The first and most urgent work of the Madlanga commission of inquiry is to examine the utility of the laws and policies in place in SA for countering the corrupt. It is clear to any objective observer that the system is dysfunctional. The reasons are not hard to find.

The strategy and tactics of the ANC are aimed at securing what it calls hegemonic control of all the levers of power in society. The anticorruption entities are important levers of power that are in the hands of the executive via the ministries of police and justice. 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.

These features of SA’s constitutional architecture came under judicial scrutiny in the Glenister litigation. Our highest court concluded that “a body outside executive control to deal effectively with corruption” is needed. It ordered parliament to pass remedial legislation. That legislation recreated the Hawks in 2014 and then, after the Hawks failed miserably as an anticorruption entity, in 2024 the Investigating Directorate Against Corruption was legislated as a unit within the National Prosecuting Authority. Neither of these bodies is “a body outside executive control”.

The failure to implement the Glenister findings (by building a specialist body, operated by trained experts in anticorruption work, independent in its operations and its structure, resourced in guaranteed fashion and secure in tenure of office) is at the heart of the corruption malaise. The Zondo state capture commission recommendation that public procurement be policed by an independent body has been accepted, but not properly implemented, by government in that the National Treasury is the ANC’s substitute for the independent body Zondo recommended.

The Madlanga commission is required to report in the next three months. It will not take that commission as long as three months to work out that the structure and the functioning of the anticorruption machinery of state do not measure up to the standards set in Glenister and summarised above. The first report should say so emphatically, and should comment on the constitutionality and efficacy of the new Chapter Nine Anti-Corruption Commission the DA proposes.

As was pointed out in the Glenister judgment of March 17 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 obligation to form an anticorruption body outside executive control has not been properly implemented in SA. Its time has come.

Addressing the SA Council of Churches Indaba on Graft on July 23, former chief justice Raymond 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.

Paul Hoffman
Director, Accountability Now