Swinging Arch” an e-book available for free by simply googling its title. The Glenister litigation gave government the binding stirs criteria for a body free of executive control that is specialised, trained, independent, resourced in guaranteed fashion and secure in tenure of office. The acronym “stirs” is used as shorthand for these criteria and they are all signally absent in the current institutional framework.
NACAC was set up in August 2022 by the president to advise on the way forward with countering the corrupt. This appointment was part of his overall response to the report of the Zondo Commission. Since then, NACAC has been beavering away at researching and finding the best advice it can give to government in the context of the Glenister decisions and the treaty obligations read against the backdrop of the Zondo Commission’s findings and recommendations of non-binding nature.
In March 2024 NACAC produced for the president, but not the public, an interim or “mid-term” report on the work it had completed by that stage of its research. According to Professor Cachalia, the presidency promptly lost the mid-term report and, when it was found later, decided that, instead of exposing it to public debate, the NACAC report would be circulated among interested and affected senior public servants for their input on the matter. “These things happen” as the professor explained during the webinar.
This presidential decision has delayed public debate on the NACAC recommendations. They have recently been overtaken by the publication and introduction in parliament of two bills prepared by the DA that are aimed at establishing and enabling a new Chapter Nine Anti-Corruption Commission to give proper effect to the Glenister decisions, their stirs criteria and the international treaty obligations which require an independent anti-corruption body to protect the population against the scourge of serious corruption. A phenomenon which continues to run rampant in SA despite the warnings from former Chief Justice Zondo CJ that what he calls “drastic action” is needed to stem the rip-tide of corruption.
With the recent establishment, and remarkable success at the polls in May, of former president Jacob Zuma’s MK Party, the role of corruption in the future of the country takes on even more ominous proportions. It was as long ago as 2007, before that Polokwane conference, that the biographer of former president Thabo Mbeki, Mark Gevisser, let slip that Mbeki feared that a Zuma presidency would signal a “scenario far worse that the dream deferred. It would be, in effect, a dream shattered irrevocably, as South Africa turned into yet another post-colonial kleptocracy; another ‘footprint of despair’ in the path of destruction away from the promises of uhuru.” Professor Koos Malan has treated politicsweb readers to a useful summary of the nature and origin of the MK Party’s forebears.
History reveals that SA endured what the current president calls “nine wasted years” under the two presidencies of Zuma, who somehow succeeded in being re-elected. Now SA faces the MK Party as the official opposition in parliament and the biggest political party in KwaZulu-Natal. It is cold comfort that Zuma is disqualified from serving as president again. His party wishes to destroy the Constitution and to establish a parliamentary sovereignty in SA, a form of government not seen since the days of apartheid.
The NACAC plans may well be overshadowed by the parliamentary debate on the DA’s bills. The latter are focussed on achieving a constitutionally compliant outcome. NACAC’s plans seem, from the little that has been revealed, to be a concoction of reforms that are aimed at giving the impression of constitutional compliance without actually achieving it. It is well-known that NACAC, like the ANC, favours a multi-agency approach to countering corruption while the courts require the single agency approach. The fact that the current multi-agency approach has not worked in practice, leading to state capture and worse, does not seem to deter NACAC.
NACAC apparently wishes to carve up anti-corruption efforts on the part of the state by distinguishing common or garden transactional corruption from systemic corruption. This distinction is one without a difference. Either way the issue is the same: does the state have effective and efficient anti-corruption machinery capable of countering the corrupt through detection investigation and successful prosecution? The idea of giving the prevention, combating and investigation of systemic corruption to one new agency, the Office of Public Integrity, but reserving prosecution work for the National Prosecuting Authority is nothing more than a strategy to retain existing executive control over the prosecution of the corrupt.
Professor Cachalia did reveal that the interaction between NACAC and senior civil servants, those in the know on matters of policy around corruption, involved an element of blowback against the OPI notion from some of the unnamed officials with whom the NACAC leadership has interacted.
Why should this be the case when the law and the treaty obligations are so clear?
A possible answer to this question is to be found in the tenets of the so called National Democratic Revolution. This concept has been discussed incisively by Professor RW Johnson in the columns that he contributes to the online publication biznews.com in recent days. The take home message from the learned professor is that there has been no revolution, there can be no “counter-revolution” and the revolutionary ideology involved is seriously misguided.
One of the basic NDR tenets that the ANC has subscribed to is that it must strive at all times to gain “hegemonic control of all the levers of power in society”. To do so it deploys its cadres who are most loyal to the revolution to positions of power and influence in the government, the public administration, the SOEs and even the judiciary and Chapter Nine Institutions.
Cadre deployment in the public administration is, with submission, unconstitutional and is also frowned upon by the Zondo Commission which recommended that it be scrapped because it was a major factor in facilitating the state capture project. It is unconscionable that cadre deployment should extend to the judiciary, which is meant to be impartial and independent. Ditto for the Chapter Nine Institutions like the SAHRC, where Chris Nissan is currently in hot water for his willingness to protect his political pals and his party, the ANC.
The Zondo recommendation that cadre deployment be scrapped was not accepted by the ANC. It is currently in ongoing litigation against the DA on the topic with an appeal pending in the Constitutional Court which will give a definitive and final decision on the dispute.
In the meantime, those hand-picked by the cadre deployment committees in Luthuli House to strive for hegemonic control are in position in the public administration to ensure that the type of reform that is required to right the ship of state on the corruption front is not passed into law. The members of the national assembly who debated the Glenister decision to reform the structures in place back in 2012 were unable to get their heads around concepts that fly in the face of the notion of “hegemonic control”.
When he was still minister of justice, Ronald Lamola confused the minority judgment in Glenister Two with the majority judgment in order to justify the invalid, illegal and unconstitutional positions of government that led to the passing of legislation that gave birth to the Investigating Directorate against Corruption or Idac. This unit, which is structurally and operationally indistinguishable from the Scorpions of old, is not compliant with either the relevant treaty obligations or the stirs criteria laid down in Glenister Two. Lamola, in introducing the Idac legislation claimed that it would be, falsely so.
When faced with the timorous reforms of NACAC and the notion of setting up the OPI, the officials who matter say “No” because its very existence will dilute the desired hegemony of the ANC, which actually ended when the voters cast their votes in May 2024.
In the final analysis, the Constitutional Court requires , in binding terms, a specialist body of well-trained operationally and structurally independent experts at countering corruption who are properly resourced in guaranteed fashion, and secure in their tenure of office.
The NPA has a general constitutional mandate to prosecute all crime.
It is not a specialist body, has very few trained anti-corruption experts, and only a paltry 22 investigators. The Scorpions, before they were shot down, planned for a staff complement of 2000. The NPA has no capacity to grow its own timber , given its cadre infested ranks of saboteurs planted there in the Zuma years, who protect the corrupt and cling to office. Both structural and operation deficiencies render the NPA unfit for the task of countering corruption.
It is also not feasible to convert the NPA into the specialist body required by law, not while preserving its necessary mandate in respect of the prosecution of crime in general. Corruption is a form of crime, secretive, devious and deadly. It requires specialists to thwart corrupt operations, as the judiciary has ruled.
The DA’s bill for an Anti-Corruption Commission with Chapter Nine status is currently pending in parliament. It is the way to go. At present , SA is in breach of its international treaty obligations regarding the establishment and maintenance of its anti-corruption machinery of state. This undeniable fact and the binding need to comply with the Court’s decisions make reform imperative in the existential fight to conquer the corrupt. The OPI is not that reform, the Chapter Nine Anti-Corruption Commission is.
Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.
