The rock of constitutionalism is the foundation of the new or post-liberation order in SA. The Constitution and the rule of law are regarded as supreme, and these basic parameters are recorded in Section 1 of Chapter One of the Constitution itself.

This means that our politicians stray from the tenets of the Constitution at their peril. Section 2 of the Constitution lays down that any conduct and any law that is inconsistent with the Constitution is invalid. Section 165(5) records that:

“An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”

The National Anti-Corruption Advisory Council or NACAC, as it is known, was called into being by President Ramaphosa in August 2022 to serve a three-year term during which it is required to discharge its mandate. According to the website for the National Anti-Corruption Strategy:

“This multi-sectoral advisory body was established with a primary purpose of being an advisory body to monitor the implementation of the Strategy. It is anticipated, through the successful implementation of the Strategy, that the end result will be significantly reduced levels of corruption and improved investor and public confidence in South Africa. Objective measures such as better audit outcomes for state institutions, improved ratings in the corruption perception index, reduction in illicit financial flows and citizen trust in institutions, will serve as some of the indicators of progress in this regard. This entails an all of society effort, with government, business and civil society working together.

The following will be the functions of the NACAC:

  1. Advise on the effective implementation of the Strategy by government, civil society and the private sector
  2. Advise key role-players on the overarching thrust of the Strategy, namely the six pillars upon which it is premised
  3. Advise on strengthening of South Africa’s anti-corruption architecture
  4. Host the national anti-corruption summit(s), bringing together government, civil society, business, and academia, to set the country’s anti-corruption agenda and evaluate progress in the implementation of the Strategy; and
  5. Advise on public awareness about corruption in all its facets.”

It can be seen from the functions assigned to NACAC that it is stuck in the hard place that is SA politics in 2025.

Precarious positioning

The reason for this precarious positioning is that both the National Anti-Corruption Strategy (a hangover from the “wasted Zuma years” – as the President himself puts it) and its mandate are based on the attainment of the goals of the National Democratic Revolution (NDR). This informs the strategy and tactics of the ANC-led tripartite alliance in which the SACP and COSATU feature.

The central goal of the NDR is “to secure hegemonic control of all the levers of power in society”. This goal is deeply and darkly at odds with the tenets of constitutionalism which include the doctrine of the separation of powers and the creation of checks and balances on the exercise of power. A multi-party democratic system aimed at openness, accountability and responsiveness is inconsistent with the attainment of the ANC’s desired hegemony.

This hard fact does not deter the ideologues who propel the NDR from attempting to implement its goals. A clash between the supreme law of the land and the NDR is the defining feature of much of the litigation that has found its way to the Constitutional Court over the years. That court is unpopular with the denizens of Luthuli House, who persist in supporting the NDR ideology, despite the “revolution’s” dated and unworkable nature.

On 14 May 2025, there was a presentation to a parliamentary committee on the work of NACAC. The presentation has been thoroughly reported in the media.

NACAC is trying to square the circle between what the law requires and what the NDR-oriented politicians (some of whom serve on NACAC) want. It is failing miserably and letting the public down in the process.

Achieving the impossible

Although only a cryptic summary of NACAC’s currently intended recommendations emerged during the parliamentary engagement, there are sufficient details of its plans publicly available for us to see that it is trying to finesse the gap between the rock of constitutionalism and the hard place of NDR strategy and tactics. This approach is an attempt at achieving the impossible.

Here’s why.

The law requires that the anti-corruption machinery of state in SA should reside in a single specialised and independent entity, a “body outside executive control” as the Constitutional Court put it in its seminal Glenister 2 judgment. This finding was reinforced by the same court in Glenister 3 when the then Chief Justice opened the judgment with this broadside:

“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.”

The requirements of the law laid down in these judgments are summarised in the acronym “STIRS”, for specialised, trained, independent, resourced in guaranteed fashion and secure in tenure of office. The criteria for this body are discussed in greater detail on page 22 of a special edition of Africa in Fact. See also the ebook “Under the Swinging Arch”, which is accessible for free if you google its title.

There are two basic features that any suggested reforms must adhere to, out of respect for the rule of law and due to the binding nature of the two judgments cited above. Firstly, a single entity is required and, secondly, it must be free of the executive branch of government.

The plans of NACAC fly in the face of both these requirements. NACAC, in its own wisdom, prefers the multi-agency approach to combating corruption. The multi-agency approach has been tried for ages in SA without success. After the demise of the Scorpions, an effective agency within the NPA, various gyrations have been attempted by the authorities: a hub, a fusion centre and a task team have not made the slightest dent in the corruption that is rampant in the land. Why NACAC’s plans should make this parlous situation any different is not and cannot be explained. Nor is the failure of NACAC to embrace the court rulings. It is madness to persist in doing the same multi-agency thing and to expect a different outcome by the mere acceptance of NACAC’s plans.

Hegemonic control

NACAC is allergic to the notion that the body required by the courts should be free of the executive branch of government. The source of this allergy is the desire of NACAC to be true to the tenets of the NDR, which seeks hegemonic control of all levers of power. The anti-corruption machinery of state is palpably a major lever of power. NACAC tries to finesse away this requirement by suggesting a new Chapter Nine body it calls the Office of Public Integrity (OPI). This body is required to work on systemic corruption. How to identify systemic corruption on anything other than the tried and tested case-by-case method used throughout the world is not explained, probably because it can’t be.

The Special Investigations Unit, SIU, created by an Act of Parliament in 1996, which currently only works at following the President’s proclamations, and is not a part of the criminal justice administration at all, will be reversed into OPI. It is true that there is much good investigative talent available in the SIU. It currently works according to the civil-law standard of proof on a balance of probabilities. OPI will not be a prosecutorial body but its work, to the extent that it will inform prosecutions, will have to be up to the standard of being able to prove any case taken to trial beyond a reasonable doubt, which is a far higher standard of proof to that used by the SIU in its civil recoveries work.

The current plans of NACAC do not pass constitutional muster for want of compliance with the binding Glenister rulings, which it seems to want to wish away because those rulings are not aligned to the requirements of the NDR. Parliament will be ill-advised to act on the plans of NACAC. If it does, a constitutional challenge impugning the validity of the changes NACAC advocates will be made, and the urgent need to counter corruption will be thwarted, much has it has been since the Scorpions were disbanded.

NACAC seems to want to preserve the role of the NPA in prosecuting the corrupt. This is not what the courts compulsorily require; nor is it an effective and efficient way of tackling the scourge of corruption in SA. The NPA remains partially captured as a consequence of the effects on it of state capture. This is a phenomenon which is ongoing in SA, according to Zondo Commission evidence leader, Paul Pretorius SC.

He should know, from his experience in the Commission and in the NPA. NACAC puts an interpretation on the constitutional requirement of a single prosecution service which is not shared by the Constitutional Court, and which ignores the sustained failure of the NPA to get to grips with corruption in the prosecutions it mounts against the corrupt. The establishment of the OPI will not magically cure this disability.

Glenister rulings

The Chapter Nine Anti-Corruption Commission envisaged by the DA, in respect of which bills are currently pending in Parliament, shows a better appreciation of the requirements of the law and a constitutionally compliant manner in which to implement the Glenister rulings properly.

The debate on these bills should be informed not by the recommendations of NACAC, but instead by what the law actually requires in the way of reform to create a single body outside executive control to deal with corruption.

The leadership of the NPA knows what is required in law. As true servants of the rule of law, those who lead the NPA need to advise government on the unconstitutionality of what NACAC envisages.

Public interest litigation looms, should what emerges from the crucible of parliamentary debate on the two bills not measure up to the binding requirements set by the Constitutional Court.

[Image: Sang Hyun Cho from Pixabay]

The views of the writer are not necessarily the views of the Daily Friend or the IRR.

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Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt.