At the end of August 2022, President Cyril Ramaphosa decided to appoint a body to advise the Cabinet on South Africa’s anti-corruption policy. In this way the National Anti-Corruption Advisory Council (Nacac) came into being under the chairpersonship of then professor and current Acting Minister of Police, Firoz Cachalia, a former ANC MEC in Gauteng.
The council produced a mid-term report in March 2024, and its final report was presented at the end of August 2025. The final report, with attachments that run to more than 800 pages, points to a way forward in dealing with corruption in South Africa that is bound to be controversial.
There is a clash between what the ANC wants and what the courts have ordered in relation to dealing with the corrupt in our midst. The council panders to what the ANC wants and attempts to step lightly around what the courts have ordered in litigation against the State brought in the public interest by Johannesburg businessman Bob Glenister.
The ANC has a desire, deep in its ideological bones, to exercise hegemonic control over all the levers of power in society. The criminal justice administration is such a lever, an important one given the propensity of ANC leaders and some in its orbit to regard politics as a “get-rich-quick scheme” rather than an opportunity to serve the people of South Africa.
Despite its loss of hegemony in Parliament, the ANC clings to the desire to be in control of the criminal justice system.
The courts, in the Glenister litigation, have ordered Parliament to revise the law to bring into existence a single body outside the control of the executive to deal effectively with corruption in South Africa.
No such body has ever existed in South Africa, either before or after the Glenister cases found their way to the Constitutional Court on three occasions between 2009 and 2014.
The Hawks
The order made in the second Glenister case in March 2011 required Parliament to “remedy the defect” in the legislation that gave birth to the police unit known as “The Hawks”, or more formally “The Directorate of Priority Crime Investigation”. The Hawks were formed to replace the Scorpions or Directorate of Special Operations after it was summarily disbanded at the ANC’s direction.
According to Wikipedia, the Directorate of Special Operations was “a specialised unit of the National Prosecuting Authority of South Africa formed by former president Thabo Mbeki, tasked with investigating and prosecuting high-level and priority crimes including organised crime and corruption.
“An independent and multidisciplinary unit with a unique methodology which combined investigation, forensic intelligence and prosecution, the Scorpions were known as an elite unit, and were involved in several extremely high-profile investigations, especially into the Arms Deal and into high-ranking African National Congress (ANC) politicians including Jackie Selebi, Jacob Zuma and Tony Yengeni.”
Selebi was the chief of police and Yengeni Chief Whip of the ANC in the National Assembly. The Scorpions were insufficiently independent to escape their demise at the hand of the ANC via a simple majority vote in Parliament after a highly contentious debate.
The need to remedy the defect in the original Hawks legislation arose out of a binding finding that its founding legislation was “inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Hawks”.
In the joint judgment of the majority of the court, written by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron, the finding was made that “our law demands a body outside executive control to deal effectively with corruption”.
The Glenister litigation kicked back at a resolution passed by the ANC at its conference in Polokwane at which Jacob Zuma became its president in December 2007. The “urgent” resolution passed there called for the Cabinet to disband the Scorpions and create a new police unit to take over corruption-related investigations from the Scorpions.
In the third and final Glenister case, the legislation (as amended by the tweaking Parliament gave it in response to the order quoted above) was further adjusted by the court itself in 2014 after it observed in its judgment that: “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.”
It is plain from the judgments quoted above that a single anti-corruption entity that is free of executive control is what the courts require in terms that bind the government.
The role of Parliament in matters of this nature, in the light of the manifest failures of the criminal justice system as regards countering the corrupt, is set out by the Constitutional Court in an unrelated matter between the EFF and the Speaker of the National Assembly.
Watchdog of state resources
There the court held that the National Assembly is the voice of all South Africans, and “the watchdog of state resources, the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people. It also bears the responsibility to play an oversight role over the Executive and state organs and ensure that constitutional and statutory obligations are properly executed.
“For this reason, it fulfils a pre-eminently unique role of holding the Executive accountable for the fulfilment of the promises made to the populace through the State of the Nation Address, Budget speeches, policies, legislation and the Constitution, duly undergirded by the affirmation or oath of office constitutionally administered to the Executive before assumption of office… No doubt, it is an irreplaceable feature of good governance in South Africa.”
Parliament will do well to have regard to these words should the Cabinet be so ill advised as to accept the National Anti-Corruption Advisory Council’s final report and endeavour to have legislation passed to give effect to its recommendations.
Accountability Now has previously warned that the trajectory favoured by the council’s report will end in tears. Despite the warning of dire consequences, the final report adheres to executive control of anti-corruption machinery of state and to the discredited and dismally failed multi-agency approach of the Zuma era. The courts have clearly rejected the multi-agency approach and expressly require a single body outside the control of the executive to deal with corruption in South Africa.
The main flaws in the approach by the National Anti-Corruption Advisory Council are:
- A lack of appreciation of the binding nature of the majority findings in the Glenister litigation which embrace the single agency approach to countering corruption and require a body outside executive control to deal with the corrupt. In Glenister Two the well-known STIRS (specialised, trained, independent, resourced and secure in tenure) criteria were spelt out by the court in its majority judgment.
- The unquestioning and uncritical embrace by the council of the failed multi-agency approach to corruption when both the Glenister 2 and 3 courts explicitly require a single body.
- Conceptual confusion on the part of the National Anti-Corruption Advisory Council in recommending the Office of Public Integrity as a Chapter 9 body that is nevertheless required to act on presidential proclamations that would obviously undermine and be incompatible with its independence and impartial status as a Chapter 9 institution.
Both the national Cabinet and the national legislature ought to reject the seriously flawed recommendations of the National Anti-Corruption Advisory Council and instead embrace the constitutionally compliant approach adopted in the two bills currently pending in Parliament that envisage the formation of a new Chapter 9 Anti-Corruption Commission. The co-chairperson of the Justice Portfolio Committee, Glynnis Breytenbach, is sponsoring the two bills now in the works.
The National Anti-Corruption Advisory Council is however right about the urgency of the challenges that rampant corruption in South Africa pose to our constitutional order and to the rule of law in the country. Corruption is largely responsible for the doldrums in which the economy of South Africa finds itself.
Accountability Now appreciates that while the two Breytenbach bills are pending in Parliament it would be premature to litigate the issues around the dysfunction in the capacity of the criminal justice system to counter serious corruption due to the government’s failure to implement properly the reform required by the courts.
A complaint to the Office of the Public Protector concerning the present maladministration and dysfunction, made by Accountability Now, is currently under investigation by the protector.
The Office of Public Integrity that Nacac has in mind is neither fish nor fowl in the constitutional architecture of South Africa. Chapter 9 institutions do not take instructions from the executive, including the president.
Any attempt to leave the prosecution of the corrupt in the hands of the NPA is doomed. Its track record, lack of capacity and resources and the admitted presence of saboteurs planted in its ranks, who cling tenaciously to their positions, render the NPA an unsuitable home for anti-corruption prosecution work (Shamila Batohi, speaking at Daily Maverick’s The Gathering in August 2025, admitted the presence of saboteurs in the NPA).
Its current circumstances and tainted personnel render it unable to recruit the sort of talent and skills that fled public service after the demise of the Scorpions. DM