Proposed constitutional amendments: establishment of a separate institution to fight corruption; appointment & dismissal of senior NPA officials; appointment of judges & JSC composition

Meeting report

The Chairperson welcomed the guests who would be presenting. The first presentation would be a briefing by Accountability Now (AN) on the proposal to amend the Constitution to make provision for a separate institution or body that was independent and capable of fighting corruption. They were referring to Chapter 9 Institutions. The input of the presenters would inform their decisions.

Accountability Now (AN) had arranged with the Committee secretariat that its Director, Adv Paul Hoffman, would present for 20 minutes on creating a new Chapter 9 institution with a mandate to prevent, combat, investigate, and prosecute serious corruption. Not all corruption, just serious corruption. After that, Mr John Oxenham, an attorney from Primerio in Johannesburg, would join the meeting. Mr Oxenham would speak on the introduction of non-trial resolution of complex international corruption cases of a serious nature, as well as on the better protection of whistle-blowers, who were the lifeblood of prosecution and accountability in relation to corruption.

The Chairperson said everyone had received the documents and Members had gone through them. To save time for the other presenters, the Chairperson asked Adv Hoffman to speak on the documents.

Accountability Now submission

Adv Paul Hoffman, Director, Accountability Now (AN), welcomed the opportunity to address the Constitutional Review Committee of the National Assembly. He said it was comforting to know Members have received the documents that were submitted over a year ago. The second document had two attachments, one regarding whistle-blowing, and the other non-trial resolution of complex corruption cases. The final document was the speaking notes, on which he would speak today, hoping to elicit interaction from the Members.

Memorandum in support of the introduction of a constitutional amendment and enabling legislation for the establishment of constitutionally compliant anti-corruption machinery of the state in South Africa

Adv Hoffman began the presentation by stating that serious corruption, such as grand corruption, state capture and kleptocracy in South Africa, undermined constitutional and human rights. Current state machinery did not have the means to deal with serious corruption in all of its forms. There was an urgent need for an independent, specialised and permanent entity to combat serious corruption. South Africa’s prosecutors and police, due to the ravages of state capture, did not have the capacity to effectively and efficiently counter serious corruption.

The Glenister cases (I & II) in the Constitutional Court had provided binding criteria for the establishment of functional corruption-busters who were fully able to carry out the international treaty obligations of South Africa. The Constitutional Court had tasked Parliament with “the reasonable decision of a reasonable decision-maker in the circumstances” in relation to combating corruption. The current conditions in South Africa urgently demanded a best practice reform to strengthen the country’s precarious culture of respect for human rights and improve confidence in its governance and economic prospects. The ANC, DA and IFP all favoured the notion that a new body needed to be established to deal with corruption. Accountability Now had already prepared draft enabling legislation and a constitutional amendment so that the necessary constitutionally compliant next steps could be taken to save the country from the scourge of serious corruption and the imminent potential of failed state status.   

See attached for full submission

Discussion

Mr X Nqola (ANC) thanked AN for taking the time to make a contribution to the structure of the Constitution. It was appreciated that they were addressing a really serious area of corruption, which was one of the problems the country was facing.

In the presentation, AN suggested establishing an independent body to fight corruption. Currently, he thought it was important to check the existing public system to combat corruption, and consider how the proposition could benefit the country in the fight against corruption. The National Prosecuting Authority (NPA) had an investigative directorate that had just been strengthened. The President committed to this every year. The Hawks were also tasked with dealing with priority crime. Beyond that, the Constitutional Court had made the Public Protector’s remedial actions binding. The Constitutional Court even went to the extent of saying the Public Protector had an obligation to further determine how his/her remedial actions must be implemented. In a way, it had strengthened the office of the Public Protector to confront corruption and malfeasance. There was also the Auditor-General, whose mandate had been reinforced by being given the right to report to any state security agency when they find corrupt elements in the public sector. There were all these institutions tasked with the same vicious fight against corruption. The Department of Justice (DOJ) was currently strengthening the Commercial Crimes Court. Such operations could not extend over multiple courts, but a particular court had to be strengthened to help fight corruption. Was the AN saying all these institutions must be diminished or dissolved? If not, would it not duplicate the work that these institutions were doing?

The Chairperson said his question was loud and clear.

Ms N Maseko-Jele (ANC) appreciated the proposal from AN and thanked them for assisting in the fight against corruption. As a country, they were currently facing the realities of grey-listing. Before she continued, she asked that presenters stick to the proposals during their presentations so that they would not get confused. They did not want political issues -- they wanted to stick to the proposals. The purpose of the Committee was to forget they were from different parties and find solutions together.

Ms Maseko-Jele said Mr Nqola had asked many of the questions she had wanted to ask, particularly those regarding existing institutions. If the AN wanted an independent body, to whom would this body report? Would it work independently without being linked to Parliament? There was also the view that the NPA should be independent. What was the AN’s view on this? In that case, one would have multiple independent bodies dealing with the same issues of corruption. She said the presentation made very clear what the presenters were really seeking. What was the AN’s view on Mr Nqola’s questions regarding the existing institutions -- what would happen to them once these independent bodies were formed? How would the AN support the reinforcement of these institutions?

Mr T Mashele (ANC) asked what practical limitations had been identified by AN in the current bodies. In the event that this proposal is accepted, what will happen to the current bodies?

Responses

Adv Hoffman responded on the duplication of work with the creation of a new body, and said that what they envisioned did not involve duplication at all. The idea was that serious corruption would be defined by this Parliament as corruption involving more than a set amount of money. AN suggested that R5 million be the cut-off point, but Parliament may come to a different conclusion. The impact of setting a limit on the Chapter 9 Integrity Commission was to remove any serious corruption from the ambit of the Hawk’s work, and also to remove serious corruption cases from the ambit of the work of the NPA. The NPA had plenty to do with all manner of common law crimes. The NPA’s resources would feel relief if the complicated work of complex corruption cases was no longer on their agenda.

Adv Hoffman said that the Hawks, in turn, had plenty of other priority crimes they were better suited to deal with. Creating a new body would not lead to the disbandment of the Hawks or the NPA. They were looking for a specialist body -- a single entity dealing with corruption as Glenister II envisioned. It may be that Parliament could decide that the Special Investigating Unit (SIU), which had very well qualified staff, should be folded into this Chapter 9 institution. Nobody on the ground in the anti-corruption field believes the Hawks had the capacity to mount the sort of investigation required in complex corruption cases. Their rate of work had dwindled alarmingly and they had never caught any big fish throughout the course of their corruption investigations. Their clout was such that they were not suited to fight corruption, and it would be a relief for them not to have to investigate serious matters. Without a good investigation, there could not be a good prosecution.

Adv Hoffman said, on the independence of the new body and their suggestion for the independence of the NPA, that both would have to report to Parliament. All Chapter 9 institutions reported to Parliament, which was preferable to reporting to the executive. This was because Parliament was a multi-party body with checks and balances on the exercise of power.

He said the effect of creating the new body was to bring about a dispensation in which the enforcement of the laws against corruption would be enhanced and improved. If that had happened in 2011, when the rules were set out in the judgment of the Constitutional Court, they would have had the opportunity to form an independent body. This had not happened yet and, as a consequence, state capture had occurred. Parliament had a duty to what the law was and to see to it that the law was implemented. AN was not going for anything more than that. They suggested that the best way to do so was to establish an anti-corruption body under the auspices of Chapter 9 in the Constitution, because independence was guaranteed to all of these bodies. Their reporting line was to Parliament, not the executive branch of government.

The Chairperson thanked Adv Hoffman, and said he had answered all the key questions. He gave Mr Oxenham a chance to answer some questions, in the interest of time.

Mr Oxenham said he would echo what Adv Hoffman was saying. In relation to the framework he was articulating, the necessity for a clear and transparent framework was the hallmark of their submission. He said Adv Hoffman had addressed the questions raised by the Members, and he did not have much more to add. He asked the Committee to consider the submission in detail.

Adv Hoffman thanked the Chairperson for the even-handed manner in which he had allowed question time to proceed. He apologised for heading off in the wrong direction. He was only doing that because the secretariat had asked him to deal with those matters immediately after Mr Oxenham had spoken. He asked that Parliament do its duty to see that laws were properly implemented. The dispensation with the Hawks and the NPA had not worked, was not working, and would not work for a very long time. This was because of the ravages of state capture. What was needed was radical enforcement transformation -- that was what AN was asking of this Committee.

The Chairperson thanked Adv Hoffman on behalf of the Committee.

Mr Nqola said he appreciated AN for being part of the active citizenry and ensuring that the Constitution addressed the actual problems on the ground. The Committee was very delighted when they got feedback or reports from civil society, because it meant their own people had the will to assist government. The Committee would deliberate on this, and AN would be informed on what steps would be taken.

African Criminal Justice Reform (ACJR)

The Chairperson said they needed to start with the second presentation, which was a briefing by African Criminal Justice Reform (ACJR) on the amendment of Section 179 of the Constitution, to make provision for the appointment of the National Director of Public Prosecutions (NDPP) and other senior officials of the NPA. Prof Muntingh would be leading this presentation.

Submission by Africa Criminal Justice Reform (ACJR) to the Constitutional Review Committee on the amendment of section 179 of the Constitution to make specific provisions regarding the appointment and dismissal of the National Director of Public Prosecutions (NDPP) and other senior officials of the NPA

Prof Lukas Muntingh, Project Coordinator, ACJR, said this submission dealt with the National Prosecuting Authority (NPA), particularly the appointment and dismissal of the National Director of Public Prosecutions (NDPP) and other senior officials of the NPA. Africa Criminal Justice Reform (ACJR) focuses on evidence‐based advocacy and policy development, promoting good governance and human rights in criminal justice systems. Their work was based on international, regional and domestic law, promoting policy, law and practice reform based on evidence.

The President had the right to appoint the National Director of Public Prosecutions (NDPP), but the dismissal of the NDPP fell to the NPA. The central issue was that the NDPP's position was immensely powerful. With this power came the real risk that an unsuitable candidate could be appointed, or that the person was beholden to the President, or persons close to the President.

Five key points concerning the appointment of the NDPP should be taken into consideration to inform proposals for reform:

• There had been perpetual instability, and not one NDPP had served the full term of ten years.
• Centralisation and lack of transparency posed significant risks to the NPA’s independence and integrity.
• The skills and experience requirements for the NDPP were rather slim compared to those of the Public Protector and Auditor-General of South Africa (AGSA).
• In appointing the NDPP, the President: i) must consider all information; ii) the appointment process has to be rational; iii) the President cannot cherry‐pick the information on which he or she bases the decision to make an appointment.

The Supreme Court of Appeal (SCA) concluded that:

• Section 9(1)(b) of the National Prosecuting Authority Act did not use the expression “in the President’s view” or some other similar expression, but required an objective assessment.
• The requirement of being fit and proper was couched in imperative terms, stating that the appointee “must” be a fit and proper person.
• Qualities like “integrity” could be objectively assessed, and such an assessment of a person’s personal and professional life ought to reveal whether he or she has integrity.

On the removal of the NDPP, Prof Muntingh said the current procedure had two major critiques. Firstly, the initiative to suspend with the intention to dismiss the NDPP was one coming from the President and not Parliament or any other authority, and could create the impression of the legislature rubberstamping the President’s intentions. Secondly, the court had found that the power to extend an NDPP’s term of office undermined the independence of the office, as it may influence the incumbent’s behaviour and decision‐making to curry favour with the President in order to remain in the position of NDPP. This affected the independence of the office of the NDPP, and was thus unconstitutional.

In conclusion, Prof Muntingh said the appointment and removal of the NDPP, and other senior persons in the NPA, should be guided by the same set of principles as reflected in section 195(1) of the Constitution. Also, there was little sense in having a rigorous appointment procedure to ensure that a candidate of the highest calibre was appointed as NDPP, but then making it easy for his or her removal if the incumbent stepped on political toes in fulfilling the mandate of NDPP without fear, favour or prejudice. A rigorous selection should produce a high calibre candidate that the Constitution protects to fulfil the role of the NDPP as required by the Constitution.

See attached for full presentation

Discussion

The Chairperson thanked Prof Muntingh for the presentation, saying it would assist Members in deciding on this matter.

Dr M Gondwe (DA) said that the presentation recommended that the Constitution be amended to provide dismissals similar to that of Chapter 9 Institutions. Would the ACJR also welcome Parliament appointing the NDPP?

Prof Muntingh said one had to consider the requirements set out in Section 195(1) of the Public Service Act and ask the question: if one were to look at the suitability of candidates, could Parliament do that in an inclusive manner? Did one need to look at other vehicles like the Judicial Service Commission (JSC), as a multi-sectional structure to make such appointments? It would be very useful to draw on the knowledge of professional organisations to assess the merits of candidates. One could also consider the academic and research community and civil society. If one stuck to the principle of inclusiveness, then it could be led by Parliament.

Ms Maseko-Jele thanked Prof Muntingh for the presentation, saying she was clear on the points of this matter for now. She would give her views in the next discussion in the Committee. She thanked him on behalf of the Committee. She said the presentation showed that the community was involved in this democracy, and also had a role in providing input in shaping this young democracy. The Committee would consider the ACJR's views.

Helen Suzman Foundation

The Chairperson said the next presentation was by the Helen Suzman Foundation, which would give a briefing on a proposal to amend Section 174 of the Constitution. This was in relation to the appointment of judges in Section 179, regarding the composition of the JSC. Ms Ramsden would take them through this presentation.

Helen Suzman Foundation on amendment of Constitution for the appointment of judges

Ms Chelsea Ramsden, Senior Legal Researcher, Helen Suzman Foundation (HSF), said the HSF was a non-profit organisation with a keen interest in the judiciary, particularly the Judicial Service Commission (JSC) had been part of their mandate for a decade. The presentation focuses on Section 174 of the Constitution, which concerns the criteria for judicial appointment. While additional criteria had been made public since 2021, past practice was not subject to review and was wholly inadequate. The HSF suggests an amendment to the Constitution for increased relevance, transparency, and accountability.

HSF was also concerned with Section 178(1) of the Constitution, concerning the composition of the JSC. They suggest that the current composition was too political. International best practice suggests that a lesser emphasis on the executive and the legislature would be beneficial. Presidential appointees on the JSC also required no qualifications or expertise, which was to the detriment of the judiciary. HSF suggests reducing the number of political representatives on the JSC so as to better balance the Commission and provide a more robust legal debate. They were suggesting that the appointments made by the President be lowered from four to two. Appointments by the National Assembly (NA) should be lowered from six to three representatives, and representatives from the National Council of Provinces (NCOP) should be lowered from four to two.

Discussion

Dr Gondwe said that the presentation had made some pertinent points, especially regarding the composition of the JSC. She just had one question. Ms Ramsden had referred to international best practice; could she be more specific about the countries they had looked at?

Ms Maseko-Jele wanted to add to Dr Gondwe’s question and ask if any African countries had been involved in assessing international best practices. Would the President have the final word on the appointment of judges? Was the JSC not informed by the outcome of elections in terms of its composition?

Dr Gondwe said she also had a question she forgot to ask. What was the impact of an overly political composition of the JSC on its functioning and effectiveness?

Mr Mashele said that if Ms Ramsden was saying that the JSC’s composition was too political, what was her understanding of the politics of the state? What would the role of politics be if the process must not be too political?

The Chairperson said there needed to be a distinction between state and government issues. One must not consider the state president as the government president.

Ms Ramsden said when she talked of politics, she meant too many members of the executive and legislature on the JSC. She did not mean politics in general, just Members from different government branches as opposed to other political officials. The HSF was not suggesting completely removing presidential power. The President would still be the appointing body in the end. All they were suggesting was that the appointments made by the President, be lowered from four to two. The President would still be appointing judges on the recommendations of the JSC. The processes of the JSC would remain the same. The Foundation just wanted a smaller number of commissioners on the JSC.

Ms Ramsden said the model laws she referred to did not reference foreign jurisdictions. The Helen Suzman Foundation did not look at individual countries. They looked at international organisations and bodies that focused on judges and judiciaries and how judges should be appointed. There were a lot of model laws on how judges should be appointed. One of them was the model laws of the JSC, which was in line with the Commonwealth. Many organisations used South African models as an example of good practice, except that SA was too reliant on the executive and legislative branches. The chief justices of many African countries had come together and concluded that less emphasis on the executive in appointing judges was preferable. There were other examples attached to the submission as well.

Ms Maseko-Jele said she was not sure if her question had been answered. Was the issue of composition not informed by representation in Parliament, in regard to the numbers in the body?

Ms Ramsden said the numbers represented in the body were laid out in the Constitution. As it stands now, there were six representatives from the National Assembly and four from the National Council of Provinces. These were the numbers the HSF suggested should change. Representation of political parties was still decided by the NA. They had suggested changing the NA representatives to three and the NCOP representatives to two.

Ms Maseko-Jele said that the criterion for appointing those Members was taken from the number of political parties in Parliament. Those numbers were decided by Parliament. She said maybe Parliament selected the top six members to send to the Committee. That was what she was unsure about. If Ms Ramsden could not answer this, it was alright. They could deliberate on it in the discussion later to get some clarity.

The Chairperson asked Ms Ramsden what informed these number ratios.

Ms Ramsden said that these international bodies on which their research was based, had modelled what judicial service commissions were supposed to look like. They did not include executive and legislative Members as SA did. She still felt there should be representation, just to halve the political representation. It was important that everyone was represented in the body. By amending the Constitution to lower those numbers, it balanced out the body. This was to make half the body legal, and the other half representatives of the executive and legislature. Currently, the executive and legislature have more representation than legal professionals and judges. In some instances, if the presidential appointees had any political association, that would outweigh the number of legal professionals.

Ms Maseko-Jele said it seemed Ms Ramsden was worried about professional representation in the JSC. Would she change her mind if she knew that those appointed by the NCOP and NA were professionals, even if they were politicians? The only issue for the Helen Suzman Foundation was professional representation in the JSC.

The Chairperson said that it was important that Members understand the submission when they make decisions.

Mr Mashele said it was a very interesting discussion. He asked if Ms Ramsden was advocating that public representation be removed, or their influence be removed and replaced by field professionals.

Ms Ramsden said that while drafting this report, they had sent letters to all representative bodies on the Commission, one to the NA and the other to the NCOP. In the letter, they had asked how they appointed commissioners, and their response had been that no professional qualifications were required. The NA’s appointments were not based on any legal understanding or experience. They were not trying to replace anyone, only to decrease the number of commissioners. Going from 23 commissioners to 17. There would still be political representation. There would still be a minister, three NA appointees, and two appointees from the NCOP in the JSC.

The Chairperson said Ms Ramsden did not answer the follow up question of Ms Maseko-Jele.

Ms Ramsden said maybe she had gone about it the wrong way. It would be better if there were qualifications to meet to sit on the JSC.

Dr Gondwe thanked Ms Ramsden for her presentation. The JSC did play a crucial role in the appointment, removal and disciplining of judicial officers. The Committee had taken note of the Foundation’s concerns regarding the composition of the JSC, as well as the proposals advanced in the presentation, especially having an accountability measure for commissioners. They would deliberate on the submissions as a Committee and communicate the outcomes of their deliberations. She appreciated how organisations like the Helen Suzman Foundation had a keen interest in how the country’s critical structures operate and how they could function more efficiently.

Closing Remarks

Mr Mashele thanked all the presenters on behalf of the Committee. The Committee did not take it lightly that they offered up their time to improve nation building. This was the true meaning of participatory democracy. The Committee appreciated what they were doing, and that they took it in good spirit when they asked difficult questions at times.

The Chairperson asked if it would be desirable to go through the presentations one by one. Even if they had gone through the presentation long ago, it had been good to hear the presenters' views on what they had written. If they could do this, they would save time by not having to take all the matters to the report at once. They could then move on to the 2021/22 submissions and also get the report by the Committee as soon as possible. He wanted to hear from the Committee what their feeling was.

Ms Maseko-Jele said matters of changing the Constitution were serious, and they must now decide which presentation they were taking. She remembered that they once had legal advice, and this might be needed again. She asked for more time for the Members to review the submissions so that they could agree on the next steps the next time they convened. Even though they had read the documents, when someone speaks on their submissions, it gives one more clarity on the matter. She asked for more time to go over the presentations.

Dr Gondwe agreed wholeheartedly with Ms Maseko-Jele. She noted the numbers on the platform and noticed that they had dropped from 25 to 13 participants. Matters pertaining to the amendment of the Constitution were extremely sensitive, and every decision they made may have wide-reaching implications. She agreed with Ms Maseko-Jele that perhaps legal advice was required on the desirability of the proposed amendments. They needed to be given more time and make sure that Members were participating on this.

Mr Mashele said he agreed with Ms Maseko-Jele and Dr Gondwe.

The Chairperson said he was alone in thinking it required more persuasion between the Members. They would still debate the whole report when they were getting legal advice. Now that Members had heard the presentations, what were their views on the matter? They were the only ones to comment on the presentations, since they had listened to them. This was so that next week everyone could come with a complete list to decide on the back of the legal advice. This was so that these three matters could form part of the documentation. He accepted the decision of the Committee.

International study tour mooted

Ms Sisanda Sipamla, Committee Content Advisor, said that in the management committee meeting, it was put forward that since this Committee was facing challenges with getting through the work in the time that Parliament required, it might be beneficial for it to interact with their counterparts from the international Parliament, which had sister committees that were processing this work. The Chairperson had suggested that they motivate the Committee by going on an international study tour before June, if Parliament permitted it. This was so that Members could get a glimpse of how other Parliaments were dealing with the review of their constitutions. These would be parliaments with similar parliamentary systems to South Africa.

The Chairperson said it was very loud and clear. Since there was no researcher on this Committee, he had e asked Ms Sipumla to process these matters so that in the next meeting, Members would get a report. He was sorry to flood all these issues on Members, but time was limited. He was putting this matter to the Members.

Ms Maseko-Jele said there might be another study tour in June, but they would sort it out.

Dr Gondwe said she was happy to put in an application, but she thought other committees were travelling as well, so they must be mindful of that fact.

The Chairperson said he only wanted the views on this matter in principle, and that the administrative work would be sorted out later.

Mr Pilate Gwebu, Committee Secretary, said it would be impossible to organise this tour before June, and that he had been on three study tours. Perhaps they could do it later in the year, around September.

The Chairperson said they should return to it, but for now, they just need to decide. The administration could be sorted out later, and they should not say it was impossible.

Dr Gondwe said she supported the idea of a study tour.

The Chairperson thanked the Members for their participation in the meeting. He thought that it had gone well. They would get the report in the next meeting when they would decide whether these matters were desirable or not. They would then summarise the report before they did the last submission for the year 2021/22. He asked if there were any housekeeping issues.

Ms Sipumla said the report would be a full public hearing process. They would not do the report on just the three submissions. They would conclude the process so they could do the languages as well. They would then have a report on the Members' views regarding the submissions. It might be easier for Members to reach a decision, as they would have already received legal advice.

The meeting was adjourned.