Many things plague the South African state. Perhaps worst of all is what we call corruption, in which state functionaries set the tone.

For 429 days from 2018 to 2022, we were spectators of the Zondo Commission’s corruption theatre. It concluded with a comprehensive report, which raised hopes that the plaque of corruption would be stopped.

Then, since September last year, the Madlanga Commission followed. It is essentially also about corruption, more specifically in the criminal justice system. It is also theatre – unsettling theatre – because it focuses on the pattern of widespread serious criminality in the highest ranks of the state bodies (especially the police and the prosecuting authority) that claim the responsibility to protect the public from crime.

The hope soon faded that the Zondo Commission would stop the corruption pandemic. Corrective measures such as prosecutions and improvements to parliamentary oversight functions did not follow suit. The expectation that President Cyril Ramaphosa, now armed with the necessary evidence, would do the laundering work in his own party and government and get rid of the loads of bad apples also came to little. Ramaphosa, hampered by his party and his own seemingly uncertain mind, is simply not capable of doing so.

Corruption continues largely unabated.

Action arising from the work of the Madlanga Commission appears to be speedier and more drastic. Several arrests have been made and trials of some of those implicated have already begun.

Yet the police and the prosecuting authority have already been compromised and eroded to such an extent that a meaningful positive turnaround is not foreseeable.

The most important reason why what we call corruption in the current South African state is not reversible lies on another level. It is that corruption is but the symptom of a deficiency way more fundamental.

This is not primarily the criminal law problem of corruption, but a deeper-seated constitutional law issue — that the very concept of public office is severely underdeveloped, and consequently there is a profound deficiency in the exercise of public office.

We now look at some aspects of this.

The Officeholder Versus the Private Person

Understanding what is at stake here requires a clear distinction between the private person and the concept of the (public) office-bearer.

Offices that people hold relate to the capacities in which they stand and usually have to do with the work they do. Public offices, more specifically, are offices that by definition are and (should be) exercised for the benefit of the public in general – from the most modest to the most senior civil servant, from the most junior to the most senior police and army officer, and of course all elected public representatives and executive functionaries in all spheres of government in legislatures, the executive and in the judiciary, that is to say including the president, ministers, and the judges of the highest courts.

Two characteristics of public office-bearing are relevant here.

Fit and Proper Office-Bearers

The first is that public office-bearers must be competent and fit for the office they hold – to which they are appointed, promoted or to which they are elected. They may be cordial and friendly, belong to this or that family, support this or that party or faction in a party, or be befriended by this or that individual. However, in public office-bearing this is of no consequence.

The question, of course, should solely be whether the office-bearer is competent and fit to fill the office in question. This means that they must be able to fulfil the role that the office prescribes for them with distinction. Their private qualities and associations are irrelevant.

Public office-bearing signifies that the office-bearer assumes a kind of second persona, existing independently of the private person. Of course, it is so that qualities of people in their private capacities would enable them to fulfil a relevant public office well. Finally, however, each public office involves its own distinctive role incidental to the office concerned, and not to the private person.

Each of the public offices has its own requirements, namely qualifications, experience, and know-how independent of the private person. These are what enable public office-bearers to fittingly and with distinction discharge the responsibilities of the office concerned.

This is to a considerable extent not the case in the present South African state. That is precisely why there are repeated calls for the police and various other organs of state to reprofessionalise. This is the consequence of a pattern of deployment of unsuitable public office-bearers occupying positions on account of irrelevant private characteristics and relationships, and not meeting the demands of the public offices concerned.

Such people will often act incompetently and corruptly, not necessarily because they are somehow inherently corrupt, but on a more fundamental level because neither they, nor those who appointed them, grasp the concept of public office and the responsibilities accompanying it.

The problem therefore does not lie primarily with personal corruption, but with an underlying systemic misconception, according to which there is no understanding of the fundamental distinction between the private (person) and the public office.

The phenomenon of appointments in the United States and other contemporary liberal democracies being made on the basis of diversity, equity and inclusion (DEI) (in South Africa representivity and transformationism) is a major cause for the erosion of public office: It follows from people being appointed not on the basis of relevant considerations of public office, but on the basis of irrelevant private considerations, namely peoples’ private identity (and relations).

The Public Office-Holder is a Diminished Private Individual

Secondly, it is rightly accepted that especially senior public office-holders should be treated with due favour and honour. Hence, the president, ministers, judges, directors-general, and so on should be well remunerated and treated with respect for the authority they exercise and the weighty public responsibilities they bear.

It is precisely their considerable public authority that entitles them to public respect. Moreover, when they perform their public offices with distinction, they (should) rightly enjoy praise, honour, and even fame. Their names become, as it were, “immortalised” in the annals of history.

The flip side, of course, is that malperformance by public office-bearers is also in the public eye. Therefore, public office-bearing is also exposed to the risk and sanction of lasting disfavour and even humiliation. The names of the malperformers are also recorded in the annals and remembered for the wrong reasons – failure and shame.

However, the authority and prestige of public office-holders – and this is crucial – does not mean that they are somehow magnified private figures; on the contrary. They are diminished private persons. This is in fact one of the inherent characteristics of public office.

They are diminished in the sense that they are servants. They must serve the public. Their supposing to be servants is precisely the source of the possible praise for excellent office-holding and the potential risk of disapproval and ridicule when the exercise of office is botched.

The restricted private personas of public office-holders also means that they have reduced privacy and generally have limited rights compared to the rest of the public.

Thus, many private matters of especially senior public office-bearers, unlike ordinary private citizens, are the legitimate concern of public scrutiny. A judge, for example, who is required to be independent and impartial must, unlike a private person, refrain from articulating political and religious positions. And a senior political functionary enjoys much less protection against defamation than an ordinary private individual. This, by the way, has also been generally accepted in the law of defamation.

The Error of Public Office-Bearers as Blown-Up Private Individuals

It is precisely in this context that the dysfunction of the South African state coupled with corruption comes into sharp relief. In the ranks of the African National Congress ranks over the past 32 years there has been little understanding that public office indeed entails servanthood accompanied by sacrifice of the private self – that public office is accompanied by the diminished state for the private individuals concerned.

Moreover, it would seem that public office in those ranks is accompanied by the widespread misconception among office-holders that they have enlarged private personalities; that they believe that their public offices entitle them to favours to which the ordinary citizenry is not entitled.

Many therefore act as if they believe they are free to do as they please and take what they wish as if their public offices entitled them. This, I suggest, is why the country is so delivered to corruption and self-righteousness. And this is also apparently why corrective action falls short, because the supervisors share the misconception.

There is currently increasing talk about why corruption is so pervasive and widespread; why corrective steps seem to just not produce the desired results. Can office-bearers really not tell right from wrong and do the corrupt really think their corruption might be right?

In my opinion, the answer to these haunting questions lies in the political culture outlined here, according to which the demands of public office are so poorly grasped.

Ultimately, this is a constitutional issue, more specifically a question of constitutional culture.

This can therefore hardly be corrected with a structural adjustment, in other words with a constitutional amendment.

What is called for is a drastic change in political culture. The very notion of public office would have to be salvaged, so that it is understood to be associated with servility, sacrifice, and the idea of the diminished private person of the public office-holder, not the blown-up private person.

Granted, this is normative and can be rightly seen as a decidedly idealistic task. But that is not strange, because law and constitutionalism are, after all, precisely idealistic, supported of course by structural checks and balances in order to enforce the norms. But once the culture of voluntary compliance with the norms (in this case the norms of public office) has largely disappeared, the structures of law and a Constitution, including courts and commissions of inquiry, can no longer correct it.

Only a replacement by a constitutional order or orders with new ruling elites and accompanying new values, including a corrected sense for public office, can do this.