Paul Hoffman: Four comfortable myths that keep SA’s corruption busters toothless

Nugent, Zondo, Mpati, now Madlanga. South Africa commissions inquiries the way other countries commission statues. And how much changes? Paul Hoffman SC, who led the Glenister litigation, says the reports gather dust because four myths let everyone off the hook: corruption is victimless, turkeys won't vote for Christmas, commissions will fix it, and courts should keep out. He takes each one apart. The Constitutional Court has already ruled that our law demands an anti-corruption body outside executive control. Parliament stopped being a rubber stamp in 2024. And a Chapter Nine commission answering to Parliament would be a toothless inquiry. The open question: is anyone in power listening?.By Paul Hoffman SC*.Indubitably, there is a lack of political will to address the lack of effectiveness and efficiency that is apparent in the puny efforts of the state in SA to deal with corruption and organised crime, both of which run rampant in the land.Commission of inquiry after commission of inquiry is appointed to investigate these twin scourges. The capture of SARS saw the Nugent Commission, state capture - the Zondo Commission, irregularities in the PIC led to the Mpati Commission and currently the Madlanga Commission looks into the capture of the criminal justice system itself. The Madlanga Commission was appointed following the complaints made at a media briefing on 6 July 2025 by KZN police chief Lt Gen N Mhkwanazi, kitted out as though he expected hostilities to break out before he was finished speaking to the gob-smacked members of the fourth estate and others in attendance including armed police personnel in camouflage and face masks.A great deal of time, effort and expertise is expended each time a commission of inquiry is appointed, usually by the president and always at the expense of the taxpayer. The commissioners weigh the evidence before them and make recommendations based on their assessment of the facts in evidence led before them. They supply the president with neatly bound and usually voluminous reports which seem all too often to have very little effect on the trajectory of corruption and organised crime.That there is a need to reform the capacity of the state to deal with corruption and organised crime can not be rationally questioned. The executive, by appointing these commissions and also the National Anti-Corruption Advisory Council (NACAC), shows possible interest in solutions to the issues, but the reports of the commissions and their recommendations tend to gather dust rather than engender reform, with the notable exception of the Nugent Commission whose work swiftly helped get SARS back on track. Parking “political hot potatoes” to cool down at commissions is not unknown in SA. This devious tactic does not produce proper reforms. The basically ignored NACAC report is in the form of a lead balloon. Concerns that it might be taken seriously seem to have been unfounded. We have not seen any untoward changes emerge in the 13 months that the final report has been around. https://accountabilitynow.org.za/trajectory-favoured-by-national-anti-corruption-advisory-council-report-will-end-in-tears/. According to Afrobarometer, more than three-quarters of South Africans believe corruption has increased over the past year, impacting local councils, police, civil service, and parliament. The evidence given to the Madlanga Commission by Dr Mark Shaw, a Geneva based expert on organised crime and corruption, confirmed that SA is the most corrupt country in the Southern African region and ranks in the top ten most corrupt countries in the world. This is nothing to be proud of, indeed, Shaw regards the situation as an existential threat to the continuation of constitutional democracy under the rule of law in SA. He is obviously right.There are some doggedly persistent myths abroad in SA (and elsewhere) that continue to enjoy currency while SA tumbles rapidly from being a poster-child of the world to its current questionable status. It may help to unpack some of them.Corruption is a victimless crime.This false argument was advanced by former president Jacob Zuma when he made representations to have the corruption charges he is still facing dropped by the NPA. Far from being victimless, corruption is a most corrosive form of crime that imperils the poor whenever and wherever it is committed. Corruption may justifiably be defined as “Theft from the poor”.Judge Navi Pillay, an SA judge who rose to become UN Human Rights Commissioner, has remarked that:“Make no mistake about it, corruption is a killer” The learned judge went on to say:“The money stolen through corruption is enough to feed the world’s hungry 80 times over… Corruption denies them their right to food and, in some cases, their right to life.”The worldview of Jacob Zuma, now leader of the MKP, is not one that embraces constitutional democracy under the rule of law. His attitude, as experienced by his predecessor as president, is recorded by Mark Gevisser in his biography of Thabo Mbeki, “The Dream Deferred” 2007 thus:“Zuma and his backers had no respect for the rule of law, and would be unaccountable to the constitutional dispensation the ANC had put in place if they came to power. There was also the worry of a resurgence of ethnic politics, and – given his support from the left – that Zuma’s leftist advisors would undo all the meticulous stitching of SA into the global economy that Mbeki and his economic managers had undertaken over 15 years.” It is no coincidence that the MKP favours a reversion to parliamentary rule of SA in place of the supremacy of the Constitution that has been in place since 1994. Zuma apparently does not like being corrected by judges.The effect of corruption is best summed up in the majority judgment of the Constitutional Court in Glenister Two, the appeal in which it was decided that our law demands a body outside executive control to deal effectively with 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.”Lest we forget, Cyril Ramaphosa served as deputy president of the ANC under Jacob Zuma from 2012 to 2018. When he was deputy president of the country, Ramaphosa chaired the national cadre deployment committee of the ANC, a body with a mandate to effect appointments in the public administration and judiciary in a manner that is wholly unconstitutional.Turkeys don’t vote for ChristmasThis saying is trotted out by those who bleakly believe that all parliamentarians are incorrigibly corrupt and will not support any reform that they perceive may terminate or at least interrupt their impunity for their own corrupt acts. The thinking is that parliament is unable to act on reform because parliamentarians are all beholden to corrupt actors who can influence them to resist reforms sorely needed. The experience of the current parliament during the 2025 budget debate would suggest that the days of rubber stamping executive decisions ended following the outcome of the May 2024 elections.Of course, elections to parliament are held every five years and there is no guarantee that re-election (be it party or individual) is a given. At present the second biggest political party represented in parliament is sponsoring a private member’s bill that is aimed at the establishment and enablement of a new Chapter Nine Institution in the form of an Anti-Corruption Commission. See: https://www.dailymaverick.co.za/opinionista/2024-04-04-south-africa-urgently-needs-an-anti-corruption-commission-with-real-teeth-a-scorpions-2-0/?dm_source=blocks-horizontal&dm_medium=card-link&dm_campaign=inform&dm_position=3.Andhttps://www.dailymaverick.co.za/opinionista/2025-07-14-south-africa-needs-scorpions-2-0-and-a-capable-national-prosecuting-authority/?dm_source=blocks-horizontal&dm_medium=card-link&dm_campaign=inform&dm_position=1. It is so that Professor Bonang Mohale has described greed as the underlying problem thus:“The great problem for SA is rampant greed. It is essentially a problem for the once glorious ANC that has morphed into an organised crime syndicate.”The official opposition in the National Assembly, the MKP, favours the abolition of the Investigating Directorate Against Corruption while the second largest party in the GNU, the DA, favours the repeal of the legislation that gave birth to the IDAC. The ANC has in mind to reset and renew the IDAC despite its manifest unconstitutionality which is vulnerable to a court challenge. https://accountabilitynow.org.za/the-future-of-countering-corruption-after-ramaphosa-hastily-signs-flawed-idac-law/. There is no guarantee of re-election for parliamentarians who must surely all be sufficiently astute to seek to be seen to be worthy representatives of the voters who put them in office. They should all aspire not to be regarded as soft on corruption and organised crime. Instead they must to deal with the twin scourges according to law and not by satisfying “rampant greed” as the learned professor suggests. It is surely unarguable that it is the rampant greed that is alienating voters and driving them to either abstain at election time or vote against those seen to be infected with greed.Some “turkeys” may soon realise that self-preservation is preferable to wallowing in the temporary and uncertain spoils of “rampant greed”.Commissions are not helping to end corruptionThere is a common misconception that commissions of inquiry have the power to address the issues of the day effectively. In fact, they are simply instruments of the executive branch of government which are appointed to inquire into a difficult or contested factual situation with a view to establishing, prima facie, what the facts are as they relate to the recommendations which the commission makes in its final report. There is no way of compelling the government to accept the recommendations that are made. They are of the “take it or leave it” variety and bind nobody. In a similar vein, adverse factual findings on which the recommendations are based can be taken on review by any parties who allege that the findings against them are not sound in law.Let us not forget that Thabo Mbeki’s Khampepe Commission concerning the criminal justice system recommended the retention of the Scorpions. They were promptly disbanded following the rise of Jacob Zuma.The state capture inquiry has not led to the state raking back more than a small fraction of the loot of state capture and prosecutions of corrupt actors have been few and far between. Without radical reform of the criminal justice administration to bring it into line with the STIRS requirements for corruption-busters laid down in binding fashion by the Constitutional Court, it may be expected, and feared, that the Madlanga Commission may suffer a similarly ignominious fate no matter how sound in law the recommendations it makes will be.The Chapter Nine Commission which the DA has in mind is not a commission of inquiry at all. It will be a standing constitutionally enshrined commission like the SAHRC, the Gender Commission and the Independent Electoral Commission, among other constitutionally enshrined institutions with the same status, for example the OPP and the Auditor General. These institutions are guaranteed impartiality and independence; no one may interfere with them, other organs of state are obliged to assist and protect them to ensure, among other good things, their dignity and effectiveness. The reporting line by which these institutions/commissions are held accountable is to the multi-party parliament, not to the executive branch of government. As already noted, commissions of inquiry are instruments of the executive. The public perception that the Chapter Nine body will be yet another toothless commission is clearly false.The courts have no business laying down the anti-corruption dispensation in SAAs section 2 of the Constitution stipulates that “law or conduct inconsistent with” the Constitution is invalid, there is no merit in the contention that it is up to parliament to lay down the law on dealing with corruption and organised crime. While the law making function is that of parliament, any law that is inconsistent with the Constitution may be challenged by a public interest litigant. The Constitution gives the apex court, our Constitutional Court, the power to strike down legislation that is inconsistent with the Constitution. This outcome emerged in the Glenister litigation. Parliament is usually sent back to the legislative drafting board to amend the offending sections of the law struck down by that court. Where procedures required by law have not been followed, the process must start afresh; as regularly occurs when the public participation processes are not completed in accordance with the standards required by law.The final decisions of our courts and the orders they make are binding on all persons to whom and organs of state to which they apply. The Constitution means what the apex court says it means. In this case: our law demands a body outside executive control to deal effectively with corruption.The fact that an order or decision may be politically unpalatable (as occurred when a court required then president Nelson Mandela to give evidence in a spat with rugby administrators) does not excuse non-compliance, which is why he did give his evidence.Whatever new dispensation for dealing with corruption and organised crime may emerge, and one is sorely needed, it must comply with the standards set by the courts. A single body that is adequately independent both structurally and operationally, is required on any sensible interpretation of the Glenister decisions. Former justice minister, Ronald Lamola, misunderstood Glenister Two when he tried to rely on the minority judgement in the matter at a conference held at UCT in 2023. Paul Pretorius SC, who famously served as the chief evidence leader for the Zondo Commission of Inquiry into State Capture, immediately and publicly corrected Lamola's legal reasoning. .Read more:.Paul Hoffman: Ramaphosa vows anti-corruption renewal, then puts Dina Pule back in cabinet.Pretorius pointed out politely but professionally that Minister Lamola was incorrectly relying on a minority judgment from the landmark Constitutional Court case now called Glenister Two. Because minority judgments are not legally binding under South African jurisprudence, Pretorius corrected the misapprehension to ensure that discussions regarding structural reforms and independent anti-corruption architecture remained aligned with binding constitutional precedents that were set in the Glenister litigation.The four myths discussed above, and others, must be laid to rest if SA is going to take the high road to the future by getting on top of the challenges posed by corruption and organised crime..*Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox every morning on weekdays. Register here.Support South Africa's bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. 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Paul Hoffman: Four comfortable myths that keep SA’s corruption busters toothless

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