Amid preparations for South Africa’s May 2024 general elections, a potentially significant measure in the fight against corruption has been proposed. On 19 April, Democratic Party (DA) MP Glynnis Breytenbach announced her intention to introduce a private member’s bill: the Constitution 21st Amendment Bill. The bill, recently submitted for public consultation, proposes the establishment of a permanent anti-corruption commission in Chapter 9 of the Constitution.
While South Africa certainly needs such a commission, the model suggested in the bill does not appear to be optimal. Despite Glynnis Breytenbach’s laudable intentions, the bill has significant flaws that make it ill-suited for future action.
The public consultation period on the bill ended on 19 May. Theoretically, the bill could be submitted to Parliament in its current form. However, such a move would require the tacit approval of the Government of National Unity, which has not yet been given to our knowledge. Ironically, the Democratic Party would likely have had less difficulty in introducing this Bill before the “dramatic upheaval in the South African political landscape” following the 2024 elections.
The fact that the Bill has not yet been introduced provides a timely opportunity for further critical reflection on its strengths, weaknesses and prospects for improvement. It is with this in mind that we propose an alternative model for a constitutionally anchored anti-corruption commission that is constitutionally compliant and more effective in combating corruption.
A key problem with the Bill is that it unlawfully removes the National Public Prosecution Service’s (NPA) constitutional power to “initiate criminal prosecutions on behalf of the state”, among other things. In particular, the Bill usurps the NPA’s power to prosecute serious corruption and high-level organised crime, vesting it in the proposed Commission. This approach runs counter to the Constitution, which accords the NPA a distinctive and crucial role in the administration of criminal justice. Furthermore, the anti-corruption commission model proposed by the Bill diverges from that recommended by the Zondo Commission and is at odds with international best practices. More broadly, the Bill risks being counterproductive in the long-term mission of combating corruption.
Furthermore, there are three serious and interconnected problems with the Bill. The first problem is that it undermines the carefully designed constitutional architecture for the division and exercise of state authority.. The NPA is established alongside the judiciary and the Judicial Service Commission in Chapter 8, “Courts and the Administration of Justice”. The NPA is a “hybrid” constitutional institution that falls under the Fourth Branch of the South African State, the Integrity and Accountability Branch, and is not an entity under the Executive.
The Constitution vests in the NPA – and it alone – the “power” to “institute criminal proceedings” and “perform all necessary functions incidental thereto”. Like all organs of state, it must act in the public interest, and is therefore constitutionally required to do so “without fear, favour or prejudice”, free from any external influence on its independence.
With regard to the independence of the NPA, it is essential to note that as early as 2011, in the famous Glenister II case, the majority of the Constitutional Court agreed with counsel Paul Hoffman SC (acting for Mr Glenister) that the dissolution of the DSO (or “Scorpions”) and its replacement by the DPCI (the “Falcons”) was constitutionally insufficient. In short, this was because unlike the Scorpions, which were integrated into the NPA, the Falcons were subordinate to the SAPS and therefore did not enjoy the necessary structural and operational independence. Thus, the majority emphasised that, “to understand our intrinsic conception of institutional independence, we must look to the courts, to the Chapter 9 institutions, to the PNND [National Prosecutor Director] and, in this context, also to the now abolished DSO [within the NPA]”.
Since Glenister II, the Constitutional Court has continued to emphasise the importance of the NPA’s “constitutional guarantee of independence”, such that “any legislation or executive action inconsistent with it would be subject to constitutional review by the courts”. Section 32 of the NPA Act and the Code of Conduct exemplify this “constitutional guarantee of independence”, emphasising that any regulation or executive act inconsistent with it would be subject to constitutional review by the courts.
In this context, it is essential to recognise the evolution of South Africa’s understanding of the separation of powers, particularly with regard to the rise of the Fourth Branch of State. Contrary to popular belief, this branch is not limited to Chapter 9 institutions, but encompasses various independent bodies, such as the NPA.
In conclusion, the proposal for a permanent anti-corruption commission is a commendable initiative, but its current model has significant shortcomings that could compromise its effectiveness