The Constitutional Court has provided the best short answer to this question given the context of what the country is all about and what the law requires as regards corruption:

“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

[ Glenister Two para 166 on page 200 of the ebook “Under the Swinging Arch” available for free by googling its title]

These sentiments, and those set out in the balance of the judgment, were reinforced by the same court in the first two paragraphs of the judgment in Glenister Three:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.\ “We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

More recently retired Chief Justice Raymond Zondo , who chaired the commission of inquiry into state capture, put it thus, when he warned in November 2023 that:

“The levels of corruption in our country have reached completely unacceptable proportions, and unless something very drastic and effective is done soon, we will have no country worth calling our home.” (underlining supplied)

When the first tranche of the report of the commission was handed to him in January 2022, President Cyril Ramaphosa, described it as “a defining moment in our country’s effort to definitely end the era of state capture and to restore the integrity, credibility and capability of our institutions, but more importantly, our government”.

2. What is the effect of corruption on the lives of ordinary people who may not even know that they are victims of the crime of corruption or corrupt activities?

Although the cornerstones of the democratic order in SA involve an open, accountable and responsive government delivering a better life to all, corruption has hobbled all efforts to make SA into what its founders intended: a country in which human dignity is respected, human rights are enjoyed and the state strives to promote the achievement of equality. Corruption in all its manifestations is a secretive, calculated and greedy form of crime that is difficult to detect and hard to counter.

The state must, according to the Bill of Rights, Section 7(2), “respect, protect, promote and fulfil” the rights it guarantees.

These rights include expensive socio economic rights that are deliverable progressively in the light of available state resources. Housing, healthcare, education and social security are expensive. Obviously, if resources are diverted to the pockets of those involved in corrupt activities, whether in the private sector or the public administration and state owned enterprises, there is less funding available to implement the service delivery obligations of the state. Currently the state has borrowings of R442 billion. It costs about R8,5 billion a week in interest payments to service these debts.

As a result of corruption, inequality in SA has been exacerbated since liberation, so much so that SA is today the most unequal society in the world among the 130 nations in which inequality is measured according to the Gini Index. The score of SA is .64 which compares unfavourably with the better organised and happier countries of the world where the rule of law is respected and human rights are real, not promises on paper.

In a population of about 65 million, 28 million people in SA draw SASSA grants every month while only 7 million pay personal income tax. Unemployment is measured, somewhat roughly, at 42% of the workforce. Joblessness is attributable to the lack of new job-creating investments in SA’s economy. All of these features of SA today are not sustainable.

New investors, both local and foreign, are scared off by the weakness of the rule of law and the prospect of having their investments plundered by the corrupt and by organised criminals who all enjoy a level of impunity that is unacceptable to potential investors and all right-thinking people. Business confidence remains at low levels largely due to corruption dampening positive sentiment.

Yet SA has a wonderful climate, much tourism potential in our beautiful “world in one” country, which is also blessed with natural resources in abundance. These include its mineral wealth, its arable land and its diverse people. While corruption persists it will be difficult, if not impossible, to unlock the vast potential of the country.

3. What can and should be done to tackle the corrupt in SA?

The Constitutional Court, in terms that bind the government, has ruled on this question in the Glenister litigation in which the constitutionality of reform measures taken after the disbandment in 2009 of the Scorpions anti-corruption body were challenged. In the case now known as Glenister Two it ruled that:

“ our law demands a body outside of executive control to deal effectively with corruption”

[Under the Swinging Arch page 210 paragraph 200]

No such body has ever been established by legislation. However, there are two bills currently pending in parliament for the establishment and enablement of a new Chapter Nine institution – an Anti-Corruption Commission that will be empowered to prevent, combat, detect, investigate and prosecute serious corruption cases and also recover the loot from the corrupt. The loot accumulated in SA and abroad over the years, going back to the notorious arms deals of 1999, is measured in the trillions of rand.

The commission will be a standing constitutional commission, not a toothless commission of inquiry. It will be empowered to deal with corruption effectively, as the court requires of it.

Currently the inadequate and unconstitutional Investigating Directorate Against Corruption (IDAC) exists to perform the role that is better suited to the proposed Anti-Corruption Commission (see here).

The court, in its Glenister ruling, laid down the criteria by which the body it envisaged should be known. These criteria have become known as the STIRS criteria. IDAC does not comply with any of them.

The STIRS acronym identifies:

· Specialisation in the sense of being dedicated to the issues around corruption to the exclusion of all else.

· Training for recruits to empower and enable them to match the wiles of cunning corrupt operators and their well-paid lawyers.

· Independence of the institution at both structural and operational levels to ensure that political influence and interference are not brought to bear on staff and that they are able to function without fear, favour or prejudice.

· Resources that are adequate to the reasonable needs of the corruption fighters and are guaranteed so that their non-payment cannot be used as a means of stifling their functioning and level of performance.

· Secure tenure of office for all corruption fighters so as to remove the threat of dismissal or disbandment such as happened to former NDPP Vusi Pikoli and the entire Scorpions unit of his NPA which was dissolved following a decision made immediately Jacob Zuma came to power in the ANC at Polokwane in 2007. Had the Scorpions enjoyed the protection of Chapter Nine status they would still be in existence and the whole trajectory of state capture in SA would have been less stellar. This happy state would have been due to the fact that a two thirds majority in parliament would have been needed to close them down, had the Scorpions enjoyed Chapter Nine status. Instead, they were a mere creature of ordinary legislation and could be dissolved with a simple majority. This in fact happened when, in the face of all parliamentary opposition and widespread public misgivings, the ANC used its majority in parliament to dissolve the Scorpions.

4. How does parliament go about passing a law using the STIRS criteria?

The court in Glenister Two required parliament to make “the reasonable decision of a reasonable decision-maker in the circumstances” without the court, very properly so, being prescriptive as to the exact means used to comply with the STIRS criteria. Currently “the circumstances” are dire, as has been pointed out pertinently by the former Chief Justice, quoted above.

How to get to a reasonable decision when making laws or policy was discussed previously by the same court in the Rail Commuters’ Action Group case, paras 84 to 88, where a unanimous court observed that:

[88] What constitutes reasonable measures will depend on the circumstances of each case. Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer – the closer they are, the greater the obligation on the duty bearer, and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result. The more grave is the threat to fundamental rights, the greater is the responsibility on the duty-bearer.

Corruption has always posed a grave threat to human rights. As Judge Navi Pillay, in her capacity at the UN Human Rights Commission, has observed: “Make no mistake about it, corruption kills.”

In SA today, following the disturbances that took place after former president Zuma was incarcerated in July 2021, the increased threat to fundamental human rights places a more onerous responsibility on parliament than has existed since the liberation of the country. There is no doubt that the instigators of the July 2021 disorder fear being held to account for their corrupt activities and would much prefer that the culture of impunity for the politically well-connected put in place by Zuma should continue. If disorder does continue the prospects of SA failing as a state increase to the detriment of the vast majority of the people of SA. Neighbouring Zimbabwe is an example of a failed state.

5. Why has it taken so long to do what is needed to counter corruption?

There has been a lack of political will in parliament to take the steps necessary to address the malaise in the criminal justice system which started in earnest with the disbandment of the Scorpions and was exacerbated by the state capture project during what the president calls “the nine wasted years” of the two Zuma administrations.

Now that coalition politics at national level are a new reality in SA, it can be seen that parliament is no longer a “rubber stamp” for the executive. This was demonstrated for all to see in the fracas around the illegal attempt to increase VAT without the decision to do so carrying collective cabinet accountability and responsibility. The imposition of taxation without representation triggered the American war of independence. In SA it may now have ushered in a renewed commitment to the values of the Constitution.

It is the constitutional duty of parliament to make new laws and to “ensure that all executive organs of state in the national sphere of government are accountable to it”. Parliament must also maintain oversight of the proper implementation of all legislation under Section 55 of the Constitution.

6. What can concerned citizens do to accelerate the reforms needed to counter the corrupt?

The success of constitutional democracy under the rule of law, (the form of government contemplated by the Constitution, our supreme law,) is largely dependent upon the active participation of concerned citizens in securing and preserving their hard won freedom. The habits of mere passive subjects in an authoritarian society must be shaken off and replaced in the manner set out in Section 195(1) of the Constitution which plainly states:

“People’s needs must be responded to, and the public must be encouraged to participate in policy making.”

The people’s needs in relation to the scourge of corruption are best served by the introduction of an anti-corruption body outside executive control as was ordered in binding terms in the Glenister litigation. It is intolerable that both the executive and legislative branches of government have for so long ignored, or at least failed to implement properly, the court’s decisions. The two bills currently pending in parliament need to be debated thoroughly and urgently so that out of the crucible of argument in that debate there emerges a body “outside executive control” that can do justice to the need to counter the corrupt and to rake back the loot accumulated by them. There is enough loot to repay the national debt several times.

Lobbying parliamentarians, writing to the president at presidentrsa@presidency.gov.za , engaging the ministries of police and of justice (including the hard pressed National Prosecuting Authority), organising business, unions, civil society and faith based bodies to take up the cudgels are all freely available avenues for those participative citizens who have had enough of corruption in SA.

It is also costs nothing to complain to the SA Human Rights Commission and the Office of the Public Protector about the state of affairs in governance as it pertains to countering corruption. The latter step has already been taken by Accountability Now.

[See here. ]

As corruption is a human rights issue in the law of SA, it is possible for any interested person or body to formulate a similar complaint to the SA Human Rights Commission for investigation by it.

7. What happens next if the reforms needed are not effected by government?

Should parliament reject the two bills already before it, as amended and refined during the parliamentary process, then it will be open to any public interest litigant, armed with the findings in the Glenister litigation, to approach the High Court for appropriate relief. As the court findings in Glenister are binding on government, it will be possible to obtain declaratory relief to the effect that government is in breach of the binding obligations created for it in the Glenister litigation.

Further declaratory relief striking down IDAC as an unconstitutional body is available should government persist with what it called a “stop gap” body when the executive introduced IDAC to parliament in 2023.

In addition to the declaratory relief, a mandamus can be obtained requiring government to take the steps necessary to effect proper compliance with the STIRS criteria laid down to guide the legislative process.

It is also possible to seek supervisory relief that requires parliament to report to the court at regular intervals on progress it must make with the reforms needed.

The declaration of the unconstitutionality of IDAC will have to be confirmed by the Constitutional Court.

It should not be necessary to resort to litigation despite the fact that a two thirds majority in parliament is needed to secure passage of the bills introduced by the co-chair of the justice portfolio committee, Glynnis Breytenbach. The ANC and DA, the two largest parties in the GNU, between them have 60% of the votes needed and the smaller parties in the GNU will surely support the bills.

In the hard realities of accountability to the electorate, it is political suicidal to be seen to be opposing the adoption of anti-corruption laws that the Constitutional Court has ordered parliament to put on the statute book. It is shameful that it has taken so long to do what is required in law. As long ago as August 2020 the ANC’s National Executive Committee instructed cabinet to make the necessary reforms. That instruction has been ignored.

[https://accountabilitynow.org.za/paul-hoffman-has-anc-finally-had-its-eureka-moment-on-corruption/.]

No sane political party in SA wants to be seen to be soft on corruption.

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