FW de Klerk Foundation urges creation of a constitutionally independent anti-corruption body

Key topics:

• FW de Klerk Foundation warns SA is breaching the Glenister judgment by failing to establish an independent anti-corruption body.

• Current structures like the Hawks and IDAC lack independence and capacity, undermining constitutional compliance.

• Calls for reform include tougher sentencing, lifetime bans for corrupt officials, and real-time public transparency tools.

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Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 13/11/2025

Introduction

South Africa’s constitutional democracy is under siege by the persistent and systemic scourge of corruption. Despite numerous laws, regulations, guidelines etc. South Africa faces an enduring corruption crisis that has eroded the public’s trust in the State and its institutions.

In response to the Special Investigating Unit’s (“SIU”) invitation for public input, the FW de Klerk Foundation submitted its comments on the SIU’s Draft National Corruption Risk and Prevention Framework (the “Draft Framework”). The submission pointed out the unconstitutionality of the South Africa’s current corruption framework and called for urgent reforms.

The FW de Klerk Foundation maintains that corruption has significantly undermined the effective functioning of South Africa’s constitutional democracy. Corruption has directly impeded the state’s ability to discharge its constitutional duty to respect, protect, promote and fulfil the rights and freedom of all South Africans.

Non-Compliance with a Constitutional Court Order

In Glenister II, the Constitutional Court said that the Constitution imposes a “pressing duty” on the State to establish a concrete and effective anti-corruption body. This body must enjoy sufficient independence to allow it to effectively and efficiently prevent and root out of corruption. The Court also said that the State’s obligation to create a sufficiently independent anti-corruption body is constitutionally enforceable.

Fourteen years after this watershed judgment South Africa still lacks such a body. The Foundation’s submission highlights that this failure is unconstitutional. The cherry on the top of this failure is that the Justice Department has not yet even taken the first steps – drafting a law to create this body. This is something which the Foundation believes is unreasonable and infringes multiple constitutional rights.

South Africa’s anti-corruption bodies – A long story short

1. The Scorpions: 

In 1999, President Mbeki decided to create a well-resourced, multidisciplinary body to fight organised crime: The Directorate of Special Operations, commonly known as the Scorpions. The Scorpions were located within the National Prosecuting Authority (“NPA”), because prosecution was such an important part of combating organised crime. Although this was unique globally, the Scorpion’s location in the NPA was legally sound and constitutional. During their existence, the Scorpions achieved a conviction rate of over 90%, demonstrating how effective they were at fighting organised crime. However, within 10 years of the Scorpions being created, Parliament infamously voted to abolish them on 23 October 2008. 

2. The Hawks: 

When Parliament voted to abolish the Scorpions, it decided to replace them with the Directorate for Priority Crime Investigation, commonly known as the Hawks. Unlike the Scorpions, the Hawks are located inside the South African Police Service and do not have security of employment or renumeration. The Hawks are also vulnerable to political interference, because their activities are coordinated by Cabinet. Hence, the Constitutional Court held that the Hawks are not the sufficiently independent anti-corruption body the State is required to create.

Importantly, in 2022, the Hawks had only 49,55% of the number of staff it required. It simply does not have the manpower to be effective.

3. The (Temporary) Independent Directorate: 

In 2019, 20 years after the Scorpions were created by President Mbeki, President Ramaphosa created the Independent Directorate. This body was meant to be a temporary body within the NPA with the purpose of giving the NPA the necessary advantages to deal with complex corruption cases.

4. The (Permanent) Investigating Directorate Against Corruption:

Five years later, in 2024, the Independent Directorate was changed into a permanent body inside the NPA and renamed the Investigating Directorate Against Corruption (“IDAC”). However, despite now being permanent, IDAC only had 22 investigators in December 2024. It also, therefore, does not have the manpower to be effective. 

Problems with the current anti-corruption bodies

Neither the Hawks or IDAC - the bodies responsible for the criminal investigation and prosecution of corruption - are the sufficiently independent anti-corruption body required by the Constitution. Although the Hawks report directly to Parliament, they are not outside executive control (see above). IDAC, on the other hand, reports to the Executive, failing to meet the Constitutional Court’s requirement for a sufficiently independent anti-corruption body - namely, that it must be outside of executive control. 

Furthermore, the current anti-corruption architecture is fragmented and ineffective: Multiple bodies (the Hawks, IDAC, SIU etc.) share overlapping mandates, resulting in inefficiencies, gaps and confusion. Reporting lines are convoluted, collaboration is ad hoc and both the Hawks and IDAC have too few staff. These shortcomings, combined with the poor enforcement of sanctions, have resulted in only one conviction following the Zondo Commission’s extensive inquiry into state capture - underscoring the urgent need for reform South Africa’s anti-corruption architecture.

Prevention Cannot Replace Enforcement

While the Draft Framework’s emphasis on preventing corruption is good, the Foundation emphasised that this focus on prevention must not come at the expense of enforcement of sanctions. A whole-of-society approach does not absolve the State of its constitutional duty to establish a sufficiently independent anti-corruption body outside executive control. Thus, the Foundation called on Parliament to create this body and to ensure that it staff etc. to fulfil fight corruption effectively.

The Foundation also asked Parliament to enact laws to:

1. Ensure that sentences for corruption cannot be suspended;

2. Impose lifetime bans on individuals convicted of corruption from holding public office, or participating in government contracts; 

3. Protect Members of Parliament (“MPs”) from losing their party membership (and consequently their seats in Parliament) for doing their job to oversee the Executive;

4. Require the Executive to fix any shortcomings, or mistakes Parliament points out; and

5. Invest in comprehensive training programmes, resources, trained researchers and the technical assistance to ensure MPs can oversee the Executive and hold it accountable. The Foundation suggested that Parliament explore innovative solutions to do so, for example, using AI that can summarise laws, see what impacts a policy has and show what international best practices is.

Parliament Must Be Held Accountable

The Foundation pointed out that the SIU’s Draft Framework omits Parliament as a vulnerable sector, despite the fact that the Zondo Commission highlighting that Parliament failed to hold the Executive accountable during state capture. 

Thus, the Foundation urged the SIU to change the Draft Framework to include Parliament as one of the vulnerable sectors it identified and to recommend effective risk management strategies to Parliament for its consideration.

A Public Platform for Transparency

To enhance accountability, the Foundation recommended that the SIU create a public online platform with live tracking capabilities. This platform could:

1. Consolidate corruption reporting channels;

2. Monitor procurement processes in real time;

3. Quantify and display state losses due to corruption; 

4. Track investigations and consequence enforcement for corruption; and

5. Quantify and track monies recovered.

Such a tool would empower citizens, support parliamentary oversight and restore public trust in governance.

Conclusion

The State’s persistent failure to establish a truly independent and effective anti-corruption body, as mandated by the Constitutional Court, continues to erode public trust and undermine the rule of law. The FW de Klerk Foundation’s submission clearly points out the shortcomings of the current anti-corruption bodies and adamantly calls for urgent reforms that prioritises compliance with the Constitution and the Constitutional Court’s order. A coherent and constitutionally sound anti-corruption strategy is not only a legal requirement, it is a foundational element of democratic accountability and public trust.