The KZN Police Commissioner put the cat among the political pigeons on Sunday. His essential complaint is that the executive branch of government has interfered illegally with the work of the police by sidelining investigations that have the potential to expose serious corruption in which the current Minister of Police, among others, is implicated.
The police are answerable and accountable to the Minister of Police; the Constitution provides that he “must be responsible for policing and must determine national policing policy …”
The types of corruption of which Mkhwanazi complains ought to be the business of a body outside the control of the executive (in the person of the minister), in accordance with the interpretation of the Constitution formulated by the Constitutional Court in the Glenister litigation. No such body exists; government has lamentably failed to implement the decision properly, which would have seen the formation of a new body clothed with the characteristics formulated by the court. This would be a body capable of dealing with corruption effectively, as envisaged by its majority judgment.
The main court determined criteria for the anti-corruption body, including that it be specialised, concentrating only on countering corruption using experts trained in that craft; independent both structurally and operationally; resourced in guaranteed fashion and secure in tenure of office. These criteria have become known as the STIRS criteria. They are all conspicuously absent in the current anti-corruption machinery of state.
At present, the prosecution service is tasked with prosecuting the corrupt. The police have their work cut out detecting and investigating all instances of corruption in the land. Our prosecution service is run as a programme within the Department of Justice, with the Director General of Justice as its accounting officer. The Minister of Justice has final responsibility over the prosecution service. These features of the NPA are not the hallmarks of independence.
It follows that, in breach of the court ruling, SA has no independent corruption-fighting institution.
The DA is currently sponsoring two bills in Parliament, aimed at the establishment and enablement of a new Chapter Nine Anti-Corruption Commission which is designed to comply with the court rulings in the Glenister litigation. It will be necessary to secure a two-thirds majority to pass the bills into law, because an amendment of Chapter Nine of the Constitution is involved in their successful passage through the legislative process.
In this way, a body clothed with the constitutional protection of Chapter Nine status (like the Human Rights Commission, the Electoral Commission and the Gender Commission) will be created. These bodies are all outside the control of the executive. They report to Parliament and receive their budgets from Parliament.
“Without fear, favour or prejudice”
The provisions of Section 181(2) of the Constitution bear mention:
“These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.”
In addition, the Constitution does not brook interference with the functioning of these institutions.
Had the corruption investigations which are at the heart of the matters complained of by General Mkhwanazi been conducted by a Chapter Nine body, the minister would have been completely offside, and indeed not even in the governance loop. There would have been no opportunity for instructing the KZN police to transfer dockets under investigation by them to General Sibiya, where they have allegedly languished unattended for a considerable period, to the chagrin of General Mkhwanazi.
The failure of government to implement properly the findings in the Glenister litigation has at last caught up with those involved in the matters of which Mkhwanazi complains. Swift passage of the DA bills through the legislative process will help deal with the scourge of corruption, but may come too late to correct the historical errors about which he complains.
As the ANC commands 40% of the votes necessary to attain the two-thirds majority required, it is plain that the long overdue and necessary reform of the system of criminal justice administration can only be achieved with the buy-in of the ANC.
The onus is on the parliamentary caucus of the ANC to support the DA’s two bills. Not only do they constitute a best-practice way to give proper effect to the binding court findings in Glenister. The support of the ANC is appropriate as a feature of its renewal and anti-corruption campaign. If that support involves throwing a minister or two under the bus, so be it.
Should the ANC not support the two bills, the demise of the GNU can reasonably be expected, given that the sponsor of the bills is the second largest party within the GNU. The DA cannot reasonably be expected to tarry any longer within the GNU if the vote on the two bills does not enjoy the support of its largest-by-far GNU partner, the ANC.
Thwarting
While it is possible to govern in coalition with partners who do not share the same ideology and policy agenda on most matters, when it comes to countering corruption and upholding the rule of law by respecting and implementing the rulings of the courts via new legislation, it cannot reasonably be expected of any self-respecting member of a coalition to tolerate a contrary vote on an issue as vital and as fundamental as that which would be raised by the ANC voting against, thereby thwarting, the bills sponsored by the DA.
There are those who may say that the DA ought not to remain in coalition with the ANC if it is established that the complaints made by Mkhwanazi are well-founded. The ANC of 2025 has been described as a “criminal enterprise”, even by some in the DA, but it is entitled to the benefit of the doubt that exists around the extent of its membership’s criminality. The willingness of the ANC parliamentary caucus to tolerate criminal elements within its ranks will be tested by its vote on the bills that envisage the Chapter Nine Anti-Corruption Commission.
Bonang Mohale, Chancellor of the University of the Free State, recently boldly, but accurately, remarked during a wide-ranging speech he delivered in the USA:
“The great problem for South Africa is rampant greed ….[it] is essentially a problem for the once- glorious African National Congress that has morphed into an organised crime syndicate, primarily because for a solid 30 years of our democracy, they held the absolute majority power in everything that matters”.
Lends credence
The litany of complaints by General Mkhwanazi lends credence to the remarks made by the learned Chancellor in his speech quoted above.
Any failure by the ANC to give full support to the DA’s two bills, as refined during the parliamentary debate and the public participation process involved in turning the bills into law, could lead to the dissolution of the GNU; a re-alignment in SA politics either with or without an early election. The main opposition parties in the current Parliament are already baying for blood. The ANC’s blood.
* Paul Hoffman was lead counsel in the Glenister litigation.
[Image: Ivana Tomášková from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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