The National Anti-Corruption Advisory Council, NACAC, via its most voluble member, David Lewis, has set out its stall [see . https://www.businesslive.co.za/bd/opinion/2025-02-11-david-lewis-anti-corruption-agency–legal-niceties-offer-scant-protection-from-state-capture/ and the brief rebuttal of his stance https://www.businesslive.co.za/bd/opinion/letters/2025-02-12-letter-anti-corruption-advisory-council-of-no-use/. ] The topic is worthy of comprehensive airing prior to the looming confrontation between those in parliament who favour the two private member’s bills, introduced by the DA’s Glynnis Breytenbach, to create a new Chapter Nine Anti-Corruption Commission  (Ch9ACC) to deal with serious corruption in SA and those who do not. While the DA and most minor parties favour the Ch9ACC, the MKP, for obvious reasons, does not. https://accountabilitynow.org.za/no-surprise-that-jacob-zumas-mk-party-rejects-the-anti-corruption-bill/.  The current position of the ANC is unknown at the time of writing. Without ANC support the bills are doomed to fail.

Back in August 2020 the NEC of the ANC called on cabinet to set up a single, stand-alone, independent and permanent anti-corruption body (not unlike the newly proposed Ch9ACC) urgently. This has not been done. Instead, the unconstitutional “stop-gap” (as it was called by the then deputy minister of justice) Investigating Directorate Against Corruption (IDAC) which is neither independent nor permanent nor stand-alone came into being in May 2024. https://accountabilitynow.org.za/the-future-of-countering-corruption-after-ramaphosa-hastily-signs-flawed-idac-law/. IDAC is legally indistinguishable from the Scorpions of old and equally vulnerable to being closed down by a simple majority in parliament. This is not the stuff of which secure tenure of office, which is required in law, is made. Yet, in his SONA of February 2025, the president promises that IDAC will be “fully resourced”, not closed down, as it should be.

Unfortunately, NACAC has not had proper regard to the applicable law, be it international treaties, court decisions or constitutional requirements, in formulating its position on much needed and long overdue reform of the system currently in place. That system is a limping, under-resourced and inefficient arrangement in which investigations are done by the Hawks (or Directorate of Priority Crime Investigation) and prosecutions by the National Prosecuting Authority’s Investigating Directorate Against Corruption. (NPA and IDAC).

It is instructive to start by describing the applicable law that is binding on those working on reform initiatives be they political parties or advisory bodies such as NACAC which was called into being by the president in August 2022 to advise government on the way forward.

The International Treaty obligations of South Africa

The post-liberation government of SA has adopted and ratified several treaties that have been set up internationally as  bulwarks against the scourge of corruption. These treaties operate internationally at various levels. Pre-eminent among them is the UN Convention against Corruption, or UNCAC as it is commonly known. Adopted by the UN General Assembly in October 2003 it came into force in December 2005. It has now been ratified by no fewer than 186 members of the UN as well as by six additional international entities like, for example, the European Union. UNCAC expressly requires parties to the convention to keep and maintain independent anti-corruption machinery of state.

The African Union Convention on Preventing and Combating Corruption (CPCC) preceded UNCAC, having been adopted on 11 July 2003, and has since been ratified by 48 out of 55 AU states, with a 49^th having signed but not ratified it. Under Article 5(3) of the CPCC state parties, including SA, are obliged to establish, maintain and strengthen independent national anti-corruption authorities or agencies. In SA none of these steps has taken place.

Provisions to the same effect are to be found in the SADC Protocol against Corruption and in OECD instruments to which SA is a party without being a member of the OECD. These internationally binding instruments are set out and discussed in footnotes 4 to 11 of the majority judgment in Glenister Two, [accessible by googling “Under the Swinging Arch” page 224].

In breach of its various international obligations, SA has no independent anti-corruption body. The Hawks are under the control of the Minister of Police while the NPA, including IDAC, is under the final responsibility of the Minister of Justice. The accounting officer of the NPA is the director general of justice and it is operated as a programme within the department of justice. All of this architecture shows that the NPA hardly has any independent status. Constitutionally required legislation to render the NPA capable of acting without fear, favour or prejudice has not found its way onto the statute book.

The anti-corruption system currently in place in SA has little regard for the international obligations shouldered by SA and neither, so it would seem, does NACAC.

According to its inspiring Preamble, the people of SA, through their freely elected representatives, adopted the Constitution “so as to build a united and democratic SA able to take its rightful place as a sovereign state in the family of nations.”

Dishonouring solemn anti-corruption treaty obligations is hardly the correct way of going about turning this goal into the lived reality of SA.

Binding Court Decisions

There was a great deal of public interest litigation following the disbandment of the Scorpions in 2009. The court cases followed the decision of the ANC at its December 2007 conference to so dissolve the Scorpions urgently. From that litigation binding decisions of our highest court, the Constitutional Court, have emerged in the cases known as Glenister Two and Three. These cases are discussed in detail in “Under the Swinging Arch” a ebook accessible for free on the internet. In the binding decisions made, that court embraced the single agency approach to countering the corrupt. Lewis, it seems from his most recent contribution to the discourse on reform, prefers to ignore or, perhaps, just wish away all judicial precedent applicable to the reform NACAC is considering.

The necessary reform must, in law, be sourced in the Glenister decisions which also include the well-known STIRS criteria laid down for the anti-corruption body. [Specialised, trained, independent, resourced in guaranteed fashion and secure in tenure of office.] Any new law must, of necessity, heed what the courts require, namely, in 2011:  “a body outside executive control to deal effectively with corruption” and again in 2014: “We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption…that entity must enjoy adequate structural and operational independence to deliver effectively on its core mandate”.

Relevant Constitutional Provisions.

For present purposes it is only necessary to refer to two sections of the Constitution to properly frame the law reform needed to render SA’s anti-corruption entity constitutionally compliant. Section 7 demands of the state that it  must respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights. This obligation can hardly be discharged when the state is looted, both extensively and continuously, by the corrupt. The court, in Glenister Two, determined that countering corruption is accordingly a human rights issue that requires of the state to organise and conduct itself in a manner that enables it to comply with its obligations under the provisions of Section 7.

Section 195 sets out the values and principles that inform the public administration. Resources must be used in an economic, effective and efficient manner. This includes human resources that should not be wasted or misdirected in any entity set up for failure at being  “effective and efficient” at anti-corruption duties. In the Zuma years inappropriate budgets were set and irrational appointments (remember Menzi Simelane) were made in the criminal justice system for obvious reasons.

It has become clear that the anti-corruption architecture in place in SA is still neither effective nor efficient. This situation is particularly the case since the Report of the Commission of Inquiry into State Capture has revealed a snapshot into the corrupt underbelly of the state. Had SA enjoyed the services of the STIRS compliant entity the law requires, it is doubtful that State Capture would have enjoyed its various  “successes” itemised in the commission’s report. Over 1000 miscreants are named and shamed, including 97 members of the leadership of the ANC. Very few successful prosecutions have followed, due to the gutting of the NPA as part of the project of the Zuma administration that was aimed at the capture of the state.

Miscellaneous misconceptions in the NACAC methodology

The contribution of Lewis to Business Day referenced above is littered with inaccuracy, misconceptions and irrationality. For example:

• To describe the Ch9ACC as no more than a “new investigative and prosecutorial body” is to ignore the single agency approach of the courts and also overlooks the features of the new body that will address all of the facets of anti-corruption work that NACAC would prefer be done by its proposed new Chapter Nine body, the OPI.
• It is surely axiomatic that if and when corruption is committed, after which the perpetrators get caught and punished following a successful prosecution, would be perpetrators will be deterred from engaging in corrupt activities due to the risk of punishment. Efficient recovery of the loot of corruption is also a deterrent available when efficiency is the hallmark of anti-corruption work.
• Criminal investigations and prosecutions, successfully completed as they were on the Scorpions’ watch in SA, are both possible and also the most effective means of dealing with the corrupt, notwithstanding the high onus of proof, which applies in all criminal cases.
• The risk of detection of corruption is only low in those jurisdictions in which there is no political will to counter the corrupt. Success in corruption cases is invariably low in those jurisdictions in which countering corruption is not taken seriously enough by STIRS compliant staff.
• Lewis is plain wrong to suggest that there is no evidence of interference in the anti-corruption work of the Hawks and IDAC. Keeping them away from the Zondo Commission’s carefully archived records is certainly interference https://accountabilitynow.org.za/letter-end-to-fight-over-zondo-archives-in-sight/. The correspondence between the president and the former minister of justice regarding her VBS frolic is also being kept private without any proper legal justification. Many may argue, like the EFF already has, that the president has not given any acceptable explanation for the presence of a great number of US dollar notes in his Phala Phala  couch, as discussed in the EFF’s Constitutional Court hearing https://www.youtube.com/watch?v=jAfEH-YgzcY.
• While what Lewis calls “legal niceties” may be scarce when rogue operators take over government anywhere in the world, the rule of law is all that is available to hold the line in such times, as illustrated by the Glenister litigation which was waged during Jacob Zuma’s terms of office as president.
• Lewis has misconstrued the mandate of NACAC. It acts in a constitutional democracy under the rule of law and does not have a blank slate on which to draw its imaginative proposals for reform. The international and other legal obligations of the state as well as the binding nature of the Glenister decisions constrain the activities of those working constructively on reform whether they are within NACAC or otherwise. Making unconstitutional proposals is a fool’s mission.
• The proposed OPI amounts to no more than a sop to those who favour a new Chapter Nine body, a position advocated by Accountability Now since 2012 and reinforced by the publication in August 2021 of its draft legislation which is set out in Appendices Three and Four of “Under the Swinging Arch”. The Ch9ACC bills are based on and improve these suggestions.
• The multi-agency approach favoured by NACAC is not part of SA law. NACAC is not at large to advise on changing the law in ways that are unconstitutional and out of kilter with binding court findings.
• The Constitutional Court requires a single body outside the executive, one that is STIRS compliant, to perform the necessary anti-corruption functions of the state.
• The proposed Ch9ACC will be well-placed and perfectly able to do the work on the public education and mobilisation, policy advice (within the limits of constitutionalism) and data collection and analysis. A separate OPI is neither needed nor constitutional.
• The recommendation of NACAC that the president retains his powers of proclamation over the SIU (as a part or even the whole of the new OPI) puts the OPI partially under the control of the executive , which is clearly not what the law, as laid down in Glenister, requires.
• NACAC is not alone in its concern for proper appointments in the anti-corruption body. Lewis should consider the judgment of Justice Cameron in Glenister Three and draw encouragement from it. It is possible to devise appropriate appointment procedures such as those used in respect of the judiciary.
• The NPA has a general mandate to prosecute crime. The new body, if it is to be constitutionally compliant, will have a specialised mandate in respect of serious corruption. The NPA deserves to be more independent, but it cannot be the specialised single body the law requires.
• The NACAC opposition to “removing the constitutional monopoly the NPA enjoys over prosecutions”  does not take proper account of the findings, which bind the state, in the Glenister litigation. The alleged “monopoly” is not absolute, military courts are allowed to hear prosecutions despite the non-involvement of the NPA as was laid down in Potsane’s case in 2001 https://www.saflii.org/za/cases/ZACC/2001/12.html.

The way forward

In all the circumstances, it is incumbent upon the state to take steps that are appropriate to counter corruption. This process begins in parliament.

NACAC seeks to keep the prosecution aspect of the anti-corruption work in the hands of the hollowed out NPA. The Breytenbach Ch9ACC envisages a single entity that will deal with corruption from prevention, combating, detection, investigation and all the way to prosecution of those identified as corrupt. Invariably, a competent investigation precedes a successful prosecution. Both are in short supply in SA at present. It wasn’t always so, the Scorpions had an enviable track record and an effective “troika methodology”. Their downfall was not unrelated to their willingness to crack down on corrupt politicians.

The NPA is too broken, understaffed, lacking in resources and expertise to mount a skilful prosecution of any major players in the field of corrupt activities. As Paul Pretorius SC, Zondo Commission evidence leader, has observed, in criticism of the government, not the NPA: what is expected of the NPA by government is the equivalent of entering a VW Beetle in a formula one race.

Corrupt activities have been exhaustively defined in the Prevention and Combating of Corrupt Activities Act known as PRECCA. Its preamble is instructive and is set out on page 225 of “Under the Swinging Arch”. The current dispirited state of the NPA is reason enough to deprive it of jurisdiction over the corrupt. The chapter and verse informing this assertion is set out in the complaint to the Public Protector made by Accountability Now regarding the paralysis of the anti-corruption capacity of the state in SA [ https://accountabilitynow.org.za/complaint-regarding-paralysis-of-the-anti-corruption-capacity-of-the-state-in-sa/. ] The decisions in the Glenister litigation clearly allow for “the decision of a reasonable decision-maker in the circumstances” in order to bring the situation into line with the international treaty and local legal requirements as set out above. It matters not that NACAC is unaware of any jurisdiction in which the executive has no control of anti-corruption machinery of state. The Constitutional Court’s decision is reason enough to set up a body “outside executive control” simply because that decision is binding under Section 165(5) of the Constitution.

NACAC, under the influence of the ideology that informs the National Democratic Revolution (NDR) , seeks a system in which the hegemony (of the party espousing the NDR, namely the ANC) over all the levers of power in society is preserved. All current aspirations of hegemony should have ended when the ANC lost its majority in parliament in May 2024.  The Office of Public Integrity (OPI) proposed by NACAC is no more than a diversionary tactic to appease or discombobulate those who seek a proper and constitutionally compliant Ch9ACC.

According to the NACAC chair, Professor Firoz Cachalia, the cadres deployed in the department of justice are not impressed with the NACAC  suggestion that the OPI be given the limited functions that NACAC has in mind for it. Giving only “soft” functions to the OPI is no more than an attempt to appease to those who seek substantive constitutionally compliant reform along the lines of the Ch9ACC.

Bifurcating anti-corruption efforts to preserve the role of the NPA is contrary to the single entity approach that the courts have laid down in binding fashion. The multi-agency approach was popular in government during the height of state capture because it was possible to pass the buck back and forth without making any progress against the corrupt. Task teams, fusion centres and suchlike proliferated but did not make any  significant dent in the incidence of corruption. It is just a bad idea to perpetuate a multi-agency approach when the courts require, in binding terms, a single agency approach. The multi-agency approach has not worked in the past and will not work in the future either.

The efficacy of deterrence in corruption cases.

Lewis argues that deterrence of the corrupt is not all it is cracked up to be. The research on the topic does not support this view. Corruption is a calculated, pre-planned and secretive form of crime. Part of the calculation must always be: “What are the chances of being caught?” If the chances are high deterrence is effective, if not, the converse applies. The research of Valerie Wright on deterrence in criminal justice summarised in “Confronting the Corrupt” (another free ebook) on page 106 et seq informs this conclusion:

“Applied to sentencing the corrupt, the lesson to be learnt from the research is that severity of sentence is not a factor that bears proper scrutiny as a means of reducing the incidence of corruption. It is far more probable that the apprehension of certainly being caught, investigated, prosecuted and found guilty at the end of a fair trial is a more useful means of addressing the crime of corruption. The utility of minimum sentences for corruption offenders is accordingly questionable, expensive and not a useful way of addressing the problem. Strong anti-corruption institutions of state of the kind contemplated by UN SDG #16 are a more appropriate strategy.”

The science is also of interest. In any given large population 10% are incorrigibly corrupt, 10% are incorruptible and the rest can go either way, depending on the circumstances. The most relevant and decisive circumstance of deterrence is obviously being held to account for corruption.

The Ch9ACC initiative requires a constitutional amendment which can only be attained with the support of the ANC. The caucus of the ANC, informed by the renewal project of the president, will do well to support the bills. Opposing them will likely persuade more voters that the ANC is soft on corruption. This will impact adversely on its support at the polls both in 2026 at local level and again in 2029, or before 2029 should the GNU collapse –  which may lead to the calling of early elections.

Paul Hoffman SC is a director of Accountability Now and was lead counsel in the Glenister litigation.

12 February 2024.