Paul Hoffman: Avoiding a repeat of the worst excesses of State Capture

By Paul Hoffman*

“State Capture, and its aftermath, is still having detrimental effects on economic growth. Corruption is endemic and is crippling State-Owned Enterprises, amongst other impacts on the wider economy. Lessons need to be learned and new business behaviours are needed if we are to avoid the very real risk of a repeat scenario, which would likely have catastrophic consequences.”

So says the blurb advertising a conference in Johannesburg on 15 February 2023 at GIBS during which the slayer of Bain, Lord Peter Hain, will feature as a guest speaker.

The biggest of the  lessons to be learned is that corruption flourishes in the absence of an effective and efficient anti-corruption entity. In SA, after the demise of the Scorpions, following the ANC Polokwane conference resolution to dissolve the NPA unit, there has been no such entity. The Scorpions’ demise was orchestrated by the ANC cadres who prevailed at the Polokwane conference of December 2007. The Hawks, replacing the investigative capacity of the Scorpions, have underperformed on every front in their “priority crimes” mandate, but especially so on the corruption aspect.

The long-serving minister of police, Bheki Cele, was bust by the Sunday Times on 1 August 2010 for his corrupt involvement in illegal leases for police headquarters in Pretoria and Durban. He was swiftly investigated by the Public Protector and was dismissed as national police chief after the Moloi Board of Inquiry found him “dishonest and incompetent”. Today, more than 12 years later, the Hawks are still investigating him, the Investigating Directorate of the National Prosecution Authority having declined to get involved in investigative work by throwing the hospital pass to investigate their minister to the under-resourced and under-staffed Hawks. Cele sails on with complete impunity as minister of police!

The words of the minister of justice, used in the context of the brutal murder of a musician, are equally applicable to the countering of corruption. He said:

I call for the arrest and prosecution of the perpetrators; the biggest deterrent to crime is for criminals to know that there is a big chance for them to be arrested, prosecuted, and convicted.

The minister is absolutely right. The problem with countering corruption is that there is almost no chance of any of the processes he envisages befalling the perpetrators of corrupt activities.

The new state of disaster, aimed at addressing the inadequate supply of electricity in SA, is simply an opportunity to abuse the urgent procurements that will have to be made. This  looting will happen for the  purpose of satisfying the greed of those involved in the spending of public funds.

The notion that upgrading the Investigating Directorate of the NPA to the status the Scorpions enjoyed before their demise, is one punted by the president during his SONA. It is a notion that has to be rejected for its impracticality and its unconstitutionality.

The practicalities of the situation in relation to grand corruption in SA is that well trained and seasoned specialists are required to do the heavy lifting in the investigations that precede the prosecutions in complex corruption cases and great expertise is required in the necessary court work too. The success of the Scorpions indicates that SA has the necessary talent. However, since the gutting of the NPA during State Capture and because so many of the “saboteurs” planted in its ranks during State Capture are still in office, it will be impossible to recruit personnel into the NPA to do the work required. At this stage it is not even clear that the so-called permanent ID will be given investigative powers, despite its name. Turning it into a permanent feature of the NPA by way of the passage of ordinary legislation simply takes SA back to where it was when the Scorpions were in their heyday. The same fatal weakness that led to the demise of the Scorpions will infect the “permanent” ID. Far from being permanent, it will be liable to closure at the whim of a simple majority in parliament – the sad fate of the Scorpions. Who, among those worth their salt, would want to work for so vulnerable an employer?

As to unconstitutionality: The majority of the Constitutional Court has prescribed the criteria by which to judge the effectiveness and efficiency of the anti-corruption entity so sorely needed but still absent from the arsenal of the criminal justice administration since the Scorpions were closed down in 2009.

The anti-corruption entity must be STIRS compliant. This acronym denotes specialists who are appropriately trained, independent in their structure and operational capacities and fully resourced in guaranteed fashion. Importantly, the entity should enjoy secure tenure of office, the last “S” in STIRS.

There is no reason to doubt that the next delinquent administration that comes along will want to close down the new anti-corruption entity in much the same way as the Zuma administration made it the first order of business after he  won the leadership of the ANC at Polokwane back in December 2007. The process was delayed by strong resistance both in parliament and in the courts. Zuma’s second term bears mute testimony to the extent of the malfeasance, described by Kgalema Motlanthe in 2007 as:

“This rot is across the board. It’s not confined to any level or any area of the country. Almost every project is conceived because it offers opportunities for certain people to make money. A great deal of the ANC’s problems are occasioned by this”

Because so little attention has been paid to the binding criteria laid down by the highest court in the land, and because the limping current system has been in place for so long, sight appears to have been lost of the binding nature of the criteria that are currently not in fact in place but, by law, should be.

It is not all gloom and doom. The NEC of the ANC, in August 2020, resolved that cabinet urgently establish an all new stand-alone permanent entity to “deal with corruption” without fear, favour or prejudice. The IFP and the DA currently support the idea of doing so via the establishment of a new Chapter Nine entity for this purpose. Some within the NPA also aspire to that status in order to escape the “final responsibility” the minister of justice exercises over them and also to shed the Director General of Justice as the accounting officer, in favour of an NPA official. Best of all, the reporting line of the NPA to cabinet will be replaced, if this wish comes true, by a reporting line to parliament, as is the case with all current Chapter Nine Institutions. Independence from executive influence and interference is a requirement of the law as it applies to the anti-corruption entity.

It may be possible to fashion secure tenure of office in some other way. The courts have not been prescriptive about the means used, relying instead on the “reasonable decision of a reasonable decision-maker in the circumstances.” The Chapter Nine route is the most obvious way to end executive domination of the anti-corruption entity and to comply fully with all of the STIRS criteria that bind government. The Constitutional Review Committee of the National Assembly is willing to entertain the notion and has received a written submission from Accountability Now:

https://accountabilitynow.org.za/?s=submission+to+the+CRC&submit=Search.

If cabinet cannot summon the political will to rethink its “permanent” ID idea and cannot get to grips with the requirements of the law, as laid down in the Glenister litigation, it may be necessary to litigate the appropriate way forward to compliance with the Constitution as interpreted in the Glenister litigation.

On the last occasion that Glenister litigated in the public interest in the Constitutional Court, his third visit, the majority of the justices were not even prepared to consider ,or even treat as admissible, the evidence he presented that State Capture was taking place on an alarming scale back in 2012. 

Now, all of the justices have the benefit of the report of the State Capture Commission which sets out the horror of the corrupt situation as it impacts on selected aspects of the state and the work of the State Owned Enterprises. As the president put it: “The ANC is accused number one”. The report finds many loyal cadres of the ANC implicated in corrupt activity and also regards ANC cadre deployment in the public administration and State Owned Enterprises as illegal and unconstitutional. The ramifications of these findings for the ANC are severe. The criminality is intolerable, the deployment of ANC cadres will have to end if the courts agree with the Chief Justice on cadre deployment, as is likely.

Glenister has hung up his litigation boots. He was a doughty public interest litigant and there is no reason to doubt that suitable successors will rise up to hold the government to account, and to compel it to implement the applicable law, in its decision-making around reform of the criminal justice administration in a manner that will better capacitate it to counter the scourge of corruption. The urgency of the situation ought to be self-evident to government.

*Paul Hoffman SC is a director of Accountability Now. He was lead counsel for Bob Glenister.

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