South Africa is a country with so much going for it that it is difficult to discern from the outside why it is that poverty has never been more widespread (55% of the population exist below the poverty datum line), unemployment more pronounced (around 40%, with an eye-watering two out of three young people not in education, employment or training) and inequality, as measured by the Gini co-efficient, more extreme.

The legacies of apartheid and colonialism have not been properly addressed. R2 billion set aside as reparations for the victims of apartheid excesses has not even been distributed to those identified by the TRC who directly suffered oppression of the most egregious kind. The crimes of the apartheid era apparatchiks are not investigated with the vigour required.

Those responsible for the death in detention of Imam Haroon, for example, are all dead long before the re-opening of the inquest into his death. Apartheid spatial planning still takes its toll. Inequality stubbornly persists while jobs are in short supply and the education and training systems remain dysfunctional. Transport infrastructure is in a mess with looted ports and railways. Roads have an estimated 25 million potholes.

The alliance that has governed at national level since 1994 is attached to an ideology of “democratic centralism” that has no place in the constitutional democracy under the rule of law that is envisaged in our supreme law, the Constitution. Its National Democratic Revolution is largely incompatible with a non-racial, non-sexist multi-party system of governance under the rule of law.

The striving for “hegemonic control of all the levers of power in society” that has the cadres and their comrades hard at work is incompatible with the constitutional notions of the separation of powers, the exercise of checks and balances between separate spheres of government, an impartial and independent judiciary, a free press and an engaged and participative civil society. The topic of the little known NDR has been raised previously.

Any conduct or law that is inconsistent with the Constitution is invalid, and, upon being challenged, may be struck down by the courts as invalid. All too frequently the best laid plans of national government fall foul of these constitutional truths. Courts strike down policies and legislation that do not accord with constitutional principles.

The phenomenon of State Capture has done inestimable damage to the fabric of SA society. Not only has an amount estimated to be between one and two trillion rand been looted by those individuals and corporations involved in the attempted capture of the state and some state owned enterprises, those involved continue to enjoy impunity for their various malfeasances while the poor continue to suffer patchy service delivery. Repurposing the state to serve unbridled greed and lust for power is fundamentally unconstitutional.

The Bill of Rights guarantees a wide variety of human rights for all who live in SA. The state is obliged to respect, protect, promote and fulfil all of the rights in the Bill of Rights. Because the Bill of Rights is justiciable it is possible to sue the state when human rights are violated, threatened or not delivered.

The ongoing high levels of serious corruption in SA are its most pressing problem. New investors are scared off by the high levels of corruption, jobs are not created and the poor suffer because the state is unable to perform as contemplated by the Bill of Rights. Some of our more expensive rights are deliverable progressively and on the basis of available resources.

This means that when trillions of rands are diverted into the pockets of the greedy and power-hungry, the state is unable to deliver, the poor become restless and service delivery protests are the result. The attempted insurrection of July 2021 ought to serve as a warning to government that leaving serious corruption unaddressed places the country at risk of further insurrection. Recovering the loot of state capture could put SA onto a better future trajectory. Basic services could be restored, with access to adequate housing and sufficient water as a start on replacing rolling blackouts and dry taps.

The first steps toward putting the country onto a more propitious trajectory must include dealing with the corrupt in high places without fear of the powerful, without favouring any of those involved in the corruption and without prejudicing the public weal. At present the quality and extent of the independence of the anti-corruption machinery of state in SA is questionable. These deficits leave the country vulnerable to the continuation of corrupt activities without consequences that would only flow if the necessary will and skill to counter corruption is rapidly mustered.

In what the president calls “the nine wasted years” of Zuma presidency, inestimable harm was done to the criminal justice administration of SA. The Scorpions, a crack unit in the National Prosecuting Authority, were dissolved because they were investigating unethical politicians and their associates in business. The replacement, a police unit called the Hawks, has never been equal to the proper discharge of its anti-corruption mandate. Its work rate on countering corruption is a mere fraction of its predecessor, the Scorpions.

The NPA itself has been gutted by State Capture and it is still, according to its own leadership, infested with “saboteurs” carefully put in place to ensure that the “royal game” corrupt continue to enjoy the impunity that prevailed during the Zuma years. Zuma himself has turned avoiding accountability for his actions into an imaginative art-form known as the Stalingrad Strategy. He has pleaded not guilty to charges of corruption, fraud, money laundering and racketeering, but his trial has yet to get under way even though his former financial adviser was found guilty of corrupting him as long ago as 2005. Instead there is filibuster and procedural wrangling.

The building blocks for a better life for all start with addressing the high rate of corruption and the consequences of the attempted state capture in SA. The Constitution itself sets the parameters. The police are supposed to prevent and combat all crime, including corruption. The NPA is meant to prosecute criminals without fear, favour or prejudice.

The Constitutional Court, when faced with the shortcomings of the Hawks and the flaws in the make-up of the NPA, which is subject to the “final responsibility” of the minister of justice, took a long hard look at international best practice and came to the conclusion that specialised and well trained personnel, independent in their operations and structure, housed in a properly resourced entity that enjoys secure tenure are what SA requires to counter corruption. The Chief Justice summed up the situation in November 2014:

“Corruption is rife in this country and 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.”

Eight years have flown by since this binding formulation was enunciated. SA is still without an agency dedicated to dealing with serious corruption effectively and efficiently.

Parliament is required to monitor the implementation of the relevant legislation and has the power to initiate new legislation. The Constitutional Review Committee of the National Assembly has unanimously called for a submission from Accountability Now on the reform needed to establish a body with a mandate to prevent, combat, investigate and prosecute serious corruption in all its manifestations. The written part of the submission was made available to the legislature and executive in August 2022. It is accessible to the public here. Hopefully a date for making oral submissions will soon be allocated.

The presidential response to the report of the Zondo Commission is interesting. It envisages the professionalisation of the public sector, a step away from the NDR which will see merit appointments of honest public servants taking office.

However, the president’s idea of making the ID of the NPA a permanent body in the anti-corruption space is an underwhelming response akin to re-arranging the deck chairs on the Titanic after it struck the iceberg. The revamped ID will be operationally and structurally indistinguishable from the dissolved Scorpions unit and no substitute for what the court has ordered in binding terms.

Fortunately, the members of the National Anti-Corruption Advisory Council, appointed in September 2022, are aware of the binding nature of the relevant court decisions and of the urgency of the situation facing SA as corruption continues to spiral out of control, threatening the future of our constitutional democracy. The highest court in the land deserves the last word on the topic. In March 2011 the majority of that court declared:

“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.”

The members of NACAC know that they have not been appointed to re-arrange the deck chairs on the Titanic. As greylisting looms in February 2023, the urgency of their task is obvious.

Paul Hoffman SC is a director of Accountability Now