For ordinary South Africans, especially those who are unemployed or under-employed, jobs, personal security and corruption are polled as among their main preoccupations. Of the three, corruption is pre-eminent, because it is pivotal to jobs and security.

Jobs do not materialise at the whim of politicians. They are generated when investors, both old and new, local and foreign, have enough confidence in the future of the country to attract and hold investments that actually create jobs, jobs and more jobs. Secure countries are those sufficiently well-invested to establish jobs for all, and to properly fund the security-enhancing services of well-equipped police personnel.

It is accordingly appropriate to concentrate on the manifest challenges posed by the uncontrolled corruption with impunity currently prevalent in SA.

Former Chief Justice Raymond Zondo, after chairing his famous Commission of Inquiry into State Capture,  has let it be known publicly that:

“The levels of corruption in our country have reached completely unacceptable proportions, and unless something very drastic and effective is done soon, we will have no country worth calling our home.”

Recently, before she left office, retired National Director of Public Prosecutions, Shamila Batohi, announced publicly that she held the view that “the rule of law in SA is in the ICU, on life support.”

The Chancellor of the University of the Free State, Bonang Mohale, made a telling observation when receiving an award in the USA:

“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”.

In a sense, the learned Chancellor is echoing the sentiments expressed by Lord John Acton, in a letter to his bishop back in the nineteenth century, when he wrote:

“Power tends to corrupt, and absolute power corrupts absolutely.”

Well-functioning Scorpions

In the Glenister trilogy of appeals to the Constitutional Court, the justices were required to grapple with the issues around corruption. The litigation was launched, repeatedly so, after the Zuma ascendancy in the ANC led to the closure of the well-functioning Scorpions: a unit within the National Prosecuting Authority. The Scorpions combined the talents of prosecutors, specialised corruption investigators and well-trained crime intelligence operatives concentrating on serious corruption in what they called a “troika system”, which dealt with corruption so effectively that the Scorpions’ demise became politically inevitable, given the greed mentioned by Professor Mohale.

•  numerous politicians were prosecuted in the infamous Travelgate Scandal,
• Tony Yengeni, chief whip of the ANC, was jailed for defrauding parliament, and
• Jackie Selebi, Chief of Police and head of Interpol, was sentenced to fifteen years in prison for his corrupt relationship with a gangster called Glen Agliotti.

The upshot of the Glenister cases, in brief, is that the law now requires that a single body that is “adequately independent” is needed to deal with corruption effectively.

Adequately independent of whom or what is the question. It is answered firmly in Glenister Two, in which the majority of the court held (with my emphasis) that:

“[200] 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.”

Analyse concisely

The court went on to analyse concisely the reasoning in the main (minority) judgment as follows:

“[206] The main judgment notes that independence requires that the anticorruption agency must be able to function effectively without undue influence. It finds that legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. It then asks whether the DPCI has sufficient structural and operational autonomy to protect it from political influence. Here the question is not whether the DPCI has full independence, but whether it has an adequate level of structural and operational autonomy, secured through institutional and legal mechanisms, to prevent undue political interference.

“[207] To these formulations we add a further consideration. This court has indicated that ‘the appearance or perception of independence plays an important role’ in evaluating whether independence in fact exists.  This was said in connection with the appointment procedures and security of tenure of magistrates. By applying this criterion we do not mean to impose on Parliament the obligation to create an agency with a measure of independence appropriate to the judiciary. We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence’.

While it may be arguable that Glenister Three watered down the findings in Glenister Two, it is unarguable that the notions of a single entity to deal with corruption and that it should be “adequately independent” of the executive were preserved by the majority findings in Glenister Three which opens with a majority judgment using these words:

“[1] Corruption is rife in this country and stringent measures are required to contain this malady before it graduates into something terminal.

[2] 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.”

All these wise words, taken together, spell out clearly that in law SA needs a single anti-corruption entity that enjoys adequate structural and operational independence, to deliver freedom from corruption.

There is no such single entity.

No proved adequate

Tweaking the Hawks legislation, for a second time, as was done in Glenister Three in 2014, has not proved adequate. No efficient and effective anti-corruption machinery has been in place since the demise of the Scorpions in 2009. At the time of its tweaking exercise, the majority of the court was in denial about state capture and went so far as to strike out affidavits containing expert evidence referencing  the levels of corruption plaguing SA at the time, describing reliance on those references as “odious political posturing”. Everyone knows now that they were an accurate summary of the state of corruption in SA.

Instead of the single entity required by the Constitutional Court there are many.

The Special Investigating Unit or SIU rakes back the loot of state capture and tenderpreneurism, it is not part of the criminal justice system and cannot act at all unless and until the president issues a proclamation triggering its involvement in any particular case. The SIU is unequivocally under executive control. It competes with the NPA unit known as the Assets Forfeiture Unit which, as its name suggests, seeks the forfeiture to the state of the proceeds of crime, including corruption. Both the Financial Intelligence Centre and SARS are involved in anti-corruption efforts of the state. The “new kid on the block” since 2024, the Investigating Directorate Against Corruption, or IDAC, a successor body to the Scorpions, is wholly unconstitutional and practically ineffective as well as being poorly-led and under-staffed. The hubs, task teams and even the National Anti-Corruption Advisory Council, all so beloved of the executive, have failed to stem the flow of erupting molten lava emanating from the explosive activities of the corrupt in SA.

These features of the anti-corruption landscape show that the single-entity approach prescribed in both Glenister Two and Three has not been implemented by government.

As for the adequacy of the independence of the existing system: quite clearly it is not working as it should. The evidence before:

•  the Zondo Commission on state capture;
• the relevant ad hoc committee of parliament and
• the Madlanga Commission, both of which concern the complaints of hectic corruption aired by General N Mkhwanazi on 6 July 2025,

demonstrates in spades that what the apex court requires, repeatedly so, has not translated into the establishment of an effective and efficient anti-corruption machinery of state.

The best-known solution to this unfortunate state of affairs is to be found in two private members’ bills introduced in parliament by the Chief Whip of the DA, Glynnis Breytenbach, as long ago as November 2024. The bills envisage the establishment and enablement of a new permanent commission under Chapter Nine of the Constitution. This commission will not be a toothless commission of inquiry: it will have powers to prosecute and investigate the corrupt and organised crime. Adv Breytenbach calls it the “Chapter Nine Anti-Corruption Commission.” It commends itself to those deliberating on the way forward with countering the corrupt both in the inquiries, which will report their findings soon, and in parliament.

Effect compliance

The lack of political will to effect compliance with the apex court’s orders, that manifested itself within the executive prior to the election of the current parliament, is explained by the remarks of Professor Mohale quoted above. It should not be overlooked that the Zondo Commission identified just under a hundred ANC bigwigs as candidates for criminal investigation, some of whom are still in the national cabinet.

Turkeys don’t vote for Christmas. Since 2024 in the seventh administration, parliament has found its voice and shows greater willingness to stand up to executive intransigence, as occurred spectacularly when the national budget of 2025 was debated and initially rejected. It is plain that nowadays parliament is no longer the rubber stamp of the national cabinet.

What is at stake, quite apart from the ongoing effects of rampant corruption with impunity, is that the findings of the courts in Glenister Two and Three, quoted above, are binding on government.

Litigation to secure proper compliance with these rulings is an avenue open to any public interest litigant willing to cross swords with the executive branch of government.

Parliament has been ordered by the apex court to ensure that an adequately independent anti-corruption entity be put in place, and it has miserably failed to do so by fiddling with a wholly inadequate draft bill prepared and presented to it by the national cabinet in 2012.

This state of affairs is, as the words of the former chief justice quoted above show, not pleasing to our independent and impartial courts.