The Mkhwanazi complaints: Spotlighting SA’s accountability blind spot - Paul Hoffman

Key topics:

• Call for an independent anti-corruption body outside executive control

• Failure to implement Constitutional Court rulings on corruption oversight

• Support for Breytenbach’s bills to strengthen accountability in governance

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By Paul Hoffman SC*

Now that both the Madlanga Commission and the ad hoc committee of parliament have taken evidence from General Mkhwanazi concerning the complaints he aired at a dramatic media conference in Durban on 6 July this year, it is possible to take a stab at anticipating the core issue he has raised and how to resolve it.

The core issue is rampant corruption and the culture of impunity that accompanies it in SA.

The Acting Minister of Police, during his evidence to the ad hoc committee, made the concession that it was a mistake to close down the Scorpions (an NPA anti-corruption unit) following a demand from the ANC’s conference held in Polokwane in December 2007. Structurally, operationally and legally the new Investigating Directorate Against Corruption (IDAC) signed into law just before the May 2024 elections and operational since August last year, is indistinguishable from the Scorpions, which was a far larger unit in its prime. IDAC was preceded by the Investigating Directorate, a body created by presidential proclamation shortly after president Ramaphosa took office, to do the same work as that carried out more legally by the Scorpions prior to their disbandment.

Despite the tinkering, the expressed desire to reform is stifled by the lack of political will to do so properly, the country is in danger of being engulfed by the waves of corruption currently in evidence.

The closure of the Scorpions and their replacement, on the criminal investigating side, with the Hawks was the occasion of much litigation, including three appeals to the Constitutional Court in the period between 2008 and 2014, now known as “The Glenister trilogy”. For present purposes, it is possible to distil that trilogy into four quotable quotes, three from Glenister Two and one from Glenister Three.

Clearly laid down

In Glenister Two the majority of the court clearly laid down that:

“… our law demands a body outside executive control to deal effectively with corruption.”

The relevant orders of that court, made on 17 March 2017 are:

5. It is declared that [the Hawks legislation] is inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation. [the Hawks]

6. The declaration of constitutional invalidity is suspended for 18 months in order to give Parliament the opportunity to remedy the defect.

The rationale for the above two quotes is given in lyrical language in para 166 of Glenister Two:

“The need and rationale for combating corruption

[166] There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

The opening words of Glenister Three’s majority judgment confirm the passages quoted above in trenchant language:

“Corruption is rife in this country and stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

All of the words so quoted are all taken from the majority judgments of our highest court. They bind government and the rule of law requires that they be implemented to the letter.

Corruption has flourished

The Mkhwanazi complaints arise from the failure of government to implement the court findings properly. To this day, no “body outside executive control” exists nor has one ever existed in SA. Without it, corruption has flourished.

When he gave evidence before the ad hoc committee, this issue was debated between the Acting Minister of Police and feisty ad hoc committee member Glynnis Breytenbach, the sponsor of the two bills currently pending in parliament which seek to address the failure properly to implement the court findings quoted above. (Introducing the all new Chapter Nine Anti-Corruption Commission – Ch9ACC)

The Acting Minister suggested that the court was not being prescriptive, as to form, in setting the well-known STIRS criteria by which the new anti-corruption machinery (whatever its form) should be known. (STIRS stands for specialised, trained, independent, resourced and secure in tenure of office.) He is quite right in so testifying, but he is quite wrong to imagine that anything less than a body outside executive control is required. The words of the first quoted passage above have nothing to do with the STIRS criteria, they could not be clearer and they are prescriptive. They prescribe the legal cure to the unacceptable incidence of rampant corruption.

While the judgment of the majority in Glenister Two does contain a broad hint that Chapter Nine might afford the “body outside executive control” a comfortable and welcoming home, it is possible to devise other means of creating a body outside executive control. However, a body outside executive control is what the law requires. The courts usually defer to parliament because the legislative function in the Constitution is that of parliament. In Glenister Three this rule was departed from to adjust, in an attempt at constitutional compliance, the remedial legislation of 2012. The attempt failed as any conspectus of the performance of the Hawks as an anti-corruption body demonstrates.

All Chapter Nine Institutions are free of the executive. Their reporting lines are to the appropriate committee of parliament. The Acting Minister frowns (in vain) upon this arrangement when it comes to enforcement of the criminal law; he would, according to his evidence which reflects the preferred position of the ANC, much rather that the reporting lines remain to the executive in the form of the relevant cabinet ministers – the Hawks to him, and the prosecution service to his colleague, the minister of justice.

Objected

Without thinking too carefully about it, he objected to Breytenbach’s suggestion that a multi-party entity like parliament should have the function it has carried out since the inception of the new order for all the current Chapter Nine Institutions. The cabinet itself, since the May 2024 elections, has been a multi-party body and is likely to remain so.

Even before those elections, the ANC led a tripartite alliance from 1994, and it now seems likely that wider coalition government will be the lot of SA for the foreseeable future. The multi-party nature of parliament facilitates a more accountable reporting line, one which would not accommodate the current shenanigans and lack of accountability that mark the reporting line to the executive.

A body outside executive control does not somehow magically escape political accountability. An errant Public Protector, beyond the control of the executive, was removed from office after parliament did the work necessary to exact political accountability from her. The same would apply to the body envisaged in the drafts sponsored by Adv Breytenbach.

The ANC’s deep-seated (but unconstitutional) desire to secure hegemonic control of all the levers of power in society is trumped by the binding nature of the findings of the Constitutional Court quoted above.

The best and most obvious way forward is to support the Breytenbach bills, possibly improving on them in the course of parliamentary debate, preceding their adoption. The cabinet is not elected by the people, it is chosen by the president.

A compromised president is likely to select a compromised cabinet thus undermining proper accountability. In our constitutional order, it is the members of parliament who represent the people and it is the Chapter Nine Institutions which ensure integrity and accountability in governance. Both integrity and accountability are currently in short supply in SA, as the quote from Glenister Three set out above vividly demonstrates.

Sorely mistaken

The acting minister of police is sorely mistaken if he believes that the courts cannot require a single entity body, outside executive control, to deal with corruption in SA. The 128 souls in IDAC are simply not up to the task both in their structure and operationally. They lack STIRS compliance in every conceivable way.

The way out of the dark and dangerous woods in which corruption thrives in SA involves proper compliance with what the courts have ruled. Properly construed, and carefully interpreted, our constitutional order requires that “body outside executive control to deal effectively with corruption.”

*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.

*This article was originally published by Daily Friend and has been republished with permission.