Corruption flows like erupting lava through most aspects of life in SA today, destroying everything in its path. A strategy for stopping that flow is what we are going to examine this evening.

Corruption is a secretive, deliberate, carefully planned bilateral form of crime which has the capacity, like molten lava, to destroy all in its path. At the dawn of democracy, corruption was not even mentioned in the Constitution that is now our supreme law. After the death penalty was outlawed by the Constitutional Court, there was a fear in political circles that SA would be perceived to be soft on crime. Laws addressing this perception were passed, POCA in 1998 and PRECCA in 2004 the first for organised crime and the latter for corruption; the Scorpions were formed to deal with corruption and did so with some success.

No sooner had Jacob Zuma come to power than the Scorpions were shut down as step one of the state capture project he led. A body lacking the necessary clout, the Hawks, was created to replace the investigative capacity of the Scorpions. The Hawks lack clout and have not been a success. Their initial incarnation was ruled to be unconstitutional in a seminal Constitutional Court finding known as Glenister Two, handed down on this day in 2011. A body outside executive control was required to deal with serious corruption effectively, one that is STIRS compliant. STIRS is an acronym extolling the main criteria set by our apex court in Glenister Two.

Corruption continues apace with state capture, “tenderpreneurism” and even the PPE supply corrupted during COVID were observed to be the greatest threat to our democracy by the president himself during his SONA last month.

At the insistence of the Public Protector, the Zondo Commission of Inquiry was formed and sat for four years at a cost of R1 billion to identify the problem. It named and shamed 97 high ranking ANC members as worthy of criminal investigation. One of them, Vincent Smith MP, has been found guilty of corruption this month and was sentenced to seven years imprisonment. In his retirement Chief Justice Zondo has called for urgent and drastic action against the rampant corruption with impunity which infects SA society, exacerbates poverty and inequality and prevents job creation due to lack of business confidence in the future of the country.

The last thing the president did before fighting a losing battle for the ANC in the May 2024 elections was to sign into law a body called the Investigating Directorate against Corruption or IDAC, a unit within the National Prosecuting Authority that is meant to deal with corruption. This new body, a modern equivalent of the Scorpions, is unconstitutional and ineffective because it is part of the NPA, which is not an independent body “outside executive control” as required by the rulings in Glenister Two.

The Madlanga Commission, like the Zondo Commission before it, has no power to make binding findings on the facts and the law. Its function is to make recommendations to government of the take it or leave it kind.

The most propitious means of stopping the lava flow of corruption in SA today is to assail the constitutionality of IDAC and ask the apex court, if necessary, to take charge of supervising the reform of the law with STIRS compliance. Accountability Now is working up a case aimed at achieving this worthy goal in the next two to three years.

Paul Hoffman SC a director of Accountability Now (www.accountabilitynow.org.za)