The law in SA on countering the corrupt and dealing with organised crime is quite plain. It has been spelt out in successive appeals to the Constitutional Court in the Glenister litigation, a saga waged between 2008 and 2014 that culminated in three appeals to our apex court, a feat not yet emulated by any public interest litigant. Its findings are binding on the respondents in the cases being the relevant elements of the executive, parliament, the prosecuting authority, and the police.
Parliament is duty bound to put in place legislation that creates adequately independent machinery of state that is capable of dealing with corruption and organised crime.
“Adequately independent” can be measured in two ways: Glenister Two spells this out thus:
“…Our law demands a body outside executive control to deal effectively with corruption.”
Glenister Three is couched in more trenchant language in the opening words of the majority 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.”
Emphasis supplied; note also that both courts require a single body.
The criteria by which this single dedicated agency is identified are spelt out, in the majority judgment in Glenister Two, as an adequately independent anti-corruption body made up of specialists who are trained as such, standing alone in a single entity, with both structural and operational independence and possessing resources that are guaranteed in a secure working environment. These five criteria have become known as the “STIRS” criteria.
There is no law, policy, practice or procedure in place in SA today that measures up to the requirements of these criteria, nor, to the everlasting shame of government, has there ever been such a body.
The Scorpions, a directorate within the National Prosecuting Authority, were summarily closed down by a simple majority vote in parliament in 2008. Their work proved to be a thorn in the side of the ANC politicians who so voted. After the police made no progress with the Travelgate saga, the Scorpions took over the investigation and prosecution of over 100 members of parliament for fiddling their travel allowances for the purpose of self-enrichment. This did not endear the Scorpions to the parliamentarians involved in the scam. Their willingness to investigate the then chief of police, Jackie Selebi, and to press corruption and other charges against then private citizen Jacob Zuma (charges still pending to this day) sealed their fate: the Scorpions were closed down for doing their job too well. Selebi was duly convicted while Zuma appears to have run out of Stalingrad options to delay his trial which is due to start next year.
The investigative tasks of the Scorpions unit were passed on to the Hawks or Directorate of Priority Crime Investigation as they are formally named, a directorate within the police answerable to the minister of police.
The Hawks do good work on some priority crimes falling withing their mandate, but when it comes to corruption and organised crime there is no one in any position of authority in SA who now suggests that they are up to that task. On examination, their track record on these fronts speaks for itself; the notion that they would rise to the thorny challenges posed has not materialised.
SA has never had a STIRS compliant anti-corruption body, notwithstanding the binding nature of the judgments referred to above.
For obvious reasons, during the Zuma presidency nothing was done to enhance the anti-corruption capacity of the state. The Ramaphosa presidency began with a presidential proclamation in March 2019 creating an Investigating Directorate (ID) within the NPA. This step ignored the legislation which handed all investigative work back to the police upon the disbandment of the Scorpions. It proved impossible to attract sufficient suitably qualified personnel to staff the ID. It could be closed down at the stroke of a presidential pen, thus rendering the security of tenure requirement of the STIRS criteria wholly illusory.
Ere long, the ID was replaced, in May 2024, by new legislation establishing IDAC (the Investigating Directorate against Corruption), a body which is, legally speaking indistinguishable from the old Scorpions from a structural perspective, and equally vulnerable to closure. The president ignored a warning from Accountability Now that IDAC is an unconstitutional body for want of compliance withhttps://accountabilitynow.org.za/the-future-of-countering-corruption-after-ramaphosa-hastily-signs-flawed-idac-law/ the Glenister rules and their STIRS criteria.
In July 2026 IDAC, after only about 18 months in operation, imploded spectacularly during evidence led before the Madlanga Commission. Government is intent upon a “reset and renewal” of IDAC while the second and third largest parties in parliament have let it be known that they see no point in persisting with IDAC in its broken state, with or without a reset and/or a renewal. The official opposition, the MK Party, would prefer to revert to the pre-Scorpions dispensation in which all investigation work was allocated to the police and all prosecutorial functions were carried out by the NPA. The current levels of dysfunction, corruption and maladministration within the SAPS render this solution implausible and unworkable because the police do not have the skills and specialisation needed to grapple successfully with the corrupt and the organised criminals.
In November 2024 a breath of fresh air blew through parliament when the Chief Whip of the Democratic Alliance, Glynnis Breytenbach introduced two bills aimed at establishing and enabling a new Chapter Nine Anti-Corruption body to do the heavy lifting required by the Constitutional Court in its Glenister decisions. These private members bills were preceded by the announcement in February 2022 that the DA has decided to embrace that which binds parliament – the reasoning of our apex court in the Glenister litigation as summarised above.
The inescapable truth is that the NPA, as currently constituted, does not have the professional clout necessary to prosecute those involved in serious corruption and organised crime. It is run as a programme within the department of justice, the minister has final responsibility over the NPA, can veto its policies on prosecutions and deploys her director general as the accounting officer of the NPA. This is not the stuff of which structural and operational independence is made.
The new body promoted by Breytenbach will, like all Chapter Nine Institutions, be answerable to parliament and will be free of executive interference, input and influence. That which Breytenbach is aiming to achieve has been discussed before when it was fresh news.
A new development, in August 2026, presages a bill aimed at disbanding IDAC and is sponsored by Breytenbach. It makes sense for the Anti-Corruption Commission private members bill to be debated at the same time as, or immediately before, the vote on the repeal of the IDAC legislation. It is up to the parliamentary administration, guided by the Speaker, to determine the batting order which will apply. The Anti-Corruption Commission bill introduced in November 2024 has certainly been incubating for more than long enough and pre-dates moves by the MKP to “abolish” IDAC by nearly two years. The state of IDAC and the need for reform of the capacity of the state to deal with corruption effectively and efficiently militate in favour of giving precedence to both Breytenbach bills. The reversion to the pre-Scorpions dispensation favoured by the MKP is not progressive; on the contrary it would be a retrograde step which ignores the binding nature of the findings in the Glenister litigation.
Carefully handled, and skilfully introduced, the new Chapter Nine body could become an amalgamation of the best elements in the SIU, the Hawks, IDAC, the NPA and IPID. Strict and thorough vetting of all staff who show interest in appointments to the new anti-corruption body will be needed with lifestyle audits, integrity testing and aptitude examinations the order of the day. In Glenister Three a separate judgment by Justice Cameron deals with the topic of staff appointments of this kind in a manner worthy of emulation.
A future in which a Chapter Nine Anti-Corruption Commission operates effectively and efficiently would be a great improvement on the current dispensation and a victory for the rule of law in SA. It would have the capacity to clean up corruption in the criminal justice administration itself, a long overdue chore – as the evidence before the Madlanga Commission illustrates.
Paul Hoffman SC is a director of Accountability Now; he was lead counsel in the Glenister litigation.
[Image: https://www.pexels.com/photo/grayscale-photo-of-man-holding-sword-statue-9685285/]
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