Professor Balthazar, a frequent correspondent in the columns of Daily Maverick, rather misses the point in his analysis of the appointment of the Madlanga Commission of Inquiry.
He or she suggests that the walls of our criminal justice system are burning fiercely. The bulwark against high levels of serious corruption is, in our constitutional dispensation, a body outside the control of the executive that is seized with dealing with corruption effectively. There is no such body.
The objective of the tried and tested exercise is clear – this appears from the words President Cyril Ramaphosa used when announcing the inquiry:
“The commission will investigate allegations relating to the infiltration of law enforcement, intelligence and associated institutions within the criminal justice system by criminal syndicates.”
The vast breadth of this mandate will surely keep the commission busy for years, doing work a functioning criminal justice administration should do itself.
Other commissions of inquiry
This mandate is a far broader mandate than that of the Khampepe Commission, which reported in 2006 on the mandate and location of the Scorpions (then a unit within the National Prosecuting Authority).
The Scorpions unit was “urgently” dissolved after Jacob Zuma won the leadership of the ANC at Polokwane in 2007, as required by a resolution taken there. It is now generally accepted that this step was taken to relieve the pressure the Scorpions were placing on politically well-connected individuals, including Zuma himself.
To this day, Zuma is still facing charges that were investigated by the Scorpions (before their eventual disbandment in 2008 in the face of strong opposition in Parliament.) The charges arise out of his corrupt relationship with his financial adviser, Schabir Shaik, who was convicted for corrupting Zuma in 2005.
More recently, the Marikana Commission of Inquiry was established to investigate the events of 16 August 2012, at Marikana, when the police shot and killed 34 striking mineworkers. The commission was formally initiated in October 2012, and the investigation, including evidence gathering and hearings, was initially scheduled to be completed by 30 September 2014. However, the deadline was later extended to 14 November, 2014, with the final report due on or before 31 March, 2015.
The Zondo Commission of Inquiry into State Capture was appointed due to the perseverance of Thuli Madonsela, then Public Protector, now a professor at Stellenbosch University. Officially known as the Judicial Commission of Inquiry into Allegations of State Capture, it lasted for about four years.
It began its work in January 2018 and concluded with the final report submission to the President in June 2022. Its chief evidence leader, Paul Pretorius SC, is convinced that State Capture is an ongoing phenomenon in South Africa, now driven by some different operatives. He has criticised government for putting the undercapacitated and inadequately funded NPA into the field against those responsible, likening it to entering a VW Beetle in a Formula One motor race.
Madlanga Commission’s broader mandate
Given that the mandate of the Madlanga Commission is arguably broader by far than those mentioned above, it seems likely that President Ramaphosa will have long retired by the time a final report is delivered to his successor. Officially, he could remain in office until the 2029 elections, but the habit of the ANC is to replace a president who is in his second (and last) term as soon as possible after his successor is elected by the ANC. That is due to happen in December 2027.
There is also the possibility of a successful parliamentary vote of no confidence in the President and an early general election.
On the track record of earlier inquiries, it seems likely that it will take some considerable time for the Madlanga Commission to do its work and report its findings to whoever is president when the final findings are ready.
The inwardness of the material Acting Deputy Chief Justice Mbuyiseli Madlanga and his two silks will have to traverse will be revealed by the current structure and operational capacity of the various criminal justice system institutions the commission is required to investigate.
ANC an ‘organised crime syndicate’
It is common knowledge that the intelligence agencies were uprooted during the Zuma years. Secret government funds were used as war chests and for personal aggrandisement by the likes of Richard Mdluli, a loyal henchman of Zuma who led the SAPS’s Crime Intelligence from 2009 to 2012.
The Chancellor of the University of the Free State, Bonang Mohale, made a telling observation recently, when receiving an award in the US. He said “the great problem for South Africa is rampant greed ….[it] is essentially a problem for the once glorious African National Congress that has morphed into an organised crime syndicate, primarily because for a solid 30 years of our democracy, they held the absolute majority power in everything that matters”.
At the Zondo Commission, and before his own Phala Phala “smallanyana skeletons” were revealed (and were regarded as prima facie evidence of wrongdoing by former Chief Justice Sandile Ngcobo,) the President referred to the ANC as “Accused number one” in the corruption and State Capture stakes.
The decision to close down the efficient and effective Scorpions anti-corruption unit and replace its investigative functions with an all-but-useless-on-corruption police unit nicknamed the Hawks is a manifestation of the greed of which Mohale speaks.
Glenister litigation
The ANC’s decision to ignore and avoid proper implementation of the findings of the Constitutional Court in the Glenister litigation is at the heart of the current malaise.
In March 2011, the Constitutional Court made a seminal finding and issued an order that the legislation creating the Hawks “is inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence” for the Hawks.
Parliament was directed to remedy this constitutional defect within 18 months. Instead, it tweaked the Hawks legislation, leading to more litigation; dysfunction in anti-corruption efforts that accommodated State Capture comfortably; and eventually the creation of a new Scorpions-equivalent body within the NPA called the Investigating Directorate Against Corruption (Idac).
Unfortunately, Idac does not tick any of the boxes set up by the Constitutional Court. It is an under-capacitated and inadequately funded little unit, lacking the necessary specialists in anti-corruption work, short on training facilities, not independent of the executive, inadequately resourced and no more secure in tenure of office than the Scorpions were until their sudden and premature demise as corruption-busters.
The court’s motivation for its findings quoted above is set out in detail in paragraph [200] of the Glenister Two judgment:
“As we have already pointed out, corruption 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 s 7(2) 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. [50] 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.”
There is simply no such body in SA and never has there been one. Final responsibility for the Scorpions resided in the hands of the minister of justice!
The need for and rationale behind the sweeping reform the court has ordered is set out in poetic language in paragraph [166] of the same judgment:
“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.”
In the 2014 judgment in Glenister Three, then Chief Justice Mogoeng Mogoeng was more direct. He opened the majority judgment with this broadside:
“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that SA 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.”
Deputy Chief Justice Madlanga sat in the third Glenister case. He is the right man for the job in the commission that the President has appointed him to fill. He knows that the court required a body outside executive control to deal with corruption effectively.
No member of the national Cabinet would be able to issue the type of instructions that General Shadrack Sibiya publicly concedes he received from the Minister of Police, Senzo Mchunu, who is now on special leave. The minister would not be in the loop if the body dealing with the corruption-driven political killings were reporting to Parliament and not to the executive, as required, in terms that bind the state by the rulings and dicta in Glenister Two, as set out above.
What is needed to address the malaise of which General Mkhwanazi complains is swift remedial legislation to do what Parliament was told to do in 2011 by the highest court in the land. The binding nature of orders of court is a requirement of Section 165 of the Constitution.
This requirement is also a part of the rule of law internationally, as was invoked by Dirco Director-General Zane Dangor in his address to the Hague Group in the context of the war in Palestine and the alleged ignoring of the rulings of the ICJ in relation to the military engagements in that war.
What is sauce for the Israeli goose is sauce for the SA gander.
Consistency in the application of the rule of law ought to be a given in a constitutional democracy such as that in SA, in which the rule of law is regarded as supreme in Section 1 of the Constitution.
DA Bills
The good news is that the DA has two Bills in the works in Parliament for the establishment and enablement of a new Chapter Nine Anti-Corruption Commission, which ticks all the boxes created for government in the Glenister litigation.
With some encouragement in the first interim report of the Madlanga Commission, all political parties represented in Parliament should apply their minds to the Glenister template and the DA’s Bills with a view to complying with what is required by law in the best practice manner possible. That is the surest way to heal the malaise that has the country in the mess that was debated so thoroughly in the unedifying parliamentary debate on the Presidency budget vote, which ended on 17 July 2025.
As astute an observer as Karyn Maughan has remarked that the ANC may well be facing its political death knell before the Madlanga Commission. Legalbrief puts it thus:
“ ‘Mkhwanazi’s accusations that significant sectors of the criminal justice system have been infiltrated by criminal actors could not have come at a worse time for the ANC,’ notes Karyn Maughan in a News24 analysis. She notes that the party is being forced – for the first time – to grasp that it is no longer guaranteed the power it has taken for granted.
“ ‘And, given this, Ramaphosa’s decision to appoint soon-to-be retired Deputy Chief Justice Mbuyiseli Madlanga to conduct a far-ranging investigation into the potential infiltration of law enforcement during his administration may end up sounding a death knell for the ANC’.”
State Capture and serious corruption have a high price. DM