National Assembly: Cape Town, 7th June 2011
Preliminarily I wish to extend a word of
appreciation for the wise, cordial and gentlemen like leadership
provided to our committee by the Honourable Landers who has happily
replaced the Honourable Romathloli. It is a pleasure to be a member of a committee
which works constructively in the greater good of the country.
The core business for the Department of Justice
should be that of ensuring that not only justice is made but also
that justice is affordable, accessible and effective. Unfortunately
today justice is a privilege for the rich. The cost of private
defence in criminal matters exceeds the budget of most families who
do not qualify for state representation. The costs of litigating in
civil administrative matters are prohibited for the overwhelming
majority of individuals and companies alike. Our leader Prince
Mangosuthu Buthelezi has made concrete proposals to address these
issues which were first tabled with then Minister Maduna and then
with the Deputy Minister Suthri. The implementation of these proposals would
require interaction between the Department and the Rules Board to
which section 173 of the constitution, wisely or unwisely, leaves
the prerogative of shaping our judicial processes.
Our judicial process is a dinosaur of a bygone era
and it has unfortunately remained insulated from the wave of reforms
and progress which has transformed South Africa in the past two
decades. Time does not allow me to elaborate on the matter save for
urging all Members to read the article I have published in the June
edition of De Rebus which Members receive in their pigeon holes
every month. In that article I pointed to tried and tested
modalities which can overnight make justice accessible, affordable
and efficient at no cost to the state. There is no reason to
continue to delay consideration and implementation of such
The role of the Department is also that of
promoting constitutional development which should mean strengthening
rather than weakening the constitutional order. We are concerned how
the parliamentary process provided for in section 176(1) of the
constitution has been bypassed in the extension of the terminal
office of the Chief Justice. The constitution is clear in requiring
that such extension be made by an act of Parliament not by the
President purporting to act in terms of Parliament. This is an
extension of a term of office is one of those "favours" which may
undermine the independence of a Constitutional Court justice who
should neither receive nor hope to receive any such favour from
government as the extension of his terms of office.
Corruption has become a cancer which is spreading
throughout government beyond what the NPA and the SIU can control,
investigate, redress, deter and punish. If the Republic is to
survive this cancer needs to be eradicated. Corruption is creating,
fuelling and nourishing a parallel system of power in an underworld
of secret relations forged through profitable contracts, cartels and
profit sharing. We must be realistic about where we are. The only rational way to deal with this is to draw a line and
start anew. We must write down the past 16 years of corruption as a terrible by-product
of the revolution which took place. In an article published today in Business Day I have called
for a qualified amnesty for corruption. It is not an easy thing to
do, it is not an easy thing for any politician to call for, but it
is the only rational approach. Time does not allow me to fully
motivate this proposal which I urge you to read in all its details
in the article published in Business Day.
A revolution took place in South Africa two
decades ago. Fortunately, it was a benign and bloodless revolution.
historical viewpoint some argue that one could partially ascribe the
rampant corruption, mal-administration and larceny of State
resources of the past 17 years to the retribution imposed by the
victorious revolutionary forces not only on those whom they defeated
but on everything in their wake: somehow the modern equivalent of
the ancient warfare's raping and pillaging of an entire town.
This may not be true, but it does offer a suitable
albeit unconvincing excuse to commit corruption. Hundreds of
previously disadvantaged South Africans have become billionaires
while the gap between rich and poor persists as before.
How does one stop corruption? We cannot even dream of jailing the entire ruling elite:
beside it being unrealistic, the damage to the Republic would be
irreparable. The eradication of corruption has already been declared
a national priority by a President who escaped about 500 charges for
corruption and racketeering. Something more needs to be done to change entrenched
corruptive practices and mindsets. We must draw a line, commence
anew the right way, and declare a new beginning.
A qualified amnesty seems the only option which
fits all aspects of our situation.
However, culprits cannot go scot free. Applicants
for amnesty are normally required to confess to the relevant facts
and circumstances for which they are seeking amnesty. They should
also be required to make full reparation so that all profits of
corruption are returned to the State. This would help replenishing
State's finances without new taxes.
Yet, we may need to go one step further. For it is
unlikely that, under normal amnesty procedures, guilty parties will
come forward, as they are too solidly entrenched behind the immunity
walls of a corruptive world to fear prosecution. They know that the
police cannot cope and corruption has infiltrated its ranks. We may need new and dynamic carrot-and-stick ways to motivate
criminals to come forward.
However structured, an amnesty would enable the
State to re-group and reorganize its actions to fight corruption
effectively at all levels. From this
new beginning every single tender should be properly scrutinised. As
it now stands, prosecutorial and investigative resources are too
engaged to deal with past corruption to provide an effective control
on present and future corruption. With a new beginning, both NPA and
SAPS should be able to prevent and prosecute corruption effectively.
It is not easy to admit that something went
terribly wrong. It is not easy to condone those who took advantage
of it. It is much simpler to stick one's head in the sands. An
amnesty offers better hope of saving the Republic from this cancer.
Otherwise, we are fighting a battle which is lost except in the
empty rhetoric of hypocritical politicians.
Contact: Dr Mario Oriani-Ambrosini MP, 082 556