The Constitution and the law as interpreted by the Constitutional Court in the Glenister litigation* are clear on what is required of the state to counter serious corruption.

The police are there to prevent and combat all crime, including corruption of all kinds, from petty to state capture.

The National Prosecuting Authority (NPA) was established as a new body in Chapter Eight of the Constitution to attend to the prosecution of criminals.

Early on, in the first Mbeki administration, it was recognised that this simple arrangement did not work well in cases of serious corruption and organised crime.

The Directorate of Special Operations (Scorpions) was set up by the National Director of Public Prosecutions (NDPP) and Minister of Justice of the time, Bulelani Ngcuka and Penuell Maduna, as a specialised unit in the NPA to tackle serious corruption using the troika method in which prosecution led crime intelligence and crime investigations were conducted all under one roof within the NPA. Investigators, intelligence personnel, forensic experts where necessary, and the elite prosecutors teamed up to take on corruption.

The system worked so well that a Chief of Police, over a hundred Members of Parliament, the Chief Whip of the ANC, and the financial advisor of Jacob Zuma were all successfully prosecuted via the Scorpions.

Upon the election of Zuma to lead the ANC in 2007 at the 52nd National Conference of the African National Congress at Polokwane, steps of an urgent nature were put in place to dissolve the Scorpions and transfer investigative personnel to the SAPS. This move was completed in 2009.

The constitutionality of the changes was assailed. The closure of the Scorpions was held to be rational and constitutional. (If the courts and the litigants knew then what we all know now, irrationality might have been proved). The formation of the Directorate for Priority Crime Investigation (Hawks) was held, on 17 March 2011, to be unconstitutional for want of compliance with the now famous STIRS criteria laid down by our highest court. The STIRS criteria are Specialised, Trained, Independent, Resourced in guaranteed fashion and Secure in the tenure of office.

Remedial legislation

Parliament was sent back to the drawing board to fashion remedial legislation to address the shortcomings of the original Hawks. Without being prescriptive about it, the court required, in binding fashion, that the new investigative unit be STIRS compliant.

The remedial legislation was produced in September 2012 and was again attacked as unconstitutional. Eventually, in November 2014 the court took a scalpel to the second version of the Hawks and produced the third version, all the while insisting on STIRS compliance.

And that is almost the situation at present: the NPA has to await dockets from the SAPS prepared by the Hawks in any priority crime case. The investigative function is exclusively that of the Hawks in terms of the finally amended SAPS Amendment Act, and prosecution remains the function of the NPA.

The system has not worked. Not a single ‘big fish’ has been successfully prosecuted since the inception of the Hawks. No one is suggesting that they are the answer to the corruption problems of South Africa today.

Recognising the problem, President Ramaphosa, shortly after assuming the presidency, proclaimed the Investigating Directorate (ID) of the NPA to tackle that which the Hawks had failed to do. This move is unconstitutional given the legislated silos created in the wake of the Polokwane resolution of December 2007 as described above.

Doubling down on the unconstitutionality of the ID, the ministry of justice now promises new legislation to render the ID what it calls ‘permanent’. The ID will remain located within the NPA and will be given legislated capacity to investigate serious corruption and organised crime cases.

The SAPS Amendment Act referred to above, which reserves all the investigative work in question to the Hawks, is apparently not under consideration for amendments that would be needed if the ‘permanent’ ID is to be regarded as constitutionally and STIRS compliant.

Questionable

Because the NPA has been hollowed out by state capture it cannot attract Scorpions-standard personnel. And because its independence and the security of tenure of its leadership is questionable, the ‘permanent’ ID notion will not pass constitutional muster. The NPA is subject to the ‘Final Responsibility’ of the Minister of Justice and is run as a programme of the Department of Justice with the Director General of Justice as its accounting officer. These are not the hallmarks of the institutional independence which is required by the Glenister rulings.

The Minister of Justice is confused as to what the Glenister case means, because he regards the main judgment as binding as regards the STIRS criteria, whereas the majority joint judgment is the binding statement of the law. The main judgment deals with all the issues in the case, the majority judgment overrules it on two points: characterising corruption as a human rights issue and enforcing applicable treaty obligations via the imposition of the STIRS criteria.

No good can come of making the ID permanent within the NPA. Both the independence and secure tenure of office criteria cannot possibly be met. It is an undeniable fact that no NDPP has ever finished his or her term of office. The NPA is a site of contestation for the elusive ‘hegemonic control of all the levers of power’ which is the hallmark of the National Democratic Revolution. The cabinet does not want to see corruption busters who are free of executive control, influence, interference, and impedance. Just ask Vusi Pikoli, who was suspended for going after police chief Jackie Selebi and dismissed for charging Jacob Zuma with the counts he now faces, in the trial that never starts.

Way forward

The constitutionally compliant way forward is to be found in the suggestions made by Accountability Now, which have been adopted in large part by the DA and IFP. See https://accountabilitynow.org.za/?s=submission+to+the+CRC.

The above, in less than a thousand words, is all big business needs to know about the proper way forward with its initiative directed at improving the corruption-busting capacity of South Africa.

*I was the lead counsel in the Glenister litigation

[Image: Zelandia from Pixabay]

 The views of the writer are not necessarily the views of the Daily Friend or the IRR

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Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt.