My piece of 24 August, Greed in SA the deadliest of the nation’s many sins, attracted a few comments, one of which is deserving of a response in clarification of a rather obscure aspect of the law.

The comment in question, under the nom de plume “The Passing Show” (possibly a nod in the direction of the late Joel Mervis, an editor of the Sunday Times who ran a satirical column of that name which he penned himself) reads:

If a binding court order made upon the political leadership of the country is treated with flagrant contempt then it is by default, not binding..
Do courts not have the power to declare such behaviour as contempt of court and have the perpetrator arrested and held in close confinement until the order is obeyed?
If they do, why don’t they? If they don’t, then the most advisable solution is to bend over as far as one can, put one’s head between one’s legs and kiss one’s arse goodbye.
Although if it is true that the SA criminal drug distribution industry is controlled by the police, aided by their willing mules, the taxi industry, I think I do see where the problem might lie.
It is daily becoming clear to me the novel and inventive ways in which African solutions to African problems are being tackled.
I suggest one should read Hoffman’s article in connection with Herman Pretorius’s article on poverty, and join the dots.
Or, is the entire SA judicial system now plagued by the Australian city of Perth’s problem? Namely where, according to an article in this morning’s Times of London, many of the judges spend most of their day high on meth?

Crisply put, the question raised is whether the government is in contempt of court for not properly implementing the Glenister judgment, and if not, what can be done to have it enforced?

The short answer is that the government does not have the necessary intention (or mens rea, as we lawyers like to say) to be in contempt of court. The court required, without being prescriptive, that the legislature make the “reasonable decision of a reasonable decision-maker in the circumstances” in passing the remedial legislation it required. This accords with the general principle that courts defer to the other branches of government on matters within the scope of their role in the Constitution. The role of the legislature is clearly to pass new laws; the court adjudicates upon the law and pronounces it as valid or invalid in any given case.

There was severely limited compliance with the order made, in that Parliament did deliberate, for all of the eighteen months it was allowed by the court, on what changes would need to be brought to the legislation for the Hawks, as they first appeared on the scene in the criminal justice administration after closure of the Scorpions unit within the NPA in 2008. In their deliberations, the Members of Parliament chose to ignore a not-so-subtle hint in the judgment of March 2011 which required the remedial legislation. The hint was to the effect that a new Chapter Nine Institution would be a suitable home for the anti-corruption entity. The court put it thus:

[205] We add that any obligation binding upon the Republic under international law must not conflict with express provisions of the Constitution, including those in the Bill of Rights. Here, there is no conflict. Far from containing any provision at odds with the obligation to create an independent corruption-fighting entity, the very structure of our Constitution — in which the rule of law is a founding value, which distributes power by separating it between the legislature,  the executive and the judiciary,  and which creates various institutions supporting constitutional democracy, which it expressly decrees must be independent and impartial [57] — affords the obligation a homely and emphatic welcome.”

The possible task so set for the parliamentarians was to fit the anti-corruption entity into the mould of Chapter Nine Institutions which have constitutionally guaranteed independence and impartiality. The task was not performed properly. Instead a few tweaks were brought in to enhance the independence of the existing Hawks unit within the police service. These, given the damning findings in the Zondo Commission, have proved to be inadequate in the circumstances which have prevailed in SA since 2011.

On the topic of independence, the court drew attention to the position of magistrates:

“This court has indicated that ‘the appearance or perception of independence plays an important role’ in evaluating whether independence in fact exists.  This was said in connection with the appointment procedures and security of tenure of magistrates. By applying this criterion, we do not mean to impose on Parliament the obligation to create an agency with a measure of independence appropriate to the judiciary. We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.”

The Hawks have had since 2009 to build public confidence in their independence. They have failed miserably, and are not regarded by the public as worthy successors to the Scorpions. Even government has turned its back on the Hawks as an anti-corruption entity, choosing instead to establish the Investigating Directorate Against Corruption (IDAC) within the NPA in 2024 to both investigate and prosecute the corrupt as a stop-gap measure. IDAC is not a constitutionally compliant body, hence the “stop-gap” moniker.

The National Advisory Council against Corruption (NACAC) does not regard the Hawks as having any part in the anti-corruption future armoury of SA. This is not to say that the Hawks are incapable of doing good work on priority crimes other than serious corruption. Their “blind spot” is the corruption of the politically well-connected, rather a large cohort in SA currently: a situation more evident today than it was in 2011 when the Zuma-era state capture project was in its infancy.

It is salutary to pause and consider that had Parliament accepted the court’s Chapter Nine hint outlined above, the Hawks and the police in general would have had nothing to do with corruption investigations. The media conference complaint aired by police General Mkhwanazi on 6 July 2025, which prompted the President to appoint the Madlanga Commission of Inquiry, would not have arisen, because the minister of police (currently on gardening leave) would have had no business whatsoever shunting dockets safely away from investigators working on live cases that related to serious corruption in politics in the field of political killings.

Those dissatisfied with the current anti-corruption situation  in SA are not without a remedy.

There are two bills currently on the table in Parliament which do cover the establishment and enabling of a new Chapter Nine body, the Anti-Corruption Commission. (NO! This is not another toothless commission of inquiry, it will be a standing statutory commission with powers to prevent, combat, investigate and prosecute the corrupt to the full extent the law allows). Until those bills are voted on by Parliament, it is premature to seek the proper enforcement of the Glenister rules. The bills are Glenister-compliant and fit for the circumstances that currently prevail in SA. The courts, ever deferential to the other spheres of government, will decline to intervene in the matter until the votes on the bills are counted in Parliament. A two-thirds majority is required to amend Chapter Nine, which in practice means that the ANC members of parliament, or most of them, will have to support the successful passage of the bills which already have the support of the DA, including its cabinet members.

As voting against the bills will expose to the electorate those so voting as “soft on corruption”, it may be that most parliamentarians will see such a vote as career-limiting and will choose instead to support the bills. In August 2020, the NEC of the ANC indicated its support for the type of reform the DA now proposes, and called on cabinet to move urgently on the matter.

Should the two-thirds vote not be secured in Parliament, those seeking reformed anti-corruption a la Glenister may return to court for declaratory, mandatory and supervisory relief, namely:

  • A declaratory order to the effect that the IDAC legislation is unconstitutional and that the failure to implement properly the decision of the Constitutional Court of 2011 is illegal, irregular and invalid in the circumstances that now prevail in SA.
  • A mandamus directing the government to take remedial steps to implement properly the said decision: that a single body outside executive control take charge of combating corruption effectively and efficiently;
  • A supervision order directing government to report to the court at regular intervals on progress being made toward implementing the mandamus.

It is to be hoped that the constitutionalists in Parliament will prevail in the debate, will sharpen up the DA’s proposals for an Anti-Corruption Commission, and make it a long-overdue and badly needed law.

[Image: Wesley Tingey on Unsplash]

The views of the writer are not necessarily the views of the Daily Friend or the IRR.

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Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt.