Corruption is not only a crime, but a direct threat to human rights and democratic values: Paul Hoffman

Key topics:

• Corruption in SA violates human rights and undermines democracy.

• Rampant looting worsens inequality and blocks socio-economic rights.

• Breytenbach bills aim to create a strong, independent anti-corruption body.

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By Paul Hoffman*

It is true that the rampant corruption manifesting itself in SA and around the world is a crime. Uniquely so, it is a secretive, calculated and highly deliberate form of crime in which the victims of the crime are all too often not aware of what has happened and who has perpetrated the crime against them.

For example, did the hungry patients at Tembisa Hospital work out that they were not being fed because the funds of the hospital were being looted by, inter alia, the President’s nephew from his previous marriage?

Corruption is not only a crime. Its corrosive effects are a human rights violation too.

The SA Constitutional Court has declared that corruption is a human rights violation as well as a crime against the long-suffering citizens of the country.

This is how Deputy Chief Justice Moseneke and Justice Cameron put it in their seminal joint judgment in the second Glenister case in March 2011:

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.

Section 7(2) of the Constitution is plainly worded, and sets out that the state “must respect, protect, promote and fulfil” the rights guaranteed to all in the Bill of Rights. A state that has been captured or looted mercilessly by the corrupt is not a state that is able to deliver on this clearly-worded obligation: a constitutional obligation that is supposed to be delivered on “diligently and without delay.”

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Many of the rights in the Bill of Rights are expensive to deliver. Housing, education, health services, access to water and electricity do not come cheaply. Any state that is being looted is the poorer for it, and is consequently less able to fulfil the delivery obligations in respect of the rights it has promised its citizens. In SA these obligations are part of the transformative ethos of the new dispensation that replaced the parliamentary sovereignty of the old SA in 1994.

Corruption as a human rights violation runs deeper than the mere inability to deliver socio-economic rights that may be regarded as expensive. Rampant grand corruption goes to the core of the human rights project in SA. The basic constitutional notions of respect for human dignity, the promotion of the achievement of equality, as well as the enjoyment of all guaranteed human rights are undermined when the assets of the state are looted and spirited away, often offshore, for the benefit of the corrupt.

Human dignity

Rampant corruption cannot co-exist with the due enjoyment of human dignity. Inequality is exacerbated by corruption. These unfortunate symptoms emerge when the state’s available resources are frittered away on “the politics of the stomach”, to the detriment of the poor and the disadvantaged sectors of the population. Those who enter politics, not to serve the electorate faithfully and in terms of their oath of office but to enrich themselves, ought to reconsider their priorities. A desire to get rich is the motivation of those entering the world of business; the proper motivation of true politicians should be the service they can render to those who elect them. They are servants of the people, not their overlords. Stealing from the public is unthinkable for noble politicians.

The biggest political party in SA, the ANC, was only able to persuade 16% of the eligible and registered voters to cast a vote in its favour in the 2024 elections. This negligible proportion translated into 40% of the seats in Parliament and dominance over the executive branch of government at national level.

There may be many reasons for the poor turnout of voters on election day, but no matter what those reasons may be, a mere 16% turnout renders the dominant party vulnerable if those in opposition are able to motivate the stay-away portion of the electorate to turn out at the next elections for municipal councils in late 2026 or early 2027.

As canny and experienced a politician as Helen Zille has decided to stand for the position of mayor of Johannesburg on a DA ticket. The electorate, including previous abstainers, weary of the politics of the stomach, may be prepared to support her candidacy with their votes. The President himself has extolled the way in which the DA runs the municipalities in which it holds sway and delivers services that support the delivery of human rights to those living in its municipalities.

Ever-elusive better life

Many poor citizens migrate toward DA-held cities and towns in search of that ever-elusive better life and the job opportunities that come with good government.

Once all politicians regard service to their voters to be their main priority, an improvement of the lot of ordinary South African can reasonably be expected.

This is not to say that the criminal activities involved in state capture, kleptocracy and grand corruption, which have dogged SA for years, can be overlooked and forgiven. Corruption remains a crime whose victims are all too often the poor, the young, the sick and the unemployed. A SASSA grant is but a small fraction of the amount budgeted by the state for the daily care of criminals who find themselves incarcerated in correctional services facilities.

While millions reasonably require a social grant, and the prison population, including awaiting-trial prisoners is around 150,000, SA spends approximately R462 per day per inmate for the 2025/26 financial year, according to the Department of Correctional Services. This is the cost of their incarceration, to the tax-paying public.

On the other hand, law-abiding citizens are sometimes eligible for grants. SASSA grant amounts for November 2025 include the Older Persons Grant at approximately R2,210–R2,230, the Disability Grant at around R2,210, the Child Support Grant at R530 per child, and the Foster Child Grant at roughly R1,190. The SRD grant remains at R370 per month. 

It appears that less is spent per month per person on SASSA grants than the R462 per day for prison inmates. Perhaps, planning ahead for their own futures, certain politicians support this disparity because they expect to be imprisoned for their kleptocratic activities.

The criminal justice system is currently not up to the task of detecting, investigating, prosecuting and punishing the corrupt. Feisty DA MP Advocate Glynnis Breytenbach has attended to these shortcomings in the system. She is the sponsor of two bills currently pending before Parliament. With an eye on implementing binding judicial precedent that has ordered Parliament to establish a body outside executive control to deal with corruption effectively, she has prepared the two bills, one to establish and the other to empower a new Chapter Nine body which she calls the Anti-Corruption Commission.

With teeth

We need a standing commission with teeth, not a commission of inquiry like the Madlanga, Zondo, Nugent and Farlam Commissions, that make non-binding recommendations to the President that all too often are not implemented.

For the Breytenbach bills to successfully become law it will be necessary, because some constitutional amendments are involved, for two thirds of MPs to vote in favour of them when they reach final form, after the public participation process and parliamentary debate on their suitability. Without the support of the ANC, the bills will not become law.

However, the real question, given the state of corruption and public fed-upness with it, is: “Can any political party afford to be seen to be so soft on corruption as to vote against the bills?” Cabinet will do well, in the interests of the political longevity of its members, to shelve the rather off-point and patently unconstitutional recommendations made by the National Anti-Corruption Advisory Council. Its report in respect of the long-awaited reform of the paralytic arrangements for dealing with corruption should be quietly shelved, as its recommendations are overtaken by the adoption of the Breytenbach bills.

The urgency of the situation should not be lost from view. Former Chief Justice Zondo has observed and warned that “drastic action” is urgently needed, if we are to have a country worthy of the name in future. SA has the skills and talent to see off the corrupt. The Scorpions of old proved this when they went after powerful politicians in the Travelgate and arms deal debacles, and even succeeded in imprisoning the chief of police, Jackie Selebi.

The case against Jacob Zuma, started by the Scorpions in 2005, is still pending in court. It should come to trial next year. The creation of a specialised single entity solution, populated by trained experts in combating, detecting, investigating and prosecuting corruption is possible, if the necessary political will can be mustered.

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The independent body so formed must have guaranteed resources and be secure in tenure of office, according to the binding decision of the Constitutional Court in 2011. No such STIRS-compliant body has ever existed in SA. The rule of law, the doctrine of ‘stare decisis’ (precedent) and the interest of all good citizens demand proper implementation of the rulings made back in 2011 in the Glenister litigation.

The ad hoc committee of Parliament investigating the complaints made on 6 July by General Mkhwanazi has been given an affidavit deposed to on behalf of Accountability Now that sketches the history of the law, the unsuitability of reforms already in place, and the unconstitutionality of the NACAC recommendations.

Deserve better

The long-suffering people of SA deserve better than what governments since 2011 have delivered in addressing the levels of corruption allowed in SA. The adoption of the Breytenbach bills, after proper debate and input from the public, ought to be a shoo-in.

*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.

This article was first published by Daily Friend and is republished with permission