South Africa anti-corruption reform pause ‘disappointing development’

The South African Constitution Twenty-First Amendment Bill, introduced in November last year, aimed to establish an Anti-Corruption Commission (ACC) as an independent ‘Chapter 9’institution – a state institution established under Chapter 9 of the South African Constitution.

This commission was intended to investigate and prosecute high-level corruption cases, a move seen as crucial in a country grappling with significant corruption issues. However, the bill now faces substantial opposition and has not been endorsed by key stakeholders – the Department of Justice and Constitutional Development (DJCD) and the National Prosecuting Authority (NPA).

Edward James, anti-corruption and bribery expert at Pinsent Masons, said: “In a country crippled by corruption, the ACC was viewed as a welcome development. However, it seems that barriers are impacting much needed reform.”

The DJCD has indicated that extensive public policy work has been performed to decide the best way to structure the organisations responsible for fighting corruption. It has indicated that the current process is for the National Anti-corruption Advisory Council (NACAC) to consider this and make recommendations to the president.

The bill set out to create a dedicated body that would operate independently from the NPA. However, one of the main points of contention was the potential overlap of responsibilities between the ACC and the NPA. The NPA described the bill as “premature”, indicating that it prefers a “multi-agency model” instead of having a “super-agency, to fight corruption”.

James said: “The NACAC was established over two years ago and it is difficult to understand why it hasn’t come up with a clear plan and recommendations on the structures to fight corruption. The multi-agency model has thus far proved ineffective. When South Africa had a single ‘super-agency’, the Scorpions, they were incredibly effective at investigating and prosecuting serious organised crime and corruption.”

The need for robust anti-corruption measures in South Africa was highlighted by the Financial Action Task Force (FATF) grey listing of the country in February 2023. Being placed on the FATF’s grey list means that South Africa is now subject to increased monitoring and must address deficiencies in its anti-money laundering and counter-terrorist financing frameworks, including structures to tackle serious crimes like corruption. The FATF identified eight strategic areas where South Africa needs to improve, including enhancing the effectiveness of anti-money laundering and counter-terrorist financing laws.

Deirdré Simaan, anti-corruption law expert at Pinsent Masons, said: “The grey listing of South Africa underscores the importance of robust anti-corruption measures. It is therefore important that safeguards are in place to make the fight against corruption beyond reproach, and the establishment of ACC will to some extent address this need. The NPA’s argument that the establishment of ACC as a Chapter 9 institution is premature appears to be shortsighted if history is ever to repeat itself.”

The development comes amid uncertainty for anti-corruption efforts around the world, particularly with developments coming out of the US including a temporary hold on enforcement of the Foreign Corrupt Practices Act (FCPA).

James said: “Whilst the steps taken by the Trump administration are controversial, including the FCPA pause, the rate at which the administration has rolled out reform is remarkable. It seems that the relevant bodies in South Africa could strike a better balance between considering and implementing reforms and, at this stage, some action would be better than continued inaction.”