At one point during a social event over the weekend, the conversation among a group of private equity and deal advisory types turns to the future and, inevitably, corruption.
My interlocutor relays a story about a mining deal involving rights in Mpumalanga that have taken more than three years to secure. Of the brazen attitude of a provincial department of mineral resources & energy official whom he meets at a trendy coffee shop, devouring breakfast, lunch and dinner in one sitting followed by demands for a full tank of petrol for his new Range Rover before anything will be discussed.
It’s so baked in at every level it’ll never change, he tells me.
The ANC’s quest to replace the morally and economically corrupt apartheid state with a constitutional state anchored in the values of human dignity, accountability, transparency and the rule of law, has come up against a seemingly inexorable force. As former ANC spokesperson Smuts Ngonyama once crudely quipped, the cadres didn’t struggle to be poor.
Addressing the national anti-corruption dialogue in Boksburg on Wednesday, President Cyril Ramaphosa lauded our constitution as “the most powerful instrument we have to fight crime and corruption”.
And he pointed to the establishment of the state capture commission as “an affirmation of the strength of our democracy”.
He’s lying, of course. With his casual I’m-going-to-retire-a-billionaire smile.
You see, if he believed this, his government would be following through on what the Constitutional Court ruled in the seminal Glenister judgments, Glenister 2 and Glenister 3.
After the Scorpions were disbanded in 2009 for being too effective in targeting senior ANC politicians without fear or favour, the government attempted to separate the investigation and prosecution of major corruption.
A priority crimes unit in the SA Police Service was set up to take over the investigation of serious corruption from the Directorate of Special Operations (Scorpions), a unit in the National Prosecuting Authority (NPA) until 2009, while the NPA retained the role of prosecuting dockets brought to it by this new body, the Hawks, or Directorate for Priority Crime Investigation. The Hawks are now in their third incarnation after features of the legislation put in place to effect the separation of functions have been struck down as unconstitutional.
First, in Glenister 2, for failure to meet the court’s standards, the primary characteristics of which are now known as the STIRS criteria (specialised, trained, independent, resourced, and secure in tenure of office). Second, the remedial legislation passed in 2012 was partially overturned by the Constitutional Court in Glenister 3, when the court itself effected the amendments required to make the Hawks’ structure and operations constitutionally compliant, at least in theory, but not in practice.
Accountability Now, under the leadership of bulldog Paul Hoffman, has been advocating for a chapter-9-based integrity commission (Ch9IC) since 2012, which would satisfy the STIRS criteria.
In his state of the nation address, Ramaphosa announced that the Investigating Directorate (ID) will be established in 2023 as a permanent entity in the NPA. And he referenced it again in his speech as a sign of positive reform progress.
But this is simply disingenuous and doesn’t cut the mustard, according to Accountability Now’s submission to the constitutional review committee of the National Assembly on the establishment of the Ch9IC.
“The ID has not been a success. It has fewer than one hundred dockets in hand and has not secured the conviction of a single ‘big fish’ corrupt person or entity in its entire existence. It is lacking in the necessary skills, training, resources and also does not enjoy secure tenure of office as it serves at the pleasure of the president, which undermines its independence. It lacks the capacity to operate according to the tenets of the Glenister criteria and of section 195(1) of the constitution.”
Most political parties recognise the need for reform in the criminal justice administration due to state capture and dysfunction. The ANC’s national executive committee called for an independent anti-corruption entity, while the IFP and DA have been advocating for it since 2019. The DA is preparing a private member’s bill to create the Ch9IC, while civil society, faith-based communities and the business sector support reform addressing serious corruption.
So why has the president not taken this step? The simple answer is that too many comrades and cabinet members will go down if the Ch9IC is established.
Chief justice Raymond Zondo speaking at the same event after the president, bemoaned the fact that only four of his 10 recommendations to close the tender taps of procurement corruption found expression in the draft Public Procurement Bill.
Zondo believes that parliament will not be able to stop a renewed attempt at state capture.
We’ve seen the ANC scupper investigations that could expose its leaders. For instance, the party opposed an ad hoc committee investigating allegations of organised corruption by former Eskom CEO André de Ruyter. Instead, the party filed a lawsuit against De Ruyter for defamation after he claimed the party viewed Eskom as a “feeding trough” for corruption.
“The levels of corruption in our country have reached completely unacceptable proportions,” said Zondo, “and unless something very drastic and effective is done, soon we will have no country worth calling our home.”
As I observed last week, these are not the actions of a government serious about reforms to clean up and reignite growth.
QED.
• Avery, a financial journalist and broadcaster, produces BDTV's Business Watch. Contact him at badger@businesslive.co.za.
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