South Africans are plunged into darkness daily by rolling power cuts – a stark reminder of the destruction that years of state capture wreaked on Eskom. Its inability to meet the energy needs of citizens and the economy is now the undeniable example of how state capture made parastatals and other state institutions ineffective.

‘The country urgently needs action to recover the stolen funds and fix the economy,’ says UCT’s administrative & constitutional law expert, Lauren Kohn, in an opinion piece on The Conversation site.

She says in her recent paper she has proposed a workable, constitutionally congruent plan, which lays the foundations for a new anti-corruption redress system which would help government to recover the money and restore dignity to the people of SA.

Her proposal is the constitutional separation of powers includes a fourth branch of state – described as the ‘integrity and accountability branch’, which should include the prosecuting authority.

‘Prosecutorial policy can be harnessed to begin recovering the illegal profits of state capture. This should start urgently – pending the necessary legislative intervention – with the use of the internationally recognised redress tool, the non-trial resolution. This tool can be adjusted to fit the South African constitutional context.’

Kohn notes non-trial resolutions include a plea bargain, a deferred prosecution agreement, a non-prosecution agreement and a more informal declination to prosecute (for example, by way of letter). She says it would be constitutional to start concluding such non-trial resolutions with state capture offenders pending the legislative introduction of the anti-corruption redress system she proposes.

For now, prosecutorial policy could be issued to make use of section 38 of the National Prosecuting Authority Act, which allows the prosecuting authority to use specialists (such as forensic and legal experts) in ‘specific cases’.

She says it could be used to conclude deferred prosecution agreements or other types of anti-corruption redress agreements.

‘These would be concluded with people or entities who report their illegal profits themselves, or who are identified by whistle-blowers. This way, money can start flowing back into the public purse sooner rather than later.’

Kohn says the nub of the ‘no profit, no loss principle’ is that although penalties cannot be imposed without the proper application of the law, public accountability means that there is no right to profits unlawfully gained.

Kohn suggests SA does not need new legislation on non-trial resolutions.

Section 38 can be amended to introduce the fully fledged anti-corruption redress system. As part of this system, there would be an anti-corruption redress body staffed with the right mix of experts. Cases would be determined on the lower civil standard of proof: ‘a balance of probabilities’.

The legislative intervention should provide for administrative fines, which should be a percentage of the unlawful benefit the party gained from the corrupt deal.

‘Administrative fines are already used in the country’s competition and environmental law regimes. They can improve deterrence and enhance redress.’ 

Kohn concludes: ‘The proposed anti-corruption redress system is fundamentally about the right mix of retributive and restorative justice to restore the dignity of the people of SA. It would help rebuild public trust in government, reduce impunity and usher in an era of enhanced integrity and accountability. Now is the time to make this happen.’

Full opinion piece on The Conversation site