The National Prosecuting Authority as Part of South Africa’s Integrity and Accountability Branch and the Related Case for an Anti-Corruption Redress System

By | 1st December 2022

The National Prosecuting Authority (NPA) is a special constitutional body that exercises significant public powers in South Africa’s democracy but does not fit comfortably within either the judicial or the executive branch of state.

Properly conceived, the NPA is a hybrid body that fulfils its own distinctive role within the country’s constitutional system. At this critical political juncture in post-apartheid South Africa, the country’s doctrine of the separation of powers has evolved. This evolution, and the growing global acknowledgement of the importance of the ‘fourth branch’ of state, poses potential dangers, as well as opportunities for significant political reform.

This article focuses on the opportunities proffered by express recognition of a fourth branch of state that should be described as the ‘integrity and accountability branch’.

In particular, this article considers the nature, role and functioning of the NPA and demonstrates how it can enhance integrity and accountability under this fourth-branch rubric. The voluminous State Capture Reports from the Zondo Commission have revealed the extent of public and private corruption and the degree to which it has undermined virtually all efforts and plans to create a more equitable, fair and just social order. South Africa must now seriously consider the legislative introduction of an administrative-penalty system.

The country’s constitutional architecture and the NPA’s regulatory framework offer a possible antidote in this regard: an ‘anti-corruption redress (‘AnCR’) system’. This AnCR proposal is inspired by the widespread international adoption of non-trial resolutions (NTRs). However, this article requires NTR qua AnCR to possess features unique to the South African political landscape. In short, it necessitates the formal acknowledgement, and practical harnessing, of the fourth ‘integrity and accountability branch’ of state.

The State Capture Reports give the express go-ahead to create non-trial mechanisms to recoup unlawfully pillaged state funds.

Further, Froneman J’s judicial pronouncements provide an apt starting point.

This article thus draws force from Froneman J’s formulation of the ‘no-profit-no-loss’ principle in the context of unlawful public procurement. I argue that we ought simply to start here – by recouping the ill-gotten gains of public-procurement corruption over the past two decades (or at a minimum, what the Zondo Commission has revealed in the Reports).

I identify three interrelated prongs for an effective AnCR system.

Prong 1 demonstrates how and why we might use prosecutorial policy to achieve some redress via the disgorgement of illegally obtained monies. This provides an important starting point while we await Prong 2 – more expansive legislative efforts to combat corruption. This article lays out some initial groundwork for these legislative dimensions.

Prong 3 expatiates the broader justification for this more expansive use of prosecutorial policy, and the distinctive role of the NPA in this regard, grounding its role in the construction of a fourth – ‘integrity and accountability’ – branch of state.

To be clear, the proposed AnCR system would not contravene South Africa’s extant separation of powers doctrine, nor any other foundational constitutional provisions or commitments.

Rather, it would buttress a rational and lawful legitimacy-enhancing effort. Such an enhancement would be no small achievement for a constitutional democracy that desperately needs to restore public trust in both the government and the private sector.

This article’s depiction and endorsement of NTR qua AnCR might therefore also provide some impetus, however modest, for the large-scale political transformation required to ensure the degree of integrity and accountability required of a government that is truly for the people of South Africa.

Read the article here: