Our concerns about the state capture/corruption narrative – NADEL

Commissions overly focused on black professionals in senior management, who've been branded corrupt

NADEL NEC resolution on corruption and state capture

30 June 2019

The National Association of Democratic Lawyers (NADEL) is a national non-profit organisation consisting of members, which operates as a voluntary association of progressive attorneys and advocates who are committed to the transformative vision of the Constitution and to principles of non-racialism, non-sexism, freedom, democracy, equality, justice and fairness. NADEL is not a law firm or a service provider; rather its members provide the necessary professional services, where required. NADEL remains a leading NGO with a solid record over more than 30 years of struggle and commitment to equality and justice, not only locally but also internationally.

During the period Friday, 21 June 2019 to Saturday, 22 June 2019 in Kempton Park, Gauteng, the National Executive Committee (NEC) of the National Association Democratic Lawyers (NADEL) met to discuss and deliberate on the current state of the nation, and particularly the challenges confronting the judiciary and the legal system in South Africa.

National Conference and NEC Resolutions on corruption and state capture

The NEC of NADEL also deliberated on the effective implementation of its 2019 National Conference and Annual General Meeting (AGM) resolutions - one of which was eradicating corruption and effectivley addressing state capture, and NADEL’s role in progressively deepening constitutional democracy.

The discussions and deliberations recognised inter alia the rampant venality in society and the disconnect of critical state institutions with the ordinary people. The meeting further considered the work of the four key commissions established to deal with state capture and corruption at length and, while these investigations are still ongoing, made the following provisional observations:

- The commissions dealing with state capture and corruption, on a closer examination, appear to be focused on only certain high profile politicians and  executives (in  particular  black professionals in senior management), who have been publicly branded as corrupt.

- The concern is that they do not appear to focus on the underlying issues and the people who have facilitated corruption and state capture, including some legal, finance and accounting professionals and institutions.

- In essence, the concern expressed in the meeting is that there appears to be little capacity or no interest to delve deeper and to investigate the legal, accounting and auditing firms who were responsible for the facilitation of illegal acts, malfeasance and corruption relating to inter alia the drawing of contracts, the ethical questions in providing of professional advice and services, and aspects relating to money laundering through the use of trust accounts and various institutions. Instead, these professional firms are appointed as the investigators and administrators for the commissions into corruptions and state capture without proper background checks and vetting processes.

- Importantly, the meeting expressed the concern for the fact that various legal, accounting and auditing firms, which facilitated, audited and cleared the financials of state institutions at the centre of the investigations and who are alleged to have been centrally involved in state capture and corruption, have not been investigated properly or at all. 

- The meeting further expressed concern regarding the consistent pattern of information leaks and ‘secret sources’ driving the various narratives on corruption and state capture that are in the public domain. Whilst the principle of media freedom is respected, the particular concern is with an unbridled media that seems to influence public perceptions and in many instances the direction of these investigations and the persons who must be investigated, rather than providing a sober and independent assessment and analysis of the facts and evidence.

It has become apparent that the so called ‘secret sources’, are always only emanating from certain specific media houses and there appears to be no capacity or inclination to deal with other key role-players and stakeholders at the centre of state capturer. The meeting expressed the very serious concern that unless this gap is addressed, and for as long as we see corruption only from black people or a certain group of politicians, we may miss the opportunity to eradicate our state of corruption.

Recommendations and Action Points

At the conclusion of the meeting, it was acknowledged that time constraints did not permit a more thorough assessment of the issues and that the state of the nation left us with more questions than answers. NADEL therefore undertook to advance the following:

- Recognising that further engagements on corruption are needed, NADEL will convene a colloquium on the gaps and weakness in the investigations dealing with corruption and state captureand invite all relevant and interested stake holders to discuss and deliberate on inter alia: -

- The proper characterisation of the current problem of corruption and state capture in our country;

- An in-depth assessment of the evidence emerging from the various commissions and appropriate legal interventions to ensure that the final outcomes  and recommendations are appropriately implemented;

- Compile a list of top 100 cases that need to be immediately investigated and followed and proactively monitor these cases in the public interest; and

- Establish an investigating and prosecution task team within NADEL that will consider the implementation of the various outcomes of thecolloquium and effective ways in which to partner with the State in exploring how to deepen democracy.

Investigations on corruption and state capture need to be broadened and not targeted at a few individuals if they are to deal adequately with and eradicate corruption in both the public and private sectors.

NADEL therefore reiterated the resolution from its 2019 National Conference and AGM and declared a total war on corruption, nepotism and theft of state resources.  NADEL will conduct a corruption watch, actively monitor litigation on corruption and co-operate with the National Prosecuting Authority and the law enforcement agencies to strengthen constitutional democracy. This will also involve meetings with the National Prosecuting Authority, South African Police Services, the ruling party and related stakeholders.

There is an urgent need to strengthen the unity, independence, integrity and diversity of the legal profession which also translates in a strong, independent and diverse judiciary so as to ensure the prescripts of democratic governance, human rights and the rule of law. In this regard, NADEL will also engage further with Pan African Bar Association of South Africa with a view of starting a School of Advocacy to offer unified specialised training to all progressive legal practitioners. 

Cape Bar Council Challenge

The NEC of NADEL further resolved to oppose the recent application launched by the Western Cape Bar Council challenging the elections for the Western Cape Provincial Legal Practice Council.  It is astounding that of all the professional bodies representing legal practitioners, only the Cape Bar Council has chosen to challenge the elections and the perception prevails that the Cape Bar, which is inherently untransformed, has no manifest intention to transform anytime soon. The regulations for the elections were published and accepted by all legal practitioners and no court challenges were launched to question the regulations until now. It is absurd and counter intuitive that the Cape Bar Council agreed to participate in the LPC regional elections with full appreciation of the rules and regulations, only to challenge the processes of the elections once the results have been announced and confirmed. The intentions and purpose of the regulations are well known in the profession, the numbers in the legal profession are not reflective of the demographics for the country the election system was designed to address that.

Issued by Nolitha Jali, National Secretary General, National Association of Democratic Lawyers, 25 June 2019