The state is obliged to set up a corruption-busting entity that complies with the Glenister criteria

24 November 2022

The loot of state capture is measured in trillions of rand and thousands of crooked operators are involved. Yet the recoveries so far are measured in single-figure billions and the number of arrests in dozens. Convictions are still so few as the culture of corruption with impunity is alive and well in SA.

The effects of corruption on poverty (55% of the population live below the poverty datum line), inequality (our Gini coefficient has never been higher) and unemployment (44% of work-seekers out of work, with two in every three young people not in education, training or employment) are dire. Delivery of the human rights guaranteed to all is prejudicially affected, while the loot of state capture remains unrecovered. New investment is scared off and greylisting looms next year.

These factors ought to have all hands to the pumps to bring about the long overdue and sorely necessary reforms to the criminal justice administration. The Zuma-era idea of leaving the investigation of serious corruption to the police, with the prosecution service limited to prosecuting dockets rather than building them, has failed miserably. Had a constitutionally compliant anti-corruption entity been in place during the Zuma years, state capture could have been nipped in the bud. Instead, the Hawks and National Prosecuting Authority (NPA) fell victim to state capture themselves, in crippling fashion. The damage done cannot be repaired from within in time to save SA from the terminal aspects of serious corruption.

What then is a constitutionally compliant anti-corruption entity? The necessary criteria have been laid down in binding terms by the Constitutional Court in the Glenister litigation. A specialised, highly trained, independent entity is required with secure tenure of office and guaranteed resourcing. No such thing exists. Making its investigating directorate a permanent feature of the NPA will not render it constitutionally compliant. The government is obliged to fashion an anti-corruption entity that complies with the Glenister criteria because it is bound to implement the findings of our highest court properly and has not done so.

The NPA itself is not sufficiently independent to fit the bill, and this is acknowledged by its leadership. The anti-corruption entity should be a stand-alone, permanent entity that is thoroughly endowed with the criteria applicable. The best practice way of achieving this is via an entity housed in chapter 9 of the constitution and reporting to parliament, not the executive.

If government is not prepared to pass the necessary remedial legislation, public interest litigation on the topic is inevitable in the interests of curbing the corrupt.

Paul Hoffman, SC
Director, Accountability Now

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