In battling corruption “no half-measures will do” – Adv Hoffman

South Africa can no longer afford to pay lip service to battle corruption, as any continued dilly-dallying will only propel us towards failed statehood. For well over a decade, the most critical institutions of the state were purposefully crippled. We are talking about the South African Revenue Service, the National Prosecuting Authority, and the Hawks, among others. The state’s inability to detect, investigate, prosecute and put behind bars those who stuffed their pockets with taxpayer money was the culmination of a carefully orchestrated project. It was prevalent in the public sector but also involved a host of private sector entities including South Africa’s banks and auditors. This project’s evil connivance is well documented in six volumes released by the State Capture Inquiry. For those continuing to rant “wenzeni uZuma?”, I suggest you wipe the Nkandla dust from your eyes and read those reports. Accountability Now director, Adv. Paul Hoffman, comprehensively sets out below how and why we must come to grips with corruption. Failure to do so condemns South Africa. Don’t expect those at the top to do so willingly as too many of them are implicated in wrongdoing and would be hastening their date with confined accommodation replete with orange overalls. – Michael Appel

Here is why SA deserves a best practice solution to the scourge of corruption

By Paul Hoffman

There is nothing new about SA being in the grip of corruption. From the days of slavery, conquest, colonialism, apartheid and, more recently, attempted “accused number one” ANC hegemony, the scourge of corruption has been a constant feature of the exploitation of the people, the land and its natural resources. There is not too much that can be done about the distant past, but a better future does beckon if corruption is countered.

In 1994, for the first time, all of the inhabitants of South Africa were given the opportunity to have a say in the future of their country of birth or of choice. A new universally acceptable dispensation was carefully crafted, one with the potential to make a better life for all via implementation of a justiciable Bill of Rights and the installation of real constitutional democracy under the rule of law. A new SA in which freedom, dignity and the achievement of equality would replace rapacious greed, exploitation and corrupt dealings.

It hasn’t quite worked out as planned in the heady days of the birth of Desmond Tutu’s “Rainbow Nation of God”, but it is still possible to iron out the teething problems of good governance, put in place strong institutions of state and inculcate the public sector with a strong desire to implement the values of the Constitution, our supreme law. 

The eternally optimistic scenario planner, Clem Sunter, currently estimates the chances of SA failing as a state as around 25%, up from his pre-Zuma scenario of 10% chance of failure. He does concede that others in the scenario planning world incline toward going as high as 40% chance of failure. What is certain is that if corruption is not properly addressed with best practice reforms urgently in place, the chances of failure will continue to increase. Greylisting and junk status are on the downside, a professionalised public sector and serious reform around corruption issues are on the upside.

One of the primary reasons for the lack of progress in SA since liberation is that the governing alliance has been pursuing the National Democratic Revolution (NDR) rather than implementing the Constitution by  getting the state to respect, protect, promote and fulfil human rights guaranteed to all in our state of the art Bill of Rights. Unfortunately, the aims of that revolutionary zeal, are at odds with the separation of powers, multi-partyism and the use of checks and balances on the exercise of power via a free press, an independent and impartial judiciary using an engaged, participative citizenry. The notion of radical economic transformation has been used as cover for the capture of the state, a project of the wasted Zuma years that came within an ace of achieving its goal.

Fortunately, the then Public Protector Thuli Madonsela, insisted upon a commission of inquiry into the phenomenon of State Capture and as a result of her sound leadership we now have the report of the Chief Justice Raymond Zondo, who chaired the State Capture Commission (SCC). The report makes it clear that the capture of the state and the biggest state-owned enterprises was and still is a reality in SA. The investigative journalism and the reports of whistle-blowers have been vindicated by the SCC report. “Guptaleaks”, which kept the media busy for years, are not figments of the imagination of misguided journalists, they are the stuff of state capture. The Chief Justice has ominously warned that “an army of prosecutors”  will be needed to attend to the mischief  uncovered in the SCC report. Over 1,400 individuals and institutions are fingered in the report. This huge number implies the need to investigate and prosecute more corrupt individuals than have been brought to book for many a long year. The SCC did not look into corruption at provincial and local levels, so it is to be expected that the army of prosecutors will not be short of work eliminating corruption in those spheres of government.

There is also a crying need to rake back the loot of state capture which is estimated to be between one and two trillion rand. A trillion has twelve zeroes to the left of the decimal point. Mounting civil and criminal proceedings to recover the loot ought to be a high priority as the funds recoverable are currently been fritted away on fast cars, slow horses and loose living in exotic locations. Using the SWIFT banking system’s electronic tracking capacity it is possible to rapidly locate and freeze the loot worldwide, pending the institution of civil recovery proceedings or a criminal prosecution. The fun in being a greedy looter is removed by this simple methodology; further looting is discouraged ( a la “covidpreneurism”) and impunity becomes a feature of the past, not the future. 

Because South Africans now have a constitutional democracy, the conditions for ending corruption are better than at any time in the recorded history of SA. Exploitation of the land and its people may have been the purpose of colonialism and apartheid, but they are frowned upon in the new constitutional order which is explicitly aimed at the transformation of society in a way that achieves a better life for all.

When the state capture project began its high tide phase with the election of a most questionable leader in the 2009 general elections and the installation of his cronies in positions of influence and power in the land, steps were taken in court to stem the flow of corruption that would inevitably follow the election of Jacob Zuma.

The Glenister litigation, a unique three visits to the Constitutional Court on the same issue, gave rise to decisions and findings which bind the state and are of use in creating the strong institutions of state that are contemplated by the findings and also by the UN Sustainable Development Goals, especially goal #16 which requires strong institutions of state. SA is part of the implementation of these goals.

Quite obviously, strong and independent institutional provision is a sine qua non of getting on top of the levels of corruption seen in SA in recent years. The closure of the Scorpions anti-corruption unit was the precipitating factor in the Glenister case, but the litigation’s ramifications are far wider than that. The judiciary has laid down its requirements for adequately independent anti-corruption machinery that is able, both effectively and efficiently, to counter corrupt activities by preventing, combating, investigating and prosecuting serious forms of corruption. This machinery is required if the country is to meet the international treaty obligations it has assumed at UN, AU and SADC levels.

The presidency and the department of justice are discussing the creation of a multidisciplinary anti-corruption agency but the question so far remains unresolved as to where it should be housed, justice minister Ronald Lamola said on 13 October, 2022.

The SCC recommended the creation of such an agency to strengthen the fight against corruption.

These are promising developments. Both parliament and the executive have been given a suggested draft of what Accountability Now regards as the best practice solution to releasing the country from the grip of corruption.

In order to comply with the binding requirements laid down by the court, it is necessary for government to come up with what the court describes as “the reasonable decision of a reasonable decision-maker in the circumstances.” Currently the situation is such that no half-measures will do, a full-blooded reform is needed. The relevant current circumstances are set out in great detail in the SCC report. They depict a hollowed out and gutted criminal justice administration, a complete failure to hunt down the “big fish” of grand corruption and the presence of what the current leadership calls “saboteurs” in the ranks of the personnel tasked with fighting the corrupt. Capacity, skills and resources to take on the seriously corrupt are conspicuously absent. No appetite to join the police or prosecution service is apparent in the ranks of those who are qualified to do the intricate, specialised and complex work required to achieve the issuing of orange overalls for the corrupt. Many suitable candidates are former Scorpions now in the private sector, elsewhere in government or working for professional firms of attorneys and accountants. Something more than tinkering with the existing failed system of Hawks investigating and NPA prosecuting will be required to lure them back to anti-corruption work.

The response of the president to the SCC report is instructive. The professionalisation of the public sector is envisaged with appointments made on the basis of honesty and merit, not the deployment of loyal cadres of the NDR. This is a momentous step that will surely lead to a different ethos in the public service. The implementation of our constitutional values is a far cry from the pursuit of the hegemonic control of all levers of power in society.  It is not reasonable to expect the Hawks to investigate corruption in high places; they lack the clout and the independence to do so properly.

Less propitious is the notion of upgrading the Investigating Directorate of the National Prosecuting Authority to permanent status within the NPA. That step would amount to the reinstatement of the Scorpions who were swiftly closed down by the ANC when Zuma took over the leadership of the party in December 2007. The envisaged unit would be no better insulated from political interference or from closure than were the Scorpions. These defects fall foul of the court imposed requirement that the anti-corruption entity should enjoy secure tenure of office and be independent.

Being vulnerable to closure by a simple majority in parliament is not best practice; if the entity is housed in the architecture of Chapter Nine, it would require a practically unattainable two-thirds majority in parliament to close it down. The reporting line of all Chapter Nine Institutions is to parliament, a multi-party body in SA, not to the executive where the dangers of interference, influence and undue control lurk, as was discovered by both Vusi Pikoli and Mxolisi Nxasana when they indicated their willingness to prosecute Jacob Zuma. They promptly lost their jobs in circumstances that were found to be unlawful when their removal from office as NDPP was litigated.

After enduring a long history of abuse by the corrupt, the opportunity now presents itself for a best practice solution via the establishment of the necessary Chapter Nine Institution. Anything less will surely be inadequate to the needs of the nation. The urgency of the situation, especially as regards recovery of loot, ought to impel the National Anti-Corruption Advisory Committee to give government an interim report soon in which it recommends its best practice solution. If something better than the suggested Chapter Nine Institution can be fashioned, let the government and the people know what it is sooner rather than later. The majority have suffered poverty, joblessness, inequality, hunger, even starvation and a general lack of adequate services more than long enough.

SA deserves, and is legally entitled to, wholehearted and proper compliance with the Glenister decisions and orders. Anything less won’t do. Any attempt to implement a sub-optimal response to the recommendations of the SCC can and will be met by public interest litigation to achieve proper compliance with those decisions and orders. That is how the law keeps the politicians on the straight and narrow path of the law and the Constitution. The SCC findings provide an authentic and authoritative factual matrix on which to base the necessary reform.

• Paul Hoffman is a director of Accountability Now

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