Anti-Corruption watch dog organisation, Accountability Now, has written* to the Parliamentary Legal Advisor, Zuraya Adhikarie, questioning her diligence, after confidential communication between the Legal Advisor and Speaker was leaked to the media on 16 May 2022.  

Following the publication of a detailed memorandum to the Speaker from the parliamentary legal adviser, concerning the way forward for parliament in the light of the publication of the report of the State Capture Commission, the content of the memorandum has been interrogated by Accountability Now in an email addressed to the parliamentary legal advisor. A copy of the email, which is self-explanatory, accompanies this media release. Should a response to the email be forthcoming, it will be shared with the media.

*Below is the letter Accountability Now wrote to Parliamentary Legal Advisor Zuraya Adhikarie:

“Dear Advocate,

Your confidential communication with the Speaker has been leaked to the media and was published by Politicsweb on Monday, 16 May 2022, here:

https://www.politicsweb.co.za/documents/zondo-report-parliaments-legal-opinion?u

We assume that the communication is not a hoax and that its purpose was to advise parliament on the ramifications of the report and findings by the state capture commission (SCC) that state capture is real and extensive in SA.

We respectfully remind you that in paragraph 22 of their opening address to the SCC the evidence leaders summed up the work of the SCC in two questions: “Has the democratic project envisaged by our Constitution been derailed? If so, can it be put back on track, and how?”

It is obvious that parliament, as the legislative authority in SA, has a role to play in answering the second of these two fundamental questions by putting the democratic project back on track. It is not going to do so by involving itself in the minutiae of your communication to the Speaker, but it can do so, if properly advised to take the remedial action required to restore constitutionalism in SA. Your role, with respect, is to give that advice.

We would have expected you to remind the Speaker of the findings of the Constitutional Court in the Glenister litigation. Those findings are binding on parliament and require it to put in place legislation establishing effective and efficient anti-corruption machinery of state that is adequately independent and able to counter the corrupt. The Court set five basic criteria for corruption-busters in our law which you will know as the STIRS criteria as explained in the National Anti-Corruption Strategy document.

SA does not have effective and efficient anti-corruption machinery, hence the success of state capture as demonstrated in the SCC report. The NPA is gutted by state capture and the Hawks have never properly enjoyed the status that the court requires of them. They too are under-funded, short-staffed and lacking in the capacity to act as investigators of serious corruption. No one, not even cabinet, is suggesting that the Hawks have a role to play in countering serious corruption. They have many other priority crimes to attend to and they are better able to do so without being burdened with serious corruption of the kind involved in state capture and revealed by the work of the SCC since 2018.

The president, realising the shortcomings of the Hawks, proclaimed the Investigating Directorate of the NPA in 2019 to take charge of investigating corruption.

https://www.justice.gov.za/legislation/notices/2019/20190404-gg42383pr20-NPA-ID.pdf

This step is probably unconstitutional due to the legislative structure that is in place (investigations by the Hawks, prosecutions by the NPA) being circumvented by the exclusion of the Hawks from the investigative work of the ID, work that is not covered by the mandate of the NPA, as reduced after the disbandment of the Scorpions in the face of contrary recommendations by the Khampepe Commission of Inquiry.

We all know now that the Achilles heel of the Scorpions was that they did not enjoy secure tenure of office – as mere creatures of an ordinary statute they were dissolved by a simple majority vote in parliament. Had they been a Chapter Nine Institution an unattainable two thirds majority would have been required and they would still be active today. State capture might not have happened had the Scorpions not been disbanded.

You might have mentioned in your communication to the Speaker that the SCC report, in its first tranche, made a fundamental error in relation to the status of the joint judgment of Moseneke DCJ and Cameron J  in the Glenister litigation. You will know that the joint judgment is the binding majority judgment of that court, not a minority judgment as misdescribed in the SCC report. We are hopeful that this error will be corrected in the final tranche of the report which we understand is now due on 15 June 2022. The error is important to parliament because it informs the recommendation made in relation to a procurement monitoring body. Much more than that body will be required if a second round of state capture is to be avoided.

The law-making role of parliament and the binding nature of the joint judgment referred to above oblige parliament to reform the criminal justice administration to render it compliant with the Constitution as interpreted and applied in the said joint judgment. This reform ought to be receiving the urgent attention of parliament so that serious corruption with impunity can be ended and steps can be taken to rake back the loot of state capture more effectively, efficiently and diligently than is currently the case.

We have corresponded with you previously regarding the parameters of the reform required. You will recall our suggested draft legislation and constitutional amendment advocating the adoption of a Chapter Nine Integrity Commission to prevent, combat, investigate and prosecute serious corruption in SA. In the context of the SCC report and the way forward for parliament, our suggestion is one to be taken seriously as a matter of urgency. Instead, lamentably so, it is ignored in your communication to the Speaker. For ease of reference our drafts are available from our website here:

https://accountabilitynow.org.za/integrity-commission-bill-2021/

https://accountabilitynow.org.za/memorandum-on-a-constitutional-amendment-and-enabling-legislation-for-anti-corruption-machinery-of-state-in-sa/

Because of the lack of urgency with which the issues are dealt, we have a great deal of confusion and misunderstanding among members of parliament. They need to be advised of the true position, which is that they are bound by the requirements laid down in the Glenister cases and ought to be taking steps to comply with them urgently, as is required by their fealty to the rule of law and their oaths of office. Technically speaking, section 165(5) of the Constitution applies.

Instead, we have Good MP Brett Heron prattling on in parliament about the procurement body that was recommended at a time when the SCC was under a misapprehension as to the status of the joint judgment mentioned above. The shadow minister of justice seems to think that the ID has a five year term. She is quite wrong; the ID serves at the pleasure of the president; its first head was appointed for five years (but resigned early). Because it serves at the pleasure of the president, the ID cannot be regarded as institutionally and operationally independent of executive influence and interference. Both are frowned upon by the courts in the Glenister cases.

https://www.justice.gov.za/legislation/notices/2019/20190404-gg42383pr20-NPA-ID.pdf

Now that we have alerted you to the error in the first tranche of the SCC report and have reminded you of the binding nature of the Glenister findings, please supplement your communication to the Speaker with a view to better advising on the second question raised in paragraph 22 of the opening address at the SCC to which we have alluded above.

Without STIRS compliant anti-corruption machinery now, a further instance of state capture is possible. There is an urgent need to reform the criminal justice administration to align it with the binding requirements of the courts in the Glenister cases. Our suggestion is but a suggestion; it is one which is deserving of the attention of our lawmakers. Proper resourcing in guaranteed fashion is a sine qua non of the new body.

As your communication has been put in the public domain, we will make this email available to the media in the interests of open, accountable, and responsive governance in SA.

Yours in accountability,

Paul Hoffman SC

Director

Institute for Accountability in Southern Africa

Campaigning as Accountability Now”