“Mkhwanazi held a media briefing to make public serious concerns regarding the existence and operation of a sophisticated criminal syndicate that has allegedly infiltrated law enforcement and intelligence structures in South Africa, undermining the South African Criminal Justice System. The allegations made in this media briefing raise serious constitutional, security and rule-of-law concerns, necessitating an urgent and comprehensive investigation.”

This note concerns one of the “rule of law concerns” that may have actuated the president. The rule of law requires respect for binding decisions of the courts. Section 165(5) of the Constitution provides that:

“An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”

The opening words of the majority decision in Glenister Three confirm the binding decision in Glenister Two:

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

In Glenister Two the Constitutional Court ordered that parliament return to the legislative drawing board in order to fashion a body outside executive control to deal with corruption effectively. It is in this way that adequate structural and operational independence is achieved.

In Glenister Three, the body so fashioned by parliament was found wanting but the majority of the court was not prepared to consider evidence placed before it in the form of expert reports on the state of corruption in government in SA at the time. Glenister was accused, by the majority of the court, of “odious political posturing” and in consequence of the finding that evidence was struck out and was not taken into consideration by the majority. It considered that in the circumstances it would suffice to allow the Hawks, a mere police unit, to take up responsibility for dealing with the corrupt.

The Hawks have been a complete failure on this front.

One of the minority judgements in Glenister Three was penned by Justice Madlanga, now chairing the commission appointed by the president. The learned justice was not prepared to go along with the decision to strike out the expert evidence tendered by Glenister. He is now getting a second helping of the current Mkhwanazi generated evidence that points to corruption in high places in SA, not dissimilar from that tendered (but rejected) in Glenister Three.

Had the court decision that a body outside executive control ought to have been the solution to the constitutional conundrums posed in the wake of the dissolution of the Scorpions been implemented properly, it is unlikely that the Zuma era state capture project would have been the financial success that it indubitably turned out to be.

The evidence presented during the Zondo Commission is proof positive that the criminal justice administration of SA (all of it is still to this day under executive control) has not been up to the task of countering serious corruption and organised crime in SA.

There would have been no Guptagate scandal; the unauthorised renovations at Nkhandla would not have been effected, the crime intelligence agency would not have been hijacked by Richard Mdluli and others and tenderpreneurism (the perversion of the system of acquiring goods and services for the state) would not have turned crooks into millionaires in mansions with Italian sportscars aplenty, as happened when the supply of goods and services to Tembisa Hospital was repurposed.

There would have been no need for a Zondo Commission and the health of the economy would not have been undermined by corruption. The poor could have been uplifted, inequality could have been reduced and human dignity improved had trillions of rands not been lost to corruption since the failure of parliament in 2012 to respond appropriately to the binding ruling in Glenister Two which required the setting up of a body outside executive control to deal with corruption effectively.

No such body has ever existed in SA.

Accountability Now has reminded parliament of what it should have done but did not do properly in response to the findings in Glenister 2. The submission made to parliament has also been sent to the Madlanga Commission, which does not expect to reach consideration of its contents until next year. The final timeline of the ad hoc committee is not yet apparent, but for both bodies there is a clear and obvious cure to the problems raised by General Mkhwanazi: establish and enable a new Chapter Nine Anti-Corruption Commission to see off the corrupt.

The notion of a body outside the control of the executive is not foreign to our Constitution. All of the existing Chapter Nine Institutions, created to support constitutional democracy in SA, have constitutionally guaranteed impartiality and independence. They all report directly to the multi-party parliament in which there are checks and balances on the exercise of power that are derived from the role of opposition members of parliament. The seventh parliament has proved to be particularly vigilant on behalf of the voters of the country. It rejected the budget presented by the executive this year and forced its amendment, a first in SA since 1994.

The same parliament has pending before it two private members bills that are aimed at establishing and enabling the anti-corruption entity.

If Justice Madlanga is consistent in his approach, he will be supportive of the notion of a body outside executive control to deal with the corrupt. It is what is required by the law. Had it been put in place sooner after the judgment in Glenister Two much of the mischief complained of by General Mkhwanazi would not only not have happened, it would have been impossible for the politicians to interfere as they allegedly have done. No minister of police would have had any say over the anti-corruption machinery of state simply because it would be located outside the control of the executive.

The ad hoc committee and the commission chaired by Justice Madlanga will both be aware of the presidential concerns with upholding the rule of law as expressed by him in the words quoted from his terms of reference for the commission. Implementation of binding court decisions by parliament is one of the rule of law concerns at play in the context of the complaints made by General Mkhwanazi. It is fortunate that a retired justice of the highest court in the land who actually sat in Glenister Three is at the helm of the inquiry into those complaints. The president could not have made a better choice.

Paul Hoffman SC is a director of Accountability Now; he was lead counsel in the Glenister litigation.