KZN Department of Public Works and Infrastructure
International Fraud Awareness Week Launch
Speaking Notes on
Successfully Countering Corruption
Paul Hoffman SC
Accountability Now
www.accountabilitynow.org.za

1. The Constitutional Framework

The words fraud and corruption do not appear in our Constitution

We do have the SAPS Act, the NPA Act, the SIU Act, PRECCA, POCA and AFU legislation in addition to the common law remedies available to counter corrupt and fraudulent activities.

We do not currently have an operational and structural framework that successfully deals with the fraudsters and the corrupt in our midst.

2. International Law domesticated by SA

UNCAC, CPCC, and the SADC Protocol are domesticated in SA law

These treaty obligations all include an obligation to set up and maintain anti-corruption machinery of state that is independent in its operations and structure.

3. The impact on corrupt activities of Section 7(2) of the Constitution
4. The decisions of the Constitutional Court in the Glenister litigation

“…Our law demands a body outside executive control to deal effectively with corruption” (Glenister Two paragraph [200])

The main criteria by which this single body must be known are called the STIRS criteria. This acronym stands for:

Specialised
Trained
Independent
Resourced in guaranteed fashion
Secure in tenure of office.

No body answering this description or possessing these qualities exists in SA, hence the need for the Madlanga Commission (and before it the Zondo, Mpati and Nugent Commissions). And the ad hoc committee in the National Assembly is currently taking evidence and looking into the matter too.

The Constitutional Court ordered parliament to create the body it requires by September 2011. Parliament has not done so in any way, shape or form. Instead we have Hawks investigating, the SIU raking back loot, the AFU seizing, freezing and securing forfeiture of stolen assets and the NPA prosecuting serious corruption. Too many cooks …

5. The rationale for the decision of the Constitutional Court

In paragraph [166] of the joint majority judgment in Glenister Two the court poignantly pointed out that:

“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.”

6. A DA MP, Adv Glynnis Breytenbach, herself an ex-prosecutor and current member of the ad hoc committee looking into the Mkhwanazi complaints, has two bills pending in parliament that envisage the establishment and enablement of a new Chapter Nine Anti-Corruption body that answers to the requirements and

criteria set by the Constitutional Court.

7. If her bills are not accepted by parliament it will become necessary to litigate further for declaratory, mandatory and supervisory relief against government which is legally bound to implement the Glenister judgment properly, which it has not done at any stage.
8. From the perspective of those working in the public administration and in state owned enterprises the provisions of the Constitution mentioned in the draft pledge below take on significance in the countering of corruption and fraud within the state and SOEs

Pledge by the Members of the Public Administration of South Africa

We, the public administration staff of the Republic of South Africa, including employees of state owned enterprises, proudly pledge to the nation and to all who inhabit and visit our Republic that:

1. We will promote and maintain the highest standards of professionalism and ethics in all we do in our official capacity, with ubuntu and bato pele as our ever present watchwords. [ C 195 read with policy and the spirit of the Constitution (C)]
2. We will strive without end for the most efficient, economical and effective use of resources, including human resources, in our places of work. [C195]
3. We will at all times remain development oriented in our work in the public administration. [C 195]
4. We will act impartially, fairly, equitably and without bias in our provision of services to the people in South Africa, forever showing responsiveness to their needs as communicated to us through the public participation processes in place. [C 195 read with C 33]
5. We will act accountably, by always explaining our actions reasonably and by justifying our decisions properly. [C 195 and C 1]
6. We will, within the limits of the law, provide the public with timely, accessible and accurate information in the interests of transparency in all we do. [C 195 read with C 1 and C 32]
7. We will cultivate good human resource management and career development practices so that human potential is maximised, on the basis that the public administration remains broadly representative of the South African people. [ C 195]
8. We will respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights. [C 7(2)]
9. We will at all times uphold the foundational values of the Republic as they apply to human dignity, equality and freedom; the advancement of non-racialism and non-sexism; the supremacy of the Constitution and the rule of law; responsiveness to peoples’ needs and openness in the public administration. [ C 1]
10. We will, in our loyal execution of the lawful policies of the government of the day, be forever vigilant to ensure that we act in a manner consistent with the Constitution, its values, tenets and principles. [ C 197 read with C 2] We will, in particular, procure goods and services in accordance with a system that is fair, equitable, competitive, transparent and cost-effective [ C 217 ] and perform our obligations diligently and without delay [ C 237 ]

In offering this pledge, we affirm our belief that South Africa belongs to all who live in it, united in our diversity. We further affirm that we are working ceaselessly to build our multi-party, democratic and open society in accordance with the rule of law, so as to reflect the resolve of the nation to live in peace and harmony, to be free from fear and want and to seek a better life, thus earning its rightful place for South Africa in the family of nations. [Preamble to the Constitution (C) read with C 1 and C 198]

Paul Hoffman SC

Accountability Now

18 November 2025.