ISS Analysis

State capture exposed serious failures not only by officials who actively abused their powers but also by political representatives and institutional leaders who failed to exercise powers and responsibilities that could have prevented or constrained wrongdoing.

Such failures can have consequences comparable to deliberate misconduct. Failure to supervise an institution, respond to warning signs, exercise oversight powers or intervene when legally empowered to do so can permit corruption and institutional capture to continue.

Yet democratic constitutional systems generally distinguish between criminal conduct and political failure. Ministers, legislators and other political representatives are ordinarily accountable through elections, Parliament, executive responsibility, judicial review and constitutional mechanisms as well as criminal law where established offences are committed.

The Commission’s proposal therefore raises an important question. Are there sufficiently serious and culpable failures of constitutional responsibility that should attract legal sanctions beyond existing political and constitutional mechanisms?

The difficulty lies in identifying those cases without turning criminal law into a mechanism for adjudicating political performance.

No published draft Bill exists and the SALRC Proposal Paper has not been identified as publicly available. The precise elements of any proposed offence therefore cannot be stated reliably.

The State Capture Commission’s recommendation was that consideration be given to introducing a form of sanction for “constitutional and political malpractice” in response to serious failures by public representatives to exercise their powers.

Government subsequently directed research into creating an offence of political or constitutional malpractice.

The President’s October 2022 response explained the concept as applying to instances where a political representative is negligent in exercising his or her duties and indicated that such conduct might result in civil action for damages against the elected representative.

The SALRC later developed a Proposal Paper under the narrower title Proposed Statutory Offence – Constitutional Malpractice by Public Officials.

Without publication of that paper, important questions remain unanswered, including:

• whether the SALRC proposed a criminal offence, civil liability or both;
• who would qualify as a “public official” for purposes of the proposed offence;
• whether elected political representatives would be included;
• what conduct would constitute “constitutional malpractice”;
• whether negligence, gross negligence or intention would be required;
• whether actual financial or other public harm would need to be proved;
• what defences would be available;
• what sanctions would apply; and
• how the proposed offence would interact with constitutional, parliamentary and existing criminal accountability mechanisms.

The July 2025 classification of the reform as “Not proceeding” means these questions may not now be taken forward legislatively unless government revisits the proposal.

• 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: The Presidency and Minister of Justice and Constitutional Development.
• Relevant system actors: National Prosecuting Authority; South African Police Service; Directorate for Priority Crime Investigation; Investigating Directorate Against Corruption.
• Constitutional and political accountability actors: Parliament; provincial legislatures; the President; Premiers; courts and relevant constitutional oversight institutions.
• Policy and advisory actors: National Anti-Corruption Advisory Council, which commissioned an independent assessment of implementation of the State Capture Commission recommendations; civil society and constitutional law specialists.

• Uncertain legal character: The Commission proposed a “form of sanction”, while government subsequently investigated an offence. The appropriate legal mechanism was never settled publicly.
• Definition of malpractice: “Constitutional malpractice” and “political malpractice” are not established South African criminal law concepts and would require precise statutory definition.
• Negligence threshold: Ordinary negligence may be too broad a basis for criminal liability involving political and constitutional responsibilities. Any revived proposal would need to establish an appropriately demanding culpability threshold.
• Scope of persons covered: The Commission referred to public representatives, while the SALRC Proposal Paper refers to public officials. The relationship between these categories is not publicly known.
• Collective responsibility: Government decisions and oversight failures frequently involve Cabinet, committees, boards or legislatures rather than a single decision maker.
• Overlap with existing law: Conduct potentially characterised as malpractice may already engage corruption, fraud, statutory duties, civil liability, judicial review or constitutional accountability.
• Politicised enforcement: An offence directed at political representatives would require strong safeguards against selective or partisan investigation and prosecution.

• Any formal clarification by government of why the proposal was classified as “Not proceeding”.
• Publication of the SALRC Proposal Paper or its recommendations.
• Confirmation that the Department’s evaluation of the SALRC recommendations was completed.
• Inclusion of constitutional or political malpractice in a future Department of Justice legislative programme.
• Whether aspects of the proposal are incorporated into other legislation rather than pursued through a standalone offence.

The State Capture Commission raised an important accountability problem and government commissioned further research rather than rejecting the recommendation outright. The SALRC subsequently completed a Proposal Paper, demonstrating that the idea progressed beyond the Commission’s initial suggestion.

The position changed materially by 2025. Although the Presidency reported that the SALRC recommendations were still being evaluated within the Department of Justice and Constitutional Development, its legislative-status table expressly classified sanctions for constitutional and political malpractice as “Not proceeding”.

No legislation was subsequently published by the anticipated November 2025 evaluation date. The Department’s 2026/27 Annual Performance Plan does not include such legislation among its proposed Bills, and no parliamentary process or later government announcement indicating revival has been identified.

The proposal should therefore no longer be described as an active legislative reform simply awaiting a draft Bill. The more accurate current description is that government investigated the State Capture Commission recommendation, SALRC developed proposals, but the reform was subsequently classified as not proceeding and appears to have stalled or been discontinued.

That status could change. The underlying accountability problem identified by the Commission remains relevant, particularly where senior office holders fail to exercise legal or constitutional responsibilities in circumstances causing serious public harm.

For present Monitor purposes, however, the critical development is not the design of a future offence but the apparent decision not to pursue one.