Paul Hoffman SC, Director Accountability Now – 21 May 2019
President Cyril Ramaphosa’s appointment of advocate Hermione Cronje as head of the Investigative Directorate of the NPA, which will investigate grand corruption, does not pass constitutional muster. This is a proposition that will no doubt be tested by the slippery customers that the directorate has to investigate and prosecute, if it is not first tested by civil society in public interest litigation.
The use of an extended metaphor to explain something new and complex is a device that can, to use another metaphor, prove to be an unruly horse to ride. The appropriate metaphor with which to greet the appointment of advocate Hermione Cronje as head of the new Investigative Directorate in the National Prosecuting Authority is naval; hopefully, it will promote some introspection in the decision-making in the Ramaphosa Cabinet – some navel-gazing, perhaps.
The Investigative Directorate (ID) is aimed at countering grand corruption. Its constitutionality is questionable and its utility open to considerable doubt.
The courts of the land have long held that the anti-corruption machinery of state should be adequately independent of executive control, influence and interference to be able to proceed against the corrupt without fear, favour or prejudice.
The section of the NPA Act that has been used to create the ID ought to be read subject to these findings of the Constitutional Court, as the findings bind the President. This in effect means that his appointment of an ID for grand corruption does not pass constitutional muster: a proposition that will be tested by the slippery customers that the ID has to investigate and prosecute, if it is not first tested by civil society in public interest litigation.
Into this heady mix sails Captain Hermione Cronje, first head of the ID. Her experience and qualifications, her expertise and track record all suggest that she is a capable captain and that she has the potential, if the ship she captains is the right ship, to bring the corrupt in our midst safely shackled and into the port called “justice”.
The design of her ship has a fatal flaw; it is the work of the president alone (not legal) and has been fitted with a plug in its bilges that only he can pull. If he pulls the plug, the ship sinks ignominiously and the ID never sets sail again. For the admiral of the fleet to have this type of power over an ID is a constitutional no-no.
The size of Captain Cronje’s ship has not yet been determined because no budget for its activities has been set. The crew members are still to be recruited and appointed. The indications that the crew will be drawn from the Hawks, the NPA and the SAPS do not bode well. These institutions are at least partially captured, the SAPS is widely regarded as the most corrupt institution of state – hardly the source of the appropriate crew, unless very careful and thorough vetting of crew members takes place. There is no indication of a grand budget or a serious vetting process at this stage.
The armada of the corrupt is well known – the destroyers deployed by the “Premier League” in the Free State, Mpumalanga and the North West have wrought havoc for years. A minesweeper class ID is not equal to their firepower.
The Gupta U-boats are scattered and stealthy at this stage. A great deal of resourcefulness and big-budget resources will be needed to depth-charge them out of their hiding places.
The greatest danger is posed by the cruisers in the cabinet. Its perjurers, crooks and state capturers will be able to sail out of range of anything but the most worthy ID battleship; and no such battleship appears to be on the drawing board as the ID takes shape. A battleship or more is definitely required if the naval engagements with the corrupt are going to end successfully, but no one in authority seems to think that there is room for a battleship in the squadrons of the NPA.
If Captain Cronje is going to do her duty to her country, she will forthwith pen a memo to Admiral Ramaphosa, pointing out that the type of ship and crew needed to vanquish the corrupt does not fit into the rusty NPA architecture as an ID cannot be moored in the size of port the NPA currently occupies and needs to be Stirs-compliant, as the courts have long required: Stirs (Specialised, properly Trained, Independent, fully Resourced) ships with crew secure in their tenure of office are what is required. The ID does not, and cannot possibly (due to the presidential role in its provenance, mandate and duration) measure up to these legal criteria.
One of the most specialised tasks facing the ID is the recovery of the loot of state capture. This loot has been spread to the four corners of the earth, carefully buried in the banking systems of modern “treasure islands” and will be difficult to locate, let alone recover. Captain Cronje is well-versed in this type of work. It seems also that the new leadership at Transnet has realised the urgency of the task at hand and is taking steps to recover funds misappropriated. The same cannot be said of Eskom, where the losses are greater. State departments have also been slow to realise that there is more to countering corruption than arresting the corrupt. The process of securing the forfeiture of assets of those found guilty of corruption is an intricate one which requires the type of expertise that Captain Cronje can bring to bear.
However, the co-operation of those involved as claimants is also necessary. Nothing has been done by Public Works to recover the right amount of the Nkandla misappropriations from Jacob Zuma, despite at least three criminal complaints, one pending since 2013.
Nothing has been done in respect of the recommendation of the Moloi board of inquiry that Bheki Cele needs to be investigated for his allegedly corrupt activities as the National Commissioner of Police who was able to negotiate leases for SAPS accommodation at three times the going rate.
Nothing, despite criminal complaints, has been done to bring Michael Masutha to justice for his role in signing off on the decapitation of the NPA when Mxolisi Nxasana was dragooned into a severance package of astronomical proportions.
To expect an ID kitted out like a minesweeper to be equal to these and other huge tasks currently pending in the anti-corruption space is to expect the impossible.
Captain Cronje needs to throw her full weight behind the establishment of an Integrity Commission, the aircraft carrier of anti-corruption entities. Not only would this new Chapter 9 Institution fully comply with the criteria laid down by the courts, it has the best possible prospects of achieving success in the preventing and combating of corruption in high places.
The president undertook, in parliament in March, to mull over the idea of an Integrity Commission. The time has come to get serious about countering corruption and to create the operational and structural environment in which success is possible. The ID, however well-meant it may be, is not the solution to the problems that corruption poses to the survival of SA as a viable and sustainable constitutional democracy under the rule of law. It is strongly arguable that all that can prevent the failure of the state due to corruption is the urgent appointment of Stirs-compliant anti-corruption machinery of state of the kind the courts have prescribed in the litigation over the dissolution of the Scorpions and constitutionality of the Hawks. The present is not a time to repeat the missteps of the Zuma era.
Like Shamila Batoyi, Cronje left the NPA during the Zuma era. Their decisions to do so redound to their credit. They are now both well-placed to steer anti-corruption efforts into a constitutionally compliant direction for the first time since the “urgent resolutions” were taken at the Polokwane conference of the ANC to dissolve the Scorpions.2
The ID does not cut it.
~ This article first appeared on Daily Maverick