Paul Hoffman SC, Director Accountability Now – 14 November 2018
The challenge of the integrity/trust/confidence/investment vs jobs/poverty alleviation/equality promotion calculation.
It works like this:
1. Without firm and established probity in strong systems of governance and integrity in the character and actions of those who govern there is no trust in the government’s ability to serve the people by performing its lawful obligations properly.
2. Without trust in government’s probity and integrity investor confidence is elusive. Investors choose not to invest and prefer to sit on cash or near cash to see whether integrity is emerging or not; that is, if they don’t simply invest elsewhere in countries in which trust and integrity are abundant. These considerations apply both to foreign direct investment and to the attitude of local investors.
3. Without investment in the economy, especially the labour intensive manufacturing, mining and agricultural sectors, the ability to create jobs remains stunted or static.
4. Without job creation, poverty and inequality remain stubbornly in place; indeed in recent years they have both been exacerbated in SA by the state capture project for which those in the Zuma administration are responsible either by omission or for their active participation in the looting of the state’s assets and funds.
5. Widespread joblessness, under-employment, un-employability (due to failure of the education system) and resultant poverty stretch the social security net to and beyond breaking point.
6. When the social wage becomes more than the country can afford, failure of the state ensues. Loans from expensive banks and the IMF follow and sovereignty is illusory as bankers call the shots.
7. These truisms apply to SA and to all countries equally. The investor driven market takes no prisoners and shows no favouritism.
In theory, SA has a magnificent platform off which to work for the basics: respect for human dignity, the promotion of the achievement of equality of rights and the enjoyment of the various freedoms guaranteed to all in the Bill of Rights, Chapter Two of our supreme law – the Constitution of 1996 which our current president and many other patriots worked tirelessly for years to put in place.
In theory, we have a system of governance founded on openness, accountability and responsiveness to the needs of the people which is underpinned by strong institutions. The type of entities that work efficiently and effectively to discharge their constitutional mandates economically through stewardship of resources that is transparent and aimed at delivery of services as envisaged in that Constitution.
The essential missing ingredient in the Zuma years has been the integrity factor which lies at the root of the calculation covered by the seven points set out above. Zuma set out to, and almost succeeded in, capture the state. He turned governance into a patronage network for the benefit of his friends, business associates and family.
Restoring integrity in governance is acknowledged as the most urgent task now at hand. It is the primary duty of those who are currently tasked with running the country. Many of them are former members of the Zuma cabinet; some are deployed cadres of his faction of the ANC, illegally working in the public administration and the state owned enterprises. Many more in government owe their primary allegiance not to the implementation of the values of the Constitution but to the aims of the national democratic revolution (NDR) – the political programme of the tri-partite alliance which has been in government at national level since 1994.
The aims of the NDR are to secure hegemonic control of all levers of power in society, to collapse the state into the party and to secure a socialist/communist one party future for SA. The SACP and COSATU, the alliance partners of the ANC are at least open about what it is that they seek to achieve in the long term. The ANC itself mutters about the “balance of forces” in society and the need to proceed with the aims of the NDR with “dexterity of tact” , which is code for “a lack of integrity”.
A recent example of this process is the contrasting statements of the President at the Investment Summit held in Sandton to drum up investment, much needed investment in SA and his utterances in the dying days of the Zuma administration:
In ancient Roman religion and myth, Janus is the god of beginnings, gates, transitions, time, duality, doorways, passages, and endings. Disambiguation is what Janus was all about and clearly both statements by the President cannot be right. “Tough for you” is seriously inconsistent with “…that must end today”. His change of stance has been likened to a double back somersault by EOSA. Is that which was said in Sandton the acknowledgement of the end of the NDR or is it insincere sweet talk aimed at inducing the unwary to invest using “dexterity of tact”? Did the President think that no one would remember what he said in March 2016 or does he simply lack the integrity to be able to inspire trust, confidence and genuinely new investment?
As the values of the NDR are deeply at odds with the values of the Constitution, there is no basis for governing with integrity in SA while the ANC led alliance is in government and keen on its “revolution”. The widespread practice of cadre deployment in the civil service and SOEs is illegal and unconstitutional, but there is no word that it will be ended. The striving for hegemonic control is at odds with the constitutional multi-party democracy under the rule of law in which a free press and an independent judiciary act as bulwarks of the liberty of the people by ensuring that checks and balances on the exercise of public power remain in place. The true believers in the NDR long for a socialist/communist utopia in SA. The Constitution, on the other hand, is aimed at social democracy with the separation of powers intact and the independence of Chapter Nine Institutions guaranteed.
It is in the field of the criminal justice administration that the capture of the state has had the most damaging effects on the fabric of society. The Zuma penetration of lady justice has meant that a culture of corruption with impunity has grown in the public administration and among those in business who enjoyed the grace and favour of the crooked Zuma/Gupta axis. Those left behind to pick up the pieces don’t seem to be energised or even inclined to do what is necessary.
In August 2017 Glynnis Breytenbach, shadow minister of justice, wrote an open letter to the then NDPP, Shaun Abrahams. This is what she said, at a time when the Guptas were still in SA:
“There are still a finite number of prosecutors at your disposal with the experience and ability to lead this investigation [of the Guptas] and to prosecute successfully upon completion. You know who they are, but you have failed to appoint them. If you had appointed them, they would by now have made significant progress. They would have advised you that:
– information obtained from the #Guptaleaks can be used as evidence and much of it has already been confirmed by persons implicated;
– the authenticity of the #Guptaleaks has been established to a large degree, but any cyber forensic expert worth their salt could establish authenticity from the source;
– search and seizure warrants should (already) have been authorised and effected, allowing the experts to begin their work;
– s205 subpoenas should (already) have been served, and bank statements and other documentation been obtained and analysed;
– CIPRO searches should (already) have been done and the necessary company and other documents been obtained and analysed;
– this process would have authenticated the vast body of #Guptaleaks and been admissible as evidence against the various perpetrators;
– the Asset Forfeiture Unit should (already) have been in court obtaining freezing orders against the assets of individuals and companies implicated;
– evidence obtained in the fashion of the #Guptaleaks remains admissible in South African law, and that the court has a discretion and will consider the overwhelming public interest in the matter, and also has a discretion regarding the weight to be attached to the evidence at the end of the trial;
– they could be ready for trial, at least with the low-hanging fruit, by year-end if sufficient energy, will and resources were to be made available;
– if the SAPS came to the party and made available the limited number of detectives still available to do this investigation competently, then this is entirely achievable: bearing in mind that this is the single most important investigation in the last 15 years, there can be no doubt that this would be the case;
– there is significant goodwill from international agencies that should (already) have been accessed in this investigation. Again, bearing in mind that some of the offences were clearly committed in international jurisdictions, they would be only too willing to assist, in their own best interests;”
Abrahams ignored this salutary advice from one who knows, his acting successor has done nothing and his actual successor has yet to be named even though it has been known since December 2017 that a successor to Abrahams would in all probability be needed by the end of the litigation process, which itself took far too long for the best interests of the country to be served.
This evidence of paralysis in the criminal justice administration suggests that those who have taken over from the Zuma aligned politicians are either still Zuma aligned (and fighting back) or are too incompetent or afraid to do what needs to be done to recover the loot from the kleptocrats and to prosecute them for their corrupt activities.
Even the heroic Minister Gordhan hesitates to do what is obviously needed in the way of following the stolen money of SOEs quickly before it is dispersed to the four winds. He appears to be labouring under the misapprehension that the Zondo Commission is the magic panacea. It is not. A commission of inquiry is a fact-finding tool of the executive. Its recommendations bind no one. It has no powers to arrest, prosecute or even civilly sue the capturers of the state or the corrupt.
While the NPA remains captured, it, like the Hawks, will not assist in repairing the damage done by the Zuma administration. Sadly, misappropriated funds will not be recovered timeously nor will miscreants be brought to justice efficiently. Using the civil law to track down the loot is still a viable option which government has inexplicably eschewed.
The talk about confronting the corrupt in high places is not matched by action of any significant kind. The Estina dairy case was botched and the kleptocrats roam free or have been allowed to flee while the prosecutors enjoyed their December holidays last year. The new NDPP has a herculean task at hand just to clean out the Zuma aligned cadres deployed as senior prosecutors in the NPA. The Nkandla (2013) and Nxasana (2015) related prosecutions suffer from the failure to launch syndrome.
The Hawks are grossly dysfunctional; they lack the operational and structural independence to deal with grand corruption. Under-resourced, inadequately trained and lacking the necessary security of tenure of office, they are not even the specialised body of corruption-busters envisaged by the Constitutional Court in its binding judgments on their adequacy and constitutionality.
The Anti-Corruption Task Team is an abomination because its establishment ignores the court finding that a single entity to fight corruption is what is legally required. The political will to reform and transform the Zuma-deformed criminal justice administration is sorely lacking, even as the President makes his investor friendly remarks with or without “dexterity of tact” (as the NDR puts it).
If integrity in governance is to be restored and SA is to turn the corner in its economic trajectory, away from its current recession to future shared prosperity and sustainable growth the following priorities need urgent attention:
– Cadre deployment in the public administration and state owned entities must end because it is illegal and unconstitutional
– The NDR must be officially abandoned and buried by the ANC in the interests of economic growth and renewed investment which will not be forthcoming while the NDR remains in place
– A strong and uncompromised leader for the NPA is required urgently
– An overhaul of the Hawks or, preferably, their replacement by an Integrity Commission is also a matter of priority
– The Chapter Nine Institutions must be liberated from the clutches of deployed cadres and Zuma favourites: you know who you are
– The education system must be healed and rendered functional. Ask Helen Zille to be minister of basic education and give her a free hand to get real about the 70% drop out rate before matric at schools in SA
– Strong institutions of government, in which all personnel owe their first allegiance to the values of the Constitution, must be fostered and promoted.
– The culture of impunity for corruption must be ended with effective and efficient prosecutions of those involved
– Steps must be taken both in the civil courts and the criminal courts of the land and the world to recover the spoils of state capture before they are dissipated or squirreled away by the corrupt.
In this way integrity will be restored, trust will be built, confidence will return and the necessary investment to create jobs, reduce poverty and promote the achievement of equality will be forthcoming. These are goals envisaged by our Constitution. They are what government should have been doing with accountability, responsiveness and openness since 1994. The political will to do so now is what is required. Janus Ramaphosa must disambiguate or be damned.