It is axiomatic in journalism that “if it bleeds, it leads”. Good news does not sell newspapers or, in the age of electronic communication, attract the clicks that are the essence of survival in cyberspace.

It is therefore no surprise that some good news on the anti-corruption front in South Africa has not enjoyed much media coverage since the Government Gazette which bears the good news was published on 19 April 2024. Legalbrief Today, a specialist publication for those involved in keeping tabs on legal developments, was concise and purely factual in its Policy Watch column: “Legislation: DA to introduce Constitution Twenty First Amendment Bill”:

“DA MP Glynnis Breytenbach has, by notice in the Government Gazette, announced that she intends to introduce to Parliament the Constitution Twenty First Amendment Bill, 2024. She announced that the proposed Bill will, when passed, establish an Anti-Corruption Commission as a Chapter 9 institution which, like all Chapter 9 institutions reports directly to Parliament and is free of executive control as required by the decision of the Constitutional Court in Glenister v President of RSA and Others (48/10) [2011].”

Apart from that terse report, little, if any excitement has been generated by the publication of the proposal. Yet, it is a momentous development which comes 13 years after the judgment to which it refers was handed down by our highest court.

Naturally, the court did not prescribe what ought to be done to repair the carnage wrought by the disbandment of the Scorpions. It is not the function of courts to make laws. Parliament has legislative authority at national level. Its function is to consider bills, whether proposed by Cabinet or private members bills of the kind shortly to receive consideration at the instance of the shadow minister of justice.

In the judgment in which the requirements for South Africa’s anti-corruption entity are spelt out specifically, the court does no more than require that Parliament, as the responsible authority, makes the reasonable decision of a reasonable decision-maker in the circumstances when reforming the criminal justice administration’s capacity to counter corruption.

That reform is necessary to render it constitutionally compliant in accordance with the criteria specified by the court. The ongoing State Capture phenomenon proves that constitutional compliance has not yet been achieved. The failure to rake back the loot of State Capture simply compounds the dysfunctional state of the criminal justice system when it comes to countering the corrupt. Nothing puts the corrupt off more than seizing their loot.

Corruption and organised crime

The proposed Twenty First Amendment to the Constitution will, in due course, be accompanied by an ordinary bill that will set out the proposed enabling legislation required to give operational and structural effect to the constitutional amendments envisaged by the announcement.

Both the constitutional amendments and the enabling legislation are based on suggestions put forward by Accountability Now in August 2021. These suggestions were made when it became apparent that the national Cabinet was ignoring the urgent instructions given to it by the National Executive Committee of the ANC in August 2020. The resolution required Cabinet to set up a stand-alone, independent, permanent and specialised entity to deal with serious corruption and organised crime in South Africa.

As a year had gone by with absolutely no indication that Cabinet was taking action on the urgent instructions given to it by the NEC, Accountability Now put fresh flesh on the bones of the reform it had been suggesting since 2012 after the victory in the Glenister case of 2011 to which reference is made by Breytenbach in the Government Gazette.

Initially, the focus had been on the unsuitability of the Hawks, or indeed any police unit, for investigating serious corruption. By 2021 it was plain that the National Prosecuting Authority is also not up to the tasks at hand (prevent, combat, investigate and prosecute) due to undermining, under-resourcing and under-capacitation — all of a kind for which there is no quick fix.

Accordingly, the 2021 suggestions by Accountability Now are the same as those foreshadowed by the two private members bills that Breytenbach has in mind. All functions for countering serious corruption and organised crime will, if the bills are passed, fall within the purview of the new Chapter Nine Anti-Corruption Commission.

It is not until the bills are tabled that they will become publicly available for scrutiny and comment. It is however possible to get a sneak preview of the thinking that informs the new legislation by reading the drafts suggested by Accountability Now as published on its website as an appendix to Under the Swinging Arch, the book that tells the story of the Glenister litigation.

Read more in Daily Maverick: Economic growth is simply not possible in the midst of serious corruption

Pre-elections timing

The real significance of the timing of the Government Gazette is that the DA has now, before the elections are held on 29 May 2024, drawn a significant line in the sand prior to the seventh Parliament taking office.

It knows that in order to succeed with the twenty-first constitutional amendment that will give birth to the Chapter Nine Anti-Corruption Commission, it will be necessary to amass a two-thirds majority in the National Assembly. That figure is beyond the likely reach of any single party that will probably populate the benches of the National Assembly in the seventh Parliament. If the DA does as well as 25% of the popular vote it will have to seek allies who command 41% of that vote.

The leader of the Opposition, John Steenhuisen, has let it be known that it is the intention of his party to place the bills before the seventh Parliament within 100 days of its taking office. Voting for the bills will indicate a determination to get to grips with the corrupt who are looting the life out of constitutional democracy under the rule of law in South Africa. Abstaining or voting against the adoption of the bills will indicate a willingness to tolerate serious corruption and to be soft on those involved in kleptocracy, State Capture and organised crime.

No political party contesting the current elections has a manifesto position, a policy or gives any other express indication of being soft on serious corruption. The proof of the pudding will be in the eating. Will those compromised by corruption, those in bed with the corrupt and those wedded to the politics of the stomach be prepared to vote against the bills?

To do so will be to reveal an attitude of tolerance of corrupt activities which is totally at odds with the ethos of the Constitution and a future that features peace, progress and prosperity.

When judgment was given back in 2011, the court was lyrical in its condemnation of corruption:

“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.”

Move towards reform

The National Anti-Corruption Advisory Council (Nacac) under chairpersonship of Prof Firoz Cachalia, has been given access to the work of Accountability Now on the need for reform of the criminal justice administration to render it fit for the purpose of countering serious corruption efficiently and effectively. This felicitous state is a requirement of Section 195(1) of the Constitution.

The notice in the Government Gazette heralding the Twenty First Constitutional Amendment is an indication that the official Opposition is taking the reform suggestions of Accountability Now seriously.

It may be easy for government to brush aside the proposals of a cheeky little NGO; not so when the official Opposition, in which a former leading member of the NPA is now shadow minister of justice, prepares and presents bills based on the work of the NGO. The reforms proposed by the DA will bring SA back into line with its international obligations to counter the corrupt and will also involve proper compliance with the binding decisions taken in the Glenister litigation.

Happily, Prof Cachalia is open to the suggestions of civil society. He participated in the “Countering the Corrupt Conference” organised at UCT by KAS, Primerio and Accountability Now back in February 2023.

The report on the work of Nacac is overdue for publication and ought, in fairness to the electorate and the political parties involved in the elections, to see the light of day before the elections are held. It is important that the ideas that motivate the publication of the notice in the Government Gazette be dealt with critically by Nacac when it does report.

The Investigating Directorate Against Corruption Bill (officially called the NPA Act Amendment Bill) awaits presidential sign-off. It reflects the current (pre-Nacac report) position of Cabinet and the ANC on countering corruption and has come in for withering criticism for its lack of constitutionality.

Whether the DA announcement in the Government Gazette persuades the President not to so sign, remains to be seen. If he does so sign the bill into law, litigation impugning the constitutionality of the establishment of the Investigating Directorate Against Corruption will be launched.

In that case, relief will also be sought requiring government to implement the Glenister rulings fully and properly, a necessary task it has neglected to perform for more than a decade.

All of the above is a good news story; the blood on the floor of the house will all be of the metaphorical kind once the Breytenbach bills have been debated. Those soft on corruption will be the ones who bleed popular support. The people of SA have had enough of corruption. DM