05 May 2021 | Story André Damons and Dr Nitha Ramnath

South Africa does not have the specialisation to fight corruption. There is a need to determine what sort of specialisation is required in order to properly address the kind of corruption that is starting to look like it is endemic in South Africa.

This is according to Adv Hermione Cronje, Head of the Investigating Directorate (ID) at the National Prosecuting Authority (NPA), who was one of the panellists on Tuesday (4 May 2021) during the University of the Free State (UFS) webinar on corruption. The webinar, titled Corruption in South Africa: the endemic pandemic, is the second in the 2021 UFS Thought-Leader Series. 

The rest of the panel comprised experts such as Adv Ouma Rabaji-Rasethaba, Deputy National Director of Public Prosecutions (NPA); Adv Paul Hoffman, Director: Institute for Accountability in Southern Africa, and campaigning as Accountability Now; Justice Dennis Davis, former Judge at the High Court of Cape Town and Judge President of the Competition Appeal Court; and Prof John Mubangizi, Dean: Faculty of Law, University of the Free State. Prof Francis Petersen, Rector and Vice-Chancellor of the UFS, was the facilitator.

The specialisation needed 

Adv Cronje said she agrees that specialisation, resources, training, and independence are critical. “We need specialisation in digital forensics. We have the advantage that, in the Zondo Commission, we have created a digital forensics capability that I believe is almost second to none. That capability now needs to be put at the disposal of law enforcement,” said Adv Cronje.

According to her, training is needed on the basics. There have not been many major corruption prosecutions in South Africa for many years, and there is not a cadre of skilled, big-case corruption prosecutors. 

“We know it’s a slow and very frustrating process. The system has been very broken, and I think the steps we are taking to build and rebuild will bear fruit, but not in a spectacular way that we all hoped for. But let's discuss the real issue; let’s discuss how to resource, how to make trials happen more speedily. Why not have a corruption court?” 

Co-locating to better fight crime

Adv Rabaji-Rasethaba said the NPA has capacity and capability challenges in terms of fighting crime but is reorganising and rebuilding to ensure that it is on top of fighting corruption. “The Anti-Corruption Task Team (ACTT), which is the law enforcement agencies coming together to fight corruption, has also been hallowed out. But the good news there is that we are in the process of rebuilding it,” said Adv Rabaji-Rasethaba.

According to her, they also have a module called Fusion Centre, and are currently working from the Financial Intelligence Centre in Centurion to make sure that the fighting of corruption is fast-tracked. This module was established when COVID-19 corruption started.

“We've now agreed that the NPA and the DPCI need to co-locate with the Asset Forfeiture Unit (AFU) to the special investigating unit in DPCI, which is tracing assets, so that we can fast-track recovery of the proceeds of crime. We are also capacitating the NPA, particularly the specialised units such as the Specialised Commercial Crime Unit (SCCU) and the AFU, to make sure that we get all the right skills we need to be fit for purpose,” said Adv Rabaji-Rasethaba.

The problem of corruption persists

Prof Mubangizi said even though South Africa has an adequate and sufficient legal framework to deal with corruption, the problem persists because corruption has become institutionalised, systemic, and normalised. “And when something becomes institutionalised, systemic, and normalised, it becomes endemic,” said Prof Mubangizi. A second reason, he said, is that our political leadership is largely responsible, as well as the lack of political accountability. 

“I think the law does not bite hard enough. It's one thing to have the laws, but it's a completely different thing to have it property and effectively enforced. This brings into question the role of law enforcement agencies. Unfortunately, most South Africans do not trust that these agencies are able to bring corrupt officials to book. Some of the members of these agencies are assumed corrupt themselves, and the agencies are perceived to be compromised, captured, and toothless,” said Prof Mubangizi.

Remedies through SARS

Judge Davis questioned why there is no real moral authority in the country. “We need to look to our political structures.” 
On discussing the type of remedies that can be put in place to combat corruption, Judge Davis indicated that South Africa has enough institutions. “The NPA should be strengthened and should also reach out to the expertise in the country, which can assist in this regard. I still believe that the best way of dealing with corruption is through the use of the South African Revenue Service (SARS) to hold people accountable. If we can expedite these cases and actually find people guilty of tax fraud, we hold them to account and get back significant sums of money,” said Judge Davis. 

Need for Chapter Nine institution

Adv Hoffman emphasised that the culture of impunity has started and grown since the Scorpions were dissolved.  “There is a need for the creation of a Chapter Nine institution that answers to Parliament and is specialised, trained, independent, resourced with security of tenure (STIRS), and compliant as the best way forward in the fight against corruption,” said Adv Hoffman.  One of the main jobs of the Chapter Nine institution would be to address the recovery of the loot of state capture.  

Prosecute and convict

In his closing remarks, Prof Petersen said what he took from the webinar is coordination and capacity building – making sure we build the capacity of specifically the NPA, but also other organs of the state. “The second thing is training. This is something we need to talk about, because other people – besides universities –could also play a role. The task of the university is actually to develop the leaders of tomorrow; to say – this is what society should look like,” said Prof Petersen. 

Accordingly, it is very important to make sure that we prosecute and convict. “This seems to be the most critical part, because if we get it wrong, the credibility of the whole system is under question. Citizens should also come in and play a crucial role.”

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