The following is an edited version of my submission to the Constitutional Review Committee of the National Assembly, focusing on four key recommendations relating to tackling corruption, revising the electoral system to match the demands of coalition politics, reforming the Judicial Service Commission, and reappraising the overconcentration of power in the hands of the president.

Accountability Now has a few matters that the Committee may wish to consider, with (or without) oral supplementation, which we are prepared to provide at any mutually convenient time.

  1. The need for reform of the capacity of the State to deal with serious corruption

We have long advocated the creation of a Chapter Nine body to counter serious corruption in SA. We regard this independent body as the best practice way of giving proper effect to the judgment of the majority in Glenister Two. The books, all available for free on our website, Confronting the Corrupt, Countering the Corrupt and most recently Under the Swinging Arch set out our position. The binding nature of the findings of the Constitutional Court in the Glenister litigation oblige parliament to do better than it has in previous parliaments to establish and empower a STIRS compliant “body outside executive control to deal with corruption” as the court put it.

The acronym STIRS may not be familiar to new members of the Committee. It summarises the criteria by which the new body must be known:

Specialists in anti-corruption work who are Trained to work in SA in a structurally and operationally Independent environment, Resourced in guaranteed fashion and Secure in their tenure of office.

The NACAC recommendations (all non-binding) currently cryptically in the public domain, to the extent that they differ from those made in Under the Swinging Arch, are not constitutionally compliant and ought to be rejected in the upcoming parliamentary debate in relation to the two private members bills that envisage a Chapter Nine Anti-Corruption Commission. Establishing this commission urgently would be the reasonable decision of a reasonable decision-making body in the circumstances that currently prevail in SA. This task is what the court required in Glenister Two, but, to date, no such body exists.

We have discussed this in public already, here and here. In addition, there is a great deal of relevant material on our website.

Unlike the NACAC recommendations, the two private members bills are constitutionally sound. It is however pleasing to note that NACAC, like Accountability Now, wishes to see the radical revision of whistleblower protection, accepts the need for a constitutional amendment to establish an anti-corruption body within the architecture of Chapter Nine, which guarantees independence and requires a reporting line to parliament. The NACAC notion that the NPA is or could ever , within a reasonable time, be up to the task of countering corruption via prosecutions informed by investigations conducted elsewhere is not sound in law nor in fact.

The NPA is not an independent body, as is explain here, and here. No NDPPs have ever seen out their term of office in the past. The NPA was captured and broken during the Zuma years. It remains infested with saboteurs planted to secure impunity for the corrupt. It lacks the skills, experience, training, and resources to deal with serious corruption. Jonny Steinberg takes a gloomier view of the ability of the state to deal with violent crime. The systemic dysfunction he describes is equally applicable to dealing with the corrupt.

NACAC is also constitutionally out of line with its embrace of the multi-agency approach which has been tried in SA and has never worked with the effectiveness and efficiency required by Section 195(1)(b) of the Constitution. The Constitutional Court requires the single agency approach and NACAC has no authority or right to differ from our highest court’s binding findings. The debate on the two bills ought to be informed by the powers of the National Assembly spelt out in Section 55 of the Constitution, particularly the power to maintain oversight over the executive in its implementation of the legislation urgently needed to deal with corruption.

  1. The revision of the electoral system in the age of coalition politics

It is surely high time for parliament to dust off the report of the Van Zyl Slabbert Commission into electoral reform. The dominant party state of the past thirty years (1994 to 2024) is no more; coalition politics at national level began after the May 2024 elections. A system in which parliamentarians are more accountable to voters and less so to their party bosses is long overdue. An amendment to allow more than 14 days to form a new government after a hung election is necessary.

  1. The reform of the Judicial Service Commission is urgent

In 2023 Freedom Under Law produced a report advocating reform of the Judicial Service Commission. It is discussed and summarised here. As the JSC is a creature of the Constitution, it will be necessary to give urgent consideration to the question of its reform given that it is dysfunctional both in relation to appointments  ( candidates for appointment to the Constitutional Court have become scarcer than hens’ teeth due to JSC dysfunction) and in its disciplinary functions in which the constitutional duty to act “diligently and without delay” is frequently honoured in the breach. Two judges, Hlophe JP and Motata J, have been impeached after the JSC moved with glacial speed to discipline them. Confidence in the independence of the judiciary is vital to the entire constitutional project. Hlophe presiding over the Western Cape High Court while his disciplinary case was pending, and now he has his new role as leader of the opposition as an MK MP, in the party led by the man he stood accused of attempting to protect illegally. These facts reflect adversely on the ability of the JSC to fulfil its constitutional functions.

Attention should be given to making greater use of the services of recently retired judges in all facets of the duties of the JSC. They are a national treasure which is underutilised at present. Currently there are too many politicians on the JSC.

  1. Overconcentration of power in the hands of the president.

Now that coalition politics is the order of the day in SA, and is politically likely to remain so, it is timely to reconsider the overconcentration of powers in the presidency.

The creation of a parliamentary committee for the presidency is a step in the right direction, but it is not sufficient. Untrammelled powers of appointment in the public service are not democratically healthy. A president who may be under a cloud of impropriety should not have sole discretion to appoint a National Director of Public Prosecutions.

Appointment mechanisms of the kind discussed by Cameron J in his dissenting judgment in Glenister Three should be considered by the Committee and remedial legislation should be tabled. Cameron J quoted from the work of the OECD on this topic with approval:

“The selection process for the head [of a specialised anti-corruption institution] should be transparent and should facilitate the appointment of a person of integrity on the basis of high-level consensus among different power-holders (e.g. the President and the Parliament; appointment through a designated multidisciplinary selection committee on the proposal of the Government, or the President, etc.).  Appointments by a single political figure (e.g. a Minister or the President) are not considered good practice.”

The judgment is available here.

Yours in accountability,

 Paul Hoffman SC

Director

Institute for Accountability in Southern Africa

Campaigning as Accountability Now

[Image: Edward Lich 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.