Countering the Corrupt Reform of the Criminal Justice Administration in South Africa-Mr. Ronald Lamola (6/02/2023)

Speech by Minister of Justice and Correctional Services, Mr. Ronald Lamola (MP)

Hybrid Conference, on 6 February 2023

Corruption

Distinguished Guests
Distinguished Leaders in Civil Society, Academia and the Legal Profession

It is my singular honor to gather with you today and be part of this wonderful initiative by important role players in our country.
A gathering of this nature is indicative of the fact that there is general consensus that corruption cannot be addressed by government alone, civil society, the private sector and academia as collective with government can be instrumental in effecting various reforms.
As we gather here today, we are giving effect to the phrase democracy in action. We may not necessarily agree on certain aspects, but I think it is crucially important for us to look at the challenges we face from various vantage points.
As government, we are now in position to act on the recommendations the Judicial Commission into allegations of State Capture, Corruption and Fraud in the Public Sector.

I am pleased to highlight a few areas where significant progress has been made to date:

National Prosecuting Authority (NPA) and the Investigative Directorate (ID)

We have made significant progress in renewing the NPA , the reinstatement of the aspirant prosecutors’ program has seen more than one thousand new employees brought into the fold over the past three years.

Close working relationship with other Law enforcement agencies

One of the weak points which have been identified in the Criminal Justice System is a silo approach in the fight against fraud and corruption.

Today, we see greater levels of collaboration and co-ordination between the Investigative Directorate, Asset Forfeiture Unit, the Specialised Commercial Crime Unit, Special Investigating Unit and the Directorate for Priority Crime Investigation.

This has been self-evident. The ACTT records 35 cases in court involving 180 accused. In total the Investigating Directorate has enrolled 32 cases, involving 187 accused individuals have appeared in court for alleged State Capture-related offences. This is not something to be scoffed at it is proof that accountability is happening as we speak.

This is the same work that has led to R 12, 5 billion being recovered.

Furthermore, the impact of the performance of law enforcement agencies can be felt in all areas of our democracy. When law enforcement agencies fail to perform we are judged as a country by international financial institutions such as rating agencies, the Financial Action Task Force, and so on. Capacitation of these entities, including the NPA has received the much needed injection of funds to assist it in achieving their mandate. The impact of grey-listing by FATF, which we are soon to receive the final outcomes will have a dire effect on our economy and ability to raise funding in the international markets. This is where co-ordination and collaboration is needed to work together not only as a the Justice cluster but with the economic cluster as well.

Permanency of the Investigative Directorate

To ensure that the independence and the security of tenure of the incumbents in the ID is strengthened we have a new bill which is currently undergoing internal consultative processes between relevant departments.

This work builds on President Ramaphosa’s pronouncement in October as part of the actions we will undertake to implement the recommendations in the judicial commissions’ report.

In the interim whilst the consultative processes are underway, we have assigned peace officer powers to the Investigative Directorate this will enable them to arrest people, take statements, conduct search and seizure operations.

Let me pause here to say that we are aware of views that this structure has to be a chapter nine (9) institution for us to meet the standard set out in the Glenister judgment.

At the heart of this argument is a notion that in securing the independence of the NPA and its subsidiaries its interface with government poses a danger to its autonomy and independence.

This is where we differ with the proponents of this view, paragraph 58 of the Glenister 2 Judgment is instructive it reads : “For our country to win the war against these serious crimes, we need to enhance the capacity of the police to prevent, combat and investigate these crimes and other national priority crimes..”

At paragraph 80 the same judgment supplements this view by invoking international law : International law does not support the proposition advanced by the applicant either. For example, the Legislative Guide for the Implementation of the United Nations Convention against Corruption provides:

“States parties may either establish an entirely new independent body or designate an existing body or department within an existing organization. In some cases, an anti-corruption body may be necessary to start combating corruption with fresh and concentrated energy. In other cases, it is often useful to enlarge the competence of an existing body to specifically include anti-corruption. Corruption is often combined with economic offences or organized criminal activities. It is thus a sub-specialization of police, prosecution, judicial and other (for example, administrative) bodies. Implementers are reminded that the creation of new bodies with hyper-specialization may be counterproductive, if it leads to overlapping of competences, a need for additional coordination, etc., that would be hard to resolve”

Perhaps the most pointed rejection of this argument is found in paragraph 124 of the Glenister judgement The independence of an anti-corruption unit in the context of international agreements must not be confused with the independence of the judiciary, for example.

Nor does independence in the context of anti-corruption international agreements require that the executive should play no part in the functioning of anti-corruption agencies.

Were this to be the case, this would run afoul of the fundamental principles of our legal system as contained in our Constitution, in particular, sections 206(1) and 179(6). Indeed, it is doubtful whether, if that had been the requirement, states like ours would have ratified the conventions.

What is crucial, therefore, is whether the anti-corruption agency enjoys an adequate level of structural and operational autonomy, secured through institutional and other legal mechanisms aimed at preventing undue influence.

Whilst it is true chapter 9 of our Constitution is where independent entities are housed in our democracy. We are of the view that the independence of an entity like the NPA and its subsidiaries cannot be looked through a simplistic lens of where the entity is housed.

Its independence must be assessed via the lens of structurally and operational autonomy. This was risk identified first by the Glenister judgment and then again by the judicial commission on state capture.

Some of these reforms have begun to take shape, the clearest example is the manner in which the current National Director of Public Prosecution was appointed, we had a transparent selection process.

Improvements Required To Our Whistleblowing Framework:

I would like to pay tribute to all the Whistleblowers who have come forward to reveal the under belly of unethical conduct and corruption in the public and private sector.

You are the true embodiment of the famous saying by British philosopher John Stuart Mill: “Bad men need nothing more to compass their ends, than that good men should look on and do nothing.”

You are the good people who refused to look on and do nothing.

In many cases this has come at a great cost to yourselves and your family. The level of reprisal which whistleblowers are being subjected to is proving to be counter-intuitive to the laudable goals of whistleblowing, which are in the main to mainstream integrity and expose unethical organisational cultures through detection and protection.

Whistleblowing is an integral part of any anti-corruption framework. Quite clearly in our context there appears to be a gap in the in overall intention of what the Public Disclosures Act seeks to do.

One of the gaps we have identified is the fact companies or government departments who are implicated by whistleblowers are not held accountable for victimizing whistleblowers.

The second gap we have identified is how we can transition whistleblowers into witnesses in criminal cases where possible.

In direct response to the recommendation by the judicial commission, comparative research is being done on the incentivisation of whistleblowers.

The review of SA’s anti-corruption architecture discussion document which highlights the mandates of the various entities engaged in the fight against corruption, compares this with a comparative international benchmarks points to an outdated legal framework. Consideration is also being given to the creation and modalities of an anti-corruption entity. This work will be the culmination of research and discussions that have been ongoing for the past two years.

Distinguished Guests these are some of the reforms that we are seized with to help us counter the corrupt and reform our criminal justice system. We look forward to you your inputs when we publish our discussion documents which will comprehensively outline these reforms.

I wish you well in your deliberations.