When he appointed the Madlanga Commission, President Cyril Ramaphosa initially required an interim report from it by 31 October. When delays in starting the work of the commission intervened the president made a decision to delay the furnishing of the interim report to 17 December, next Wednesday.
The president is not required to give reasons for his choice of date, it would appear to be perfectly reasonable to choose an extended date for the interim report, and the commission has now paused the taking of evidence to concentrate on the preparation of that report.
Two events in history stand out as serendipitous coincidences for his choice of date.
In Roman times (and remember we have Roman Dutch law in SA) the feast of Saturnalia began on 17 December each year in Rome. The ancient Romans regarded the god Saturn as the original ruler of Latium or even the whole of Italy. Eight pillars of the temple of Saturn still stand in Rome. The holiday was celebrated with a sacrifice at that temple, role reversals, gift giving and partying on a Christmas-like scale accompanied the celebration.
It is also well documented that the Wright brothers first flight took place at Kittyhawk on 17 December 1903.
It is doubtful that the president had either of these events in mind when he nominated his date so serendipitously.
Certainly, it does demonstrate the urgency with which the subject matter of the interim report is being approached by government. It is to be hoped that the commission does not “kick for touch” but offers some substantial advice and guidance in its much anticipated interim report.
It is certainly open to the commission to furnish advice to the president on what the requirements of our law are in relation to dealing with the various manifestations of corruption which are apparent in the evidence already led before the commission. The title of the commission does highlight the role of corruption in its work, rightly so. Much of the organised crime under consideration by it is corrupt in its nature.
It would accordingly be appropriate to pause to consider what the law requires in dealing with the scourge of corruption, in all its manifestations, in SA.
Supreme law
In our law the Constitution is regarded as the supreme law. It means what the Constitutional Court says it means and government is bound by what that court declares the law to be.
The Constitution itself does not mention the notion corruption in any way, shape or form. The police are given the task of combating and investigating all forms of crime, including corruption and the National Prosecuting Authority is tasked with prosecuting all crime.
The court has considered what steps are needed to deal with corruption effectively. Its rationale for doing so was spelt out in poetic language in Glenister Two in a joint majority judgment penned by Deputy Chief Justice Moseneke and Justice Cameron which they handed down on 17 March 2011. The relevant paragraph reads:
There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
After carefully considering the arguments put up by the litigants and by an amicus curiae, the Helen Suzman Foundation, the justices concluded that:
“…Our law demands a body outside executive control to deal effectively with corruption” (Glenister Two paragraph [200])
General Mkhwanazi
They went on to describe the characteristics of that body, setting the criteria by which to identify it. The criteria have become know as the STIRS criteria and were even mentioned expressly in the evidence presented by the Acting Minister of Police to the ad hoc committee of parliament which is working in parallel (from the perspective of the legislature) with the Madlanga Commission which has a more executive focus having been appointed to inquire for and assist the president, as head of the executive branch of government, on what is to be done about the complaints raised by General Mkhwanazi on 6 July 2025.
STIRS stands for:
Specialised staff
Trained to the highest standard in anti-corruption strategies
Independent of executive control, influence and interference
Resourced in guaranteed fashion
Secure in tenure of office.
The problem with which the government and the commission must now grapple is that no such body exists despite the clarity of the words quoted in bold type above.
All manner of obfuscation has been indulged in by those in government who seek the “hegemonic control of all the levers of power in society” which is a basic tenet of the National Democratic Revolution. This tactic is adopted in order to avoid doing what parliament was ordered to do by the learned justices. The power of the court to insist on a single body, rather than the multi-agency approach government prefers, has been questioned. The court does have that power and government should be told so by the commission not only because this is the law, but also because the multi-agency approach does not work in practice. Failure against the corrupt can be seen from the evidence adduced in several commissions of inquiry which preceded the Madlanga commission. The Zondo Commission revealed state capture to the world. The Nugent Commission unmasked corruption in SARS on Tom Moyane’s watch and the Mpati Commission did likewise for the Public Investment Corporation.
In the third and last Glenister case the then Chief Justice, Mogoeng Mogoeng, confirmed the findings set out above and sounded a stern warning in the opening paragraphs of his judgment:
“Corruption is rife in this country and stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that South Africa 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.”
That independence is set out in the words quoted from Glenister Two above: freedom from executive control is the way in which to achieve structural and operational independence for the anti-corruption machinery of state.
Integrity and accountability
This form of freedom is constitutionally conferred on all of our Chapter Nine Institutions which, together form the integrity and accountability sphere of governance in the SA constitutional set up.
It should come as no surprise to learn that Glynnis Breytenbach, the feisty co-chair of the justice portfolio committee in parliament, has two private members bills in the works in parliament which envisage the establishment and enablement respectively of a new Chapter Nine Anti-Corruption body.
Their passage and that of an improved whistleblower protection regime are urgent business of parliament. The Madlanga Commission is at large to say so, and should.
[Image: https://www.flickr.com/photos/169022792@N02/53406888980]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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