As South Africa digests the latest instalment in the State Capture report, President Cyril Ramaphosa’s failure to address corruption at various levels of government and within the governing party has been widely criticised. Several parastatals have also been undermined by dubious deals and by corrupt politicians, leaving South Africans with an energy crisis, an ailing public broadcaster, and a crippled rail system. Paul Hoffman, SC, a Director of Accountability Now, considers some of the questions being asked about bringing the criminals to book.

What does accountability mean in practice? Is it just a matter of naming and shaming?

The weakness in the State Capture Commission report and in the recommendations of the Commission is that they have not grappled sufficiently with the hollowing out of the criminal justice administration and, consequently, the inability of the police and the prosecution service to deal with, or even prevent, corruption in the form of state capture. Accordingly it’s very difficult to know, from the report, how we are going to avoid state capture happening again. 

This is where accountability comes in, because if you cannot reasonably explain the decisions you make and justify the actions you take, you are not behaving accountably. The first aspect that needed to be looked at was “how was this allowed to happen?" It’s not dealt with directly in the report of the commission. It was allowed to happen, as far as one can tell, because the Scorpions were closed down by the incoming Zuma administration after a resolution was taken in December 2007 by the ANC at its Polokwane conference, where Jacob Zuma was elected to lead the ANC. The simple and popular answer is “bring back the Scorpions and we will have a 94% conviction rate like the Scorpions were able to do”. The difficulty with that trite answer is that the Scorpions were vulnerable to being closed down. They were a creature of an ordinary statute and a simple majority in parliament would suffice to close them down. They were clearly, with the benefit of hindsight, closed down to make life more comfortable for those who are corrupt and to make the state capture project viable in South Africa, there was simply nobody blowing the whistle and nobody calling the policeman and nobody engaging the prosecution service successfully on what went on during the period of the Zuma era.

What ought to have been addressed was “why was it that the state capture project was enabled?” and “what are we to do about it in the future?". We’re very disappointed at Accountability Now that the commission has not dealt with the suggestion that we made a year ago, in which we suggest that a Chapter 9 Institution, which cannot be closed down by a simple majority in parliament, and which has all of the attributes that the Glenister litigation requires, in terms that bind the state. The government has basically ignored the judgement in the Glenister case of March 2011, that is when the requirements of the courts for our anti-corruption regime was set out, the majority judgment in effect held that if SA wants to have effective and efficient anti-corruption regimery of state, that is adequately independent to counter corruption, then we must have a specialised, properly trained, independent, resource guaranteed and secure in tenure of office entity that is able to do it; and that has not emerged.

The commission often gives us the impression about what we suspect to be instances of corruption or State Capture, it claims there “may have been”. “May” is not necessarily demonstrative of any evidence to back up a claim. Does this open the report to reviews and subsequent legal action?

One must bring to the front of the stove in a discussion like this is the true role of a commission of enquiry of this kind. It is so that our chief justice presided in this particular commission, but you will have noticed that he did not come in wearing his green robes, he came in wearing an ordinary suit, and there’s a reason for that. The commission of enquiry was simply the amanuensis of the executive branch of government, a hot potato called state capture landed in government’s lap when Thuli Madonsela, then Public Protector, said “this task is too big for my office, please give us a commission on enquiry”.

Now what does a commission of enquiry do? It examines the facts of the hot potato and it makes recommendations after it has found what the facts are. If those recommendations are accepted, then it is up to the executive and the legislature to process policies and the laws needed so that they’re all in place to deal with the problem that has arisen. However, nobody is obliged to accept the recommendations of a commission of inquiry and nobody is bound by findings of fact that are made.

Given that rather lowly status of a report of a commission of inquiry in which facts are set out, findings are made, recommendations are put forward, for the consideration of the executive branch of government, it is appropriate for commissions to say “we see smoke over here, there may be a fire, please go and look into it”. If somebody is upset that they may be implicated in the smoke at its base, there may be a criminal case to investigate, they can certainly take the commission on review, the commission expects to be taken on review.

We mustn’t expect too much of the commission. It’s up to the South African public, it’s up to all of us to take a deep breath and realise that this is our problem. Our electorate voted the ANC into power; our electorate should take notes of how the ANC is criticised in the findings and the report of the commission. Certainly our parliament comes out of the commission’s findings not smelling of roses in any way at all. A lot of reform is going to be required, a lot of rethinking and rebooting is going to be required if we are going to escape a repetition. State Capture continues to this day, if we are going to escape the ravages of State Capture that continues until there’s nothing left to steal and South Africa fails as a state, then we are all going to have to concentrate our minds very carefully, with the view to overcoming the hollowing out of our criminal justice administration.

Improving the quality of our representatives and seeing to it that the state is capacitated to keep the lights on, to keep water in the taps, to get the education system working as it should, and to make hospitals a place where people go to be healed, rather than to die.

Is there room for reform or does this report reveal how broken/compromised the state and the government are, especially when the electorate continues to fan this behaviour?

I think BOSASA is a very good example. The special investigations unit or SIU, which does not have any criminal law enforcement function at all, exists to investigate irregularities and to set aside contracts and to recover money, rather than to punish people criminally. Ten years ago the SIU produced a report that said there are shenanigans going on at BOSASA and that the people involved with the shenanigans should be prosecuted. As we heard, the NPA and Dudu Myeni and others all conspired to make sure that the docket in relation to BOSASA irregularities just did not progress at all until the dramatic confession by Mr Agrizzi during his evidence to the Commission compelled them to actually prosecute ten years after being alerted by the SIU.

The essential issue is that the lack of political will needs to be addressed and it needs to be addressed in every household in which there is at least one or more people who are able to vote in the South African elections. Political will is what is required in order to recover from the mess. If the South African public chooses to continue to vote for the ANC, then it ought not to be surprised when South Africa fails as a state – when the trains do not run again, when the electricity does not work at all, when the hospitals become totally dysfunctional and when the educational system does not produce people who are able to hold down a job when they finish school. And when jobs are so scarce because no one is prepared to risk investing in SA.

We did very well in 1994 to come up with a constitution that was the product of a compromise between those who were the main political players at the time. We turned our back on parliamentary sovereignty, we created a supreme constitution under the rule of law, which, if it were taken seriously by politicians, would have been the blueprint for the better life for all that it promises. That isn’t happening in South Africa at the moment because we have been governed by sleight of hand, by a dominant political party that is actually pursuing the hegemonic control of the national democratic revolution. The purpose of that revolution, I heard Moeletsi Mbeki say at a Nelson Mandela Foundation seminar, a revolution that the ANC supports, is to put the ANC in a position to exploit the people and the resources of South Africa for its own benefit. That is what State Capture has done and it needs to be undone and it can be undone if the political will to undo it can be generated in South Africa.

It is possible to deliver on the main promises of the Constitution and enjoy the fruits of liberation in a society in which human dignity is respected, human rights are guaranteed and the promotion of the achievement of equality are national goals for all, not just ANC cadres.

Paul Hoffman is a director of Accountability Now and was lead counsel in the Glenister litigation that set the criteria for corruption busting. 

Issued on behalf of Accountability Now