The final report by the National Anti-Corruption Advisory Council (Nacac), delivered to the president at the end of August, reveals some obviously hard work on its mandate (for which congratulations are due) and some fatal blind spots (which render the overall drift of the report both unconstitutional and unacceptable).

The fatal flaws in the report include, but are not limited to:

• A lack of appreciation of the requirement of the rule of law that majority court judgments are binding on litigants (including the state). Nacac ignores the binding nature of the majority findings in the Glenister litigation, which explicitly embrace the single agency approach to countering corruption and require “a body outside executive control” to deal with the corrupt as a specialist group of trained experts accommodated in an independent body that has guaranteed resources and secure tenure of office.
• The unquestioning embrace by Nacac of SA’s Zuma era, failed multi-agency approach to tackling corruption, when both Glenister 2 and 3 explicitly require a single body for this tricky work. The mere mention of the lack of productivity of “fusion centres”, “task teams” and “hubs” of failed state anti-corruption efforts since the demise of the Scorpions unit suffices to make this point.
• The conceptual confusion involved in recommending the new Office of Public Integrity (OPI) as a Chapter Nine body, which is nevertheless — unconstitutionally — required to act on presidential proclamations like the Special Investigating Unit currently does. This step would obviously, and of necessity, undermine the OPI’s independent and impartial status as a Chapter Nine institution.
• The failure to recommend that the OPI be accorded prosecutorial powers (which Nacac inexplicably reserves for the sabotaged and crippled National Prosecuting Authority).

Nacac appears to think that the courts’ use of the terminology “adequately independent” affords it some wriggle room on independence — it does not — and that the courts have no power to insist on the single agency approach. They do.

Fortunately, Nacac is a mere advisory body where the nation’s corruption hot potato has been parked since August 2022. The cabinet is not obliged to accept its recommendations and should not do so.

Instead, it should embrace the constitutionally compliant Breytenbach Chapter Nine Anti-Corruption Commission bills pending in parliament.

Paul Hoffman
Director, Accountability Now