New Anti-Corruption Commission provided for in South African Bill

Edward James and Vishana Mangalparsad of Pinsent Masons in Johannesburg said the plans for the Anti-Corruption Commission (ACC) have the potential to help restore trust in the ability of South Africa’s institutions to root out corrupt actors.

In recent years, South Africa has been gripped by corruption scandals. The Zondo Commission, an inquiry led by former chief justice Raymond Zondo (Zondo), was set up to investigate alleged ‘state capture’ during the period of Jacob Zuma’s presidency. It made a series of recommendations for reform on the basis of its findings – including that an independent anti-corruption authority or agency be created through new legislation. The Anti-Corruption Bill was introduced into the National Assembly for this purpose earlier this month, subject to some differences from what was specifically recommended by Zondo.

According to the Bill, the primary powers of the ACC will be to “prevent, combat and investigate any conduct that is alleged, reported or suspected to involve serious corruption and high-level organised crime being conducted by a person holding public office or any other person, that, as a result of corrupt activities or high-level organised crime [either] deprives a particular social group or substantial part of the population of the Republic of a fundamental right; or causes financial loss or damage that is significant to the Republic”.

The ACC’s tightly defined remit means it will not be responsible for tackling all corruption in South Africa. Instead, it is to sit alongside the existing National Prosecuting Authority (NPA). It does, however, go beyond the purview recommended by Zondo as his recommendations limited the agency to public sector corruption and did not extent to the private sector.

In the memorandum to the Bill it is said that the NPA “was one of the institutions that suffered the most at the hands of the state capture project” and was “hollowed out to a mere shadow of its intended function”. The NPA is now under new leadership and in the process of rebuilding its functionality and reputation, but the Bill explains that South Africa needs the ACC to operate with its focus on “large scale grand corruption and high-level organised crime” as it would take the reforming NPA “an unacceptably long time … to deal meaningfully and effectively with the enormous workload of grand corruption that plagues South Africa today”.

“It is becoming very clear that with the best intentions in the world, the NPA will simply not be in a position to deal with the scale of corruption that we have seen and continue to see,” noted the memorandum to the Bill. “The Covid-19 pandemic and concomitant issues, have meant a further material setback in the fight to resurrect an independent and effective prosecuting authority. It has become quite clear that they will need help, and it will have to be the type of assistance that shares or eases the workload. Anything less will simply be cosmetic, and in the end, ineffectual.”

“The establishment of an Anti-Corruption Commission will remove a large burden off the NPA, allowing them to concentrate on their core function of prosecuting crime independently, without fear, favour, or prejudice, and give them space to rebuild an essential institution,” it said.

Mangalparsad said that the NPA has yet to secure any high-profile corruption convictions related to state capture in South Africa. This, she said, has led to a lack of public confidence in the NPA’s ability to effectively prosecute large scale corruption. She said there are measures within the Bill to ensure the ACC can operate more effectively and address the current enforcement gaps faced by the NPA.

“The Bill proposes that the ACC will be an independent ‘Chapter 9’ institution and that its commissioners will have protected tenure, which will ensure its impartiality and effectiveness in investigating and prosecuting serious corruption and high-level organised crime.”

Chapter 9 institutions have special protection under the South African Constitution. For example, the contemplated head of the ACC could only be removed from office following a series of steps that include a two-third majority vote by parliament.

“While the types of crimes which will qualify as serious corruption and high-level organised crime are still to be confirmed, by narrowing its focus, the ACC will be a specialist institution with dedicated resources to effectively fulfill its mandate. The ACC will also receive annual reports from organs of state on the measures taken by each to eradicate corruption, which aims to foster a culture of zero tolerance towards corruption,” she added.

James said the Bill is just the latest step in a series of reforms aimed at bolstering the anti-corruption regime in South Africa in response to the findings of state capture by the Zondo Commission. He added: “The Bill has been put forward by a Democratic Alliance (DA) member of parliament. In the past, this would likely mean it would not progress into law. However, as the DA is now a member of the Government of National Unity (GNU) it is unlikely that the other partners will not support the move. As the Bill proposes an amendment to the Constitution, it will require a two-thirds majority. The GNU has enough representation in parliament to get over this threshold.”

“The Bill comes in the wake of the newly promulgated failure to prevent corruption offence in South Africa, which is a hopeful signal that the government is taking anti-corruption measures seriously,” James said. “If effective, the ACC will go some way in rebuilding public and investor trust in the fight against corruption.”

While the Bill is largely a welcome development, stronger anti-corruption enforcement will require companies in South Africa to maintain effective anti-bribery and corruption policies and to conduct thorough due diligence on their suppliers and other third parties,” he said.