The Madlanga Commission and the related parliamentary ad hoc committee are nearing completion: what should emerge?

The anthill that is the criminal justice system of SA was kicked open when General N Mkhwanazi called a media briefing on 6 July 2025 to express his concerns about the capture of that system by drug cartels and misguided or malevolent politicians.

The mandate of the Madlanga Commission, announced by the presidency within a week of said media briefing, is to answer the questions raised by the General. Its terms of reference are broad:

The commission is authorised to inquire into, report on, and make findings and recommendations concerning:

  • Whether criminal syndicates, including but not limited to drug cartels, have infiltrated or exert undue influence over:
    • The South African Police Service, including the Political Killings Task Team and Crime Intelligence;
    • The Johannesburg Metropolitan Police Department;
    • The Ekurhuleni Metropolitan Police Department;
    • The Tshwane Metropolitan Police Department;
    • The National Prosecuting Authority;
    • The State Security Agency;
    • Any member of the judiciary, including the magistracy and courts administration;
    • The Department of Correctional Services; and
    • Any other institutions and/or organs of state within the criminal justice system.
  • The nature, extent, and consequences of such infiltration or influence, including:
    • The facilitation of organised crime;
    • Suppression or manipulation of investigations;
    • Inducement of law enforcement leadership into criminal or other unlawful actions, including corruption;
    • Commission of any other criminal offences; and
    • Intimidation, victimisation, or targeted removal of witnesses, potential witnesses, persons making protected disclosures, or officials resisting criminal influence.
  • The role of senior officials of the law enforcement bodies and agencies mentioned above, and of members of the judiciary, including the magistracy, current or former, who may have:
    • Aided or abetted the alleged criminal activity;
    • Failed to act on credible intelligence or internal warnings; and/or
    • Benefited financially or politically from the syndicate’s operations.
  • The role of any member of the national executive responsible for the criminal justice system, whether they were complicit, aided and abetted, or participated in the acts listed in the three paragraphs above, or did so by omission.
  • The effectiveness or failure of oversight mechanisms.
  • The adequacy of current legislation, policies, and institutional arrangements in preventing such infiltration.
  • Once established, the commission shall also consider prima facie evidence relating to the involvement of individuals currently employed within law enforcement or intelligence agencies and, where appropriate, the commission must make recommendations regarding the employment status of such officials including whether they should be suspended pending the outcome of further investigations.

The Madlanga commission has been given “all the powers necessary to achieve its mandate”, including:

  • The power to summon witnesses and compel the production of documents;
  • The power to conduct search and seizure operations, subject to applicable law;
  • The power to deviate from the Commissions Act insofar as it provides for public hearings, and to order that the commission shall sit in camera where necessary to protect the safety of witnesses, the integrity of ongoing investigations where appropriate, and where intelligence and the work of intelligence services are concerned; and
  • The power to refer matters for immediate criminal investigation and urgent decisions on prosecution, taking into account the nature of the allegations and evidence the commission will uncover.

It has also been mandated, where appropriate, to refer any matter for the convening of a separate enquiry to the appropriate law-enforcement agency, government department or regulator. This step will only be resorted to if the commission is satisfied that the common good will be served by so doing.

The commission was required by the president to submit an interim report within three months of its establishment, and a final report within six months of its establishment, or within any extensions granted by the president. Each report must include recommendations that can be immediately actioned based on the commission’s work as of that date. The establishment of the commission was announced on 13 July 2025, but its hearings did not commence until 17 September 2025 due to hitches in the logistics of organising its venue, staff, connectivity and equipment. An interim report was delivered in December 2025 but has not yet been made public, while the final report is due on 31 August 2026. The commission sits long hours and seems determined to do all it can to adhere to the timetable set.

The commission features a large, dynamic witness list consisting of senior police officials, politicians, people in business, and some anonymous whistleblowers. The commission is, in short, investigating allegations of police corruption, political interference, and criminal syndicate activities. It has thus far (21 June 2026) received testimony from over a hundred individuals.

The ad hoc Committee of the National Assembly is currently pondering its report. Its terms of reference are to investigate the allegations made by General Mkhwanazi during his media briefing on 6 July 2025. The scope of the inquiry is officially described as including the following:

4.1.1 Political interference within SAPS: Executive oversight versus operational interference by Minister Mchunu (including the directive by the Minister contained in the letter, dated 31 December 2024, to disband the PKTT and the moratorium on filling vacancies in the crime intelligence component of SAPS).

4.1.2 Any related claim regarding corruption (financial or otherwise), bribery, or misuse of public resources within SAPS, or any other relevant institution.

 4.1.3 Evaluating the extent of misconduct and unethical behaviour by members of SAPS and any other relevant individuals or institutions.

4.1.4 Evaluating the effectiveness of the PKTT and the official status thereof.

4.1.5 The status of the 121 case dockets allegedly removed from the PKTT as directed by the Deputy National Commissioner for Crime Detection, Lt Gen. S Sibiya, acting on the instruction of Minister Mchunu to disband the PKTT.

4.1.6 Instability within the Crime Intelligence component of SAPS.

4.1.7 The alleged corrupt relationship between Minister Mchunu and Mr. Brown Mogotsi, and between Mr. Mogotsi and Mr. Vusimuzi ‘Cat’ Matlala.

4.1.8 Internal oversight and accountability mechanisms: reviewing the effectiveness of SAPS’s internal oversight systems in detecting and addressing corruption and misconduct. 

4.1.9 Leadership failures: Investigating whether the SAPS leadership, including Lt. Gen. Mkhwanazi, took appropriate action to address concerns, and the role of senior management in enabling or preventing the issues. 

4.1.10 Possible procurement irregularities at SAPS regarding the R360 million SAPS healthcare contract, specifically whether the tender awarded to Mr. Vusimuzi Matlala’s company contravened procurement laws, with reference to concerns previously flagged by Babita Deokaran. Bearing in mind that these flagged concerns or this particular contract does not limit the scope of the Committee. 

4.1.11 Alleged existence of an organised crime syndicate controlled by drug cartels, as well as businesspeople and its infiltration of key criminal justice system role-players involving politicians, law enforcement from SAPS and the Metro Police Division, Correctional Services, the NPA, and the judiciary.

4.1.12 Prosecutorial conduct and the relationship between the Independent Directorate Against Corruption “IDAC” and the PKTT, including whether IDAC or any of its officials unlawfully interfered in police investigations or exceeded its mandate.

4.1.13 Alleged failure of any organ of State or member of the executive to comply with their legal obligations, and if so, recommend appropriate action to address such failure. 

4.1.14 Allegations against Members of Parliament with regard to the classified information released to them, specifically the reference to Members of Parliament who are allegedly linked to criminal syndicates.   

4.1.15 Impact on public trust and safety: Examining the broader impact of these issues on public trust in the SAPS, Correctional Services, the NPA, the Criminal Justice System, the judiciary and national security. 

4.1.16 Evaluate chain-of-custody, data-integrity, and record-keeping processes, including digital evidence management.

4.1.17 Identify conflicts of interest (political, financial, or personal) impacting decisions relating to the PKTT, Crime Intelligence, procurement, and case allocation.

4.1.18 Scrutinise inter-agency coordination among SAPS, Crime Intelligence, IDAC/NPA, Correctional Services, and Metro Police, and the legal basis for directives affecting the PKTT.

The focus of the Commission is that of the executive branch of government, while that of the ad hoc Committee approaches the evidence and the issues from the perspective of the legislature.

The judiciary has considered what is needed in SA to deal with corruption effectively. Both the legislature, which until the election of the seventh parliament has widely been regarded as a rubber stamp of the executive, and the executive itself have resisted taking the medicine prescribed by the courts, hence the complaints by the General and the need to inquire into them. The judiciary’s notion of an independent anti-corruption body “outside executive control” does not accord with the world-view of the ANC, which still strives for hegemonic control of all levers of power in society.

As long ago as 2011, the courts considered the issues after the ANC’s ill-fated decision, taken in December 2007, to disband the Scorpions anti-corruption unit within the prosecution service and transfer its investigative functions to the Hawks or Directorate of Priority Crime Investigation, a unit within the police. This was the main issue. The constitutionality of doing so was challenged repeatedly and led to three appeals, now called the “Glenister trilogy”, that all ended in the Constitutional Court. The findings in the second and third Glenister cases are relevant to the final reports that the Commission and the ad hoc Committee will soon produce.

In Glenister Two, the majority in the court made seminal findings that stand to this day. These findings include the core statement that “…our law demands a body outside executive control to deal effectively with corruption”.

No such body has ever existed in the SA criminal justice system as it is designed and exists under the current Constitution and the relevant legislation.

Having regard to the duty of the state to respect, protect, promote and fulfil the rights in the Bill of Rights and to perform its obligations under international treaties which require the establishment and maintenance of independent anti-corruption machinery of state, the conclusion reached by the majority of our apex court ought not to be as controversial as it has proved to be.

The Glenister Two majority judgment went on to describe the characteristics of its envisaged anti-corruption entity, a single body clothed with characteristics still signally absent from the system in place in SA. These have been summarised as the “STIRS” criteria with reference to the court singling out five core characteristics, among others:

Specialised personnel, trained in anti-corruption work, independent in their structure and operations, resourced in guaranteed fashion and secure in tenure of office.

The court went on to answer the question it posed for itself: “Does the DPCI (Hawks) have the operational and structural attributes of independence?” in the negative.

In consequence of this finding the court declared the Hawks legislation “inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Hawks.”

Parliament was given 18 months to remedy the defect in the Hawks that the court had identified.

The remedial legislation was again found wanting in Glenister Three, in 2014, in which the majority judgment in the Constitutional Court begins with these memorable lines:

“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.”

The adequacy of independence is still lacking, to this day.

The majority in Glenister Three sought to water down the concept “adequate independence” by a misinterpretation of the majority judgment in Glenister Two and by its willingness to allow the Hawks to remain as a directorate within the SAPS, subject to adjustments it made to bolster the adequacy of its independence.

On any proper reading of Glenister Two, for an anti-corruption body to be adequately independent it must be situated outside the control of the executive. The SAPS, the NPA and the new Investigating Directorate Against Corruption or IDAC are all not in any way, shape or form independent of the executive. The minister of police controls SAPS, while the minister of justice has “final responsibility over” the NPA (including IDAC), financial control via her director general (who is the accounting officer of the NPA) and also a constitutionally prescribed veto over prosecution policy which must carry her concurrence. There is no other way to properly interpret the provisions of Section 179 of the Constitution itself.

Any proper conspectus of the evidence that has been emerging before both the Commission and the ad hoc Committee demonstrates that the state is not complying with the requirements of the law, as laid down in the Glenister trilogy. A single agency approach is favoured by the court while the other branches of government persist with the multi-agency approach, despite the manifest fact that it does not work in the way the court requires: to “deal with corruption effectively.”

A member of the ad hoc committee, Adv Glynnis Breytenbach, has proposed a solution that will address the paralysis in the anti-corruption capacity of the state, She so proposed, via two private members’ bills currently pending in parliament, long before the Mkhwanazi complaints were made and then examined and aired in painstaking detail both before the Committee and the Commission.

It is a solution hinted at in Glenister Two when the majority judgment pointed out that a Chapter Nine Institution would lend itself to the creation of a body outside executive control to deal with corruption. Courts generally defer to the other branches of government, hence the circumlocution in the hint which reads:

“[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  — affords the obligation a homely and emphatic welcome.”

It is high time that parliament takes the apex court’s hint by passing the Breytenbach bills. Without the independent anti-corruption entity, clothed in the protections of Chapter Nine, SA is doomed to continue to struggle against the corrupt.

A single entity is required by the wording quoted above from both Glenister Two and Glenister Three. It is plain that the multi-agency approach favoured by government has not worked. When the court uses the terms “deal with corruption” in its Glenister Two finding and “deliver on its core mandate” in Glenister Three, it is clear that a single-agency solution for which a body outside executive control is required, so that all aspects of countering the corrupt are in the hands of this single agency.

It is fervently to be hoped that both the Commission and the ad hoc committee will report accordingly to cabinet and Parliament respectively. All commissions of inquiry are tools of the executive designed to delve into complex factual issues and to make recommendations on their findings, which are not binding in nature, serving only as advice to the executive.

[Image: Zelandia from Pixabay]

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.