Old habits die hard. It could reasonably have been anticipated, after the tripartite alliance majority in the sixth parliament ended in the May 2024 general elections, that the bad governance habits of the past would end, and a new era in politics would begin.

No such luck. The ANC’s bad habits in governance are still with us, and its National Democratic Revolution lumbers on, to the detriment of the nation’s constitutional project and to the well-being of far too many citizens.

When non-ANC parliamentary parties were invited to join the GNU, there was not a peep about the NDR in the invitation; on the contrary, fealty to the rule of law and the Constitution appeared to form the express basis of the invitation.

Once the GNU was safely in place the NDR resurfaced in its shadowy way, and now it informs the input of the ANC, which is the largest member of the GNU. None of the current members of the GNU, apart from the ANC, have ever subscribed to or practised the forms of governance the NDR posits. SA is being governed by sleight of hand.

The tenets of the NDR are starkly at odds with the values and principles of the Constitution. No amount of criticism of the NDR in the past has succeeded in moving the ANC and its allies from the revolutionary path, where hegemonic control of all the levers of power in society is the stated aim of the “strategy and tactics” employed by the loyal cadres of the NDR. These have over the past thirty years been illegally and unconstitutionally deployed by the ANC to operate as many levers of power as the cadres can get their hands on.

The illegality and unconstitutionality of cadre deployment in the public administration and state-owned enterprises are the subject matter of an appeal in litigation initiated by the DA. The litigation is currently pending before the Supreme Court of Appeal.

It is a racing certainty, irrespective of the fate of the GNU and of the appeal itself, that whoever loses will take the matter further to the Constitutional Court, where finality on the issue will be reached, probably thirty destructive years after the introduction of cadre deployment as ANC policy, informed as it is by the mismatched teachings of the outdated and communist-inspired NDR.

The clash between SA’s stated constitutional values and those of the NDR have been discussed previously. In short: in SA a system of multi-party constitutional democracy under the rule of law, that respects the doctrine of the separation of powers and sets up checks and balances on the exercise of power, is the supreme law of the land.

Wholly incompatible

This system is wholly incompatible with one that is aimed at securing the comprehensive control of power that the NDR-inspired hegemony is aimed at achieving.

The constitutional dispensation in SA is structured to promote respect for human dignity; it promotes the achievement of equality, and it strives to facilitate the enjoyment of the guaranteed human rights set out in the Bill of Rights. Chapter Two of the Constitution requires the state to respect, protect, promote and fulfil human rights. (Some rights must be progressively realised within the state’s available resources).

Expensive socio-economic rights have not been rolled out fully in the post-liberation dispensation, due to lack of available resources. The looting of state coffers on a grand scale has not helped, nor have state capture and endemic corruption in the state’s procurement system, which is required to be fair, equitable, transparent, competitive and cost-effective when the state contracts for the supply of goods and services.

While the looting continues, the “available resources” of the state are limited. These could and should be used to roll out expensive Chapter Two rights, like social housing, adequate healthcare and social security.

Thwarted by corruption

The constitutional project is thwarted by corruption, and the failure of the state becomes a real prospect. The Constitutional Court put it poetically in Glenister Two (available for free download at Under the Swinging Arch; drill down to Appendix Two) when it opined that:

“The need and rationale for combating corruption.

 [166] There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

Despite this salutary warning, both corruption and organised crime have flourished since 2011, when the Constitutional Court handed down its binding judgment in Glenister Two, from which the words quoted above are drawn.

The cure ordered by the court was to require Parliament to pass legislation aimed at creating a body outside executive control to deal effectively with corruption.

No such body exists.

The National Anti-Corruption Advisory Council or NACAC was appointed in 2022 by the President to advise cabinet on the way forward towards a corruption-free society, in which the promises of the Bill of Rights and the desire of the founders of the new order to promote the achievement of equality would come to fruition.

While NACAC’s final report is expected in late August 2025, its 2024 mid-term report has not been made public. It has however been discussed in public and reported on in the media, including by the Public Affairs Research Institute, Corruption Watch, the Institute for Security Studies, and Accountability Now.

Sleight of hand

The Institute for Security Studies’ indaba on the future of the Special Investigations Unit (SIU) is a good example of the sleight of hand approach of the ANC. It is no coincidence that the chair of NACAC is now the new minister of police.

The SIU is not part of the criminal justice administration of SA. It can only investigate issues referred to it by the President and does so for the purpose of civil proceedings, not the criminal prosecutions so urgently needed to end the impunity of the corrupt. The SIU is not a “body outside executive control” as required by the judgment quoted above.

The SIU is completely under presidential control; without the necessary presidential proclamation envisaged in its founding legislation, it does nothing.

The SIU’s legislated mandate is to rake back loot after cancelling irregular procurements and other expensive unauthorised state expenditure in civil proceedings. To do so, it works to the civil standard of proof, unlike police and prosecutors who are required to produce and work up dockets that provide proof beyond a reasonable doubt to the satisfaction of the judiciary. The SIU only acts at the behest of the President. If it finds evidence of criminality it refers the evidence to SAPS (usually the Hawks) or IDAC at the NPA.

The SIU has recruited the best investigators in the public sector in SA by paying its staff better than the equivalent staff in SAPS and the NPA.

The proposed OPI is a stratagem of NACAC aimed at keeping the prosecutorial aspects of anti-corruption work in the hands of the NPA and “safely” under the final responsibility of the minister of justice as per Section 179(6) of the Constitution.

On any reasonable construction of the rulings in Glenister Two, set out above, all state anti-corruption work, including prosecutions, should reside in a single body outside executive control. NACAC’s underlying desire for hegemonic control of the levers of power in the NPA informs its mooted OPI.

The DA’s proposed Chapter Nine Anti-Corruption Commission (currently in the works in Parliament) is properly aligned to the STIRS criteria set out in Glenister. The new Commission will not be a toothless commission of inquiry. It could take over all or most of the resources and infrastructure of the SIU, and those members of its staff who pass the necessary integrity testing: (see Justice Cameron’s dissent in Glenister Three).

Political will

The SIU could be closed down as a relic of the past, if the political will to implement the Glenister rules properly can be generated either in the proposed National Dialogue, in cabinet, in Parliament, or via strategic public interest litigation.

Interestingly, Justice Cameron is among the eminent persons assembled for the National Dialogue. Implementing Glenister Two properly should be high on the agenda of that dialogue.