Lex Makua: Special courts for state capture

The state capture commission of inquiry, currently under way in Johannesburg, is very important for our country, and all efforts should be made to allow it to succeed. However, as things stand, the inquiry is scoring own goals, which might affect its credibility in the eyes of the public.

It seems the commission does not have a working plan to focus on its terms of reference.

The commission’s mandate, as set out in its terms of reference, is to investigate state capture, corruption and fraud. The terms of reference specifically mention names of certain people, organs of state and possible witnesses as the people whom the commission should question, as part of its investigation into state capture, corruption and fraud.

These are the three aspects that the commission has been tasked to investigate, make findings on, offer recommendations and submit a report to the president.

The terms are very clear and precise. If the commission adheres strictly to these, there should be no need to extend its term to 2020.

The commission should avoid the temptation of receiving documents through marches organised and led by political parties. This is a silly season of electioneering, and accepting documents from political parties might serve an unintended outcome – in that other political parties or lobby groups might do the same and there would be no end game.

The withdrawal of Comfort Ngidi from the commission’s panel of legal practitioners is unfortunate and should have been handled differently. Ngidi is a practising attorney and, in terms of his profession, is fit and proper to practise law anywhere in South Africa.

The appointment and suspension of a Bosasa-linked company to provide security work at the inquiry was a low point and left a dark cloud on how the commission conducts its business.

It is my observation that if the commission had a working plan, the above incidents could have been avoided. The military saying, “If you fail to plan, you plan to fail”, is true. The inquiry should focus on its terms of reference to unearth unseen “nuggets” of state capture and help our country to rebuild itself.

Government has previously invested in commissions of inquiry, spending millions of rands’ worth of taxpayers’ monies in the process. With the findings and recommendations of such commissions having not been implemented, it is not a stretch to presume that commissions are constituted only to placate the masses.

That said, one must take into account the fact that government is not bound to release or implement the commission’s findings and recommendations. So, why should we wait until 2020 to reclaim and rebuild our country? Is it not time for President Cyril Ramaphosa, through the justice ministry, to establish specialised and dedicated courts to deal with state capture cases?

This frustration with the delays it takes for commissions of inquiry to complete investigations, and the non-binding nature of its findings and recommendations, should be reason enough to prompt us to establish specialised and dedicated state capture courts, presided over by retired judges and magistrates, and assisted by retired prosecutors.

Judicial and prosecutorial specialisation in matters involving state capture should be government’s primary focus if we are serious in confronting the culture of looting in state-owned enterprises and government departments.

The creation of these courts will result in greater efficiency and signal government’s commitment to eradicating state capture and restoring accountability to those given the task of safekeeping our public purse.

Presiding officers and prosecutors who would serve in state capture courts would become specialists. This would have positive spin-offs for the country. There are primary benefits associated with the creation of specialised courts: they would foster a culture that’s against impunity, bring an ethos of accountability to those managing public resources, reduce backlogs in case management, and restore people’s confidence in the courts and the judiciary at large.

In specialised and dedicated courts, prosecutors and magistrates form a virtually seamless criminal justice system. The rationale for the dedicated courts on state capture is to harness scarce criminal justice expertise so as to combat corruption, fraud and theft among people entrusted to be the custodians of state resources.

Specialised and dedicated courts should not only be for criminal trials but should also be extended to civil courts and disciplinary panels. Dedicated civil courts would be responsible for recovering assets, including money in terms of the Public Finance Management Act. For the recovery of assets and monies, government should use a pool of lawyers who specialise in commercial and administrative litigation.

Disciplinary panels should be established to investigate, initiate and preside over cases of officials involved in state capture. Disciplinary cases and the recovery of assets should not wait for the completion of criminal cases, because the tests and standards of proof differ.

Government should view dedicated courts for state capture, as well as disciplinary panels, as tools to combat impunity and restore public confidence in Batho Pele principles.

The primary rationale for creating dedicated state capture courts and disciplinary panels, then, is to ensure that a particular area of the law is able to develop rapidly and consistently, and to ensure that justice is administered more speedily than might be the case in courts with more open rolls.

These courts should have their own terms of reference with clearly defined time frames, complemented and supported by a working plan. To resolve and deal with state capture, South Africa needs action, not shouting from rooftops.

- Makua is a member of the National Association of Democratic Lawyers and the Johannesburg and Pretoria societies of advocates

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