Corruption is a crime; it follows that the criminal justice administration is or ought to be the appropriate vehicle for dealing with corruption.
It is reported in the media on 3 January 2018 that the ANC Veterans League (ANCVL) wants an ANC “consultative conference” not later than the end of February 2018 in an effort to “convince society that we can self-correct and are determined to deliver on our set objectives” in the words of Snuki Zikalala, president of the veterans league and former SABC czar.
At the same time, Bantu Holomisa, leader of the United Democratic Movement, calls for the immediate appointment of a commission of inquiry into state capture, warning that the country is “facing the real and present danger of political, economic, social and administrative collapse from unbridled corruption and state capture.” The looming insolvency of several State Owned Enterprises (SOEs) lends credence to his cautionary words.
Zikalala identifies “factionalism” as the root cause of the problems of the ANC. It is so that there is a faction of the ANC, (led by Jacob Zuma, who remains president of the country and is now an ordinary ANC member), that appears to be soft on corruption and to deny state capture. There is another faction, led by ANC president Cyril Ramaphosa, which seeks to exact accountability for the corrupt activities of all actors, whether in the private or public sector, who are allegedly embroiled in the “silent coup” that state capture entails.
Both factions in the ANC cannot be right about their take on state capture.
Whether or not there are other factions is somewhat obscure, but it is fair to divide the current incarnation of the ANC into those who are soft on (or in denial of) state capture and those who are not. Bathabile Dlamini’s call for forgiveness for state capture aligns her with the first faction; Derek Hanekom’s campaign to unseat Zuma puts him firmly in the second faction. Both are loyal members of the ANC and serve on its NEC, the main decision-making organ of the ANC between conferences. The NEC appears to be roughly evenly divided between the pro and anti Zuma factions; a real headache for the veterans and anyone else interested in the survival of the ANC and with it the country.
Until the truth about allegations of state capture, as detailed in the #Guptaleaks and several books or learned reports on the subject, is known from a credible and official source, the factionalism of which Zikalala rightly complains will continue.
While it may be so that a commission of inquiry, properly led and adequately resourced, is the quickest way to test the somewhat tentative content of the State of Capture Report by the Public Protector as well as the many other more recent and less tentative allegations of malfeasance, it is not the panacea that Holomisa seems to think it is. A commission may “lance the boil” as he puts it, but it will not directly lead to anyone going to jail or otherwise being held to account for the role played in the supposed subversion of the democratic project in SA.
The report of any commission of inquiry is no more than the outcome of a skilled fact finding exercise and (sometimes) a list of “take it or leave it” recommendations. The commission binds no one, it has no general criminal jurisdiction and it is no more than a tool of policy-making in the hands of the executive branch of the government, which appoints the commission. The practice of appointing commissions is nevertheless a salutary one. The commissioners have the time, the expertise and the mandate to take a ‘deep dive’ into the subject matter of their terms of reference.
This is an exercise that no busy politician could reasonably achieve, given the demands of actually running as complex and modern a society as SA. The abuse of commissions is also legendary in SA: the arms deals whitewash, the failure to implement the accepted recommendations of the Farlam Marikana Commission and, more recently, the ignoring of the findings of the Heher Commission into the free provision of higher education.
It is the unenviable task of the government of the day to nurture respect for the law in all of the inhabitants of the land including politicians, business folk and those who procure goods and services for the state and SOEs. This nurturing is best done by creating a standard of law enforcement under which people do not feel the need to resort to misplaced reliance on commissions of inquiry or to holding consultative conferences on the subject of matters that would better be the focus of intensive criminal investigation.
In SA we would appear to require a massive investment of human and material resources in the criminal justice system. It seems imperative that the government bring the necessary will and skill to bear upon the manifest and many problems of the administration of justice. Any failure to do so could well result in the anarchy and chaos which flow from the failure of the state to live up to the promises of its Constitution.
The NPA’s leadership has been captured, the Hawks have been side-lined to an irrelevant, but sometimes pesky role as in the Gordhan affair, and the whole of the criminal justice administration remains dysfunctional (a description first used in 2008 by the then deputy minister of justice and unaddressed ever since ).
The words of Justice Albie Sachs, in his foreword to W Schärf and D Mina “The Other Law: Non-State Ordering in South Africa” bear repetition in this context. He wrote, admittedly in the context of self-help and vigilantism:
'The Constitution, like nature, abhors a vacuum. In principle, the law dwells wherever people are regulating their relationships and guaranteeing them their fundamental rights. In principle, all people are entitled to all their rights at all times and in all places. In principle it does not matter whether you live or work near a police station or far; whether the community you belong to speaks English or Zulu; whether your forebears came from Africa, Europe or Asia; whether you are male or female; whether your home is in a poverty-stricken informal settlement or a wealthy garden suburb.
The law is there for you, it is indivisible and universal. In principle it protects you equally and makes the same demands on you, whether you are part of a group that believes in sorcery or science or regards truth as revealed or discovered. In principle the only problem is not one of coverage by the law, but of access to its protection. In principle this problem can be resolved by improved law enforcement, better training of legal professionals, well-targeted education to know your rights and the furnishing of amplified protection and material support for those too poor to have access.
In practice, as this book suggests, legal reality is quite otherwise. The authors do not contest the importance of adherence to universal values; they fully support the process of democratic transformation and its underlying egalitarian notions. They back measures aimed at improving the functioning of the legal system and guaranteeing effective access to it; yet, they insist, with considerable empirical investigation to back them up, that the actual experience of law as lived on the ground is in fact diverse and fragmented.’
It is as well to remember that the problems associated with lawlessness in South Africa are not new, as is apparent from the words of Alan Paton in his 1949 novel Cry, the Beloved Country. He writes:
'Have no doubt it is fear in the land, for what can men do when so many have grown lawless? Who can enjoy the lovely land? Who can enjoy 70 years and the sun that pours down on the earth when there is fear in the heart? Who can walk quietly in the shadow of the jacarandas, when their beauty is grown in danger? Who can lie peacefully abed while the darkness holds some secret? What lovers can lie sweetly under the stars when the menace grows with the measure of their seclusion? There are voices crying what must be done; a hundred, a thousand voices, but what do they help if one seeks counsel, for one cries this and one cries that and another cries something that is neither this nor that.'
In the book to which Justice Sachs wrote the foreword, the authors outline the non-State ordering of South Africa by making the following comments on page 6:
'Its [the State's] dilemma is living up to the promises of a very liberal Constitution by having a comprehensive embrace of all forms of ordering under the Constitution but not being able to exert sufficient power to protect its citizens from crime to a satisfactory degree. The irony is that the liberal State was supposed to reduce the need for non-State forms of ordering but the inability of the transforming State to rise to the level and scope of service delivery has had the opposite effect.
Non-State forms of ordering have escalated considerably since 1994. Six years after the commencement of democratic rule the inclination on the part of civil society to perform roles that would normally be the exclusive domain of the police (at worst private security) is huge. In the absence of the State's ability to cope, citizens have appropriated that function in many of the townships.’
The process of compensating for the shortcomings of the criminal justice administration has led, over the years, to a number of private sector initiatives in SA that are aimed at preserving the constitutional order. The appointment by Afriforum of Gerry Nel SC as a roving private prosecutor, the civil litigation by a variety of NGOs, the advent of public interest litigation and class actions, the review of the malfeasance at Eskom recently embarked on by the CEO of Sygnia in collaboration with the Helen Suzman Foundation and the laying of criminal charges by opposition politicians in respect of matters as diverse as the goings-on at Nkandla and the corruption in SOEs, all of these would not be necessary if the criminal justice administration was not dysfunctional. Nor would the SACC “Unburdening Report” or the academic study of the “silent coup” co-ordinated by PARI ever have needed to see the light of day.
Much of the current dysfunction in relation to the prevention, combating, investigation and prosecution of the particular crimes that are corruption at common law, and, “corrupt activities” by legislation, can be traced back to the ANC Polokwane resolution of December 2007 urgently to dissolve the Scorpions and to transfer their investigators to the SAPS.
When these steps were taken, the NPA lost its investigative capacity and the independence of action of the Scorpions was ended. The degree of independence necessary to function as an anti-corruption agency of the state has not ever been achieved by the Hawks.
They do not, now in their third legislative incarnation, properly satisfy any of the criteria (laid down by the Constitutional Court in the Glenister litigation) aimed at the establishment of adequate anti-corruption machinery of state. A dedicated specialised unit of well trained professional corruption busters, operationally and structurally independent, adequately resourced and enjoying security of tenure of office is the court-prescribed medicine for the societal malady arising from corruption.
If the ANCVL is serious about ending factionalism, it could start the process by addressing the need to have a permanent, constitutionally protected, national Integrity Commission, housed in Chapter Nine of the Constitution, and able to do what the Hawks have clearly not done at any time since their establishment, namely, properly investigate the corrupt in high places.
If Bantu Holomisa, like all right-thinking South Africans, wants to see the corrupt in jail, he needs to address the gap between his expectations of the findings of a commission of inquiry and the effective and efficient investigation and prosecution of those identified by the commission as the perpetrators of the various crimes involved in state capture. Neither the Hawks nor the NPA have shown any sign of being up to the task at hand if, as is widely suspected, the allegations of state capture are essentially true.
The opposition coalitions, favoured by Holomisa, should make the formation of the Integrity Commission their rallying cry. Without it, the culture of impunity for corrupt activity in high places will most likely continue, whatever the commission may find. The Hawks and the NPA (which may or may not be aligned to the Zuma faction) have not put any brakes on the Zuma faction hitherto, why this should magically be changed by the findings of a commission has not yet been addressed, but it needs to be.
A final point for General Holomisa to ponder: the law allows Jacob Zuma his appeals, they should however be dealt with diligently and without delay by the courts. For once, Zuma has a good point in the state capture review matter: the doctrine of the separation of powers surely precludes the Chief Justice (who feels very strongly about the application of the doctrine) from selecting the judge to act as commissioner in the commission of inquiry into state capture.
Properly interpreted, sections 90 and 96 of the Constitution provide for the Deputy President to act when the President is unable to act, as is the case here, due to the risk of a conflict of interest on the part of Jacob Zuma flowing from his relationships with the Guptas and their business associate his son Duduzane.
There is no suggestion that Cyril Ramaphosa is unable to act. It is not legally appropriate that the Chief Justice fulfil what is essentially an executive function, but this is what the Public Protector would have him do. Ramaphosa, in his capacity as Deputy President, should do the necessary and appoint his commission into state capture now. It is what his party, the loyal opposition and the vast majority of the people require, desire and anticipate with a fervent longing born of their craving for peace that is secure, progress that is sustainable and prosperity that is equitably shared.
Paul Hoffman SC is a director of Accountability Now