The fallout from General Nhlanhla Mkhwanazi’s incendiary revelations at his 6 July briefing has now reached three of the four organs of state which could be involved in addressing his concerns.

The executive has had the chairs in cabinet re-arranged by the President. Currently there is an acting-acting police minister, Gwede Mantashe, standing in for the newly appointed acting police minister, Firoz Cachalia, while the duly appointed Minister of Police is on gardening leave on full pay.

This unique configuration of cabinet has drawn the opprobrium of Jacob Zuma and his MK Party. They have an urgent application pending in the Constitutional Court in which they attack the propriety and constitutionality of the current constellation in cabinet, as well as the President’s decision to appoint a commission of inquiry.

The legislature, not to be outdone, has decided to appoint an ad hoc committee of the National Assembly to investigate and elucidate the complaints of the general. The Chapter Nine Institutions remain passive in the rumpus caused by developments since Mkhwanazi spoke out against corruption in high places and meddling in police work by the Minister of Police, Senso Mchunu.

The office of the Public Protector has been mulling a complaint by Accountability Now which concerns the paralysis in the capacity of the criminal justice system to counter corruption effectively. In a sense, the Chapter Nine functions were invoked first, and long before the outspoken stance taken by Mkhwanazi.

The underlying problem is that the anti-corruption function of the state in SA is meant to be in the hands of a body outside executive control. Any anti-corruption entity controlled by the executive is bound, given the current circumstances in SA, to be on a hiding to nothing in respect of its anti-corruption endeavours.

The investigation of corruption in SA has been in the hands of a police unit, the Hawks, since 2008, when the unit was created to replace the disbanded Scorpions. This experiment has not been a success. In 2024, legislation creating the new NPA unit called the Investigating Directorate against Corruption came into effect to supplement the efforts of the Hawks. Neither body complies with the criteria applicable to the fight against corruption.

The Hawks legislation has been tweaked twice, once by Parliament in 2012 and once by the Constitutional Court itself in 2014. The net result has been dysfunction and rampant corruption in the state procurement system and in the state-owned enterprises.

The investigation continues

As long ago as 2017, Popo Molefe, then chairman of Prasa, complained to the Hawks that there had been corrupt activity at Prasa on the watch of his politically well-connected predecessor. When the Zondo Commission heard his evidence, it took the matter up with the head of the Hawks in 2022. The explanation given then was that the matter was still under investigation. To this day the investigation continues without any charges being laid against any individual.

An even worse example is that of the former minister of police Bheki Cele, who was caught red-handed by the Public Protector manipulating police HQ leases in Pretoria and Durban in a way that would have had the police paying rent at three times the going rate, at the time of the 2010 World Cup Soccer tournament. Criminal investigations of this disgrace have come to nought, despite the attention of the Investigating Directorate of the NPA, which was created by presidential proclamation to supplement the puny efforts of the Hawks. Currently Cele enjoys the largesse of the henchman of his successor, Senso Mchunu who has a penthouse in Pretoria at the former general and former minister of police’s disposal.

Worse yet, the shenanigans at Nkandla, when the Zuma homestead was “upgraded” far beyond the permissible security upgrades, have been under police investigation since December 2013 without any criminal charges being pursued.  Charges were laid by Accountability Now in that month and were followed in March 2014 by charges laid by the EFF and DA. The matter remains “under investigation”. Perhaps there is difficulty identifying the characteristics of a “firepool”.

Sadly, it did not have to be so. As long ago as 2011, the Constitutional Court determined, in terms that bind government, that “a body outside executive control to deal effectively with corruption” was required in SA. That judgment has not been properly implemented to this day.

Government appears to be allergic to such a body, perhaps because it values the control it can exercise over the police and prosecutors of the land via the executive. The minister of police is responsible for policing and must determine national policing policy; the minister of justice has final responsibility over the prosecution service and must concur in prosecution policy.

Judicial scrutiny

These two features of SA’s constitutional architecture came under judicial scrutiny in the 2011 Glenister litigation. Our highest court concluded that “a body outside executive control to deal effectively with corruption” was needed. It ordered Parliament to pass remedial legislation. That legislation re-created the Hawks in 2012 and again in 2014.

Then, after the Hawks failed miserably as an anti-corruption entity, in 2024 the Investigating Directorate Against Corruption was legislated into being, as what was inaccurately called a unit within the NPA. Neither of these bodies is “a body outside executive control.” IDAC is as vulnerable to closure as the Scorpions were.

The court in 2011 set the main criteria by which the new body should be known. It must be a specialist unit, staffed by trained experts in anti-corruption work, independent in its structure and operations, resourced in guaranteed fashion and secure in its tenure of office.

The failure properly to implement these Glenister findings (by legislation for that specialist body) is at the heart of the current corruption malaise in SA. The Zondo Commission recommendation that public procurement be policed by an independent body has been accepted, but not properly implemented by government. National Treasury, which is not independent, is the ANC’s substitute for the independent body Zondo recommended.

The Madlanga Commission is required to produce its first report in the next three months. It will not take that Commission as long as three months to work out that the structure and  functioning of the anti-corruption machinery of state do not measure up to the standards set in Glenister and summarised above.

The hollowing out of the NPA and the SAPS during state capture has contributed to the current dysfunction. The first report by the Madlanga Commission should say so emphatically, and should comment on the constitutionality and efficacy of the new Chapter Nine Anti-Corruption Commission that the DA proposes, in bills currently pending before the legislature.

“Expressly decrees”

As was pointed out in the Glenister judgment of 17 March 2011, our Constitution “creates various institutions supporting constitutional democracy, which it expressly decrees must be independent and impartial; [this] affords the obligation a homely and emphatic welcome.” The state’s stated obligation to form an anti-corruption body outside executive control has never been properly implemented in SA. Its time has come.

Addressing the SACC Indaba on Graft on 23 July 2025, former Chief Justice Zondo conferred his blessing on the bills the DA proposes. Similar and swift endorsement from the Madlanga Commission would be welcomed by all honest SA citizens who still long for “a better life for all”.