The commentariat misses the inwardness of reforming the capacity of the criminal justice system to counter corruption.
The revelations pouring out at the Madlanga, Nkabinde and Khampepe Commissions of Inquiry, as well as the now (mercifully completed) evidence before the Ad Hoc Committee of the National Assembly into the complaints made on 6 July 2025 by Lt General Nhlanhla Mkhwanazi all point in one direction. The criminal justice system in SA is in serious trouble. Successful prosecutions need to be preceded by professional investigations. In SA this occurs all too infrequently, as any proper analysis of the statistics (as conducted by Jean Redpath at UWC) reveals.
A UCT criminologist, Associate Professor Irvin Kinnes, during a national dialogue on employment and growth organised by News24, has suggested that all the generals in SAPS should be dismissed! Those generals who may dare to apply for their jobs back must be subjected to stringent selection processes, integrity testing, lie-detection procedures and a thorough lifestyle audit by the Auditor General. The suggestion so made by the learned criminologist is worthy of serious consideration. It has a precedent in the old SA, when the recommendations of the Goldstone Commission to rid the body politic of pesky generals were followed by the government of the day.
Retired Chief Justice Zondo, who sat through four years of evidence on state capture, has warned that “drastic action” is urgently needed, if we are to have a country worthy of the name in future. South Africa has the skills and talent to see off the corrupt. What is lacking is the political will to do so, via the establishment and enablement of the type of anti-corruption machinery of state that is up to the task.
It needs to be emphasised that SA is a constitutional democracy under the rule of law. Our constitution is supreme and this means what the Constitutional Court says it means. That court has considered the issues at stake in dealing with the corrupt, and it has reached the conclusion that, properly interpreted ̶̶̶̶ with reliance on the human rights obligations of the state as well as its international treaty obligations to counter corruption – radical reform of the law is required.
The apex court has laid down, in terms that bind government, in the case now called Glenister Two, that:
“…[C]orruption in the polity corrodes the rights to equality, human dignity, freedom, security of the person and various socio-economic rights. That corrosion necessarily triggers the duties that S 7(2) [of the Constitution] imposes on the State. We have also noted that it is open to the State in fulfilling those duties to choose how best to combat corruption. That choice must withstand constitutional scrutiny. And, even leaving to one side for a moment the Republic’s international-law obligations, we consider that the scheme of our Constitution points to the cardinal need for an independent entity to combat corruption. Even without international law, these legal institutions and provisions point to a manifest conclusion. It is that, on a common-sense approach, our law demands a body outside executive control to deal effectively with corruption.”
The court ordered parliament to make the necessary legislative reforms to create the body outside executive control it requires. There is no political appetite for that; instead of a single body outside executive control, we have multiple bodies which are under executive control, the most recent of which is the Investigating Directorate Against Corruption or IDAC, which falls under the National Prosecuting Authority, and is not the stand-alone body the court requires. The NEC of the ANC knows this, but cabinet has not acted on its instructions given in August 2020.
Like the rest of the NPA, IDAC remains under the final responsibility of the minister of justice, who is constitutionally required to concur in all prosecution policy. The NPA, including IDAC, operates as a “programme” within the department of justice, as it has as its accounting officer the director general of justice, who accordingly controls the purse strings of the NPA without being a member of it.
Although the Constitution requires that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”, this, in context, is a reference to impartiality, not independence. Section 33 of the National Prosecuting Authority Act 32 of 1998 confirms that the Minister of Justice and Constitutional Development holds final responsibility over the prosecuting authority and it is the closest parliament has come to passing the national legislation required by Section 179(4) of the Constitution. The phrase “without fear, favour or prejudice” cannot rationally be interpreted to mean “independent”, not when the same section of the Constitution itself confers upon the minister “final responsibility over” the NPA. On the contrary, it is no more than a requirement that at its operational level the NPA works impartially.
The final responsibility over it, which the minister must exercise under Section 179(6) is expressly preserved in the NPA Act. The NPA is accordingly NOT a body outside executive control. The president appoints all fourteen of the most senior staff of the NPA, including its National Director. Control of its budgeted funding remains in the hands of the director general. The minister must concur in all prosecution policy. These features are not the hallmarks of a body outside executive control, which is why the court has ordered that that such a body should be created afresh to “deal effectively with corruption”, as required by law.
The media is awash with commentary that lamentably ignores the impact for good which proper implementation of the Glenister rulings would engender.
For example: Jean Redpath of UWC weighs in with two recent contributions, completely Glenister-free https://www.news24.com/opinions/fridaybriefing/jean-redpath-four-priorities-in-24-months-for-new-npa-boss-andy-mothibi-20260205-0721 and https://www.news24.com/opinions/analysis/jean-redpath-mothibis-conviction-rate-defence-masks-npas-deeper-crisis-20260317-0567.
Lirette Louw Bezuidenhout of the Helen Suzman Foundation writes https://www.news24.com/opinions/analysis/analysis-public-trust-is-being-eroded-while-npa-reform-promises-gather-dust-20260311-0842.
Khaya Sithole, an accountant and commentator remarks on the pitfalls: https://www.news24.com/business/opinion/khaya-sithole-how-ramaphosas-quest-for-transparency-trapped-the-npa-20260118-0629.
Mpumelelo Mkhabela weighs in with https://www.news24.com/opinions/columnists/mpumelelo-mkhabela-why-andy-mothibis-push-to-corporatise-npa-is-important-20260320-1121.
Martin Schönteich of the ISS has also commented: https://www.news24.com/opinions/fridaybriefing/martin-schonteich-mothibis-two-year-sprint-new-npa-heads-ultimate-challenge-20260205-0724 .
The inescapable truth is that the NPA is a constitutionally-created body with a general mandate to prosecute all crime in SA. It does so in real life on the basis of dockets prepared by the SAPS (and since August 2024 by IDAC in some corruption cases). SAPS has a constitutional mandate to prevent, combat and investigate all crime. The Scorpions, before their demise at the hands of the ANC majority in parliament in 2009, were able to do prosecution-led anti-corruption work. Now IDAC guides work of this nature because it lacks the personnel and the clout necessary to lead. With under 200 personnel and only 33 vacancies, IDAC is too small, and will remain too small, to make much difference. It is a body created in a constitutionally non-compliant way for the reasons explained to the president before he signed the IDAC bill into law shortly before the last general elections were held in SA.
In another context that relates to the adjustment of the minister of justice’s final responsibility over the NPA, Dr Bezuidenhout speculates in her article referred to above that “it appears to be difficult to let go of unfettered powers”. That is exactly what the court requires in the setting up of the specialist body it envisages in Glenister Two.
Clearly, in any country in which the rule of law is given due respect, it is strictly seen to that the binding final decisions of the courts are implemented. In SA, Section 165 of the Constitution requires that this be so. That it is not so is evident for all to see. IDAC is but a pale shadow of the Scorpions and just as vulnerable to being closed down, if it does its job too well for bent politicians to stomach the consequences of being successfully prosecuted, as in Vincent Smith’s experience after he helped himself to the largesse of Bosasa.
Adding to the misery engendered by the lack of political will to enforce the Glenister rules and their “STIRS” criteria is the fact that the commentariat also ignores the efforts of Glynnis Breytenbach MP to achieve just that, via her private members’ bills aimed at establishing and empowering a new Chapter Nine Institution to deal effectively with corruption and organised crime in all of their manifestations.
On the first occasion that parliament was asked by Accountability Now to consider reform of this kind, its relevant committee was chaired by none other than the self-same Vincent Smith.
The rulings made in Glenister Two now require parliament to go back to the drawing-board to give proper effect to them. This will of necessity involve trimming the constitutional mandate of the NPA and eliminating, at least with regard to the new body, the form of powers over the NPA conferred on the minister of justice in the Constitution as it was before the Glenister Two judgment. The sooner this is done, the better for the overall health of the government. Erasing from the law or avoiding binding decisions made in Glenister Two are not legal options. Not if the rule of law means anything in SA.
[Image: https://www.pexels.com/photo/themis-sculpture-with-libra-8112201/]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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