In the seminal case now known as Glenister Two, the Constitutional Court laid down that SA law requires “a body outside executive control” to deal with corruption effectively. The motivation for this ruling is clearly that placing such an entity within or under executive control is incompatible with the independence that is necessary to enable the anti-corruption entity to do its work properly.
This worthy objective is achieved by the body using its resources in a manner that complies with the requirements of the Constitution in relation to the economic, efficient and effective use of anti-corruption resources of the state. (Section 195 of the Constitution.)
In Glenister Three, when the remedial legislation ordered in Glenister Two came under further attack, the court became preoccupied by the wording, in the order made in Glenister Two, that the legislation the latter declared unconstitutional for its failure to “to secure an adequate degree of independence” for the Hawks was the be-all and end-all of the matter. The words actually used in Glenister Two, upon which the notion of being outside executive control is based, were that “our law demands a body outside executive control to deal effectively with corruption”.
This court-created formulation was lost from sight in the debate over the adequacy of independence that raged in Glenister Three. It ought to have been plain that a body like the Hawks, and indeed one like the Investigating Directorate Against Corruption (within the NPA), should find themselves well within executive control as units within the police and a programme of the Department of Justice respectively.
And history has proved this to be so. No sooner had the judgments in Glenister Three been delivered than chaos erupted over the police dockets concerning the strange goings-on at the Zuma spread in Nkandla. These dockets had been kept at police headquarters, well away from the prying eyes of then Hawks head Anwa Dramat. Upon the handing down of judgment in Glenister Three, Dramat called for the Nkandla dockets. He did not get them. Instead, he was suspended on false charges and was eventually offered a pension to leave his post. This manoeuvre, according to Dianne Kohler Barnard of the DA, cost the state R24 million.
So much for the independence of the head of the anti-corruption entity.
The story of the end of Dramat’s career in the Hawks is a sad one and has been related as an example of the inadequacy of the Hawks’ leadership. A more detailed exposition of his professional demise was written back in 2015: https://accountabilitynow.org.za/the-rise-and-fall-of-general-anwa-dramat/.
The mistreatment of Dramat was only possible because the Hawks are not now and have never been “outside executive control”, and accordingly independent in that sense.
In Glenister Two the majority judgment makes reference to the approach of the minority (the main judgment) in that case:
“[206] The main judgment notes that independence requires that the anti-corruption agency must be able to function effectively without undue influence. It finds that legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. It then asks whether the DPCI has sufficient structural and operational autonomy to protect it from political influence. Here the question is not whether the DPCI has full independence, but whether it has an adequate level of structural and operational autonomy, secured through institutional and legal mechanisms, to prevent undue political interference. To these formulations we add a further consideration. This Court has indicated that ―the appearance or perception of independence plays an important role in evaluating whether independence in fact exists. This was said in connection with the appointment procedures and security of tenure of magistrates. By applying this criterion, we do not mean to impose on Parliament the obligation to create an agency with a measure of independence appropriate to the judiciary. We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.”.
The independence of the Hawks, whether “adequate” or not, is, from the reasonable standpoint of the public, a mere chimera. So badly have the Hawks fared in their anti-corruption mandate that government, in desperation, created IDAC to both investigate and prosecute corruption as the type of specialist body that is, in law, required. IDAC is both structurally and operationally lacking in the type of independence needed to be an effective anti-corruption entity.
In the same judgment, the court returned to the topic of public perceptions:
[210] First, it impacts on the public perception of independence. A reasonable and informed member of the public may have misgivings about the DPCI’s independence, given that the features protecting it are so markedly more tenuous than those of the DSO. Second, we find it hard to conclude that the creation of an entity that is markedly less independent than the DSO can fulfil the state’s duty to respect, protect, promote and fulfil the rights in the Bill of Rights. This is because, as we now show, independence is assessed on the basis of factors such as security of tenure and remuneration, and mechanisms for accountability and oversight. These factors must be analysed to determine whether, on the whole, the body satisfies the threshold of adequate independence.
It is now almost twelve years since the Glenister Three judgment was handed down by the Constitutional Court. That is more than enough time to establish whether it measures up to the independence criterion of the law as expressed in both Glenister Two and Glenister Three (the latter, a diluted version of the former). A single specialist entity, populated with trained experts who are resourced properly in guaranteed fashion and secure in tenure of office is not on any conspectus of the annual reports of SAPS an accurate description of the Hawks. Nor does IDAC boast characteristics that are required by law.
The hint given in Glenister Two has not been acted upon by government. The Court observed that:
“[205] We add that any obligation binding upon the Republic under international law must not conflict with express provisions of the Constitution, including those in the Bill of Rights. Here, there is no conflict. Far from containing any provision at odds with the obligation to create an independent corruption-fighting entity, the very structure of our Constitution – in which the rule of law is a founding value, which distributes power by separating it between the legislature, the executive and the judiciary, and which creates various institutions supporting constitutional democracy, which it expressly decrees must be independent and impartial – affords the obligation a homely and emphatic welcome.”
To the contrary, this passage has helped to persuade former shadow minister of justice and current co-chair of the Constitutional Review Committee of the National Assembly, Adv. Glynnis Breytenbach, to present two private members’ bills in parliament aimed at establishing and enabling a new Chapter Nine Institution which she has dubbed “The Anti-Corruption Commission” (Ch9ACC). The bills have been pending before parliament since November 2024. It is high time that they are processed, debated and voted on by parliamentarians in the law-making process. This vote will reveal which of our public representatives are serious about countering corruption and which are not. Stumbling along with IDAC and the Hawks in feeble competition with each other is not a viable option. A properly capacitated Ch9ACC is attainable if the necessary political will is brought to bear. The Hawks have other “priority crimes” to attend to, and the creation of IDAC is unconstitutional. https://accountabilitynow.org.za/the-future-of-countering-corruption-after-ramaphosa-hastily-signs-flawed-idac-law/. The national cabinet proved itself unwilling to act on an ANC NEC resolution calling for a new stand-alone independent anti-corruption body back in 2020. https://accountabilitynow.org.za/paul-hoffman-has-anc-finally-had-its-eureka-moment-on-corruption/. It remains to be seen whether the seventh parliament is prepared to act decisively against the corrupt. It is all a matter of political will, which up to now has been lacking. Cabinet is wrestling with the wanting and limping NACAC proposals which are open to cogent criticism. See: https://accountabilitynow.org.za/the-implementation-of-nacacs-current-recommendations-will-lead-to-litigation-and-tears/. And https://accountabilitynow.org.za/approach-nacac-report-with-uttermost-caution-mr-president/. Parliament is taking its time about the Breytenbach bills, which ought to have been accorded priority when they were presented in parliament in November 2024. Parliament should be encouraged to accelerate its processes on the Ch9ACC.
In the public perception, SA is losing the battle against the corrupt. The evidence given before the ad hoc committee of the National Assembly and still tumbling out in the Madlanga Commission indicates that the time for decisive action is now. Public pressure can help to bring on the Ch9ACC.
[Image: https://www.saps.gov.za/dpci/selthumbnail.php?id=329]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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