Two developments in the past week caught the attention of those interested in exacting accountability as a means of ensuring good governance in South Africa.
The first was the passage into law of the post Zondo commission procurement regulatory system on which Daily Maverick’s Ray Mahlaka commented here. It is true that the new Public Procurement Act takes aim at tenderpreneurs, but it is also a truism that the corrupt activities of tenderpreneurs only take place after the risks of detection, investigation, prosecution and punishment have been carefully weighed.
Those who for ever so long have been making a great deal of money out of repurposing the procurement system to increase their wealth illegally at the expense of the poor do so because they think, correctly so, that they will get away with it.
The new Act, seen from the perspective of the corrupt, holds no terrors for them. The innovations will not be enforced in the absence of effective and efficient anti-corruption machinery of state. The Act does not make any provision for introduction of the necessary reforms on this front.
The second development was the announcement of the third tranche of the Centre for Development and Enterprise’s (CDE) initiative to get South Africa working properly again after the formation of our first real GNU and the ending of the dominant party state that has been in place in South Africa since uhuru, if not since 1948.
The take-home message of the CDE, in its own words, may be summarised as follows:
“A major challenge is wasteful spending that generates very few benefits or returns. This is especially reflected in the poor performance of our schools, hospitals, police, courts, railways, roads, power stations etc. Better management practices and dramatically improved accountability systems must be introduced to turn this around, but that will require committed leadership.
“Every year some 10 per cent of the national budget is transferred to municipalities and metros and there is almost universal consensus that this money is not being spent effectively. The President should urgently appoint a task team to relook at the structure and financing of local government and recommend actions to be discussed in Parliament within six to eight months.
“Faster economic growth, which is critical to attaining fiscal sustainability, can be achieved through improved governance and a lot less corruption combined with reforms aimed at strengthening the role of competition in the economy.”
The eye of those interested in tackling corruption also fell on these words in the Daily Maverick report:
“Accountability measures have now been established that will hopefully flush out corruption and exploitation in this process, which is worth about R1-trillion every year.”
And, with reference to the DA’s response to the new legislation:
“[The act] fails to address the core issue of systemic corruption plaguing South Africa’s procurement system, entrenches racial divisions and exacerbates inefficient public expenditure,” the party said. “Instead of creating an enabling environment for economic growth, it is poised to deepen economic stagnation and the cost-of-living crisis by imposing new, restrictive requirements.”
It is apparent that sentient observers, among them the DA and CDE, are concerned that nothing is being done yet to address a trillion rand a year problem in procurement by taking steps that will actually see “a lot less corruption” in SA, as the CDE put it.
It is not as though SA is short of advice on the topic. Nacac has been deliberating on the reforms needed for two years. The Constitutional Court has, in the case now known as Glenister 2, determined that corruption is a human rights issue that also involves proper compliance with the international obligations to create and maintain effective and efficient anti-corruption machinery of state. SA has been without such machinery at least since the Scorpions unit within the NPA was disbanded in 2009, if not longer.
The Scorpions were shut down to make way for the State Capture project of the Zuma administrations in place between 2009 and 2018. This project was followed by the covidpreneurism that precipitated the resignation of the then minister of health, Zweli Mkhize.
It is fair to say that corruption is still unchecked if measured in terms of both public perception (a worst score yet last year on the Transparency International Index) and in terms of successful prosecutions of “big fish” (close to zero).
Enforcement is lacking
SA has no shortage of laws against corruption; it is in the realm of their enforcement that the country is lacking.
Until the formation of the GNU, there was a lack of political will to tackle the lack of efficient and effective anti-corruption activities on the part of the state. The prosecuting authority was hollowed out by State Capture and remains so to this day.
The investigation of corruption was, after the demise of the Scorpions, put in the hands of the Hawks. They lack both the skills and the structural and operational independence required to prepare corruption case dockets that can sustain a successful prosecution.
Instead there are postponements, striking off the roll of cases delayed due to the state being ill-prepared and, most ignominiously of all, a flagship case, the Nulane prosecution, in which a discharge of the accused at the end of the state’s case was granted. The Nulane case is on appeal and ought to be afforded priority on the roll for hearing, but no one seems keen to bring matters to a head.
The trillion rand a year that is lost to corruption in the procurement system is a great deal of public money. A handy way to illustrate the difference between a million, a billion and a trillion is to relate it to time:
A million seconds is 12 days. A billion seconds is 31 years. A trillion seconds is 31,688 years.
Puny efforts
The state’s puny efforts to recover, with success, a few billion when trillions are at stake is illustrated by the differences highlighted in the time-based comparison. It has been estimated that State Capture alone cost the country between one and two trillion rands. Raking back the loot could come in handy in ensuring that the GNU is a success.
It is not as though a legal blueprint for countering corruption has yet to be discovered in SA. In the Glenister litigation, the STIRS criteria were laid down in binding fashion in 2011 and they were confirmed in 2014. The acronym stands for Specialised, Trained, Independent, Resourced (in guaranteed fashion) and Secure (in tenure of office).
The ANC-led alliance that ran SA until May 2024 did not muster the political will to put in place a STIRS-compliant entity despite this stern admonition by then Chief Justice Mogoeng Mogoeng in 2014. He held:
“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.
“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
There is hope that the GNU will change the official position of government via the adoption of the two private members Bills that are being sponsored by the former shadow minister of justice, Glynnis Breytenbach. Her Bills are based on a suggestion first made by Accountability Now in 2021. The suggestion is set out in “Under the Swinging Arch” in the form of a draft constitutional amendment and the enabling legislation for a new Chapter Nine entity that is mandated to prevent, combat, investigate and prosecute serious corruption and organised crime. [See Appendices Four and Five of Under the Swinging Arch].
The constitutional amendment requires a two-thirds majority as it involves a change to Chapter Nine of the Constitution. The support of the ANC is accordingly vital to its success as it commands 40% of the votes in the National Assembly.
Anti-corruption legislation that is constitutionally compliant and that addresses the long-standing failure of the ANC government to implement the Glenister decisions properly ought to be uncontroversial.
The role of civil society, the media, the faith-based institutions and the business sector is to get behind the Breytenbach Bills, which are based on the suggestions by Accountability Now, in the interests of cleaning up the procurement system via stern deterrence and reducing the incidence of corruption in SA.
Once the corrupt know for sure that the game is up they will quit. While they think they can get away with their crimes they will continue.
Healing the rule of law
The last tranche of the CDE initiative referred to and quoted from above is the healing of the rule of law in SA. The current National Director of Public Prosecutions has described the rule of law as being “in the ICU on life support”. It is basic to the rule of law that binding court decisions be respected and implemented. SA has veered far from this standard in its approach to the rule of law as it applies to the establishment of constitutionally compliant anti-corruption machinery of state.
It is not as though government has not been warned. If it continues to ignore the binding nature of the Glenister decisions, it will be necessary to resort to public interest litigation. Optimists are praying that the GNU will see the light; pessimists are preparing the necessary court papers.
The warning sounded by the Constitutional Court is more relevant today than it was when it was sounded back in 2011:
“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.
“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
The CDE’s desire to heal the economy is noble, but it won’t happen until corruption with impunity is addressed. Ditto in respect of the desire to clean up the procurement system.
The time has come to put in place the Chapter Nine entity which the DA calls “The Anti-Corruption Commission”. Its establishment will be the GNU’s most valuable gift to the nation. DM
Daily Maverick
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