Large swathes of Daily Maverick’s column space have historically been devoted to discussing the ins and outs of the activities of commissions of inquiry. A historical reference highlighting the Zondo, Farlam, Seriti and Margo commissions, in which the law around commissions is also summarised, is in the Daily Maverick archives.
The most recent example of this genre of commentary is that of Stephen Grootes in the Daily Maverick of 6 October 2025.
Read more: The death of the ANC through the sins of commission
The Madlanga Commission is certainly pregnant with possibilities, assuming that the witnesses it has lined up survive to give their evidence. Traditionally, commissions of inquiry exist as an instrument of the executive branch of government, where it is possible to park a political hot potato until it cools sufficiently to be of no further interest to the public.
The acceptance of the recommendations of a commission by the government is no guarantee of their implementation. The Farlam Commission’s call, echoing that of the National Development Plan for the urgent demilitarisation of the police, has been ignored by the executive, as has reform of public order policing, a feature cruelly and fatally exposed at the time of the pro-Zuma July 2021 riots.
Justice Mbuyiseli Madlanga is an experienced Constitutional Court justice who was one of the minority justices in the third Glenister case. Unlike the majority, he was not willing to disregard and strike out the evidence of corruption and malfeasance in the Zuma Cabinet of 2012, which was placed before the court by Hugh Glenister.
By adducing unanswerable (and unanswered) testimony from expert witnesses sourced from the Institute for Security Studies and the University of Stellenbosch, Glenister sought to prove that the Hawks are not an adequate body – one “outside executive control” – to deal with serious executive corruption effectively.
Consequences of executive inaction
That evidence, had it been accepted as relevant to a determination of the circumstances in South Africa at the time, would have led to a different outcome in the appeal under consideration.
The Hawks would not have blundered on during State Capture, the Phala Phala debacle, covidpreneurism and ongoing tenderpreneurism a la that “tip of the iceberg” (according to the minister of health), Tembisa Hospital, where since 2018 more than R2-billion has been looted with impunity due to the inadequacies of the Hawks.
The findings in the earlier Glenister litigation (Glenister Two is discussed in the free e-book, Under the Swinging Arch) to the effect that our law demands a body outside executive control to deal effectively with the corrupt are still intact, but have not been properly implemented by successive weak Parliaments under the thumb of the executive, which has in the past treated Parliament as a rubber stamp for doing its bidding. This sad situation is not what is contemplated by section 55 of the Constitution.
That executive modus operandi may have changed with the formation of the governing coalition now in place in SA. Certainly, the debate on the national Budget in Parliament this year has not been characterised by rubber stamping. Instead, an executive plan to increase VAT was rejected by Parliament and the executive was sent back to the drawing board to reconsider its position.
Opportunity for redemption
Parliament does have the opportunity to redeem itself, with or without the help of the Madlanga Commission. This is because it remains bound by the decision in Glenister Two as required by section 165(5) of the Constitution to reform the law to make it constitutionally compliant by creating a single body of specialists trained in anti-corruption work, housed in an operationally and structurally independent body that is resourced in guaranteed fashion and which enjoys secure tenure of office.
It is not too late to introduce the necessary reforms.
Indeed, in the seventh Parliament, there are two Private Member’s Bills pending which envisage the setting up of a new Chapter Nine Anti-Corruption body that will be able to satisfy the criteria set by the Constitutional Court in Glenister Two in a constitutionally compliant manner.
There is also a useful dissenting judgment by Justice Edwin Cameron in Glenister Three that makes valuable suggestions in relation to appointment procedures for the corruption-busters.
For these two Bills to become law, they will have to attract the support of the ANC, which has roughly 40% of the seats in Parliament and can accordingly thwart the Bills’ adoption by voting against them. (This step would be ill-advised and likely to herald the demise of the ANC as a political force in SA.)
As the Bills require a two-thirds majority to be passed into law, their successes are in the hands of the caucus of the ANC in Parliament. The two-thirds majority is a requirement of the Constitution in that an amendment of the Constitution is required to add a further institution to the integrity and accountability leg of governance in SA that is the subject matter of Chapter Nine.
The new body will join the existing Chapter Nine Institutions, which include the SA Human Rights Commission, the Gender Commission, the Public Protector and the Auditor General.
The Khampepe Commission into the Scorpions recommended their retention; the post-Polokwane ANC insisted on their disbandment.
The Zondo Commission proposed a standing commission of inquiry into corruption, but this proposal has not been acted on by government. It will be unnecessary to do so if the Chapter Nine body, which will have constitutionally guaranteed impartiality and independence, is accepted by Parliament.
Zondo’s commission can be criticised for its approach on this aspect. The commission did not appreciate the binding nature of the joint majority judgment in Glenister Two, mistaking it for a cogently worded and persuasive contribution by the minority in that court.
Zondo himself was not yet a member of the Constitutional Court when it heard Glenister Two and can be forgiven for the error made in the first tranche of his report, an error corrected in a later tranche.
The Ginwala inquiry into the fitness for office of Vusi Pikoli, then National Director of Public Prosecutions, gave him a clean bill of health, but the politicians fired him nevertheless. The ensuing damages action which he brought led to a massive payout and to an acknowledgement by government that he is a fit and proper person to serve in government. Currently, Pikoli is a special adviser to the Acting Minister of Police, Firoz Cachalia.
The two senior prosecutors in the cross-hairs in the Mokgoro inquiry, Nomgcobo Jiba and Lawrence Mrwebi, were found to be unfit for office, but Jiba has resurfaced as an advocate in private practice.
The Moloi inquiry into the fitness for office of then national commissioner of police Bheki Cele recommended disciplinary steps against him, finding him “incompetent and dishonest”. He was dismissed accordingly by Jacob Zuma, only to resurface as Minister of Police and also a bit player in the machinations currently under the microscope of the Madlanga commission.
Cele enjoyed success in an unopposed review of the Moloi findings. His incompetence and dishonesty are likely to feature again in the deliberations of the Madlanga Commission.
Both the ad hoc committee of the National Assembly seized with the Mkhwanazi complaint and the Madlanga Commission have received a detailed submission by Accountability Now.
The most constructive way forward from the dysfunction apparent in the capacity of the state to deal effectively with serious corruption and organised crime is to properly implement the findings in Glenister Two. DM