Justice Minister Ronald LaMola has announced that next month the Cabinet intends to publish a bill for public comment aimed at elevating the National Prosecuting Authority’s Directorate of Investigation to what he calls “permanent” status: a misstep that would take South Australia’s anti-corruption efforts to a long dead end.
Shortly before the minister’s announcement, shadow justice minister Glennis Breytenbach MP said at a luncheon at the Cape Town Press Club that a pair of bills – which might appear as committee bills or even, ideally, as an administrative effort, but, at least, as private members’ bills – were in the process of getting final amendments before publication.
They envision creating a new Chapter 9 Anti-Corruption Commission (C9C) to prevent, combat, investigate and prosecute all forms of serious corruption. The C9C will report to Parliament and not to the executive branch, as all other Chapter IX institutions do, and will not be part of the NPA.
Its proclamation is good news for the people of South Africa, especially the poor and the constitutionalists. Once implemented, the agreement will strengthen the rule of law. The spoils will be taken away and the immunity of the corrupt will end.
Breitenbach told LaMolla that his plan was unconstitutional and that her party would seek to challenge it if the legislation he was considering saw the light of day.
A clash looms between the executive and legislative branches, especially if ANC MPs would rather reform the C9C than what Lamola proposes, if he is not so wise as to go through with it.
Three constitutional functions of Parliament are to ensure that the legislation it passes is properly implemented; exercises control over the executive power; It also initiates legislation.
If Lamola’s plan did not find favor with Parliament, the necessary identification legislation would have been stillborn. However, the Luthuli House may direct ANC MPs, including those who favor the Breytenbach Committee bills, to toe the party line and vote to pass Lamola’s misguided plan.
The ANC has a simple majority in the current Parliament, but may not be in the next Parliament. Whether ANC MPs are willing to risk their re-election prospects by sticking to the executive line that Lamola proposes is an open question. The constitutionality of the “permanent” ID card is sure to be challenged in public interest litigation likely to end up in the Constitutional Court.
If, as it did in the Glenister suit, the judiciary puts politicians back to the drawing board, the years the SA cannot afford will be wasted in the decisive battle against the rampant, dangerous corruption that “threatens all that we hold dear” (as the Supreme Court put it) in the not-so-new South Africa. If Lamola still believes, as he did in February 2023, that he can justify his plan on the strength of what fell from the lips of Chief Justice Sandile Ngkubo in his opposition in Glenister 2, then the educated minister is deeply mistaken and desperate for sound legal advice.
In the Glenister LitigationCourts have ordered that an effective and efficient anti-corruption entity of a sufficiently independent structural and operational type be legislated and set up to deal with corruption “before it turns into something final” as the majority said, expeditiously, in the latest Glenister case nine years ago. Court orders were not properly enforced and corruption is still rampant in South Australia.
The scant efforts of the Hawks, on the investigative front, and the NPA, on the prosecution front, have resulted in a backlog of corruption cases piling up and piling up on South Africa at an alarming rate, as noted by the State Capture Commission.
Chief Justice Raymond Zondo noted that an “army of prosecutors” would be required to address what he discovered during the investigation. He might have added that specialists able to stand up to the grizzled silks, who are so perpetually accused of corruption, would be the right recruits for this army that has yet to be mustered more than a year after the publication of the last slide of his report.
The commission has barely scratched the surface of corruption in South Australia in four years of hard work. The problem is huge and may be fatal to the democratic project in South Africa. No wonder the Chief Justice believes democracy is in danger in South Australia.
Breytenbach’s C9C, based on suggestions from Accountability Now, was introduced against Lamola’s permanent ID – almost simultaneously – as the appropriate way forward to implement the binding standards set forth in the Glenister litigation and act on one of the Zondo Commission’s key recommendations.
For present purposes, three of the five Glenister Stirs – Specialization, Independence and Security of Term of Position – should be mentioned.
The professionals who have enjoyed such fantastic success in the Scorpions have largely left the public service for greener pastures in the private sector and will not return to the NPA after the shoddy treatment they received when the Scorpions were disbanded.
Identity does not contain enough specialists in terms of quality and quantity. She has no hope of recruiting the necessary many, and will take years to “grow her own wood”. C9C has much better prospects for hiring the best employees who remain in the NPA and those who have left it for the private sector and elsewhere. Prosecuting corrupt people brings job satisfaction rare in other professions because it serves the public interest so deeply.
As for independence: The C9C, like all Chapter IX institutions, will have constitutionally guaranteed independence while the renewed ID will still be part of the NPA. While the constitution states that the NPA shall act “without fear, preference or prejudice”, it is under the “ultimate responsibility” of Lamola and is directed by its Director General.
These are not the features of the kind of independence—freedom from executive interference, influence, and resistance—that the courts demand. The C9C will only report to Parliament, while the NPA is run as a program of the Ministry of Justice.
Securing the position is an obvious demand – one simply needs to ask any ex-Scorpio to leave, if clarity is out of reach. No president of the NPA has held a full term since its inception. Going after deviant politicians and their associates (like Jackie Celebee) tests the security of tenure to an extent that was completely overtaken after Travelgate and Shabir Sheikh’s conviction for corrupting Jacob Zuma.
The new ID will be part of the NPA. Qed. You will not be independent.
Falcons who do not fly
After the demise of the Scorpions, the investigation into corruption was handed over to the new Hawkes unit of the police while the NPA retained its role in the Public Prosecution Service. These changes have been legislated. The new system did not take hold and did not work. The Zondo Commission’s report speaks volumes on this topic.
The Hawks’ inability to investigate serious corruption resulted in a paucity of trial-ready documents and convictions. A successful investigation by the police must precede any successful prosecution. When it comes to fighting serious corruption, a specialized investigation must precede a specialized trial.
Upon taking office, President Cyril Ramaphosa realizes that the Hawks are not up to the task of investigating serious corruption. They run other priority crimes within their purview, but they’ve never downed a big, rotten fish, not even one of the more than 1,400 named and shamed in the Zondo Commission’s report.
Without due regard to the legislative separation of jobs, Ramaphosa declared the ID card, unconstitutionally, in the hope that it could remedy the imbalance in the fight against corruption.
The notorious Guptas were allowed to leave the country and crossed fingers in the ensuing extradition proceedings. The Nolan case, in which all defendants at the end of the state’s case were either acquitted or acquitted, is another indication of the ongoing dysfunction that will not be remedied by making ID a constant in the hollow, subversive-ridden NPA.
Both the parliamentary oversight of the executive and its duty to ensure the proper implementation of the laws it passes must ensure that Lamola’s plan, which does not seem to have been outrun by Professor Firoz Kachalia and his colleagues on the National Advisory Council on Corruption, fails.
Parliament has the power to initiate legislation. It is necessary to address and pass the two C9C bills in the current parliament. The careers of many ANC members depended on it. No politician who tolerates corruption can reasonably expect to be popular with South African voters in 2024.
Successfully fighting corruption depends on the full implementation of the Glenister Standards, which are required by law. These standards have been respected in breach for a long time.
The reason for this failure can be found in the ANC’s quest to control all levers of power in society. Those fighting corruption control an important lever, operating independently, that can be used against wayward politicians and their associates in questionable activities.
The principle of separation of powers, the rule of law, the duty to respect and obey court orders, and the existence of checks and balances when exercising power may be hostile to hegemonic control, but they are the stuff of constitutional democracy.
May constitutionality may prevail with the creation of C9C and the filing of a “permanent” ID card whose duration will not differ from that of a Scorpion unit which was also meant to be permanent. It must be a common reason for all MPs that the current laws do not work to address the harm they are intended to and that they require urgent replacement by the creation of C9C.
The rapid passage of the Breitenbach bills should command multi-party and unanimous support that heralds a decisive confrontation with the kleptomaniacs who spoil peace, sustainable progress and shared prosperity in South Africa. DM