Serious problems at the NPA and SAPS pose tangible threats to South African democracy

In 2024, about 27% of those who voted in the national election supported a party which, in full or in part, sought the repeal of the South African Constitution. Admittedly, only 58.6% of eligible voters who had bothered to register and cast their vote, but 27% remains a significant figure. It may be that the balance of eligible voters saw no benefit in voting, which arguably reflects a disillusionment with the system of government.

This lack of an embrace of constitutional democracy, as introduced in South Africa in 1994, stands in sharp contrast to the enthusiasm that greeted democracy about 30 years ago. In this we are not unique. A recent study by the Cambridge Centre for the Future of Democracy, which surveyed four million respondents in 154 countries, revealed that 57.5% of them were dissatisfied with how democracy worked in their countries.

This is unsurprising in that, since the high point of constitutional democracy and the rule of law in the 1990s, a number of countries which at that time were highly regarded as case studies of a peaceful transition to democracy have become increasingly authoritarian. Hungary and India are illustrative. The country with the longest tradition of constitutional democracy, the US, has become at best a shadow of its previous claim. Poland, Israel, Indonesia and Bangladesh are now in the same league.

So, the question is: where does South Africa stand? A good measure of the red line over which a country crosses the democratic boundary is set out by Steven Levitsky, Lucan Way and Daniel Ziblatt, distinguished political scientists who have sought to answer the question: “How will we know when we have lost our democracy?”

The key answer they provide is determined by the cost of opposing the government. In democracies, these authors argue, citizens are not punished for peacefully opposing the government, citizens can exercise their constitutional rights without threat of retribution – whether in the way of being investigated by the police or prosecution – businesses are not harassed by government agencies, universities are not defunded for the exercise of academic freedom, law firms are not subject to regulatory threat for representing their clients.

As the authors note, in Trump’s America, the answer is clear.

Threats to democracy

South Africa is nowhere near this red line, but tangible threats remain, themselves reflective of conditions that have produced a global anti-democratic backlash. Take inequality. South Africa remains a hugely unequal society with a Gini coefficient of about 0.67. On the basis of some studies, intrablack inequality approximates the general Gini, which supports the argument that not only is class a vital component of analysis but that the claim of a better life for all remains more of an illusion than real.

Poverty remains a depressing reality – about 17.6 % of the population cannot afford basic food. The Pirls study of 2021 found that 81% of Grade 4 pupils could not read for meaning in any language. On the basis of the South African Quarterly Labour Force Survey 2025, official unemployment remains above 30%. The latest IMF growth forecast speaks of a 1.4% increase in GDP during 2026 – a very long way from the 4% to 5% needed and which we did achieve in some years under the Mbeki presidency.

It is small wonder that within this troubling context there is an increasing discourse developing that our constitutional model was a badly conceived model of governance and that it needs replacement. And, as always when trouble looms, there is a kicking-to-touch, this time of an expensive National Dialogue.

The key first steps should be to follow the economic argument developed by the Nobel Prize winners Daron Acemoglu, Simon Johnson and James Robinson: strengthening institutions. By institutions, they mean inclusive institutions, which encourage broad participation in economic and political activities, protect property rights, promote equal opportunities and uphold the rule of law, are essential for long-term prosperity. While some growth can happen without inclusivity, they argue that sustained industrial growth is far more likely when institutions are inclusive.

Their argument is clearly applicable to this country. In South Africa there is little doubt that the South African Reserve Bank and the South African Revenue Service (SARS) pass institutional muster, although in the case of SARS, its future depends on the appointment of a new commissioner to replace the outgoing Edward Kieswetter, who leaves in April. A Moyane-type appointment will, of course, be a significant indicator of the health of our democracy.

But beyond these two institutions there are serious problems.

The NPA, SAPS and JSC

The National Prosecuting Authority (NPA) last had a top-flight head when Vusi Pikoli was the National Director of Public Prosecutions (NDPP). Advocate Andy Mothibi, who was recently appointed, represents a welcome move. But able as he clearly is, he faces considerable challenges.

As Jean Redpath has argued, the NPA lacks financial independence. There is clearly a problem with the NDPP’s authority over his or her deputies and there is no fixed term of office for the deputies to the NDPP, to cite a few key problems. And that is not even mentioning resource issues, such as lack of data specialists.

Linked to the NPA is the mess called the South African Police Service (SAPS). Agreed, the SAPS has many dedicated and able police officers, as does, I might add, the NPA have able prosecutors. But as the Madlanga Inquiry has already shown, there are core, critical problems within the SAPS and its political custodians.

If these institutional crises are not resolved there can be little hope that legal accountability or the rule of law can be adequately protected – however fine a job Mothibi does at the NPA.

As that distinguished senior counsel, Geoff Budlender SC, reminded us in his Summer School lecture, the Judicial Service Commission (JSC) has failed over a number of years to appoint (or attract by virtue of application) the best lawyers to the Bench. As he correctly noted, there have been significant achievements, the main, in my view, being ensuring that the composition of the current Bench broadly reflects the demography of the country.

And in recent interviews under chief justices Raymond Zondo and Mandisa Maya, there has been progress. But as the key institution appointing judges, the JSC has failed the country. The judiciary desperately needs a number of the finest lawyers in the country, many of whom have, to date, refused to apply.

If the JSC is reformed it must surely be possible to significantly strengthen the judiciary and thus promote the further transformation of the Bench, both in terms of demography and legal transformation.

At a recent conference celebrating 30 years of the Constitution, Justice Kate O’Regan, one of our finest Constitutional Court justices, spoke of the problems caused by the 17th amendment to the Constitution, which clothed the Constitutional Court with jurisdiction over all legal disputes.

The evidence supports her argument. The court in recent times has dealt with complex tax, labour and competition disputes, eschewing the legislative design of specialist courts and thereby treading in areas of law where the court, with exceptions, may not have sufficient expertise. The court should deal with constitutional disputes in the specific area of jurisdiction that the designers of the Constitution had in mind.

In turn, this change has a significant consequence for legal certainty among investors and is hardly conducive to the promotion of inclusive economic growth. And that brings us to the Competition Tribunal.

A combination of leadership problems and a lack of resources, including difficulties in ensuring the appointment of members of the tribunal, represents massive problems for an expeditious system of resolution that can ensure, for example, that decisions regarding mergers that will improve the economy are made expeditiously rather than, as is occurring, causing investment moves to other countries in Africa.

The cancer of corruption

I have already referred to the problems in our education system. But to press the point, as Professor Jonathan Jansen recently observed, universities are underfunded, and there is a nondiscriminatory, in the statistical sense, examination system. Too many students gain university passes and then cannot cope.

One suggestion Jansen makes, which should clearly be pursued, is to require elite schools to share the burden of added enrolments of the working class and poor. And by the way, can we not bus our children to school in a safe manner?

Within the limitations of these two lectures, I have been compelled to concentrate on some key issues. One that I must mention in closing is the cancer of corruption, which remains rife in our country and has continued apace, the flight of the Guptas and the end of the Zuma administration notwithstanding.

This brings us to the parlous state of the NPA and SAPS and leads us to the failure of the legislature to hold the executive accountable to the law and the promise of the Constitution.

We need a new electoral model and consequent thereto a doctrine of separation of powers that works. Without these changes, accountability will remain a constitutional dream, corruption will expand exponentially and before we know populist politicians will exploit the failure to address the needs of millions of South Africans.

Then before we realise it we may well cross the red line. After all, not that long ago, who would have thought, as imperfect as US democracy always was, that it would now pose an existential danger to all of us? DM

Judge Dennis Davis is a legal academic, jurist and retired judge.

This contribution is based on a two-part lecture delivered at UCT’s Summer School 2026.