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Constitutional Court Review 2022 © The Authors
Volume 12, 1-58 Open Access article distributed in terms of the
https://doi.org/10.2989/CCR.2022.0001 Creative Commons Attribution License [CC BY 4.0]
The National Prosecuting Authority as Part of South
Africa's Integrity and Accountability Branch and the
Related Case for an Anti-Corruption Redress System
LAUREN KOHN
ABSTRACT: 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.
Constitutional Court Review is published by NISC (Pty) Ltd.](ViewImageLocal?handle=hein.journals/conrev12&div=1&collection=&method=preview&ext=.png&size=3)
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