Glynnis Breytenbach: How Scorpions 2.0 can go after the ANC’s big looters…

Ninety-seven (97) African National Congress (ANC) bigwigs identified as looters by the Zondo Commission still have to be successfully prosecuted. The Democratic Alliance (DA) wants an Anti-Corruption Commission (a Scorpions 2.0) to do so. The African National Congress (ANC) wants the Independent Directorate Against Corruption (IDAC) to do it. In this interview with BizNews, Glynnis Breytenbach, the DA’s Shadow Minister of Justice, dissects the differences between the two. She explains that the Investigative Directorate (ID), even when it’s made permanent within the National Prosecuting Authority (NPA), is only as independent as the NPA. “And I speak from my own experience, but we’ve all seen that the National Prosecuting Authority at times is not independent, and it can be interfered with. And we’ve seen how the Scorpions was closed down. There’s no security of tenure.” The Anti-Corruption Commission, on the other hand, would be an “elite crime-fighting unit that has all of the resources that it requires”; and be a Chapter 9 institution – independent of the NPA – that can only be disbanded by a two-thirds majority in Parliament. However, she stresses that The Anti-Corruption Commission is not intended to be competition for the NPA. “They will run parallel to it and they will have overlapping areas of jurisdiction…the Anti-Corruption Commission will deal with the very top echelon of cases of corruption, the very top echelon of cases of organised crime, and that should free the National Prosecuting Authority up quite considerably to prosecute the thousands of other matters that it’s forced to deal with every day.” – Chris Steyn

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Relevant timestamps from the interview

00:00 – Introduction
00:32 – Anti-corruption commission vs. Independent directorate against corruption
09:08 – Getting the two third majority that is needed
13:32 – Can the two bodies exist at the same time?
16:16 – IDAC could be unconstitutional
18:06 – Attitude of the NPA
20:15 – How soon can the looters be held accountable?
23:04 – Conclusion

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Highlights from the interview

___STEADY_PAYWALL___

Ninety-seven (97) African National Congress (ANC) bigwigs identified as looters by the Zondo Commission still have to be successfully prosecuted.

The Democratic Alliance (DA) wants an Anti-Corruption Commission (a Scorpions 2.0.) to handle the biggest cases. The African National Congress (ANC) wants the Independent Directorate Against Corruption (IDAC) to do the job.

In this interview with BizNews, Glynnis Breytenbach, the DA’s Shadow Minister of Justice, dissects the differences between the two crime-busting units:

IDAC:

“The Investigative Directorate that the ANC wants to make permanent is housed within the National Prosecuting Authority (NPA). So in that sense, it is dependent upon the budget of the National Prosecuting Authority for its budget. And as we all know, the National Prosecuting Authority’s budget has been reduced. And they do not have sufficient funds to properly run the National Prosecuting Authority. So they can’t go out and recruit the kind of people that they need, because they don’t have the money.

“And they don’t have security of tenure. Everybody will remember the Directorate for Special Operations or the Scorpions, as they were known, was disbanded with great glee by the very ANC who now wants to establish this Investigative Directorate (ID) and the reason it was disbanded regardless of whatever they will say – and they bleat about it quite a lot – it was disbanded because the Scorpions successfully prosecuted big corruption matters…They couldn’t close them down quickly enough because they’d felt the bite.

“…the Investigative Directorate, even when it’s made permanent within the NPA, is not independent. It’s only as independent as the National Prosecuting Authority. And I speak from my own experience, but we’ve all seen that the National Prosecuting Authority at times is not independent and it can be interfered with.”

The Anti-Corruption Commission (Scorpions 2.0):

“The Anti-Corruption Commission, on the other hand, the Chapter 9 institution that we envisage and propose, stands outside of the National Prosecuting Authority. It’s independent of the National Prosecuting Authority. …It requires a heightened majority to dissolve it in Parliament, a majority that, thank the good Lord, the ANC will never in Parliament see again, whereas the investigative Directorate just gets closed down by a simple majority of Parliament.

“It will be independent in terms of budget. It will negotiate its own budget directly with Treasury and it will be responsible to Parliament. It will answer to Parliament for its performance. So it will not be reliant upon the budget of the National Prosecuting Authority and we all know that the National Prosecuting Authority is dependent upon their budget from the Department of Justice. So if the Department of Justice doesn’t want them to do a good job, they just don’t give them money. If the Department of Justice doesn’t want them to be able to fight corruption effectively and efficiently, they just don’t give them money. And that’s the case now. They’re not giving them money. They’re talking the talk, but they fail to walk the talk.

“…properly resourced both financially and with human resources, with proper forensic skills, with its own budget that it negotiates itself and is answerable only to Parliament, (it) will have all of the things that it requires. It will be independent, truly independent in the proper sense of the word. It will not be dependent on the whims of any political party, whether it’s the ANC who’s in government or anybody else, because let’s face it, we don’t want to go down this road again, regardless of whomever is in government. So they will be independent, they will be insulated and they’ll be able to do their job properly without any fear, without any favour, without any prejudice because there’ll be no danger that they’ll be closed down just because they go after somebody who may be well connected.”

Possible co-existence between an Anti-Corruption Unit and IDAC:

“The Anti-Corruption Commission is not intended to be competition for the National Prosecuting Authority. They will run parallel to it and they will have overlapping areas of jurisdiction. And a very important aspect of the Anti-Corruption Commission is that it will run in consultation with the National Director of Public Prosecutions.

“So we envisage that the Anti-Corruption Commission will deal with the very top echelon of cases of corruption, the very top echelon of cases of organised crime, and that should free the National Prosecuting Authority up quite considerably to prosecute the thousands of other matters that it’s forced to deal with every day.

“So importantly, it must operate in consultation with the National Director of Public Prosecutions. So we could, at the time that it (the Bill) is ready to go to Parliament, you know, once it’s been passed, we can have a discussion with the NPA. Either it can subsume the…Investigative Directorate (ID) and take over those people or those skills that it does have even though they will be insufficient or they can retain those skills within the NPA and run the Investigative Directorate to deal with those, that class of corruption and organised crime that is one step down from what the Anti-Corruption Commission will deal with.

“There will still be plenty of work to go around. There will still be plenty of corruption cases to prosecute. Believe me, you could keep five anti-corruption commissions busy with the kind of work that is available out there. Sadly, sadly…”

As for the NPA’s current performance with regards to corruption prosecutions, Breytenbach says:

“…there’s no shortage of big corruption cases. There’s no shortage of matters that should be ready for court. None of this stuff is new. We’ve known it for years. The investigations didn’t start this weekend. And the NPA really should be in a position to prosecute quite a number of those big cases in the first half of 2024 and successfully. And if they aren’t or if they don’t or if they can’t, well then the problem is much bigger than a lot of people think it is. And I’m one of the people who think that the problem is very big. And then we may have to go back to the drawing board completely, not only with an Anti-Corruption Commission, but we’re going to have to find ways together of making the NPA bigger, better, stronger. And that is what we want to achieve. We want to achieve a bigger, better, stronger NPA.”