In the carefully chosen words of the Constitutional Court, “(t)here can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order”.
These words are in paragraph 166 of the joint majority judgment of March 2011 in the case now known as “Glenister Two”, a judgment in which the STIRS criteria (specialised, trained, independent, resourced and secure in tenure) by which to measure anti-corruption machinery of state, were laid down in terms that bind government. While remaining appropriately deferential, the court specified, in plain and unambiguous language, that a “body outside executive control” is needed to deal with corruption.
No such body has ever been established in SA.
Instead, and as a “stop gap measure” (then deputy minister John Jeffery’s description) the ANC sponsored the legislation the created the Investigating Directorate Against Corruption (IDAC) which was assented to by the President shortly before the May 2024 elections and currently exists, unconstitutionally so, as a directorate within the National Prosecuting Authority. The work of investigative journalists reveals that IDAC is led by an individual who encourages staff to “fake it till you make it”. Power-dressing and dummy box-files of blank paper are the suggested modus operandi. These revelations are part of a complaint to the Public Protector: https://accountabilitynow.org.za/complaint-regarding-paralysis-of-the-anti-corruption-capacity-of-the-state-in-sa/. The links in the complaint reveal the disarray in the NPA.
During the pre-election period when the President was considering the constitutionality of the IDAC bill, he was warned that it was not constitutional, for want of compliance with the criteria and requirements of the Constitutional Court in Glenister Two. He ignored the warning and signed the bill anyway. https://accountabilitynow.org.za/the-future-of-countering-corruption-after-ramaphosa-hastily-signs-flawed-idac-law/.
He has also not reacted to the interim report of the National Anti-Corruption Advisory Council (NACAC) which he appointed in August 2022. It provided the President with an interim or “mid-term” report in March 2024, a full year ago, which was promptly lost in the Presidency. When it was eventually found, instead of publishing it as he should have done, the President referred the report to the Department of Justice, where officials, according to NACAC chair Professor Firoz Cachalia, take a dim view of its suggested (but somewhat toothless) new Chapter Nine Institution. https://accountabilitynow.org.za/is-nacac-a-serious-contributor-to-solving-sas-grand-corruption-conundrum/.
Phala Phala baggage
Given that the President carries his Phala Phala baggage, (the Constitutional Court is considering what should be done next on that front), and describes the role of the ANC in state capture as that of “Accused Number One”, has a deputy drawn from the “Alex mafia” whose wife accepted a gift of a rock-sized diamond from Louis Liebenberg, currently incarcerated pending trial, and given that 97 top ANC members are named and shamed in the Zondo Commission report on state capture, it is understandable, but not excusable, that there is little political will in the ANC to take the law as laid down in Glenister Two seriously. The ANC’s preference for endlessly kicking the can down the road is pellucidly evident.
The official opposition in the sixth parliament prepared the constitutionally-compliant bills for a new Chapter Nine Anti-Corruption Commission. As a member of the post-May 2024 coalition government, the DA introduced the two private members bills in November 2024 in the justice committee of the seventh parliament. https://accountabilitynow.org.za/introducing-the-all-new-chapter-nine-anti-corruption-commission-ch9acc/.
While the ANC members of the committee took a guarded and non-committal approach to the bills, these bills were criticised by the MK representative for reasons not unconnected to the murky past of many of its leading members. https://accountabilitynow.org.za/no-surprise-that-jacob-zumas-mk-party-rejects-the-anti-corruption-bill/.
At the time of writing, the bills are yet to resurface in Parliament. They are discussed in a Daily Friend special podcast. https://accountabilitynow.org.za/daily-friend-special-securing-the-tools-to-defeat-corruption-an-interview-with-paul-hoffman/.
What then of politicians at provincial and local levels? Given the role of the DA in the generation of the constitutionally-compliant solution suggested in the bills envisaging the establishment and empowerment of the new Chapter Nine body, it is instructive to have regard to what its leaders have to say on the topic.
Not used once
In August 2024, Premier Alan Winde of the DA addressed the Cape Town Press Club in a long and wide-ranging exposition, during which the word corruption was not used once. At question time he was tackled on the omission. His reply is instructive.
Question: “We’ve heard you talk about investment, development and evolution but the word ‘corruption’ has not passed your lips once. It might be because you’re talking as Premier and you operate at a provincial level. Please take your Premier hat off and tell me what your party is doing about corruption and particularly whether your party is sticking to its pre-election promise that within 100 days, it would move to build and reform the criminal justice administration in a way that would enable it to deal with the scourge of corruption.”
Premier’s Response: “Thank you. Corruption is this massive cancer in our country. It has to be dealt with at every single level of government. It has to be dealt with in the private sector, across the board. I generally couch it in two places in our government. It’s not as if it’s not part of what we deal with in our government and then I’ll get to the party position.
“In our government, we’ve set up our own forensic teams. I’ve got a head of forensics that comes from the Scorpions. It is something that we do take very seriously and perhaps one of the areas that affects us most in this province is not necessarily, and I’m not saying corruption doesn’t exist within our government, it does, I mean we are busy with investigations in a couple of our local authorities where millions and millions have gone missing, where the tender processes are totally sidelined, and where political influences are unbelievable, and we’ve got a municipality now that we’ve just taken over and that’s going to have to have a whole system of cleanup investigation and I sincerely hope prosecutions that find people in jail.
“Within the party, I’m not too sure exactly on the 100 days where our team is. We tried very hard in the GNU to get one or two of those ministerial posts that I think we didn’t end up with. It would have been quite nice to have one or two of those ministerial posts who could’ve driven this even harder, because I agree with you absolutely. It is a problem in our country. I was very pleasantly surprised to see Fikile’s comments in the last few days on a couple of the individuals in the ANC, although they’re not the current sitting ministers; he said something about Gigaba and is following through on that. Of course, we need to have it in a much, much stronger way, I absolutely agree with you. Perhaps what I’m going to do is I’m going to say to Helen when she gets here is: It’s going to be the first thing that she must actually deal with when she comes to talk about the party position on dealing with this issue of corruption in amongst our politicians and in government. But also I want to venture to another area of corruption that is eating us up here in our region and that is the extortion side. Maybe I must say a bit more.
“We’ve put a security tender out and the company that got the security tender, if you read the Zondo Commission, the company that got the security tender is mentioned in the Zondo Commission and has got super-strong links to Jacob Zuma. The courts would not enable us to get out of that agreement, it’s horrendous. But that’s why we’ve got to make sure that these things get seen through and they end up having the findings so that we can actually deal with corruption properly, because it is super-frustrating when you can’t deal with it properly. We’ve got other construction contracts [with] hopefully a current court case of where a husband and wife, Stansfield and his wife, are busy facing the music. Stanfield’s wife owns a construction company that was building schools for us. Luckily, we are not building schools with her anymore but they were building schools with us. I said in our meetings “Guys, everybody knows it!” but there is no legal mechanism to get out of it and every time we do try and get out of it, we get taken to court by these people who then say ‘there’s been no case against me that’s been found guilty in a court of law’ and therefore the agreement continues. It’s very, very frustrating.”
Not to be outdone by this underwhelming reply, the Mayor of Cape Town, Geordin Hill-Lewis, made the same mistake.
Question: “I have to congratulate you because you’ve managed to speak to us for more than an hour without mentioning the word corruption. You’ve also given us an indication that you think that the GNU will last at least 2 years. The reality check on that is the two Bills that Glynnis Breytenbach introduced in Parliament last November to create an anti-corruption body which she calls the Chapter 9 Anti-Corruption Commission. Now please make a note of it because it’s important that you keep an eye on it. I suspect, having spent a long time on this, that those Bills will be the cause of the collapse of the GNU, because Glynnis is a bulldog and will insist on her Bills being put to the vote and the ANC is corrupt and won’t vote for them and at that point, the GNU will come to an end.
“Tell me why I’m wrong.”
Mayor’s Response: “Well, Paul, as I said, it’s a very dangerous business trying to make predictions in politics. Just ask Assad in Syria. Things can change very quickly. So, I don’t know, maybe that is going to be the cause of the collapse of the GNU, maybe you are right, but my gut still tells me that you are wrong, and I will say briefly why.
“I think the DA is able to use the nuclear option only once. So it absolutely HAS the power to walk out of the government and cause the government to no longer have a majority. Even with all the other smaller parties, it does not have a majority without the DA. So we can use that card, but we can use it only once and then it’s over. And then the next week, you, corruption-buster extraordinaire, and all of the other people in this room and in South Africa, must witness the swearing in of the alternative governing coalition, which will consist of the ANC and the MKP.
“So, the point of me saying so is that we have to be extremely judicious in our use of the nuclear option and it really has to be reserved for the biggest and most existential of things. Now you might say that the formation of a new Chapter 9 organisation that is going to investigate corruption is one of those nuclear button issues. Is it going to be that effective in hunting down all of the corrupt elements inside the ANC? I sincerely hope so, but I’m not sure that the ANC will allow itself to be seen as so anti an obvious anti-corruption initiative. I think that they might do what they are extraordinarily good at which is weaponised incompetence and agree wholeheartedly to set up a new body and then kneecap it by filling it with the most utterly incompetent people and deployed cadres. So there are lots of ways to get around the new Chapter 9 body. I don’t want to in any way diminish your initiative because I think it’s a great initiative and it’s something that South Africa needs. I’m not sure it’s going to lead to the collapse of the GNU. I hope it doesn’t, but you might be right. We’ll see.”
The mayor should know that his party is attacking the constitutionality of cadre deployment in the public administration in the courts, with good prospects of success. He should also acquaint himself with the bills, which are strong on appointment procedures designed to defeat the manipulation of staff to which he alludes.
All politicians should be painfully aware that because they are all sworn to uphold the rule of law, they should be working toward the proper implementation of the rulings in Glenister Two. Lack of respect for binding judicial precedent and the failure to honour the treaty obligations of the country characterise the saga of the failure to implement Glenister Two. It is cringeworthy that it took a decade for the DA to stir on the issue; it is sad that its public representatives are so ignorant of the details of the pending bills and it is unforgivable that countering corruption is not seen as SA’s paramount issue, because of the corrosive effects of ongoing corruption and state capture.
The former chief justice who chaired the Zondo Commission has, as long ago as November 2023, warned that:
“The levels of corruption in our country have reached completely unacceptable proportions, and unless something very drastic and effective is done soon, we will have no country worth calling our home.”
The politicians of all parties should heed his warning and take urgent action to avoid national “Zimbabwefication” due to rampant grand corruption with impunity.
Outside executive control
All those who have the honour and duty of representing the people of SA in Parliament should know, irrespective of party affiliation, that when a court requires, indeed orders, the creation by Parliament of a body outside executive control, then Parliament is bound to do so on pain of being on the receiving end of public interest litigation that compels compliance with what the court requires: in its own words: “A body outside executive control to deal effectively with corruption.” [Glenister Two, para 200]
The fact that no such body exists is a blot on the commitment of Parliament to uphold the Constitution and the rule of law in the new SA. This issue should be regarded as a make-or-break one by the GNU, given its stated commitment to the rule of law and the Constitution.
[Image: Екатерина Евлогиева from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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