Paul Hoffman: Lamola’s corruption counter-attack falls short of expectations

Justice Minister Ronald Lamola’s responses to parliamentary inquiries reveal a lacklustre effort in countering serious corruption. Despite efforts to strengthen the National Prosecuting Authority (NPA) and Investigating Directorate (ID), Paul Hoffman believes that the fight against state capture crimes falls short. Lamola cites enrolling new cases and recovering funds, but Hoffman argues that the scale remains inadequate. An Integrated Task Force and an Advisory Panel have been introduced, but doubts persist over their effectiveness. The absence of specialist prosecutors and failure to meet STIRS criteria hinder progress. As South Africans demand justice, the ANC’s anticorruption measures may impact upcoming elections.

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Lamola is barking up the wrong tree

By Paul Hoffman*

According to official answers given by justice minister Ronald Lamola to written questions in parliament an utterly underwhelming picture emerges regarding the countering of serious corruption.

Lamola was responding to DA MP Glynnis Breytenbach, the shadow minister of justice, who asked what steps his department has taken to strengthen the work of the NPA in state capture crimes. Lamola said the state has enrolled 18 new matters in the 2022-23 financial year. ‘A total of 34 matters have been enrolled with 203 accused over the last four years. Thirteen new investigations were authorised, totalling 97 matters authorised over the last four years.’

Lamola also said the government has significantly expanded the capacity of the Investigating Directorate (ID) and institutionalised its operation as an integral part of the National Prosecuting Authority. Lamola said the ID, set up in 2019, still needed to broaden its establishment and be capacitated as a permanent structure. ‘I have already approved regulations that bestow peace officer powers on ID investigators. These regulations are significant as they provide investigators with the necessary powers to conduct their work prior to arresting suspects,’ he said. He did not explain why after four years in existence the ID has not had such powers. No numbers were given in relation to convictions of those involved in state capture.

Read more: Paul Hoffman: ANC must drop the NDR or go politically bust

Lamola also pointed out however that R2,5 billion was paid into the Criminal Asset Recovery Account. He added that:‘While it is acknowledged that there is still a long way to go, this represents a significant milestone in the recovery of assets that were illegally obtained through state capture,’. The NPA’s Asset Forfeiture Unit (AFU) secured freezing orders valued at R570m as part of its strategy to pursue the monies stolen by the perpetrators of corruption and the enablers and facilitators of state capture. ‘The finalisation of two high value corruption cases contributed to the AFU obtaining recoveries in corruption and related matters to the value of R2.83bn during the financial year,’ Lamola said. A total of R10.2bn has been frozen over the past four years and the NPA has recovered R2.55bn in state capture cases alone, he added. The minister stated an Integrated Task Force was introduced early in 2022 to co-ordinate the response of the NPA and the Hawks to the recommendations of the Zondo Commission. ‘The establishment of an Advisory Panel of experienced prosecutors and investigators to hear and advise on cases has been a very successful initiative, increasing the confidence of prosecutors and investigators dealing with complex matters,’ he said. The NPA’s establishment increased from 4 967 to 5 353 following additional funding from the National Treasury.

The minister should know that adding a few hundred junior personnel to the staff complement of the NPA is not going to help in prosecuting serious corruption, a highly specialised task for well-trained expert prosecutors who have fled the employ of the state in the wake of the perfidious closure of the Scorpions in 2009.

The Chief Justice has pointed to the need for “an army of prosecutors” to take on the task of exacting accountability and justice for perfidious roles played in state capture. It has been estimated that between one and two trillion in loot was misappropriated during the height of state capture, with R57 billion in Gupta related contracts from the state. The amounts either seized or forfeited are risible; the number of persons accused minute, when the scale of operations in state capture is considered. The DA dashboard on the topic reveals more than 1400 suspects, most of whom continue to enjoy the impunity of the Zuma era.

Read more: Paul Hoffman: The suspended Public Protector wants to tell her story

Let us draw a veil over the withdrawal of proceedings in the Estina Dairy case and the failure of the state to get leave to appeal in the Nulane prosecution in which one of the accused was acquitted for want of evidence and the rest were discharged at the end of the state’s case due to rooky mistakes made. Commenting on the latter setback Breytenbach points out that:

The DA is in the final stages of preparing our Anti-Corruption Commission Bill, which will seek to establish a new Chapter 9 institution tasked with combating high-level corruption. The urgency of this Bill is now pronounced given the complete lack of consequences for obvious high-level corruption within government.

Ordinary South Africans deserve to see justice served upon those responsible for State Capture

Minister Lamola has no such plans. He favours making the ID into a permanent feature of the NPA and hopes to have draft legislation available within a month. The draft legislation upon which the DA bases its bills has been available to government and civil society courtesy of Accountability Now since August 2021. While parliament has responded to the suggestions made by Accountability Now, the cabinet, of which Lamola is a member, preserves a stony silence.

The new initiative by close on 200 CEOs in the private sector to help out countering corruption will not take shape until after the formalization of the law intended to make the ID “permanent”. That law does not stand a snowball’s hope in hell of passing constitutional muster. The refurbished ID will still not be STIRS compliant. (Specialised, Trained, Independent, Resourced and Secure in tenure of office. It will, in particular, lack the necessary independence and security of tenure of office that the Constitutional Court insists, in binding terms, should be the hallmarks of corruption-busters. According to the spokesperson of the ID there will be no go forward with the CEOs until the new law is in place. That, given the DA’s intention to assail its constitutionality, will not be any time soon.

Read more: Paul Hoffman: Avoiding a repeat of the worst excesses of State Capture

The best known constitutionally compliant way to deal with serious corruption effectively is to establish a Chapter Nine entity to prevent, combat, investigate and prosecute those involved while raking back their loot. Corruption frightens away much needed new investments and cripples the capacity of the state to deliver services that honour the state’s commitments in the Bill of Rights.

Anything less is golden hubcaps on a vintage VW Beetle or Elastoplast for a severed carotid artery.

Big business should know better than to throw money at institutions that are operationally and structurally not up to the STIRS criteria laid down by the courts. Bheki Cele should be fired, not given handouts. Ronald Lamola should acquaint himself with the majority judgment in Glenister 2 and stop tinkering with the hubcaps on the ID VW Beetle. He is obliged by law to implement the STIRS criteria and hasn’t.

In the upcoming election campaign an issue will be made of the ANC being soft on corruption if not just plain corrupt (Accused Number One as the president put it). The plans the ministry has to address corruption and the lack of progress made thus far suggest that voters may well be persuaded not to vote ANC but instead support the parties that require proper compliance with the STIRS criteria the judiciary has devised to protect human rights and honour international obligations.

Paul Hoffman SC is a director of Accountability Now and was lead counsel in the Glenister litigation