As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
While the Zondo Commission of Inquiry into State Capture plods along with seemingly no end in sight, President Cyril Ramaphosa yesterday announced amendments to its regulations which will allow closer co-operation between the Commission and law enforcement agencies such as the Hawks and the National Prosecuting Authority’s (NPA) Investigative Directorate. This will boost the ability of law enforcement agencies to build winnable cases that could be prosecuted by the NPA. But even such prosecutions are unlikely to stem the tide of corruption as corruption has seemingly become the raison d’être for the implementation of most government programmes.
It is hard not to become depressed and angry by the wanton looting of Covid-19 funds by ANC politicians and their pals. If one makes the mistake of reading widely about corruption in South Africa, it becomes difficult not to conclude that corruption has become the most important reasons for the continued existence of the governing party. On a cynical day, it feels as if corruption is the glue that keeps the governing party together, and its wealthy donors on board. Without corruption the party may struggle to survive – both financially and as a political force.
Anti-corruption lectures by a seemingly affable but accountability-shy President who refuses to subject himself to questions at a press-conference (as any ordinary democratically elected leader would be required to do) are not going to stem the tide. In the absence of decisive action by the party against its own members implicated in corruption (something that is currently unthinkable), and a fundamental change in the political culture, things are not likely to change. Which is why I will believe the President about his party’s commitment to root out corruption on the day that mass expulsions of corrupt party leaders become a reality.
The problem is exacerbated by the fact that many private companies (whether they are doing business with the state or not) are also steeped in corruption and other dishonest business practices, aided and abetted by unscrupulous auditors and lawyers. On days when coronavirus blues hit hard (like today), I start wondering whether one is not more likely to find an honest man or woman languishing in prison than one is likely to find one among the political and business elite of South Africa.
When Cyril Ramaphosa was elected President, it was widely suggested that he would deal with the endemic corruption in his party by beefing up the Hawks and the NPA and by allowing the “law to take its course”. Slowly but surely, so the argument went, corrupt politicians and government officials (and their private sector accomplices) would be prosecuted, convicted and sent to jail. Thus the “New Dawn” would arrive and the party would be cleansed of this sickness of corruption.
This did not happen, not only because the ability of the Hawks and the NPA to do their work was systematically destroyed during the Jacob Zuma era, but also because prosecutions alone cannot bring an end to endemic corruption. To prosecute a significant number of corrupt politicians, officials and businesspeople would require vast resources, and even then only a relatively small number of people would end up behind bars. Believing that prosecutions alone could end endemic corruption in the governing party (or among the politically connected businesses) is thus like believing that one person could empty the Vaal dam using a medium-sized bucket.
But for the moment the successful prosecution of at least some corrupt politicians and their business enablers is one of the only weapons we have in the fight to stop the large-scale theft of funds earmarked for the benefit of the population; funds that is supposed to pay for housing, food, health care, water, schooling and the like. Which is why the recent announcement of President Cyril Ramaphosa that allows members of the Hawks to tap into the work done by the Zondo Commission must be welcomed. If successful, this might help to slow down the rate at which South Africa turns into a kleptocracy, or – dare we dream? – even halt the process.
Until this week, the State Capture Inquiry Regulations prohibited its investigators and evidence leaders from sharing any information, records or documents it had obtained during its own investigations with anyone else. This meant that neither the Hawks nor the NPA’s Investigative Directorate had access to any of the evidence gather by the Commission. While they could follow the public hearings like the rest of us, they had no access to the kind of material that could help them to build a legal case that would stand up in court.
This fundamentally hampered the investigative efforts of these bodies, already hamstrung by a lack of funds and investigative expertise. The Commission is relatively well-resourced and has therefore been able to gather quite a significant amount of evidence about state capture. But as the Commission has, inexplicably, not issued any interim reports and as the evidence remained out of reach of the law enforcement agencies, this was of little use in the race to secure at least some corruption convictions.
This has now changed. First, the investigators and evidence leaders of the Commission are now permitted to share all the information they have gathered – including all documents – with the Hawks and the Investigative Directorate of the NPA. Where the Commission has obtained the relevant bank statements, cell phone records, emails, and official documents implicating, politicians, their hangers-on and their benefactors in corruption, the law enforcement investigators will now have access to this, making their task much easier.
Second, these investigators and evidence leaders will also now be able to be co-opted by these bodies once the Commission ends its work to assist it with preparing prosecutions. This is important because, as we all know, there is a lack of the requisite skills among many members of the Hawks and the NPA to build winnable corruption cases in court.
However, it is important to note that this does not mean that the testimony given by a witness before the Zondo Commission would be admissible as evidence against that person in a criminal trial. This is because regulation 8(2) specifically states that: “A self- incriminating answer or a statement given by a witness before the Commission shall not be admissible as evidence against that person in criminal proceeding brought against that person instituted in a court”.
This is required to ensure respect for the constitutional right against self-incrimination, which is guaranteed in section 35(3)(j). Witnesses before the Zondo Commission – unlike in a criminal trial – do not enjoy the right to remain silent.
(The dodgier witnesses appearing before the Commission have dealt with this “problem” – which is, of course, not a problem for honest witnesses with nothing to hide – by giving sermons about the past, by giving long meandering non-answers, by attacking the evidence leaders, by complaining about being persecuted, by claiming to be the victim of a conspiracy, and by developing amnesia – all possible signs that they have much to hide.)
A person who testified before the Commission and incriminates him or herself, and is later charged with a criminal offence, will retain their right to remain silent, and their testimony before the Commission could not be presented as evidence of their guilt. But all the other evidence gathered by the Commission could be used as evidence, which is why it is important that the Hawks and the NPA would now be able to gain access to that evidence.
I would guess the new arrangement could assist the Investigative Directorate set up within the NPA to pursue important corruption cases. But watch this space: if this unit becomes relatively successful and successfully prosecute some high profile politicians, the attacks against it will commence. Because corruption is endemic, the most potent argument its enemies will use against it, is that the prosecutions are selective (as they have to be because it is impossible to prosecute all cases of corruption) and that those being prosecuted are persecuted for political reasons. The logic here is: as everybody cannot be prosecuted, nobody may be prosecuted.
As such arguments unfold, South Africans should keep in mind that this argument looks very much like an admission of guilt on the part of those who make it.
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