Paul Hoffman SC, Director Accountability Now
27 February 2019
The weekend announcement by the Presidency that it is planning to set up an eight-judge special tribunal to expedite civil debt collections instigated by his custom-made SIU investigations is further evidence of ANC unwillingness to get to grips properly, efficiently and effectively, with grand corruption.
The SIU is only able to take on matters referred to it by the President. In an election year, it cannot reasonably be anticipated that the evidence of ANC institutional involvement in grand corruption will become the subject matter of civil actions in the tribunal flowing from investigations by the SIU.
The lurid Bosasa confessions in the Zondo Commission won’t change anything yet. The best one can hope for is that out-of-favour cadres, those who chose the wrong ANC faction, will be targeted in the usual smoke and mirrors type of operation for which the ANC is infamous. The tribunal lacks a regulatory framework and rules as well as a modus operandi. By the time those are in place, the loot will be well and truly concealed offshore and beyond the reach of the tribunal.
It is also questionable that any of the really big loot is now still within the jurisdiction of the tribunal. Its writ runs no further than the geographical borders of SA. The well-advised looters have long since invested their loot offshore, those that haven’t yet will now do so, due to the public announcement by the foot in mouth presidency. Action rather than populist posturing is what is required, but none is
The Guptas were allowed to slip away into the middle eastern and sub-continental night. Hitachi, of Medupi boilers shenanigans, has never been in SA. The SIU ought to be harnessing the expertise of Homeland Security in the US and the Scotland Yard Special Frauds Office to track down loot hidden offshore. It has not lifted a finger to do so despite endless urging that swift, sure and secret procedures be used to freeze the loot wherever in the world it now may be. The longer the delay, the better concealed the loot will be.
The fundamental weakness of the weekend special announcement is that the SIU only investigates what the president authorises it to investigate. While this may work for selected local debt collecting, for the setting aside of invalid procurements and for the recovery of misappropriated funds within the country, it will not work on countering the corrupt and ending their impunity. The President will not want his political friends, allies and compromised family members investigated and the SIU will not be asked by him to do so. These patent shortcomings are why the courts have ruled that anti-corruption work should not be within executive control. The ANC appears to be congenitally incapable of accepting the court rulings, despite their binding nature.
Eyebrows will also be lifted in the legal professions and among the litigious as regards the choice of judges to populate the not so special tribunal.
Speculation is that Justice Siraj Desai, who is on the point of retiring, has been hand-picked as the point man/senior judge to protect the in-cadres of the ANC. He will be the unofficial “commissar” of the tribunal. He presided as senior judge in the High Court in Glenister II and Glenister III, being the court of the first instance. Having carefully arranged the batting order of counsel, he spent the first session of Glenister III stoutly defending Tony Yengeni as a hero of the revolution, completely overlooking Yengeni’s well-documented fraud conviction, which had been upheld on appeal by then. He only eventually stopped his enraged haranguing of counsel when reminded that judges’ pensions don’t get paid in failed states.
Judge Desai is also a former chair of an ANC branch. He claims he left his political baggage at the door when he was appointed to the Bench, but former president Jacob Zuma was his client in the bad old days and he certainly did nothing to hide his ANC sympathies while abusing the Bench and the applicant, Bob Glenister, in the different ways described above.
The learned Judge Desai was so exercised by the case made out in 2013 that Zuma is a crook, his cabinet compromised and his police management corrupt – all now uncontroversial propositions – that he wanted to make a personal costs award against the legal team that had the temerity to advance such an odious case on behalf of their client. He had to be dissuaded from doing so by government counsel who knew such an order would not withstand an appeal. His eventual costs award was diluted on appeal.
The basic flaw in the tribunal’s make-up is that it can only take on work that arises out of SIU efforts, and the SIU is only able to investigate that which the President permits it to investigate under the Act. The President can limit and terminate any mandate he gives the SIU at any time. In short, the whole endeavour is under executive control, which is exactly what the Concourt says ought not to be the case, as a matter of common sense, in respect of issues concerning an investigation of corruption.
In some of the procurements that need to be set aside – Transnet locomotives, Eskom coal and Medupi boilers from Hitachi Power Africa, for example, it will not be necessary to prove corruption. A mere failure to comply with the procurement criteria of C217 will justify invalidation of the procurements concerned under C2.
In others, corruption is at the core of the transaction. Defendants will be able to take the point that the special tribunal cannot adjudicate corruption cases as it owes its appointment and continued existence to the whim of the President, who cherry picks its entire caseload. This flies in the face of what was decided in Glenister II by the Concourt on appeal, when it reversed Judge Desai’s decision in the High Court.
The President will use the tribunal to torment his detractors, but don’t expect him to let the SIU take any matters about his family, brothers-in-law Jeff and Patrice and son Andile to it, nor any concerning his friends, like the oh so generous Gavin Watson, whose R500,000 “donation” to Team CR 17 is still floating around in limbo because no one can work out how to repay it and to whom. Jeff Radebe, our longest serving Cabinet member, defending himself on television on Sunday night, still does not appreciate that it is the risk of a conflict of interest that he is obliged to eschew, not an actual conflict. Leipzig university’s curriculum when he was there clearly did not include constitutionalism as it is known is SA today.
In short, the tribunal is of use in contractual and administrative contexts as a means of speeding up the process of invalidation of procurements, or for debt collecting, but hopelessly unconstitutional for any cases involving corruption.
The big loot of state capture is long since offshore and the gormless SIU does not have a cooking clue how to recover it. Civil society and business have been unable to persuade anyone in a position of authority to take any steps to address this problem. For those who know how, it is simple to collect internationally concealed loot. A mandamus, directing government to do the necessary, coupled with a supervision order designed to ensure diligence and to eliminate delay, is what clever and motivated opposition parties should be seeking urgently before the elections so as to highlight that the ANC is all smoke and mirrors when it comes to genuinely seeking recovery of loot from the corrupt. The ANC does not want this to happen as it is one of the recipients of the loot. Smart opposition parties should be litigating this issue in the courts rather than shouting ineffectually about it on the stump.39
All voters should insist on the best practice solution to the ongoing and unaddressed impunity of grand corruption: the establishment of a constitutionally compliant Integrity Commission under Chapter 9 of the Constitution to prevent, combat, investigate and prosecute the corrupt, whoever they are and whatever their connections may be – without fear, favour or prejudice.