Arising out of feedback received after the Daily Friend published my commentary, The state of the rule of law in SA in 2026, on 14 January 2026, it is plain that the concept “outside executive control” is not well understood by layfolk in the country who are interested enough in its future to read articles about the rule of law in its current state. Let’s shine a little more light on a dark and complex subject.
The underlying clash of values is between those of the law and the Constitution on the one hand and those of the National Democratic Revolution (NDR) on the other. The revolutionaries, in essence, strive for hegemonic control of all the levers of power in society (not just government). These are notions foreign to the infrastructure of our multiparty constitutional democracy under the rule of law. Their ideology is aimed at the ultimate goal of the revolution which is actively pursued by the ANC and its pre-2024 elections allies: the SACP and COSATU.
MK and the EFF are also of revolutionary mindset, with MK advocating a return to parliamentary sovereignty of the kind last experienced by South Africans more than thirty years ago! That was prior to the adoption of the current constitutional order by an overwhelming majority of those who participated in the process that led to the National Accord. It was forged in the period between February 1990, when FW de Klerk, then president, made his most famous speech at the opening of parliament, and February 1997, when the final Constitution found its way onto the statute book of SA.
Some in the ANC felt the revolutionary struggle had culminated in the general and overwhelming acceptance of the new constitutional values encapsulated in the Constitution. Others felt that economic revolution was an ongoing post-political-liberation project which could not be left to the mere implementation and enforcement of the Constitution, despite its egalitarianism and embrace of a non-racial and non-sexist future for the country, with the achievement of equality at its core.
Foremost among the advocates of abandoning the revolution was Professor Kader Asmal, on whose kitchen table in Dublin, Ireland, an early draft of the Bill of Rights was prepared. The Bill of Rights obliges the post-1994 state in SA to “respect, protect, promote and fulfil” the human rights it guarantees. Asmal served in the Mandela and Mbeki cabinets, and he openly advocated the abandonment of the NDR in the wake of the compromise that gave birth to the new constitutional order. Here the sovereignty of parliament was replaced by the supremacy of the Constitution, which, in the final analysis, means what the Constitutional Court says it means in the judgments it delivers.
Asmal, when faced with the duty and obligation under the rules of parliament that obliged him to vote with the ANC caucus for the disbandment of the Scorpions, opted to quit politics altogether rather than so vote.
Separation of powers
It needs to be borne in mind that our constitutional dispensation embraces the separation of powers between four basic institutional arrangements. The executive runs the country; the legislature makes its laws; the judiciary determines all disputes brought to it; and the Chapter Nine Institutions were created to bed down constitutional democracy by acting as impartial and independent watchdogs. No person or organ of state may interfere with the functioning of these institutions which include, among others, the Public Protector, the SA Human Rights Commission and the Auditor General.
It will be appreciated that hegemonic control of all the levers of power is entirely incompatible with the doctrine of the separation of powers. The checks and balances on the exercise of power that are built into the Constitution are there to ensure that hegemony does not occur in a multi-party form of governance in which the rule of law enjoys pride of place. If everyone remains in their lane, the rule of law can be upheld. In situations in which state capture is the order of the day, it cannot.
At the heart of the parallel inquiries currently under way in the Madlanga Commission and in parliament, is the decision of the then minister of police to disband the “political killings task team”, or PKTT as it has become known during testimony. If the Glenister rulings had been implemented, as they should have been had government honoured its obligations so to do, the minister would have had no say at all, due to the anti-corruption nature of the work of the PKTT belonging to “a body outside executive control” and not to a police unit under the ultimate control of a cabinet member.
When the current acting minister of police, Firoz Cachalia, gave evidence before the parliamentary inquiry, he conceded that it was a mistake to shut down the Scorpions. He could hardly do otherwise, because the dissolution of the Scorpions opened the way for nefarious forces in SA, both in and outside the national cabinet, to indulge in the efforts at state capture which cost the country trillions during the Zuma era and beyond. Zuma was jailed briefly, for defying the authority of the commission of inquiry appointed to investigate state capture.
Had it not been for the steadfast and determined attitude of Professor Thuli Madonsela, then Public Protector, that commission, the Zondo inquiry, would not have seen the light of day, and the perfidy of the Zuma era would not have been exposed in all its gory detail, during the hearing of that inquiry which confined itself to certain aspects of state capture.
Three unique appeals
The decision to dissolve the Scorpions and their replacement by the Hawks was litigated all the way to the Constitutional Court, in three unique appeals now known as the Glenister trilogy. The cases are discussed by the lawyers involved in the free ebook called “Under the Swinging Arch”, which is accessible by googling its title.
The upshot of the appeals is that “Our law demands a body outside executive control to deal effectively with corruption”. The court gave parliament eighteen months to effect the necessary changes in the law. To this day there is no single body and certainly no body outside executive control dealing with corruption, which runs rampant. This parlous failure to respect and implement the court decision may be addressed when the private member’s bills introduced by Advocate Glynnis Breytenbach are debated by Parliament. She envisages a new Chapter Nine Institution, an Anti-Corruption Commission, to do the work necessary to contain corruption in SA.
While it is so that the multi-agency approach to combating corruption has been used with some success in countries in which the rule of law is reasonably intact and, in particular, the executive branch of government is beyond reproach, this is impossible in any jurisdiction in which the rule of law is not in good health. The outgoing chief prosecutor, Shamila Batohi, has described, accurately, the rule of law as being in the ICU on life support in SA. It ought to be obvious that putting a corrupt executive in charge of anti-corruption work is a fool’s mission, akin to putting the fox in charge of the safety and security of the henhouse.
The Hawks have been a failure in their anti-corruption endeavours. They do good work on other priority crimes, but when corruption crosses the desks of the Hawks, inertia or worse is the almost invariable outcome. It is not sensible to be expected to investigate the criminality of the politicians to whom one is answerable. Hence the need for a body outside the control of the executive.
This arrangement, a body outside executive control, is not unknown in SA. The whole of the legislature at all levels is outside the control of the executive. So is the judiciary, which is expressly called “independent” and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.” So too, the Chapter Nine Institutions, one and all, “must be impartial and must exercise their functions without fear, favour or prejudice.” The Constitution goes on to require that “Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.”
Accountable
All Chapter Nine Institutions are accountable to the National Assembly to which they must report at least annually, (and not to the executive). They are all outside the control of the executive, hence the tenor of the Breytenbach bills.
By way of contrast, the police are answerable to the minister of police, while the prosecution service accounts to the minister of justice and has the director general of justice as its accounting officer. He in effect controls the purse strings of the entire organisation. The minister must concur in all prosecution policy and exercises final responsibility over the prosecution service.
The ill-health of the rule of law and the prevalence of serious corruption with impunity can be cured by properly implementing the Glenister rulings so that a single body of trained specialists, who are structurally and operationally independent, resourced in guaranteed fashion and secure in their tenure of office, takes on the corrupt.
The political will to achieve this happy state was lacking in the fifth and sixth parliaments. It remains to be seen whether the seventh parliament is as soft on corruption as its predecessors, given the changing political dynamics in SA today.
[Image: Conny Schneider on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
If you like what you have just read, support the Daily Friend