Serjeant at the Bar

Too many key institutions are not rising to the challenge

2019-06-21 15:00
If Shamila Batohi wants to box smart on countering grand corruption she will first have to get the cases relating to corruption in high places moving swiftly.

If Shamila Batohi wants to box smart on countering grand corruption she will first have to get the cases relating to corruption in high places moving swiftly.

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Parliament's failure during the Zuma years made a mockery of a constitutional model in which the legislature was supposed to hold the executive accountable. It meant the courts became the only mechanism to do this, writes Serjeant at the Bar.

President Cyril Ramaphosa has now delivered three SONAs. There have been promises of a new dawn, fresh policies and now a capable state. The latter holds the key to the possibility of a new dawn. Yet at this moment the country is entitled to be hugely circumspect.

It is true that the Zondo commission is accomplishing significant work in exposing the depth to which the governance of the country, whether in the private or public sector, sank over the past decade. No longer can any South African claim not to know what was done in their name, all of which had the effect that precious resources were captured by a predatory elite at the expense of the reconstruction of South Africa for the benefit of millions who have always been disadvantaged.

The schizoid character of the country is that, while the Zondo commission exposes the rot, no one has felt the legal consequences of their nefarious actions. To the contrary, to date no one of significance against whom the most serious allegations of corruption and wrongdoing have been made has been charged. To the contrary some of this cohort left the country (the Guptas), others have disappeared from public view and this week we have learnt that politicians against whom a range of allegations have been made are to be elevated to chairs of committees in the National Assembly.

This is hardly the stuff of a new constitutional dawn and worse it indicates that yet again parts of the National Assembly through its committee system is unlikely to enforce the constitutional principles of accountability and transparency which must be done if, as a country, we are intent and serious about restoring the country to constitutional health.

It was the failure of Parliament throughout the Zuma years that made a mockery of a constitutional model in which the legislature was supposed to hold the executive accountable to law. It also meant that the courts became the only constitutionally created mechanism to do its mandated job which, in turn, raised dangers of judicial overreach of a kind that could reduce the long-term legitimacy of the courts, a point made forcibly by Chief Justice Mogoeng in his dissent in the impeachment case. The problem was and still is compounded by the state of other critical institutions.

The Hawks, so cynically created to replace the Scorpions, at best remain a troubled and compromised institution, which continues to inspire no confidence in the public. The National Prosecution Authority (NPA) with much razzmatazz gained a new national director in February of this year. Finally, almost five months later, signs of life appeared when Adv Hermione Cronje was appointed as head of the Investigative Directorate at the NPA and in turn she made the appointment of the hugely distinguished silk Geoff Budlender SC as an advisor.

But to date there has been silence from Batohi, the national director, about the action that the NPA is taking (or will take) to ensure investigations and subsequent thereto prosecutions of those who have been the subject of multiple allegations of fraud and corruption. True, it is the police and the Hawks who are supposed to do the investigations but via Zondo and the various books that have been published it is hardly rocket science that is required to launch, at least, criminal cases. At a minimum the public is entitled to know from the NPA that decisive steps have been taken to ensure that criminal activity will be prosecuted.

Obviously the NPA cannot at an early stage announce names of cases to be brought but at least they can and should be told that the NPA is on track to do its mandated job.

And then of course there is the office of the Public Protector. It should be a major institution which can restore good governance. The present office bearer claims that her various reports concerning the conduct of President Ramaphosa and Minister of Public Enterprises Pravin Gordhan are designed to do just that and that only the supporters of Ramaphosa and Gordhan cannot see the obvious purpose behind her reports.

The problem with this argument is that, particularly insofar as the Gordhan investigations are concerned they have been investigated and found to have little merit by other investigative bodies. So why prioritise these cases (as one NGO said, complaints microwaved yet again) rather than concentrate precious resources on at least some of the egregious cases of corruption in the public sector?

In 2017/2018 financial year the office of the Public Protector received some 18 356 complaints of which 4 400 were left over for further inquiry in 2018/2019. Of equal concern is the extent of successful review applications brought against her reports and the many review applications in the judicial pipeline. This is a critical office and its future may depend on the long-awaited judgment of the Constitutional Court as to whether the Public Protector has to pay costs in her personal capacity as ordered by the North Gauteng High Court. It is regrettable that so important a decision has taken more than seven months to deliver.

The upshot of all of this is that we do not have a sufficiently capable state to deal with the litany of evidence that has emerged from the Zondo commission. Too many of the key institutions do not seem able to rise to the challenge and the indications are that we should not expect too much from Parliament. As such we remain in a precarious constitutional position.

- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    npa  |  constitutional court  |  sona 2019  |  state capture
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