Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
What the State Capture Commission report tells us about the ANC’s response to the De Ruyter interview
To understand why the ANC reacted with such vehemence to claims by former Eskom CEO, Andre de Ruyter, that senior ANC members were involved in monumental corruption at Eskom, one must take note of the fact that the State Capture Commission identified support for corruption within the ANC, the tendency of the party to protect its own interests above the interests of the country, and the failure of the party to hold members implicated in corruption, as the main reasons for the failure of the party to curb corruption within its ranks and within government.
Former Eskom CEO Andre de Ruyter caused a stir when he said in an interview last week that “the pigs are at the trough at Eskom and the corruption goes right to the top of the ANC” (as Justice Malala pithily summarised it). The interview outraged the ANC and its allies, with its secretary general Fikile Mbalula calling the claims of political meddling and corruption at the embattled Eskom “unfortunate, irresponsible, and baseless”.
I will leave it to others to opine on the wisdom of De Ruyter giving the interview, how credible his claims are, or on the extent to which he may or may not have been a failure as CEO of Eskom. What interests me here, rather, is to look beyond the immediate political dynamics at play, and reflect on what the vehement response from the ANC might tell us about the party’s claimed efforts to address corruption within its ranks.
One way to do so is to revisit parts of the report of the Commission of Inquiry into state capture. I am not referring to Part IV of the Zondo Commission report into state capture at Eskom – although it does remind us just how endemic corruption at Eskom had become and how dysfunctional the entity is – but rather to Part VI of the Zondo Commission report, which explains the inextricable link between ANC money politics and endemic corruption in South Africa, and casts doubt on the ability of the party to address the problems within its own rank.
This part of the State Capture report reminds us that the ANC itself has correctly identified the extent of the party’s corruption problem. The report quotes extensively from the ANC’s 2020 review of its “Through the Eye of a Needle” document, which warns that “money politics has put the ANC in a precarious position of risking being auctioned at all levels” and that it “state and private resources are being used thus making corruption to be an essential modus operandi of these transactional politics.” The report also quotes President Cyril Ramaphosa as saying not so long ago “that there has been corruption, but that it is both continuing and pervasive, in government and in the party”.
This is a significant admission from within the party that corruption in the ANC is not merely a problem of “a few bad apples” within the party who enrich themselves through individual corrupt acts. Instead, corruption has become an essential part of the way politics are conducted within the party, which means any credible attempts to address it would require the party to take radical steps to change its culture and the way it operates.
The problem can therefore not be fixed merely by prosecuting some of the perpetrators of corruption and hoping that this will lead to a fundamental change in attitudes towards corruption, and in the way in which politics is conducted within the party. (Given the scope of the problem, even a well-resourced and highly competent NPA would not have been able to prosecute even 1% of all cases in which some form of corruption had occurred over the past 10 years.)
If I am correct, the question is what else could be done to fix the problem. To my mind, there are two possible solutions to the problem. One would be for the ANC to be voted out of office. The other would be for the ANC to fix itself, but this would require the party to go to war with a significant portion of its own members who are involved in the kinds of practices the party has identified as a problem. As the Zondo Commission report concludes, it is:
abundantly clear from the evidence before the Commission, that for as long as the ANC is in power, the failure of the ANG successfully to reform and renew itself as undertaken by President Ramaphosa will render the South African state unable to rid itself of the scourge of State Capture and corruption. What is equally clear from theevidence is that such reform and renewal should take clear precedence over attempts to appease various competing factions within the governing party for the sake of party unity.
Unfortunately, the chances of the ANC “renewing” itself successfully are rather slim. While Ramaphosa told the State Capture Commission that the party was committed to eradicate corruption in government and in the party, justice Zondo remained sceptical, pointing out that the ANC has been promising to fight corruption within the party for over twenty years – without success. Moreover, there has been no explanation from Ramaphosa on “why the party’s previous attempts to deal with these problems have failed, and why any such attempts might now succeed”.
The State Capture report identifies several factors that contributed to the failure of the ANC over the past 20 years to deal decisively with corruption, and suggests that it is unlikely that the party will be able to do so now.
Speaking specifically about the Zuma era, the report points out that important members of the ANC – those who held that balance of power – were against acting on matters of corruption and State Capture, and that they held enough power in the party to ensure corruption continued. One could argue that this is no longer the case, but as Stephen Grootes pointed out earlier this week, in December last year 40% of ANC delegates voted for corruption-implicated Zweli Mkhize at its conference, raising questions about the commitment of a very sizeable number of ANC members to the anti-corruption drive.
Another, but related, problem identified in the report is the tendency within the ANC to conflate the interests of the party and the constitutionally enshrined public duty of those in government. Quoting Gwede Mantashe, the report concludes “that the ANC prioritises its own survival and strength over the interests of the country. It seems that Mr Mantashe was pre-occupied with the survival of the ANC irrespective of what happened to the country and its economy”.
The report does not mention this explicitly, but the retention of several corruption-tainted, as well as incompetent cabinet ministers in Ramaphosa’s cabinet (presumably to foster “unity”), is an obvious example of this tendency. Another example is the tendency of the ANC to “recycle” corruption-tainted party members who work at any level of government. For example, a municipal manager might resign from his or her job after disciplinary charges are instituted against them, only to be re-appointed as city manager in another town governed by the ANC.
Which is directly linked to another problem – and the crux of matter – identified by the State Capture report, namely that the ANC is unable or unwilling to hold accountable those of its own members who have credibly been implicated in corruption. Astonishingly, the report reveals that between 2014 and 2021 not a single ANC member had been disciplined at the national level for their involvement in corruption. (This finding is based on the records of the ANC’s National Disciplinary Committee and National Disciplinary Committee of Appeal provided to the Commission by the party.)
Instead, the ANC has outsourced the responsibility to hold its members accountable to the Hawks and the NPA, as the party’s position is that it will only act against a party member implicated in corruption after that member had been prosecuted, convicted, and sentenced. Because these bodies remain under-resourced and – despite some efforts to strengthen them – still largely inept, the ANC approach in effect shields the vast majority of its members from any accountability for their corrupt actions. (It is for this reason that party leaders who are prosecuted inevitably complain that they are being prosecuted for political reasons – another way to say that that the party failed to protect them from prosecution.)
The failure of the ANC to hold its members accountable is perfectly illustrated by the party’s response to the report of the State Capture Commission, in which approximately 200 ANC members were implicated in some form of wrongdoing. While the ANC announced at the time that it had handed over a list of those members implicated in the report to the party’s Integrity Commission, and later announced that 97 of these members would be summoned to appear before the Commission, no other action has so far been taken against any of those implicated in the report.
In any event, the Integrity Commission does not have the power to discipline any ANC member, although it can make recommendations, including recommendations for disciplinary action. However, the chances of any of the 97 members summoned to appear before the Integrity Commission being disciplined are rather slim, because so far “there is no evidence that Integrity Commission recommendations have resulted in disciplinary action against any ANC member accused of corruption, save for recommendations that certain individuals should step aside from their positions the NEC”.
The ANC justifies its failure to hold its members accountable via internal processes by arguing that it could not discipline its members for corruption unless they had been convicted of a criminal offence. Justice Zondo correctly rejected this argument, pointing out that the “ANC disciplinary bodies have their own standards for proof of misconduct and their own appeals process” and deal “with many types of misconduct, which are not dependent on criminal convictions”.
By choosing not to discipline its members for corruption-related matters unless they have been prosecuted and found guilty by a court, the party has made a policy choice that in effect shields its members from accountability. It is no wonder then, that the party closed ranks to protect their own, when the former CEO of Eskom cast aspersions on an unnamed senior ANC leader. In the long run, this approach may not be in the party’s best interest. But as the Zondo Commission report points out:
this is a risk that the party, by failing to discipline those accused of corruption, has deemed acceptable. This certainly does not augur well for the prevention of corruption in the future. Nor does it give positive reassurance that State Capture will not recur.
