Based upon a report in Business Day on 1 September, 2025, Legalbrief Today reports, on 2 September, that:

“The National Anti‑Corruption Advisory Council (Nacac), headed by acting police minister Firoz Cachalia, is recommending sweeping changes to the Madlanga Commission of Inquiry’s terms of reference, to change its scope to focus on the ‘dire state of crime intelligence’. Warning that SA’s crime intelligence had become a major obstacle in combating corruption, Nacac said in its final report to President Cyril Ramaphosa that the Madlanga Commission should consider ‘the possibility of establishing dedicated Crime Intelligence Units in the agencies responsible for investigating serious corruption and organised crime’”.

The Madlanga Commission was appointed by the president a week after the now famous media briefing given by the chief of police in Kwazulu-Natal, General Mkhwanazi, on 6 July 2025. During the briefing the general complained that the dockets regarding investigations into political killings in his province had all been removed to the desk of deputy national commissioner of police, Shadrack Sibiya, in Pretoria –  following an instruction emanating late in December 2024 from the current police minister, Senzo Mchunu, He has been put on gardening leave by the president, and he may, or may not, be desirous of closing down the unit of the police tasked with the said investigations.

It remains to be seen whether the president will change the scope of the work of the Madlanga Commission to accommodate the recommendation made by NACAC, a mere advisory body, which reached the end of its term of office at the end of last month.

It must be pointed out that, among other responsibilities, the duty of investigating serious corruption in SA ought to be in the hands of “a body outside executive control”. This salutary reform was ordered, in terms that bind government, by the Constitutional Court in March 2011 in the case now known as Glenister Two.

Due to lack of sufficient political will to embrace the rule of law by respecting court orders, and also the desire of the ANC to exercise hegemonic control over all the levers of power in society, no such body has ever been established in SA.

It also bears mentioning that the court was not prescriptive about the matter, instead, it reminded the parliamentarians, back in 2011, that all that was required of them was that they make “the reasonable decision of a reasonable decision-maker in the circumstances.”

How exactly to do this was spelt out in an earlier matter in the same court. A matter called Rail Commuters Action Group and others v Transnet Limited t/as Metrorail and others. This is what the court laid down on that occasion:

[88] What constitutes reasonable measures will depend on the circumstances of each case. Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer – the closer they are, the greater the obligation on the duty-bearer, and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result. 

The more grave is the threat to fundamental rights, the greater is the responsibility on the duty-bearer.  Thus, an obligation to take measures to discourage pickpocketing may not be as intense as an obligation to take measures to provide protection against serious threats to life and limb.  A final consideration will be the relevant human and financial resource constraints that may hamper the organ of state in meeting its obligation. 

This last criterion will require careful consideration when raised.  In particular, an organ of state will not be held to have reasonably performed a duty simply on the basis of a bald assertion of resource constraints.  Details of the precise character of the resource constraints, whether human or financial, in the context of the overall resourcing of the organ of state will need to be provided. 

The standard of reasonableness so understood conforms to the constitutional principles of accountability, on the one hand, in that it requires decision-makers to disclose their reasons for their conduct, and the principle of effectiveness on the other, for it does not unduly hamper the decision-maker’s authority to determine what are reasonable and appropriate measures in the overall context of their activities.”

It will be appreciated by astute observers that the circumstances in which SA finds itself, particularly as regards serious corruption, have changed considerably since 2011 when the Zuma state capture project was still in its infancy. SA is now gray-listed by the Financial Action Task Force, much poorer and more unequal than it was back in 2011 and with an economy in the doldrums.

The country has an excessively high and unsustainable (expanded) unemployment rate of 42%, if those in the workforce who are unemployed but have given up on finding a job are included in the computation of the rate of unemployment. Children in their droves are dying of starvation in rural provinces and many municipalities are in a state of collapse. Johannesburg, the city of gold, has spent over two years trying to repair a main arterial route in its central business district following a methane gas explosion under the roadway. The road is still not open to vehicular traffic.

A plan for the future of the anti-corruption machinery of state is urgently required in SA.

The DA, the second biggest party in parliament and a partner in the  governing coalition in the wake of the May 2024 elections, has a finite, concrete and complete plan that can be found in the two bills it is currently busy piloting through parliament. The bills are for the establishment and enablement of a new Chapter Nine Anti-Corruption Commission tasked with the prevention, combating, investigation and prosecution of serious corruption and organised crime. That Commission, not a toothless commission of inquiry, could set up its own crime intelligence unit or personnel with ease.

The DA and NACAC are on the same page in this regard; their respective assessments of the current circumstances in SA coincide when it comes to putting together the thorny topics of dealing with organised crime and countering serious corruption. NACAC ought to have put its weight behind the DA’s two bills; instead it opted to kick for touch by seeking to have the matter, a clear and obvious choice for any government of integrity and commitment to the rule of law to make, referred to a commission of inquiry which it seeks to saddle with the investigation of 121 live dockets, dockets that were moved away from those working on them to the desk of Sibiya, where they have apparently gathered dust all year long.

There is an aspect of this fracas which has not received the media attention it deserves. The minister on gardening leave, Senzo Mchunu, put there at his own request, has never explained the reasons for the instruction he issued at the end of December 2024 for the dockets to be transferred to Pretoria.

It is so that the minister is, in terms of Section 206 of the Constitution, “responsible for policing and must determine national policing policy” after consulting with relevant organs of state.

This responsibility has to be exercised in accordance with the rule of law; the decision to move the dockets must be informed by some or other legitimate purpose of government. If not, it falls foul of the doctrine of legality and is invalid for its inconsistency with the Constitution. Should there be no acceptable and rational explanation for the decision, one which passes constitutional muster, there is no point in burdening the Madlanga commission with an investigation of the dockets transferred illegally to Pretoria.

The existing mandate of the commission will suffice. The irony in the matter is that had parliament done what the court ordered it to do in Glenister Two, the minister would not have been in the loop at all to issue the instruction to move the dockets away from those working to investigate them.

A final small point: the law in SA, since Glenister Two, requires that the “single agency approach” be adopted in matters of this nature. The ANC has long favoured the multi-agency approach despite the clear indications, in both Glenister Two and Glenister Three, that the court requires a single agency. The multi-agency approach with its hubs, task teams and cross cutting “co-operation” has been abused in the interests of securing impunity for the politically well connected. Crime intelligence gatherers have been at the forefront of corruption in SA, instead of being an anti-corruption body. NACAC is right about this too.

Paul Hoffman SC is a director of Accountability Now