ISS Analysis

State capture demonstrated that corruption and abuse of state authority do not always take the form of straightforward bribery.

Public officials can manipulate appointments, disciplinary proceedings, procurement processes, regulatory powers, institutional structures or access to state resources for purposes fundamentally inconsistent with their legal responsibilities. Such conduct may cause substantial institutional and public harm even where prosecutors cannot prove the gratification or reciprocal arrangement associated with a conventional corruption charge.

Administrative and constitutional law provide remedies against unlawful exercises of public power. Courts can review and set aside decisions made for improper purposes, irrationally or in bad faith. Disciplinary processes may also apply.

These mechanisms do not necessarily impose personal criminal liability on an official who intentionally misuses public power.

The proposed offence would therefore occupy an important space between public law illegality and established criminal offences. Its potential value lies in targeting serious and deliberate misuse of the authority entrusted to public officials.

That same position creates its greatest risk. Criminal law must not turn every unlawful administrative decision, governance failure or exercise of controversial discretion into potential criminal conduct. The legitimacy and effectiveness of the reform will therefore depend heavily on the precision of the eventual offence.

No draft Bill has been published, so the final elements of the proposed offence cannot yet be stated.

The starting point is the State Capture Commission’s recommendation that government consider making it a criminal offence for a person vested with public power intentionally to use that power otherwise than in good faith for a proper purpose.

This formulation suggests several possible elements:

• the accused must be a person vested with public power;
• the conduct must involve the exercise or use of that public power;
• the power must be used otherwise than in good faith for a proper purpose; and
• the misuse must be intentional.

These remain features of the Commission’s proposed formulation rather than the elements of an enacted or published draft offence.

The SALRC subsequently undertook research and developed recommendations. Official reporting indicates that extensive comments from SALRC commissioners required further research and development.

Important design questions therefore remain unresolved publicly, including:

• how “public power” and the persons subject to the offence should be defined;
• how “good faith” and “proper purpose” should be translated into sufficiently precise criminal law concepts;
• whether proof of actual harm or a substantial risk of harm should be required;
• whether the offence should require personal, political or other benefit;
• whether a minimum seriousness threshold should apply;
• how liability should operate for collective institutional decisions;
• the penalties that should apply; and
• the relationship between the new offence and PRECCA, fraud, misconduct offences and public law remedies.

Until draft legislation is published, it would be premature to attribute any particular resolution of these questions to government or the SALRC.

• Lead department: Department of Justice and Constitutional Development.
• Originating institution: Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State.
• Law reform institution: South African Law Reform Commission (SALRC).
• Political lead: Minister of Justice and Constitutional Development, within government's programme for implementing the State Capture Commission recommendations.
• Relevant system actors: National Prosecuting Authority (NPA); South African Police Service (SAPS); Directorate for Priority Crime Investigation (DPCI); Investigating Directorate Against Corruption (IDAC).
• Policy and oversight actors: The Presidency; Parliament; National Anti-Corruption Advisory Council (NACAC).
• Potential future institutional interactions: If enacted, the offence would require prosecutorial guidance and coordination with administrative, disciplinary and integrity mechanisms so that serious intentional abuse is distinguished from conduct more appropriately addressed through non-criminal processes.

• Definition of the offence: The prohibited conduct must be sufficiently clear to satisfy the constitutional principle of legality.
• Criminal threshold: Legislation must distinguish serious intentional abuse from administrative unlawfulness, negligence, error, incompetence and poor judgment.
• Scope of application: The meaning of a person “vested with public power” requires careful definition across elected office, the public administration, state owned entities and other bodies exercising public functions.
• Improper purpose: Administrative law concepts cannot necessarily be transferred unchanged into criminal law. The prohibited purposes may require more precise statutory definition.
• Harm threshold: Government must determine whether misuse of power alone is sufficient or whether actual or potential public harm should form part of the offence.
• Overlap with existing offences: The relationship with PRECCA, fraud, defeating the ends of justice and statutory misconduct offences must be clear enough to support consistent prosecutorial practice.
• Collective decisions: Attribution of criminal responsibility may be difficult where powers are exercised by boards, committees or through multi-stage administrative processes.
• Prosecutorial discretion: A broadly applicable public power offence could create risks of selective or politically motivated prosecution unless charging policies and institutional safeguards are strong.
• Defensive administration: Officials should not be deterred from making lawful but difficult decisions because of an unduly broad threat of criminal liability.

• Publication of draft legislation creating the offence.
• Government’s response to the SALRC recommendations and the reasons for the delay beyond the anticipated November 2025 draft Bill.
• The final definition of “public power” and the persons to whom the offence applies.
• The statutory treatment of bad faith and improper purpose.
• Whether actual harm, risk of harm or benefit to another person is made an element of the offence.
• The relationship between the proposed offence and existing PRECCA corruption offences.
• Safeguards against criminalising ordinary administrative unlawfulness, negligence or legitimate exercises of discretion.
• Rules governing responsibility for collective decisions.
• Prosecutorial guidelines governing charging decisions and overlapping offences.

The proposal remains an active but delayed component of the State Capture Commission implementation programme.

It has advanced further than the original government commitment to conduct research. The SALRC has completed a proposal paper and its recommendations have been under consideration within the Department of Justice and Constitutional Development. The Presidency’s July 2025 progress report anticipated that this evaluation would result in a draft Bill by November 2025.

That milestone has not been achieved publicly. No draft Bill or parliamentary legislation establishing the offence has been identified as at 7 September 2026.

The delay does not necessarily indicate that the reform has been abandoned. More recent monitoring continues to describe it as under consideration. It does, however, highlight the difficulty of translating the State Capture Commission's relatively simple formulation into workable criminal legislation.

The eventual Bill will need to reconcile two important objectives. It must be broad enough to reach serious intentional abuses of official authority that escape conventional corruption offences, while remaining narrow and precise enough to protect lawful administrative and political discretion.

The most important development to watch is therefore publication of the Department's legislative proposal. Until that occurs, the policy rationale for the offence is relatively clear, but its legal scope, penalties and relationship with existing criminal offences remain unsettled.