A core function of the Council will be to implement measures to protect procurement systems and to also implement a whistleblowing programme to receive reports of concerns from whistle‑blowers. These functions are not novel to the private sector. In our experience, most large companies have compliance departments with similar functions that are staffed by experienced compliance professionals. These professionals have learned from years of experience in identifying, detecting, and preventing incidents of fraud, collusion, corruption and conflicts of interest, as well as implementing and managing whistleblowing programmes. As such, we believe that it would be an opportunity missed if the Council were to not include a suitably experienced compliance professional as a core member.
The effective functioning of the ACASA will be dependent on its ability to effectively investigate alleged incidents of corruption and related abuses. We are of the view that there would be merit in the inclusion of a Council member with experience and expertise in conducting forensic investigations. This would ensure that the Council is able to exercise effective oversight over the ACASA’s Inspectorate, who we assume would be subordinate to the Council. South Africa has an abundance of experienced forensic professionals, and it would be a lost opportunity to omit the inclusion of such a professional in the Council.
Who chooses the gatekeepers?
Each of the positions of chief justice, auditor-general and minister of finance are subject to their own selection and appointment process that impacts how independent they are from government.
South Africa is a constitutional democracy. Members of parliament (MPs), the National Assembly, are selected by the people during general elections held at prescribed intervals. The appointment of MPs is based on the proportion of votes received by each political party. Parliament in turn elects one member to be the president and the president has various executive powers as the head of the state and of the national executive. If a single party achieves a simple majority in the national elections, which has been the case since 1994, it determines who the president is. The president has extensive powers.
The minister of finance
Section 91(2) of South Africa’s Constitution gives the president the power to appoint and remove ministers – including the minister of finance. Whilst the president is accountable to the members of their party, the law gives the president autonomous discretion to pick and choose ministers. The minister of finance is not independent of government. They are appointed by the president, and they can be removed at whim – in 2015, David van Rooyen was appointed and then subsequently removed from the position of minister of finance by then president Jacob Zuma following an adverse market reaction.
The auditor-general
The process to appoint or remove the auditor-general is more complex than that of ministers. The auditor-general is one of the so‑called Chapter 9 institutions that are governed by the Constitution and intended to strengthen the constitutional democracy of South Africa.
The appointment process starts with the formation of a committee by parliament. The composition of the committee is determined by proportional representation that reflects the make-up of parliament as a whole. The committee considers eligible candidates and makes recommendations of who should be appointed as the auditor-general. The recommendation must be approved by parliament based on at least 60% of the votes. The president is then bound to appoint the auditor-general recommended and approved through this process.
Whilst the auditor-general is more independent than the minister of finance, they are still essentially selected by a parliament prone to being dominated by one party: from 1994 until 2019 the African National Congress (ANC) held more than 60% of the seats in parliament. This meant the ANC could overcome the 60% voting threshold during this period and select its preferred candidate. At present the ANC holds 57.5% of the seats in parliament.
The auditor-general is appointed for a fixed, non‑renewable, term of between five and 10 years. The current auditor-general has a seven-year term that will run until 2027.
The chief justice
The chief justice is the head of the Constitutional Court, which is the highest court of South Africa. Section 174(3) of the Constitution gives the president the power to appoint the chief justice provided that they consult the Judicial Services Commission (JSC) and the leaders of the opposition parties represented in parliament.
Earlier this year, Justice Raymond Zondo – the man who has led the Zondo Commission – was appointed chief justice. However, the process followed in that appointment gave rise to some confusion in respect of the role of the JSC and over who actually chooses the chief justice. This was because president Cyril Ramaphosa appointed Zondo to the role, against the advice of the JSC which had recommended that Justice Mandisa Maya be selected. Ramaphosa asked Maya to take up the position of deputy chief justice, an offer Maya has accepted.