Future-proofing SA: We need an independent anti-corruption agency and a national charter against graft

Part One of Deputy Chief Justice Raymond Zondo’s State Capture report, officially handed to President Cyril Ramaphosa on 4 January, proposes far-reaching measures to curb state lawlessness, corruption and malfeasance.

Former Deputy Chief Justice Dikgang Moseneke and Constitutional Court Judge Edwin Cameron were also vindicated by the commission for their dissenting view in the controversial 2011 Glenister v President of SA judgment. 

“State Capture has shown that South Africa needs to heed the view given by the minority in that judgment,” said Zondo.

The majority decision at the time was that there was no constitutional obligation for the Directorate for Priority Crime Investigation, or the Hawks, not to be placed within the SA Police Service.

Zondo quoted Moseneke and Cameron’s 2011 view: “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. 

“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 Hawks’ predecessor, the Directorate of Special Operations (the Scorpions) reported directly to the National Prosecuting Authority and at the time had been investigating the then deputy president, Jacob Zuma.

In 2007, at its elective conference at Polokwane, the ANC took a decision to shut down the elite unit. 

In 2009 Zuma was elected to the highest office in the country.

In 2022 Zondo said that “20 years of frustration, which includes a decade of State Capture, pitilessly exposed the flaws and weaknesses in the public procurement system, flaws and weaknesses which have been exploited by criminals to inflict lasting damage on the South African economy. The promise of service delivery so fundamental to the betterment of our society has not materialised.”

In recommending the establishment of an independent anti-corruption agency, Zondo said that South Africa required such a body “free from political oversight and able to combat corruption with fresh and concentrated energy”. 

Public trust would not otherwise be re-established, he warned, adding that “the ultimate responsibility for leading the fight against corruption in public procurement cannot again be left to a government department or be subject to ministerial control”.

Zondo said it was the “view of the commission” that the starting point for any reform “must include the establishment of a single, multifunctional, properly resourced and independent anti-corruption authority with a mandate to confront the abuses inherent in the current system. That authority could be called the Anti-Corruption Authority or Agency of South Africa (Acasa).”

A national charter against corruption, said Zondo, should not only be signed by the president and Cabinet, but all premiers, members of provincial and local authorities and including listed public companies, trade unions and anti-corruption bodies in civil society.

State Capture and its exposure, said Zondo, had dominated the national discourse and “the effect has been predictable and negative”, including “a loss of confidence both in government and political parties and in the business sector compounded by frustration at the pervasive lack of accountability for wrongdoing”.

It was the view of the commission that, “It is more than time to take steps to restore broken trust, and the first step which needs to be taken in that direction is for all sections of society to jointly endorse a national commitment to eliminate corruption in public life and in the procurement of goods and services.”

By way of a gesture which was both “symbolic and substantive to mark the turning of the page”, the commission recommended that a national charter against corruption incorporating a standardised code of conduct be adopted by the government, the business sector and relevant stakeholders.

With regard to whistle-blowers, Zondo said that legislation should be introduced or amended “to ensure that any person disclosing information to reveal corruption, fraud or undue influence in public procurement activity be accorded the protections stipulated in article 32(2) of the United Nations Convention Against Corruption”.

Apart from this and other measures, Zondo proposed that a litigation unit in the new anti-corruption agency “incentivise such disclosures by entering into agreements to reward the giving of such information by way of a percentage of the proceeds recovered on the strength of such information”.

He further recommended that legislation be introduced to facilitate “deferred prosecution agreements” in which the prosecution of an accused corporation can be deferred on certain terms and conditions.

These included that a company had “self-reported facts from which criminal liability could be inferred and has cooperated fully in making such report and that the company has agreed to engage in specific conduct intended to ensure that such conduct is not repeated”.

If they had succeeded in December 2015, we do not know where this country would be. If in the future such efforts will be tried, this country should have a truly independent agency.