Paul Hoffman: Can Parliament actually kill off IDAC and start again?

DA chief whip Glynnis Breytenbach plans a private member's bill to repeal the IDAC legislation, signed into law weeks before the 2024 election. Because IDAC was created by ordinary legislation, only a simple majority is needed to scrap it, unlike a Chapter Nine institution, which would need two-thirds. Evidence at the Madlanga Commission has exposed dysfunction, weak leadership and alleged corruption inside IDAC itself. Advocate Paul Hoffman SC argues repeal should be paired with Breytenbach's separate bills establishing a Chapter Nine Anti-Corruption Commission, folding in the SIU and the anti-corruption functions of IPID and the Hawks, finally meeting the Constitutional Court's Glenister requirements..By Paul Hoffman*.The Chief Whip of the DA, Glynnis Breytenbach has let it be know that she intends to pilot a private member’s bill, what she calls a “PMB” through parliament aimed at achieving the repeal of the IDAC legislation which was brought onto the statute book after the president signed it into law in May 2024, shortly before the general elections held in that month.The rushing of the bill through the law-making process without proper regard to the well-grounded objections to its constitutionality was probably a politically motivated move aimed at persuading voters that the ANC is serious about countering the eruption of serious corruption with impunity that has become a blight on SA during its six terms as dominant party in the country. If so, voters in sufficient numbers remained unpersuaded and did not vote for the ANC as they had done for six rounds of general elections held over a span of 30 years.For the first time, the ANC share of the vote fell below 50% to only 40% which necessitated the formation of a coalition government in which the ANC and DA are the leading parties. Between them, the two parties command more than half of the seats in parliament. If they are agreed that IDAC is a dead duck, they have sufficient votes to repeal its existence. This is because IDAC is the product of ordinary legislation which requires no more than a simple majority to be removed from our statute book by way of repeal. This procedure is the fate that befell the Scorpions in 2009. Had IDAC been a Chapter Nine Institution a two thirds majority would be required to repeal the law that created it. The Chapter Nine route was suggested for effective and efficient anti-corruption machinery of state by the Constitutional Court in Glenister Two back in 2011 when it ruled that our law demands a body outside executive control to deal effectively with corruption. In paragraph [205] of the majority judgment in that case the following somewhat oblique suggestion was made:We add that any obligation binding upon the Republic under international law must not conflict with express provisions of the Constitution, including those in the Bill of Rights. Here, there is no conflict. Far from containing any provision at odds with the obligation to create an independent corruption-fighting entity, the very structure of our Constitution — in which the rule of law is a founding value, which distributes power by separating it between the legislature, the executive and the judiciary, and which creates various institutions supporting constitutional democracy, which it expressly decrees must be independent and impartial — affords the obligation a homely and emphatic welcome.This paragraph, drafted with the necessary circumlocution because judges don’t pass legislation, is a gentle suggestion that the right location for the anti-corruption machinery in SA is Chapter Nine of the Constitution, a chapter which guarantees its institutions supporting constitutional democracy, impartiality and independence of a kind not found in the criminal justice system, as appears from Section 181(2) of the Constitution.At the time that the IDAC bill was debated in the sixth parliament during September 2023, then deputy minister of justice, John Jeffery, since retired, remarked that IDAC should be regarded as a “stop-gap measure”. It is plain, from the evidence being received by the Madlanga Commission, that IDAC is not currently stopping any gaps in the ability of the state to counter serious corruption and would appear to be poorly led, under-resourced and a hot-bed of corruption itself. The desire and the efforts of the minister of police (currently on gardening leave for more than a year) to disband the Political Killings Task Team, a police unit tasked with tracking down those who are so corrupt that they kill to gain political advantage, has so infected the machinations in which IDAC has involved itself through its leadership (partly now on suspension) and recently resigned leader, Anthea Johnson, that she most aptly called it a “sh*t show” shortly before being thrown under the bus by her own staff in evidence led at Madlanga . The thrust of the evidence is of a nature which she will struggle to explain honestly. Johnson is already invoking the privilege against self-incrimination in relation to her efforts to protect her friend, deputy head of crime intelligence, Feroz Kahn.What then of the idea of solving the mess by repealing the IDAC legislation, as planned by Breytenbach?The PMB will have to attract the support of 50% plus one of the members of parliament to succeed with the repeal of the amendments to the NPA Act which gave birth to IDAC which has only been operational for 18 months and a few days. No sound and sober-minded politician ought to be prepared to be seen to be supporting the continuation of a failed body which is not, either structurally or operationally, constitutionally compliant. Notions of accountability and respect for the rule of law (the Glenister findings are binding on parliament and on the executive) ought to propel all in parliament to support the PMB Breytenbach has in mind.In the place currently occupied by IDAC, the Chapter Nine body hinted at by the Constitutional Court in the passage quoted above should take over. By great good fortune, bills also piloted by Breytenbach, are pending in parliament – having been introduced in November 2024 to address the manifest shortcomings of IDAC by establishing and empowering a new Chapter Nine body as the “Anti-Corruption Commission. It will not be another toothless commission of inquiry whose recommendations may or may not be implemented.The order in which the bills are debated is a matter for parliament to decide via the committee that exists for the purpose of arranging that order. The order is decided by the National Assembly Programme Committee (or the corresponding committee in the NCOP), which sets the weekly parliamentary agenda and manages the scheduling of house business. The move to repeal the IDAC legislation will lend urgency to the consideration of the Chapter Nine Anti-Corruption Commission bills because SA can hardly be expected to thrive, or even survive, without properly designed anti-corruption machinery that is effective and efficient, quite apart from being constitutionally compliant. The order in which these matters are dealt with is a complex affair. According to AI, this is how it works, in theory:“Order of DebateSequence on Order Paper: Items are normally taken up in the order they are placed for consideration after clearing committee stages and desirability votes.Priority Alteration: The standard sequence is not rigid; the Programme Committee or a procedural motion in the House can alter, prioritize, or delay the sequencing of specific bills depending on urgency or consensus.Who DecidesProgramme Committee: This body meets weekly during sessions to determine the precise agenda and time allocation for the House.Whips and Presiding Officers: Party whips negotiate scheduling priorities within parliamentary structures, while the Speaker or presiding officer oversees the practical running of the daily order of business.”There is obvious serious dysfunction in IDAC. It is lacking in all of the criteria by which the courts have judged the anti-corruption machinery of state. The structural and operational incurability of that dysfunction while IDAC remains within the NPA and lacks compliance with all of the well-known STIRS criteria [ specialised, trained, independent, resourced and secure in tenure] laid down in Glenister, lends urgency to the need to take corrective action now. Both the ad hoc committee of parliament and the Madlanga Commission have heard enough evidence of misfeasance and malfeasance within IDAC to justify its urgent disbandment and its replacement with a body that has staff with the sapiential authority or necessary “clout” to fulfil the functions of an effective and efficient anti-corruption body. A single body, outside executive control that is able to tick all the boxes set up by our courts in the Glenister litigation is both obligatory and long overdue. The repeal of the IDAC legislation can be used to serve as the catalyst for putting in place what the courts have ordered.Structurally speaking, the time is ripe to fold the whole of the SIU, the anti-police-corruption functions of IPID and the anti-corruption functions of the Hawks into the new Chapter Nine body. Those members of the staff of these bodies who wish to work in the Chapter Nine body, rather than for SAPS or the NPA, will have to apply for jobs and pass vetting, lifestyle audits and, where indicated, lie detector tests. The leadership should not be executive appointees and should all serve for a fixed term of office with due regard to the various recommendations made in the judgment of Justice Cameron in Glenister Three.Operationally, the new Chapter Nine body must function as a single entity tasked with dealing with corruption in all aspects of the anti-corruption functions of the state. Broadly speaking these include prevention, combatting, detection, investigation and prosecution of serious corruption of all kinds, including organised crime. The body must be tasked by parliament with educating the public to recognise corruption, which is a deliberate and secretive form of crime where, all too often, the victims are not even aware of their victimhood..Read more:.Paul Hoffman: Scrap IDAC now - it's unconstitutional by design.Neither parliament nor the citizenry of SA should be required to be passive spectators to the goings on at the Madlanga Commission, and before it, the ad hoc committee of the National Assembly, both of which have been tasked with investigating the complaints made by General N Mhkwanazi a year ago during his famous media briefing.Respect for the rule of law and the long-overdue exacting of accountability from the corrupt, via raking back loot and issuing orange overalls, demand that both the repeal of IDAC legislation and its replacement with the Chapter Nine Anti-Corruption body be given top priority by parliament in the manner in which it schedules its debates at this delicate time in the history of SA..Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt..This article was first published by Daily Friend and is republished with permission..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. 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Paul Hoffman: Can Parliament actually kill off IDAC and start again?

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