Andre de Ruyter, former Eskom CEO, resorted to a tried and tested device when he addressed the Biznews Conference in place of MIA Fikile Mbalula last week. He suggested some points to the president for his state of the nation address next February. In doing so he stressed, given his business oriented audience, the need to address economic problems in the land.

The unacceptable levels of poverty (over half of the population live in relative poverty) , inequality (our national Gini Index is higher now than at the end of apartheid) and unemployment, overall in the expanded statistic 42% of the workforce, and especially high among the young,  show that the constitutional promise of a better life has yet to be attained 31 years into constitutional democracy in South Africa.

De Ruyter gave  welcome punts to the campaign of the Institute of Race Relations led by Dr Anthea Jeffery in its advocacy of Economic Empowerment for the Disadvantaged (EED) and the DA’s bills, championed by Adv Glynnis Breytenbach that envisage the creation of a new Chapter Nine Anti-Corruption Commission to deal with endemic corruption in the land..  EED is a sensible substitute for the BBBEE policies of the ANC that have enriched a select band of politically connected individual and left the genuinely disadvantaged no better off than they were before 1994. The DA’s bills are a constitutionally compliant means of addressing rampant corruption.

The main and overarching reason for the current parlous state of affairs in SA is arguably the systemic corruption in government, state owned enterprises and business in SA.

Since the demise in 2008 of the Scorpions, an anti-corruption unit within the NPA, there has been a steady increase in the incidence of corruption. For example: Prof Alex van den Heever of Wits estimates that about R2 billion a year has been looted from the Tembisa Hospital in Gauteng each year for the last ten years. A R20 billion dent in the health care budget of Gauteng is intolerable; the fact that the corruption has not been addressed effectively and efficiently over such a long period is lamentable. The death of Babita Deokaran, the Tembisa Hospital whistleblower, goes unavenged four years after her assassination.

The capacity of the criminal justice system to cope with the high incidence of grand corruption is severely lacking and remains unaddressed despite the tinkering with the system that is evidenced by, inter alia, the introduction last year of the Investigating Directorate Against Corruption (IDAC) within the NPA. This tiny body, 128 souls in all, is indistinguishable from the Scorpions except in size  and efficacy. IDAC is not a constitutionally compliant answer to the problems posed by rampant corruption in SA.

The efficiency and effectiveness of the anti-corruption efforts of the state have been litigated in the three public interest Glenister cases, all of which ended in appeals to the Constitutional Court. In the second Glenister case the law was laid down in terms that bind the state:  the court ruled that a single body, outside executive control and characterized by five main criteria is required, but it is yet to be set up in SA due to the lack of political will to do so.

The five criteria are:

• Specialisation – a dedicated focus on corruption,

• Training – as with the Scorpions who received training from the FBI in the USA and Scotland Yard in London,

• Independence – freedom from executive control, interference and influence,

• Resourced in guaranteed fashion, and

• Secure in tenure of office.

The National Anti-Corruption Strategy pays lip-service to these criteria but does not accept the single entity approach required by the court, despite its binding nature. Instead, a multi entity approach with its fusion centres, hubs and task teams has infested and crippled all efforts made to bring the corrupt to book. The fact that many involved in corruption are politically well-connected does not help.

Consider the fates of Jackie Selebi, chief of police, Tony Yengeni, ANC Chief Whip, and Schabir Shaik, financial advisor to and corruptor of Jacob Zuma, as exceptions to the rule of impunity at large in SA. Even Jacob Zuma himself has succeeded in delaying his own prosecution on corruption charges since Shaik’s conviction in 2005.

It does not advance efficiency or constitutional compliance to have the Hawks in charge of investigating all priority crimes , including serious corruption. The Hawks are a mere police unit that is answerable to the minister of police. Any prosecution is only as good as the antecedent investigation. The dysfunction in the capacity of the criminal justice system to deal with corruption is currently under investigation by the Office of the Public Protector which is considering a complaint made by Accountability Now last year.

The National Prosecuting Authority is, by the admission of its leader, infested with saboteurs, planted there in the Zuma era to shield the politically connected against prosecution. The saboteurs cling to office and disciplining them turns out to be a protracted process. Andrew Chauke, the DPP for Gauteng (South), awaits a disciplinary hearing still in the works after a two year delay between the complaint against him and his suspension on full pay.

The ANC itself, via its National Executive Committee, has not been idle. In August 2020 it passed a resolution directing the national cabinet to establish urgently a single stand-alone independent and permanent body of specialists to deal with corruption. These specifications accord well with those laid down by the judiciary in the Glenister litigation. Accountability Now welcomed the resolution, the cabinet has consistently ignored it, inexplicably so.

 Instead, in August 2022, the president appointed the National Anti-Corruption Advisory Council (NACAC) to, in his own words, “ guide the implementation of the National Anti-Corruption Strategy and to strengthen the state’s anti-corruption architecture.”

In August 2025 NACAC furnished its final report to the president. Despite the binding court decisions to the contrary, it clings to the unconstitutional Zuma era NACS “multi-agency approach”. This approach has endemically failed in SA . It also fudges the court’s requirement of establishing a body outside executive control as SA’s national anti-corruption entity. It does however accepts the court’s hint that Chapter Nine is the appropriate constitutional home for such a body, which it calls the Office of Public Integrity (OPI).

All Chapter Nine Institutions have their impartiality and independence guaranteed by the Constitution itself, and report to parliament, not the executive. However, regressively and impermissibly so, NACAC gives the president the power to issue proclamations requiring the OPI, as part of its constitutional mandate “to prevent, investigate and remedy systemic corruption” to deal with instances of systemic corruption presidentially identified.  The mandate is limited to “systemic corruption” which, in the nature of investigative work can only be identified on a case-by-case basis anyway. The suggestion of  allowing a presidential proclamation for the OPI is a legal abomination. All Chapter Nine Institutions answer only to parliament, not to the president or any other member of his cabinet. None of them accept instructions of any kind from the president. Their role is to bed down and promote constitutional democracy in SA free of influence or interference from the executive.

NACAC does not appear to appreciate the binding nature of the Glenister decisions nor to understand that its suggested OPI is not a “body outside executive control” as is required by the joint majority judgment in Glenister Two.

NACAC also, impermissibly so, leaves the prosecution of corruption in the hands of our hollowed out and saboteur infested NPA, thereby flouting the single entity approach and setting up the OPI for failure due to the intractable prosecutorial shortcomings in the NPA. It is ludicrous to imagine that a band of 128 souls, the full complement of the IDAC, can stem the tide of grand corruption currently inundating the land.

Fortunately, NACAC is a mere advisory body. It recommendations that do not align with the law as laid down in the Glenister litigation are illegal, unconstitutional and invalid. The cabinet and parliament should reject them on pain of being sued for failing to respect the binding nature of the court decisions.

Waiting in the wings are the two bills to which De Ruyter referred at the biznews conference, introduced in parliament on 1 November 2024 by the co-chair of the justice portfolio committee, Adv Glynnis Breytenbach, who was shadow minister of justice in the sixth parliament. These bills envisage a Chapter Nine Anti-Corruption Commission to prevent, combat, investigate and prosecute serious corruption. They are constitutionally compliant and ought to enjoy the support of the ANC, given the resolution of its NEC in August 2020 and given the flaws in the recommendations by NACAC as mentioned above.

Without the support of the ANC, the Breytenbach bills will fail to attain the necessary two thirds majority they need in the seventh parliament because they involve an amendment to Chapter Nine of the Constitution.

 Should they fail, the way forward is public interest litigation assailing the constitutionality of IDAC and seeking declaratory, mandatory and supervisory relief to secure the proper implementation of the Glenister rules.

Let’s hope that constitutional good sense prevails and that the Breytenbach bills become law.

In the meantime the president should give Andre de Ruyter a mandate to draft his SONA for February 2026.

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