On 11 July 2025 Accountability Now addressed an email to the President. It reads as follows:
We write this open letter to you in advance of your address to the nation scheduled for 7pm on Sunday 13 July 2025. We hope that our intervention will assist you in the formulation of your response to the matters raised by General Mkhwanazi when he held a media briefing on Sunday 6 July 2025.
At the root of the General’s complaints is the systemic failure of the state to deal with serious corruption effectively. This failure is, in large part, attributable to the inadequate response of Parliament to the orders made by the Constitutional Court in the case now known as “Glenister Two”.
The joint majority judgment in that case was handed down on 17 March 2011. It has not yet been implemented properly. The judgment requires, in terms that still bind government, that a single body, outside the control of the executive, be created to deal with corruption. The court specified in detail the criteria by which that body would be characterised.
The main criteria are now known as the STIRS criteria, being a body of specialists, trained in anti-corruption expertise, independent in structure and operations, resourced in guaranteed terms and secure in tenure of office.
No such body has ever existed in South Africa.
Tweak legislation
The remedial legislation required by the court was instead formulated to tweak the Hawks legislation. The resultant NPA/Hawks experiment in anti-corruption duties has proved to be a dismal failure. This failure has compelled you to create the Investigating Directorate against corruption (IDAC) within the NPA. None of the main STIRS criteria are met by the NPA, IDAC or the Hawks. The prosecution-oriented recommendations of the Zondo Commission have mostly not been implemented, and corruption with impunity is now the order of the day.
Currently pending before Parliament are two private members’ bills which envisage the establishment and enablement of a new Chapter Nine Anti-Corruption Commission. The bills have been designed to comply with the standards set by the court in Glenister Two. These standards are binding on government. It is within your power to ensure that the GNU, or at least the ANC element in the GNU, support these bills. The ANC has 40% of the votes in Parliament.
For the bills to be made law, a two-thirds majority is needed in Parliament. This means that without ANC support, the bills will not become law. Should that occur, it will become necessary to revert to public interest litigation aimed at securing proper implementation of the binding rulings made in Glenister Two.
It is obviously premature to litigate while the bills are pending and still under parliamentary consideration.
We implore you to support the bills that envisage a new Chapter Nine Anti-Corruption Commission. When you initially reacted from Brazil to the news of the General’s media briefing, you expressly and correctly invoked the rule of law. To do so fully in this instance requires the government to implement properly the binding findings in Glenister Two.
The matter has been discussed in greater detail on the website below and in the e-book “Under the Swinging Arch”, a hard copy of which was given to you when you addressed the Cape Town Press Club in February last year. The e-book is accessible for free by googling its title.”
Avoided
A polite acknowledgement of receipt and a note of appreciation was later received from the presidency, but the President himself assiduously avoided grasping the causation nettle. The President chose instead to give the issue he addressed on television on Sunday evening, 13 July 2025, purely symptomatic treatment rather than seeking to address the causes of the malaise in the criminal justice administration in South Africa and in the police service in particular.
The chief cause of the malaise is that the appropriate anti-corruption body for South Africa, as ordered by our highest court, simply does not exist. The system as configured at present does not function optimally, as can be seen by the infighting in the police and the paucity of success of the prosecuting authority in its work relating to serious corruption and organised crime.
As the nation awaits the announcement of the terms of reference of the new Madlanga Commission of Inquiry, it is appropriate to step back and survey the architecture that is in place at present in South Africa.
When the founders of the post-liberation constitutional order in South Africa assembled to formulate the national Constitution, they decided to make a clean break with the past.
A non-racial, non-sexist new dawn broke in 1994. The Constitution aims at:
- valuing respect for human dignity,
- promoting the achievement of equality, and
- the enjoyment of guaranteed human rights for all.
All of these good things are expressly envisaged in the first two chapters of the Constitution, our supreme law.
The supremacy of the rule of law is also a founding value for the multi-party constitutional democracy (not the parliamentary sovereignty of pre-liberation politics) in which the watchwords are openness, accountability, and responsiveness in government.
The Constitution is our supreme law, and conduct or laws inconsistent with it are invalid and may be struck down by our independent and impartial judiciary.
Transparency
Transparency is a synonym for openness. What is done by government must be seen to be done. To facilitate this objective, we have the Promotion of Access to Information Act for use when information required is withheld.
Accountability entails being able to justify decisions taken, and actions on them, within the parameters of the rule of law, standards of rationality, and reasonableness in decision-making.
Integrity requires that corruption should not be allowed to taint the work involved in governing lawfully and in accordance with the values and principles laid down in Section 195 of the Constitution.
In terms of Section 7(2) of the Constitution, the State must respect, protect, promote and fulfil all the human rights guaranteed in the Bill of Rights, which is Chapter Two of the Constitution. Some of these rights are subject to progressive realisation within available resources. Corruption is regarded as a human rights issue in South Africa because the corrupt are in the nasty habit of diverting funds intended for the public good to their own pockets, thereby prejudicing the poor majority in the country.
Opacity
History since 1994 reveals opacity in place of openness, and a lack of accountability due to multiple failures of integrity in governance at national, provincial and local levels. According to the research of Professor William Gumede, the black economic empowerment laws of South Africa have benefited a select elite numbering about 100 fellow-citizens, while those truly disadvantaged by unfair discrimination continue to suffer ever-worsening levels of poverty.
Corruption with impunity is rife, and includes ongoing attempts by crooks in business, drug cartels, gangsters, civil servants and politicians to capture the state and repurpose it to their own nefarious ends.
Addressing corruption requires compliance by government with the binding rulings made in the Glenister litigation which set the “STIRS” standards for a new anti-corruption body. Specialised, Trained, Independent, Resourced in guaranteed fashion and Secure in tenure of office are the required criteria. The rulings envisage a single body designed by Parliament, and outside the control of the executive, to deal with corruption. Very properly, the court expected Parliament, as the representative of the people of South Africa, to fashion the terms upon which a body outside executive control should be established. As pointed out to the President on 11 July 2025 by Accountability Now, no such body exists.
Progress
That body is still a work in progress. Without it, the necessary and constitutionally prescribed transparency, accountability, and the integrity of governance will all be unattainable. The levels of inequality, poverty, joblessness, hunger, and starvation (including deaths by starvation and stunting of growth in the children of the poor) currently in evidence in this country will continue to rise, while corruption is not addressed in a constitutionally compliant manner.
Experts estimate that a third or more of GDP has been lost to corruption in the new South Africa. The country is not on a sustainable path while corruption remains unaddressed.
The President knows this, as does his new acting Minister of Police. It is unknown whether they will act to properly implement the findings in Glenister Two, as confirmed in the Helen Suzman Foundation/Glenister Three matter in 2014, in which matter Justice Madlanga was on the Bench. The opening words of the majority judgment in that matter bear repeating:
“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
Constitutional duty
It is the constitutional duty of the cabinet to implement the judgments mentioned above properly. The terminology “adequate structural and operational independence” is not ambiguous or open to various interpretations, if one has regard to the content of paragraph [200] of the majority judgment in Glenister Two where the court makes it plain that:
“…Our law demands a body outside executive control to deal effectively with corruption.”
For too long now, the can has been kicked down the road so that the government can avoid having to comply with the requirements laid down in binding terms by the court. The deference shown to Parliament by the court, and the request that Parliament make the “reasonable decision of a reasonable decision-maker in the circumstances” does not afford any wriggle-room to those who seek to retain executive control of the anti-corruption machinery of state.
A multi-agency approach won’t do either, on any sane reading of the passages from the two judgments quoted above. The court clearly has a single body in mind: one that is outside the control of the executive.
Radical reforms
As it happens, the DA has two bills in the works in Parliament, and it also plans radical reforms of the NPA to improve the independence of its functioning as a Chapter Eight body. The two bills envisage the establishment and enablement of a new Chapter Nine Anti-Corruption Commission to prevent, combat, detect, investigate, and prosecute the corrupt in our midst.
It is high time for Parliament to apply its mind to the issues that are relevant, and act accordingly on the proposed Anti-Corruption Commission.
Let’s all remember that Minister of Police Senzo Mchunu would have had no business issuing the type of instructions he gave to Shadrack Sibiya: the instructions that precipitated the appointment of the Madlanga Commission of Inquiry, had the Glenister ruling been treated as the rule of law required it to be treated.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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