Independent anti-corruption body will help prevent return to greylist
Your correspondent Stuart Theobald raises the possibility of South Africa being placed on the Financial Action Task Force (FATF) “greylist” again, having escaped the setbacks greylisting brings only in October last year (“Did South Africa pass a crime test it didn’t deserve to?“).
The FATF was created to counter money-laundering and terrorism financing. These corrupt activities caused our greylisting in the first place.
As was so often the case when the ANC was the dominant party in South African politics, as little as possible was done to address the FATF’s concerns. The issues around dealing effectively and efficiently with the corrupt have been with us since the demise of the Scorpions unit within the National Prosecuting Authority in 2009. These issues, still not addressed properly by the government, led to the Glenister trilogy of cases in 2008-14. The upshot of the litigation was that a single, adequately independent body is needed to “deal effectively with corruption”, as the Constitutional Court put it in its seminal judgment in 2011.
The words used were loud and clear: “Our law demands a body outside executive control to deal effectively with corruption.” This finding was confirmed by the same court in 2014 when further litigation concerning the adequacy and constitutionality of the remedial legislation passed was questioned by the Helen Suzman Foundation and by Glenister himself again.
In the words of the then chief justice in the opening lines of the majority judgment in the last Glenister case: “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.”
The sad truth is that there is no single corruption-fighting body in South Africa that is “outside executive control”. Indeed, ANC elements in government persist with the failed multi-agency approach and resist any suggestion that the binding prescription of the law that requires a body outside executive control must be acted on as a matter of respect for court findings and for the doctrine that judicial precedents set in the apex court are binding.
The recent falling out between the South African Police Service (SAPS) and the Investigating Directorate Against Corruption (Idac), as illustrated by the bloodcurdling and unseemly spat between Lt-Gen Nhlanhla Mkhwanazi and Andrea Johnson, head of Idac, is illustrative of the operational and structural dysfunction in our anti-corruption machinery of state. The left hand knows not what the right hand is doing.
The FATF is aware of the judicial findings quoted above. It now has the dysfunction in the system demonstrated to it by the leaders involved in the day-to-day anti-corruption work. The personnel in the FAFT will surely realise that they had the wool pulled over their eyes by South Africa last time round and that remedial steps of a radical nature are needed to turn the binding words of the courts into the reality of anti-corruption work in the country.
The bills proposed by Glynnis Breytenbach, chief whip of the DA, for the establishment and enablement of a new chapter 9 anti-corruption commission are the answer. It will take charge of anti-corruption efforts and work beside its fellow bodies, the auditor-general, the Office of the Public Protector and the South African Human Rights Commission to counter the corrupt more effectively instead of squabbling internally as the SAPS and Idac do. None of our chapter 9 institutions are under executive control, and all of them operate independently and impartially.
The last thing South Africa needs now is to be placed on the greylist again. We did not deserve to pass the FAFT test last time round; this sad fact could return to bite South Africa unless we act to remediate the mess promptly. The corruption eruptions in South Africa continue unabated, as can be seen from the Zondo commission report and from the evidence gushing out before the Madlanga commission. Parliament should process the Breytenbach bills urgently to pre-empt FATF measures.
Paul Hoffman SC
Director, Institute for Accountability in South Africa
Clarify black ownership rules
Duma Gqubuke’s article, “‘Voodoo system’ of accounting creates confusion over black ownership” (June 26) refers.
The headline says it all. Following this debate over the past few weeks, it seems there is no general agreement of what “ownership” means in listed companies, no agreement on how to meaningfully measure who owns how much of what, and maybe not even what success might look like.
I guess I am somewhat heartened by the fact that in South Africa we can and are having this discussion. Doing nothing doesn’t seem like a good idea.
Petrus Le Roux
Via Business Day Online
BEE hinders business competitiveness
I refer to the article, “‘Voodoo system’ of accounting creates confusion over black ownership” (June 26).
At what point do you work out that social engineering is the root of our economic failure? It is hard enough to run a business, let alone compete in an international economy. Time to stop South Africa’s own goals. Duma Gqubule should work in a manufacturing business to learn about the real world.
Miles Japhet
Via Business Day Online
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