On 14 May 2025 the leadership of the National Anti-Corruption Advisory Council made a cryptic presentation to the Justice Portfolio Committee of the National Assembly on its recommendations for reform of the criminal justice system as set out in a “mid-term report” that has yet to be published. It is apparently being slowly scrutinised by the executive branch of government. The report was first presented to the president early last year but was lost on his desk and only resurfaced much later. Understandably miffed by the delay, David Lewis of NACAC set out the thrust its position in the press in February 2025 and Accountability Now responded promptly:
Media reportage on the encounter on 14 May 2025 indicate that NACAC remains attached to its mid-term report despite the unconstitutionality of its content.
Parliament, which was ordered, by the Constitutional Court no less, to establish a single body outside executive control to deal with corruption in SA is shortly going to have to choose between the NACAC recommendations, which, mercifully so, bind nobody, and the content of the two DA sponsored private members bills currently before it that presage the setting up of a new Chapter Nine Anti-Corruption Commission in place of the current creaking architecture.
The DA’s bills respect the binding nature of the court findings in the Glenister litigation and envisage the single body outside executive control that the court requires. In any shootout in court in which the NACAC recommendations are tested for their constitutionality it is a racing certainty that the courts will, as they must, follow the binding findings in Glenister.
NACAC exists to implement the national anti-corruption strategy. It cannot perform on the mandate given to it without reference to the law, the constitution and the binding effect of the findings in Glenister. Indeed, the national strategy itself envisages precisely what the DA is now proposing with the two bills pending in parliament. Here, in the words of the strategy is what was foreshadowed back in 2020:
NACS proposes that the NACAC be established by the President and should be operational for a maximum period of two years or be disbanded as soon as the permanent body is established. Phase 2: Establishment of an independent overarching statutory/constitutionally entrenched state body that will report to Parliament, and is premised on an integrated, multi-dimensional operational model with cross-sectoral collaboration, in line with the country’s whole-of-government and societal approach’ to combating corruption. It should be given an appropriate name informed by the proposals of the Interim NACAC and final decisions by relevant authorities. It is envisaged that this permanent body will, among other things, drive the long-term roll-out of the strategy and all its related programmes.
Of course, government being as inefficient as it is, NACAC was not appointed until August 2022 which means that its envisaged shelf life expired in August 2024. Instead, NACAC lives on and has only produced a mid-term report which is not yet available in full to the public.
In that report the Office of Public Integrity or OPI is envisaged as a new Chapter Nine Institution. A multi-agency approach to countering corruption is also favoured by NACAC.
The secretive, calculatedly deceitful and transactional nature of all serious corruption demands a body outside executive control to deal with the scourge. The court requires a single body. Instead we have police investigations via the Hawks, NPA led investigations via the Investigating Directorate Against Corruption with the NPA itself responsible for prosecutions of the corrupt. The SIU collects the debts of the corrupt via civil proceedings.
The multi-agency approach currently favoured by NACAC has been tried for years in SA, ever since the disbandment of the Scorpions in 2009. It has not worked well at all as can be seen from a glance at the work and recommendations of the Zondo Commission into State Capture. The low rate of prosecutions and the regular failure to secure corruption convictions ought to be decisive and dispositive of any debate in the matter. No debate is actually required, the court has ruled and the government is bound by the ruling on the single agency architecture the court favours.
The international treaty obligations of the state also demand an independent body be set up and maintained in compliance with the international standards with which SA has failed to comply. These obligations exist and are binding on the state at UN, AU, SADC and even OECD levels. It is cavalier to ignore them given the stated objective in the Preamble to the Constitution that talks of SA taking “its rightful place as a sovereign state in the family of nations.” The rightfulness of that place is called into question by the failure of the state to honour international treaty obligations and to implement properly the “outside executive control” requirements of both the Glenister rulings and the concession in the national anti-corruption strategy that the required anti-corruption body should report to parliament, not the executive.
Neither the police nor the prosecution authority are free of executive control. The minister of police is responsible for policing and must determine national policing policy as detailed in Section 206 of the Constitution. The minister of justice has “final responsibility over” the NPA and must concur in all prosecution policy in terms of Section 179. The director general of justice is the accounting officer of the NPA which operates as a programme within the department of justice.
None of the above features of the constitutional architecture of 1994 match the requirements of the court in Glenister. The Constitution means what the court says it means and the finding of the court bind the government under the requirements of Section 165(5) of the Constitution.
The Office of Public Integrity if it ever sees the light of day, not a prosecution service for countering corruption. It is more a preventative, educational and whole of society initiator of anti-corruption activity. This is a far cry from “dealing with corruption” as required by the court.
While it is true that some of the best talent available to counter corruption in SA is to be found in the ranks of the investigators employed by the Special Investigations Unit, which is not a part of the criminal justice system in SA, there is nothing preventing the body envisaged by the DA from recruiting the best of them to serve in the Anti-Corruption Commission. The sad truth is that the SIU staff, not being answerable to the departments of justice and police, is able to command better salaries than those paid to investigators who are in the Hawks or IDAC.
The mandate of the Hawks involves all manner of priority crimes, not only serious corruption. The Hawks, as the detailed statistics reveal, have never excelled at countering the corrupt. They should in the new dispensation be relieved of the investigation of serious corruption, a task that is beyond the sapiential authority of the Hawks.
The main thrust of any successful anti-corruption efforts is the securing of convictions of the corrupt. This step is the greatest deterrent available. Successful prosecutions boos the national morale, inspire investor confidence and are most persuasive in getting SA removed from the greylisting of the FATF which has caused the cost of national borrowing to soar. Currently SA is paying interest on its national debt at an exorbitant rate.
During the 2025 budget debate in the National Assembly, acrimonious as it was, Songezo Zibi, the leader of Rise Mzansi, did remark — on the basis of his knowledge and experience as Chairperson of the National Assembly’s Standing Committee on Public Accounts (Scopa) — that the country “has debt service costs (interest the country pays) of R442-billion per year, or R8.5-billion per week”. This is not sustainable given the low growth rate and rampant unemployment in SA.
Should parliament be so ill-advised to accept the advice of NACAC and to reject the DA’s bills which envisage new constitutionally compliant anti-corruption machinery of state it will be necessary to resort to public interest litigation because NACAC’s recommendations do not pass constitutional muster for the reasons set forth above.
In the litigation it will be necessary to claim declaratory, mandatory and supervisory relief along the following lines:
A declaratory order to the effect that the IDAC legislation is unconstitutional and that the failure to implement the decision of the Constitutional Court of 2011 is illegal;
A mandamus directing the government to take remedial steps to implement properly the said decision that a body outside executive control take charge of combating corruption;
A supervision order directing government to report to the court at regular intervals on progress being made toward implementing the mandamus.
It is to be hoped that the constitutionalists in parliament will prevail in the debate, will sharpen up the DA’s proposals for an Anti-Corruption Commission, and will resoundingly reject the line suggested by NACAC. The debate will be a test of the maturity of parliament as an institution and the fealty of its members to the rule of law, which they have sworn to uphold. If the test is failed there will be tears shed by the poor (who are the chief victims of corruption) by the politicians (who will lose their seats for being soft on corruption) and by business, who will regard the vote as highly investor-unfriendly, if not sabotage of our faltering national economy.
Paul Hoffman SC is a director of Accountability Now
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