DA introduces Scorpions 2.0 to tackle State Capture 2.0

5 July 2023

Today, DA Federal Leader John Steenhuisen MP, outlined several steps to ensure that the corrupt are held accountable and that the Zondo Commission does not become a R1 billion public relations exercise. Steenhuisen was joined by DA Chief Whip in the National Assembly, Siviwe Gwarube MP, DA Shadow Minister of Public Service and Administration, Dr Leon Schreiber MP, and DA Deputy Shadow Minister of Justice and Correctional Services, Werner Horn MP.

The 22nd of June 2023 marked exactly one year since the final report of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector was publicly released by Chief Justice Raymond Zondo. In the year since the report’s release, an exercise that cost the South African taxpayer in excess of R1 billion, the process to implement a raft of recommendations and structural changes to South Africa’s state institutions and oversight bodies has come to a grinding halt.

Of the 98 ANC members mentioned in the Zondo Report, not one has been reprimanded by the party nor handed over to law enforcement for investigation. In the National Assembly, of the 16 recommendations made by the Zondo Report to bolster and fix parliament’s model of accountability over the executive, the majority of the substantive and immediately implementable recommendations have already been voted down by the ANC.

In a briefing to parliament’s Select Committee on Security and Justice on its annual performance plan earlier this year, National Director of Prosecutions, Shamila Batohi, and officials from the National Prosecuting Authority (NPA) said that the institution does not have the skills or the legal powers to adequately probe state capture. To add insult to injury, there still exists no truly independent corruption-busting body similar to the the Scorpions, which the ANC disbanded years ago.

We now know that life for South Africans has gotten exponentially worse under President Cyril Ramaphosa – a man who merely extended nine wasted years into fourteen, and whose cover as a reformer and corruption fighter was blown by the Phala Phala scandal. But it is the revelations of blatant ANC corruption which continues unabated, and in the face of absolute impunity since the release of the Zondo Report, that is a cause of great concern to millions of South Africans, and to the Democratic Alliance.

In the wake of the ANC’s 55th National Conference in December last year, several party members and former ministers implicated in the Zondo report, people who should be investigated and prosecuted, were rewarded with positions of authority within the party’s highest ranks.

The Zondo Commission found enough evidence for former Minister of Water and Sanitation, Nomvula Mokonyane, to be investigated and prosecuted for corruption for receiving bribes from Bosasa. She now serves as the ANC’s 1st Deputy Secretary-General.

Former Minister of Transport, Fikile Mbalula, has been found to have used R3 million from National Lottery grant money to purchase a luxury property in Johannesburg. He currently serves as the ANC’s Secretary-General.

Former ANC Treasurer-General, Paul Mashatile, lives a life of lavish luxury funded by state capture corruption accused, Edwin Sodi. He currently serves as Deputy President of both the ANC and the Republic of South Africa, with his eyes on the Presidency itself.

Royal Security, a Zondo-accused company founded by State Capture kingpin Roy Moodley, along with many others, have yet to be blacklisted and barred from bidding for government tenders. These companies have faced no consequences for aiding and abetting the looting of billions of rands in taxpayer funds, making it virtually impossible for tender bidding processes to be adequately vetted by the state to ensure greater transparency and accountability.

But perhaps the most glaring example of the ANC’s abject failure to implement the Zondo Report’s recommendations is the Chief Architect of State Capture himself, Jacob Zuma, who has evaded his initial prison sentence for contempt of court due to the illegal granting of medical parole by none other than state capture accused and former head of correctional services, Arthur Fraser. From the top down, the ANC has done nothing to act on those who brought about one of the darkest periods in post-apartheid South African history.

What South Africans are now witnessing is not an age of accountability, or the New Dawn as was promised by President Cyril Ramaphosa upon his election in 2019. We are witnessing the second coming of rampant and unabated ANC corruption. We are witnessing State Capture 2.0.

The Democratic Alliance, as the nation’s official opposition, has taken several steps to ensure that accountability is strengthened, that institutions are rebuilt and bolstered independently and impartially, and that organs of state tasked with the investigation and prosecution of those implicated in corruption are strengthened.

The Presidency and the impartiality of the NACAC

The Democratic Alliance has written to the Chairperson of the National Anti-Corruption Advisory Council (NACAC), Professor Firoz Cachalia, to highlight a number of concerns we have with the council’s work which has taken place predominantly in a vacuum of transparency where only the executive has had sight of the council’s proposals, and not the necessary independent institutions such as parliament. See the letter here.

This should be of particular concern to all South Africans given that we cannot trust the NACAC’s impartiality and credibility if it is proposing solutions to a problem of corruption, to the very source of the corruption problem itself. This despite an initial assurance from President Cyril Ramaphosa in his 2021 State of the Nation Address that the NACAC would report to parliament and not the executive.

Given that the NACAC is housed within the Presidency, and compounded by the fact that the Chairperson, Professor Firoz Cachalia is himself a former ANC public office bearer, this begs the question: who watches the watchers, and how independent is the NACAC? This presents a grave conflict of interest given that both President Cyril Ramaphosa and now Deputy President Paul Mashatile are facing several allegations of corruption and misconduct in the Phala Phala scandal and close financial ties to state capture-accused, Edwin Sodi, respectively.

One of the main recommendations emanating from the Zondo Report was the urgent task of firewalling institutions such as parliament and the National Prosecuting Authority (NPA) from undue political influence. This would include ensuring that oversight over the executive, including the combatting of corrupt activities committed by members of the executive themselves, must be carried out by independent and impartial bodies constitutionally entrusted with this responsibility such as parliament. It is for this reason that we have highlighted these concerns with Prof Cachalia, and made a number of requests to the NACAC which include the following:

A comprehensive summary of the work undertaken by the NACAC over the past ten months, including any and all proposals made to the Presidency, especially those relating to the implementation of a wide range of recommendations outlined in the Zondo Report;

Given that when President Ramaphosa first announced the establishment of the NACAC, he stipulated that one of the body’s primary responsibilities would be to oversee the establishment of an independent statutory anti-corruption body that reports to parliament, we request a commitment from the NACAC to table its proposals in the National Assembly by the end of this parliamentary term. This is where the work of the NACAC belongs, where members of parliament, including the opposition, can consider and deliberate on the proposed creation of new corruption-fighting bodies. This should include a record of correspondence with both the Speaker of the National Assembly and the Chairpersons of the relevant committees;

The NACAC’s plan to fully capacitate and equip the National Prosecuting Authority (NPA) to independently investigate any and all individuals named in the Zondo Report without fear or favour, especially those with close financial ties to the President, the Deputy President, and members of the current national executive;

The NACAC’s plan to investigate and prosecute private sector individuals identified in the Zondo Report, including the blacklisting of respective companies and their boards.

We have provided the NACAC with a two week period in which to furnish us with its response, the deadline of which is 18 July 2023. We look forward to engaging the council and welcoming its proposals to parliament where the work of accountability over the executive rightly belongs.

In terms of Acting Public Protector, Koleka Gcaleka’s report on allegations of misconduct relating to a theft at President Cyril Ramaphosa’s farm at Phala Phala, we are still in consultation with our lawyers to pursue any potential avenues for an appeal.

Again, this whole matter is compounded by the fact she herself is an applicant for the position of Public Protector, which brings into question her impartiality.

Scorpions 2.0

The fight against corruption is a fight that must be won to rescue South Africa from entrenched corruption and state capture. Given that the NACAC has not been forthcoming with any proposed legislation to create corruption-fighting bodies in the South African Republic thus far, the DA has stepped in to do the work for them.

The DA will be tabling a constitutional amendment for the establishment of the Scorpions 2.0 – a Chapter 9 anti-corruption body to work independently of the executive and without the threat of disbandment by parliament. We strongly believe that this institution must be set up on the basis of establishing a new Chapter 9 Institution to fortify such an entity against political manipulation, by this government or even a future government. This will prevent politicians from disbanding it when it does its work, like we have seen with the Scorpions, which was abolished by a simple majority vote in Parliament.

If this entity is positioned in Chapter 9 of the Constitution and identified as being critical to the rule of law in our country, it will require the support of at least 75% of Members of Parliament to be disbanded should it be deemed central to the rule of law.

Back in 2019, when President Ramaphosa took office, his promises to tackle and root of corruption was a key reason for the unbridled enthusiasm for the New Dawn. However, this enthusiasm was short lived as a lack of firm action taken against those implicated in corruption has become a hallmark of Ramaphosa’s presidency.

During the State of the Nation Address of 2021 the President announced the establishment of the National Anti-Corruption Advisory Council, to oversee the initial implementation of the anti-corruption strategy and the establishment of an independent statutory anti-corruption body that reports to Parliament.

Now, two and half years later, there is still no sign of this independent statutory anti-corruption body. It would seem that in the meantime this promise was replaced with a new promise, i.e. to make the Investigative Directorate of the NPA a permanent structure – which of course also remains an unkept promise with nothing but talk to support it.

As the Democratic Alliance we stand firmly allied with those in society who have for many years advocated for the establishment of a truly independent Anti-Corruption Commission.

This is an opportunity to ensure that the other characteristics of a truly independent anti-corruption entity, set by the Courts in the Glennister judgement, are also incorporated: A specialised, properly trained and professional staff component which enjoys security of tenure. An entity which is properly resourced and which is not subjected to the whims of the government of the day, when it comes to its funding.

Our private members bills will give effect to these goals and are in the final stages of development. In the meantime, we will also engage the National Anti-Corruption Advisory Council, who is there for South Africa and not the party currently in government, or its President, with a view of working with it to ensure that its primary brief, announced by the President in SONA 2021 is achieved.

At the same time, we also belief that the snail’s pace at which this government is moving to strengthen and expand whistle-blower protection, as well as the substance of the amendments government is considering, is not showcasing the type of urgency and seriousness demanded by the critical role whistle-blowers are to play in an effective fight against corruption.

During SONA 2022 President Ramaphosa announced that the relevant law enforcement agencies were to take the “necessary steps to address the immediate concern about the safety of whistle blowers”.

Unfortunately, since then no new measures, like extending witness protection to whistle-blowers whose lives are endangered by their revelations, were introduced.

Last week, a Discussion Document on Proposed Reforms of the Whistle-blower Regime in our country, was published and public comment was invited.

The choice to publish a discussion document, rather than a draft bill, is yet another example of how this government is delaying the urgent. In addition, the document is primarily constituted of background legal research, but only two pages dedicated to concrete proposals.

While some of the draft proposals are good, we are of the view that it lacks at least one key ingredient if we are to ever break the mafia-like stranglehold of corrupt masterminds in this country: The establishment of a compensation fund from which those who blow the whistle on grand scale corruption that leads to convictions of those at the top of these corrupt schemes and the recovery of substantive amounts of public funds, are to be compensated. This fund will encourage legitimate whistleblowing while simultaneously punishing any information provided that is false or in bad faith.

We strongly believe that the organised manner in which grand corruption is now being perpetrated demands bold, decisive and urgent action.

Once again, we will be looking to introduce a private members bill to achieve this, if the government of the day remains unwilling to incorporate this into an urgent draft bill.

Parliament’s inability to prevent State Capture 2.0

Recently, Chief Justice, Raymond Zondo, expressed concern that Parliament would not be able to prevent State Capture 2.0 should it happen as very little has been done to strengthen the institution’s oversight mechanisms.

We can confirm that the Chief Justice is correct in his assessment. Despite the hurried meeting that was organized by Parliament’s presiding officers and the assurances given to South Africans that work is being done – this is simply not true.

A year after the Report was tabled in Parliament, there have been no substantive changes to the way the ANC conducts the work of the institution. It is important to highlight that it is the ANC that has no interest in a Parliament that functions well. The party has blocked every attempt to exercise executive oversight using its numbers in the House.

In fact, the ANC has taken a hostile posture towards the standing of the Commission’s work, often labeling it has judicial over-reach and relegating to simple recommendations which can be ignored.

These examples lay bare the situation we find ourselves in:

When the report was tabled, a number of key individuals who are current and past Members of Parliament were reported to the Ethics Committee – after weeks of opposition pressure. Recently, when we followed up on the investigation of the Ethics Committee – particularly as it concerns the Chair of Chairs, Cedrick Frolick – we were told that the Ethics Committee made no adverse findings against him. This was not preceded by an explanation of what evidence was considered and how the conclusion was reached. Considering that this was no ordinary Ethics probe, it would have been important for the presiding officers to ensure that this was done as thoroughly and as transparently as is possible within the rules.

16 recommendations were made to Parliament to strengthen its oversight role. Some of these would have been a change in the rules of both the National Assembly and the National Council of Provinces and others would have been legislative changes. None of the legislative amendments were deemed desirable by the Rules Committee and key changes to the rules were voted down.

o These include increasing the number of opposition chairpersons to strengthen the work of portfolio committees. This was voted down by the ANC.

o The DA proposed amending the rules to reintroduce interpellations which allow for a more detailed questioning of ministers on a particular issue. This is still the practice in some legislatures including the Western Cape. This was voted down by the ANC.

o The DA and other opposition parties have long called for a portfolio committee that would oversee the forever expanding presidency which now has several members of the executive. This call was affirmed by the recommendations of the Commission. This has been delayed by the ANC, pending a study tour to ascertain its usefulness as though this has not been long called for over the years.

To showcase that we are now fully in the era of State Capture 2.0, the following decisions by the ANC in Parliament are important to note:

Last year, when a section 89 process to investigate the president’s role in the Phala – Phala saga was invoked, the ANC caucus voted to halt the process in its tracks.

When the DA moved a motion to establish an ad hoc committee that would investigate the corruption allegations at Eskom – including the role of Ministers who are serving in the cabinet – the ANC voted the motion.

Since the appointment of the Electricity Minister, the DA has called for an ad hoc committee that would oversee his work. This is critical considering that the energy crisis threatens the country’s economic prospects. Despite the magnitude of this crisis and the devastating impact it has had on South Africans, the ANC voted this motion down.

The DA has a long history of seeking to reform Parliament and how it fulfills its constitutional obligations. However, the governing party has not only hollowed out any capacity for this to take place, it is now firmly blocking any attempts to strengthen the work of MPs.

We are dealing with a party that is hostile to the constitution and the work we ought to do. The only way we can rescue Parliament is to reduce the majority the ANC enjoys in Parliament next year at the polls. Under a DA- led majority, we would reform the institution. It would be a robust center of debate where the issues facing South Africans are dealt with. It would hold the executive to account and ensure that it is not a place of refuge for those who steal from the public.

Cadre deployment’s role in State Capture 2.0

The DA continues to lead the fight against cadre deployment, because it forms the very foundation of State Capture and corruption. This is because the ANC uses cadre deployment to subvert formal appointment processes to ensure that pliant and loyal “cadres” are appointed to positions of power.

In every single case of capture, both under Zuma and now under Ramaphosa, the most fundamental question to be asked is: how were the persons in power appointed in the first place? We know from the cadre deployment minutes covering the period between 2018 and 2021 that were exposed by the DA, that the ANC’s deployment committee directly interferes in appointments across government departments, state-owned enterprises, provinces, municipalities and even all the way into the Constitutional Court.

The emergence of State Capture 2.0 under the Ramaphosa presidency is following exactly the same pattern as before. All we need to do, is connect the dots.

Individuals like Edwin Sodi and Philemon Letwaba fund the luxury lifestyles of the likes of Mbalula and Mashatile for a good reason: because they know that senior ANC politicians hold sway over appointment and procurement decisions. There would be no point to funding their luxury lifestyles if the ANC did not have the power to ensure that corrupt people are appointed who will do the bidding of the likes of Sodi and Letwaba.

This is how cadre deployment works: those who wish to capture the state influence ANC politicians to ensure that pliant cadres are appointed, who will assist with doling out corrupt tenders and other benefits to friends of the politicians who, in turn, funnel a slice of this largesse back to the Mbalulas and Mashatiles of the world. The way to stop this is by taking away the power of ANC politicians to influence appointment processes. We need to firewall all public appointments against political interference and replace cadre deployment with merit-based appointments.

The Zondo Commission agreed with this assessment, finding that “the evidence has demonstrated that state capture has been facilitated by the appointment of pliant individuals to powerful positions in state entities.”

The DA has repeatedly warned that state capture will continue unabated for as long as cadre deployment is allowed to continue. Strikingly, so did the Zondo Commission, based on the exact same rationale: “The essential danger remains that appointment processes which are conducted behind closed doors and outside of the constitutionally and legally stipulated processes are open to abuse.”

This warning, both from the DA and the State Capture Commission, is now coming true before our very eyes.

And the National Anti-Corruption Advisory Council itself may be implicated.

The ANC’s own cadre deployment minutes show that, on 26 June 2020, the President appeared before the deployment committee, and notes the following: “The President started by apologising for the appointment of the SOE Council without the involvement of the Deployment Committee, explaining that it was an omission due to the pressure.”

It is therefore very likely that the delay in appointing the NACAC two years later came about because the President had to first get permission from the deployment committee to decide who would be appointed to the Council. Given that Professor Cachalia was a senior ANC office-bearer until 2010, this begs the question: is the head of the NACAC himself a deployed cadre, placed into that position to protect the interests of the ANC? If so, it would explain the Council’s failure to do anything to prevent State Capture 2.0. The DA will be asking detailed questions about this in parliament.

Another obvious example in recent times comes from the institution designed specifically to ensure a skilled and politically-independent public service – the Public Service Commission (PSC). Just last month, the ANC rammed through Parliament the recommendation to appoint one Errol Magerman as a PSC commissioner. The law clearly requires all commissioners to be “independent and impartial.” But guess what? The ANC recommended Magerman even though he is currently a sitting Member of the Provincial Legislature in Gauteng – for the ANC.

The only reason the ANC does this, is because they know that cadres like Magerman will serve the party, rather than the people, when they assume positions of power. In the case of the PSC, this is obviously to ensure that no firm action is taken to disrupt patronage networks where the PSC investigates.

Why does this keep happening?

Because the Zondo Commission’s finding about cadre deployment has been ignored. The Commission made it clear that “it is unlawful and unconstitutional for a President of this country and any Minister, Deputy Minister of Director-General or other government official, including those in parastatals, to take into account recommendations of the ANC deployment committee.”

President Ramaphosa outright rejected this finding, saying in court papers in response to the DA’s challenge to confirm that cadre deployment is unconstitutional that the finding is “not binding” on him or his government. When the DA introduced the End Cadre Deployment Bill in Parliament, which would have made it a crime to interfere in appointment processes and would have made it illegal for political office-holders to work in the public administration, the ANC voted it down.

This is why the DA’s court challenge against cadre deployment is critically important. The ANC has made it absolutely clear that it will shamelessly continue with the illegal practice of cadre deployment, in open defiance of the Zondo Report.

The DA will continue to fight tooth and nail to stop them. We have already won two rounds of our court battle to obtain and expose complete ANC cadre deployment records dating back to January 2013, when Ramaphosa became cadre chairman. The ANC lost in the High Court. Their leave to appeal was rejected with costs. They have now run to the Supreme Court of Appeal, where we anticipate their petition to be rejected once more. Sooner or later, the DA will force the ANC to hand over records that will explain why Ramaphosa refused to implement the Zondo findings on cadre deployment.

The truth is that, as cadre deployment chairman, Ramaphosa was deeply and personally implicated in State Capture 1.0. He was the person who pliantly “deployed” the people who captured the state on behalf of Zuma and the Guptas. The scale of Ramaphosa’s dishonesty over cadre deployment is striking. When he appeared before the Zondo Commission, he conceded that it is inappropriate for the activities of the deployment committee to be done in dark corners and that there must be transparency. But when the DA tried to enforce this transparency through a Promotion of Access to Information Act (PAIA) application, Ramaphosa opposed us.

Given his dishonourable track record and personal complicity, it should come as no surprise that Ramaphosa defends this corrupt system, that he is intent on hiding the truth about his involvement, and that he is doing nothing now that State Capture 2.0 has rolled around.

And so it falls to the DA to abolish cadre deployment. That is exactly what we are going to do, not only through our court case, but also when the ANC loses its majority next year. Right at the top of the list of priorities under a new government will be fundamental legislative and regulatory reforms to remove politics from public sector appointments and replace cadre deployment with merit-based appointment.

State Capture cannot exist without some form of cadre deployment. If we had a merit-based appointment system that was insulated from politics and where only skilled professionals are appointed, there would be no point in bribing ANC politicians because they would have no power to interfere.

The DA’s case to enforce the unconstitutionality of cadre deployment is a key part of enforcing the findings of the Zondo Commission. It is in the interest of every South African that we succeed, so that we can stop State Capture 2.0 dead in its tracks.

Issued by John Steenhuisen, Leader of the Democratic Alliance, 5 July 2023