A F F I D A V I T

I the undersigned,

Robert Paul Hoffman,

declare under oath that:

1. Introduction
2. I am an adult male senior advocate, appointed as such by President Nelson Mandela on 14 December 1995.
3. I am also a director of “Accountability Now,” the byline under which a duly registered NGO “The Institute for Accountability in Southern Africa” (IFAISA) campaigns for accountability, the rule of law and responsiveness to the needs of ordinary people. (accountabilitynow.org.za). I depose to this affidavit on behalf of Accountability Now in response to the general invitation given to encourage public participation in the important work at hand for the Ad Hoc Committee (AHC). Accountability Now appreciates the opportunity to do so. Should any of the submissions below require elucidation or expansion, Accountability Now stands ready to supplement the submissions so made either orally or in writing.
4. Members of the staff of Accountability Now have participated in the “Glenister litigation” that culminated in three appeals to the Constitutional Court after the Scorpions (or  more formally the Directorate of Special Operations within the NPA) were dissolved following a resolution adopted by the ANC at its Polokwane conference held in December 2007, directing the national cabinet to do so as a matter of urgency. Our participation was as the legal counsel in the matters and by way of one witness who gave expert evidence in the second appeal.
5. This “Glenister litigation trilogy” (as it is now known) tested the constitutionality of the substitution of the investigative functions of the DSO by the creation of a new police unit known as the Hawks (or Directorate of Priority Crime Investigation) in place of the Scorpions investigative functions via the necessary amendments to the NPA Act and the Police Act.
6. The history of the litigation is chronicled in an e-book “Under the Swinging Arch” (UTSA) which can be accessed for free by googling its title. Appendix Six of the e-book affords a brief overview of developments in and since the litigation that is relevant to the deliberations of the AHC.
7. The pertinence of the Glenister trilogy to the work of the AHC is that the Constitutional Court has laid down, in terms that bind government ( Section 165(5) of the Constitution applies) its requirements for constitutionally compliant anti-corruption machinery of state in SA. Specifically, it made the decisions set out in paragraphs 5 and 6 of the orders it handed down in March 2011 in the second Glenister case. The judgement and orders are available in full on page 224 of UTSA. In short: parliament was ordered to amend the successfully impugned legislation in order to “secure an adequate degree of independence” for the Hawks, and was given 18 months to do so.
8. What the court meant by “an adequate degree of independence” can be gleaned from what it decided in paragraph 200 of the joint majority judgment in the matter, (UTSA page 210) namely that: “our law demands a body outside executive control to deal effectively with corruption.” It follows, we suggest, that because a member of cabinet is currently allowed to control, the anti-corruption work of the police, the police are not “adequately independent”. The as yet unfulfilled requirement of Section 179(4) of the Constitution for national legislation that must ensure that the NPA exercises its functions without fear, favour or prejudice is widely misinterpreted to refer to independence when in fact, in the context of the section and the operations of the NPA, it is no more than an operational requirement for impartiality, not independence. The NPA is not, as appears below, independent at all and is accordingly not suitably structured to deal with corruption post Glenister Two.
9. The court also, in the course of the same judgment, laid down what have become known as the “STIRS criteria” by which the “body outside executive control” must be structured to function and operate in the manner required by Section 195(1)(b) of the Constitution. A Specialist body of experts, Trained in anti-corruption work, Independent in both its structure and operationally, Resourced in guaranteed fashion, and Secure in tenure of office are all the characteristics that the STIRS criteria demand. There is no such body in SA.

9. The STIRS criteria were adopted by the court by borrowing from the research of the OECD, as that research stood in 2011, after the amicus curiae in Glenister Two relied on the OECD criteria in argument during the appeal. (Judgment paragraphs 187 et seq in UTSA page 206). The international anti-corruption obligations of SA to establish and maintain independent anti-corruption machinery of state were also invoked in the majority judgment in Glenister Two in support of the legal conclusions it reached as set out above.
10. After the judgement of March 2011 was handed down parliament took the full 18 months to amend the SAPS Act, which it did by debating it exhaustively and then tweaking the amended legislation presented to it by the cabinet of the day in more than fifty ways.
11. During the parliamentary public participation process on the bill so presented, 21 submissions were made by NGOs, academics and civil society organizations. (See: UTSA Chapter Seven page 95 et seq). Twenty of the submissions were critical of the bill, only one supported it. When it was suggested by Accountability Now that “a silk purse cannot be made from a sow’s ear” and that the bills should be referred back to cabinet for reconsideration in the light of the STIRS criteria, which apply both to the structure and operations of the anti-corruption body, the chair of the committee of the National Assembly considering the bill declined to do so, pointing out that to do so would be inconsistent with the established modus operandi of the cabinet of the day. The Constitution makes it clear that parliament, in which the representatives of “we the people” serve those who vote for them, is not a rubber stamp for the national cabinet. (The seventh parliament has demonstrated this relationship between legislature and executive in the 2025 national budget debate by rejecting the VAT increase initially proposed by cabinet.)
12. The amended legislation eventually passed in September 2012 was again successfully impugned for its unconstitutionality, both by Glenister and by the Helen Suzman Foundation (acting separately) and was, in Glenister Three, further amended by the court itself. The majority of that court (which majority did not include Justice Madlanga who penned a separate minority judgment) declined to consider the circumstances adduced by Glenister in support of his case for the establishment of a body outside executive control as required by Glenister Two, which remains a binding decision as confirmed trenchantly in the first two paragraphs of the majority judgment in Glenister Three.
13. The court, in Glenister Two, had enjoined parliament to make the reasonable decision of a reasonable decision-maker in the circumstances. ( UTSA page 208 paragraph 191). Glenister contended that the levels of corruption in the Zuma cabinet were a relevant circumstance that ought to preclude even limited executive involvement in anti-corruption duties of the state. In so doing, Glenister  presented supporting expert evidence, which he sourced from the ISS and the University of Stellenbosch. That evidence, all left out of consideration by the majority of the court, is now widely known to amount to a preview of much of the evidence accepted in the Zondo Commission of Inquiry into State Capture, both as regards malfeasance within the cabinet and elsewhere in SA.
14. The findings in the Zondo, Nugent and Mpati commissions as well as those of the Public Protector, in her report on the complaints of the Jesuits and DA concerning state capture, read with the regular annual reports of financial irregularities in governance that point to widespread corruption made by the Auditor General each year over the years since 2011, taken with the statement made by Gen Mhkwanazi to the Madlanga Commission  (https://www.politicsweb.co.za/documents/madlanga-commission-nhlanhla-mkhwanazis-witness )  all point to the existence and severity of currently ongoing state capture in SA. State capture is a sophisticated form of corruption, as is organised crime. ( See also the statement of the chief of police and the letter of then minister of police Senso Mchunu closing the PKTT dated 31December 2024 https://www.politicsweb.co.za/documents/fannie-masemolas-statement-to-the-madlanga-commiss and https://www.politicsweb.co.za/documents/senzo-mchunus-letter-ordering-the-closure-of-the-p. )
15. We respectfully urge the members of the AHC to consider the allegations made by General Mhkwanazi on 6 July 2025 as fleshed out in his statement to the Madlanga Commission in the above legal and factual context. A concise history of the Glenister litigation saga is set out in the written part of the submissions made by Accountability Now on 17 March 2023 to the Constitutional Review Committee of the National Assembly which is Appendix Six of UTSA (page 295 et seq and in particular the section on the binding nature of the finding in Glenister Two from page 314).
16. Determination of systemic governance failures
17. The lack of political will in the parliament of 2012, and the ongoing failure of parliament ever since, to implement properly the binding findings in Glenister Two set out above in paragraphs 6 to 8, are at the root of the matters of which Gen. Mhkwanazi complains.
18. Parliament has also, we respectfully submit, not honoured its constitutional commitments to uphold the rule of law by respecting the court’s judgments via ensuring their proper implementation by the executive and “to maintain oversight of the exercise of national executive authority, including the implementation of legislation” (as required in terms of section 55(2)(b) of the Constitution) in that no “body outside executive control” exists to deal with corruption in SA as is required by the binding nature of the court finding to that effect.
19. The final version of the Hawks, their third incarnation, has not been a success in its anti-corruption efforts due to malign executive control over it of the kind now complained of, which led to the setting up of the AHC. No one seriously  suggests today that the Hawks are any part of the solution to the corruption crisis in SA. While the Hawks unit does good work on other priority crimes, its anti-corruption functions have been transferred to the new NPA unit called the Investigating Directorate Against Corruption (IDAC) in a manner that is invalid and unconstitutional, as appears more fully below.
20. Proper exercise of parliamentary oversight of the workings of the Hawks since 2014 could have led to revisions of the legislation passed in 2012 and corrected in 2014 due to the manifest failures of the state’s anti-corruption efforts in the period since 2014. Political killings are corrupt: they are a manifestation of the mercenary greed of paid hitmen and the lust for ill-gotten political power of those who pay to eliminate rivals in politics whom they seek to eliminate rather than vanquish in the free and fair elections required by the Constitution. The provisions of the Prevention and Combating of Corrupt Activities Act create a very broad definition of corruption.
21. Had a body “outside executive control” been legislated in 2012, (or at any stage thereafter) the minister of police would have had no business purporting to issue any instructions whatsoever to SAPS, whether on policy or operational grounds, to close down its political killings task team on 31 December 2024. General Mkhwanazi would most likely not have been moved to complain as he did to the national commissioner of police in January, the police portfolio committee in March and , eventually , to the public on 6 July 2025.
22. We respectfully point out that a body outside executive control is not foreign to the constitutional order in SA. All Chapter Nine Institutions report directly to parliament and enjoy constitutionally guaranteed independence and impartiality. The executive has no say over them.(see section 181(3) of the Constitution).
23. The court, in Glenister Two, hinted, without being prescriptive, that the new body it had in mind should be housed in Chapter Nine. This statement appears in paragraph 205 of the judgment (UTSA page 211).
24. The National Anti-Corruption Advisory Council (NACAC) has accepted that judicial hint by proposing what it has dubbed an “Office of Public Integrity” (OPI) as a new Chapter Nine Institution, one with no prosecutorial powers. The OPI that NACAC recommends (its recommendations bind no one) is intended to attend to systemic corruption in various ways which will leave the prosecutorial function in respect of that systemic corruption in the hands of the NPA. This NACAC recommendation is, we submit, an unconstitutional step, exacerbated by the NACAC suggestion that the president be allowed to issue instructions to the OPI by proclamation, in a similar way as is currently possible with the SIU. The SIU is not a part of the criminal justice administration, corruption it uncovers is referred either to IDAC or the Hawks. It is respectfully submitted that what the Constitutional Court requires, in terms that bind government,  is a single body outside executive control to deal with corruption. This type of body is also what the NEC of the ANC required of cabinet back in August 2020. Dealing with corruption includes the prosecution of the corrupt.  The single prosecution body the Constitution specifies does not preclude the existence of specialist corruption prosecutors any more than it precludes military and municipal prosecutions. ( See Potsane’s case https://www.saflii.org/za/cases/ZACC/2001/12.html. ) The law in SA requires a single body to deal with the corrupt on any proper interpretation of the first two paragraphs of Glenister Three read with paragraph 200 of Glenister Two. The final NACAC report has been criticised by Accountability Now:

https://accountabilitynow.org.za/letter-fatal-flaws-in-the-corruption-report-are-intolerable/.

https://accountabilitynow.org.za/trajectory-favoured-by-national-anti-corruption-advisory-council-report-will-end-in-tears/.

https://accountabilitynow.org.za/approach-nacac-report-with-uttermost-caution-mr-president/.

24. The establishment within the NPA of the Investigating Directorate Against Corruption (IDAC) is a “stop gap measure” ( to use the expression deployed by the now retired deputy minister of justice John Jeffery) and is, in our submission, a constitutionally false step which became law in May 2024. The reasons for the unconstitutionality of the location, structure and operations of IDAC, in our respectful view, were placed on record to the president by Accountability Now before he signed the bill in question into law. Our efforts did not deter him from so signing mere days before the last national general elections. https://accountabilitynow.org.za/the-future-of-countering-corruption-after-ramaphosa-hastily-signs-flawed-idac-law/.
25. The NPA, currently white-anted from within, is not a body outside executive control and is not suitable, given its current (by admission of its leadership) “saboteur” infested status, as an anti-corruption agency in any way, shape or form. https://accountabilitynow.org.za/does-the-prosecution-authority-in-sa-have-any-prospect-of-acting-independently/. State capture has gutted the NPA and it will take many years for the institution to recover. The paralysis of the capacity of the state, through its criminal justice system, to counter corruption is the subject of a complaint by Accountability Now to the Office of the Public Protector and is under consideration currently. https://accountabilitynow.org.za/complaint-regarding-paralysis-of-the-anti-corruption-capacity-of-the-state-in-sa/. The state must respect, protect, promote and fufil the political rights (among other rights) guaranteed to all in the Bill of Rights including the right to free and fair elections. The corruption behind political killings renders this obligation and many others set out in Chapter Two of the Constitution impossible to perform.
26. The scope of the issues and their impact
27. There are, however, two private members bills currently pending in parliament which envisage the establishment and enablement of a new Chapter Nine Anti-Corruption Commission which is designed as a constitutionally compliant body. They were introduced to the National Assembly in November 2024 by the Honourable Adv Glynnis Breytenbach, who is a former shadow minister of justice and is their sponsor. https://accountabilitynow.org.za/?s=Introducing+the+all+new. They are, we respectfully submit, constitutionally compliant  and are based on suggestions made to the presidency, parliament and the NPA by Accountability Now in August 2021. This step was taken after the ANC NEC had in August 2020 instructed the national cabinet to act against corruption urgently but was ignored by cabinet https://accountabilitynow.org.za/paul-hoffman-has-anc-finally-had-its-eureka-moment-on-corruption/. The cabinet has not acted on the NEC resolution despite the party political status (highest decision-making body between conferences) of the NEC and the tenets of democratic centralism according to which the ANC usually operates.
28. The AHC is urged to consider the Breytenbach bills, refer them for refinement, if deemed necessary, in the crucible of parliamentary debate, and recommend their rapid adoption as so refined by parliament. These steps are proposed as concrete reforms of the criminal justice administration’s (currently lacking) capacity to counter corruption. The political striving for hegemonic control of anti-corruption duties has to yield to the requirements of the Constitution. The Constitution means what the courts say it means, they are the final arbiter of its interpretation on all matters including countering corruption. Rampant corruption with impunity is at the heart of the complaints raised by General Mkhwanazi; addressing corruption accountably and legally in accordance with the Glenister principles will, if done properly, have the effect of  steadying the ship of state. Accountability Now does not suggest that the said bills are the only solution to the issues raised by General Mkhwanazi, there may be other constitutionally compliant ways of addressing the crisis brought about by the complaints he has raised. If there are alternative solutions, they should be debated in the context of the Breytenbach bills. For parliament to reach the “reasonable decision of the reasonable decision-maker in the circumstances” requires a frank and open assessment of those circumstances; an assessment which is long overdue in our respectful submission, having regard to the values of openness, accountability and responsiveness required of government in Section 1 of the Constitution.
29. The nub of the various issues raised by General Mkhwanazi is the unattended and rampant nature of serious corruption with impunity in SA, be it in the guise of state capture, organised crime or “tenderpreneurism” in its various forms.
30. The impact of these malaises has been felt by all in SA in the form of exacerbated poverty in about half of the population, widespread unemployment affecting one in three of the workforce, and increasing inequality. Consider the warning sounded in paragraph 166 of the majority judgment in Glenister Two (UTSA page 199) which warning has not been adequately heeded by those in positions of authority in the past in SA. The time to do so is now.
31. The reform suggested in part B of this affidavit will go a long way toward addressing the malaise in whatever form it takes. SAPS, relieved of anti-corruption functions, will be able to function better than it does at present in preventing and combating other crimes. A STIRS compliant Anti-Corruption Commission (Ch9ACC) will be better able to tackle corruption than the current system has done so since the disbandment of the Scorpions in 2008. The vulnerability of the Scorpions to summary closure was its Achilles heel. IDAC is weak and small and not well led. It has the same vulnerability to summary closure.

31. IPID is under-resourced, under-staffed and inundated with corruption related work which it has no prospect of completing within a reasonable time frame. Its staff should be relieved of anti-corruption work which should all be referred to the Ch9ACC as a body outside executive control that is better suited to dealing with corruption effectively than IPID. The” cleansing” of crime intelligence staff , as the General puts it, is a priority.
32. As regards the role of the judiciary as the subject matter of the Mkhwanazi complaints, it is only implicated in the complaints made to the extent that one magistrate who imposed bizarre bail conditions has been identified while ‘envelopes’ for other magistrates and prosecutors have received mention. The High Courts, SCA and Constitutional Court have not had their probity and integrity impugned in the evidence of General Mkhwanazi.
33. Conclusion
34. The tasks of the AHC and the preparation of its report afford parliament the opportunity to make its own overview of the extent of corrupt activities of all kinds in the country, the capture of at least parts of the executive by the corrupt and the need to address the malaise in the interests of restoring constitutional democracy under the rule of law to good health so that the people of South Africa can have the opportunity to respect human dignity, enjoy their constitutionally guaranteed rights and to strive to promote the achievement of equality as envisaged by the Constitution itself. The NDPP claims that the rule of law is on “life support in the ICU”; she should know, and it is intolerable that she feels obliged to so claim.
35. Peace that is secure, prosperity that is shared and progress that is sustainable are possible when corruption is dealt with effectively. As our highest court put it in Glenister Two: “our law demands a body outside executive control to deal effectively with corruption.”

35. No such body exists.
36. It is, in our respectful submission, the constitutional duty of the legislature to address this state of affairs by fashioning and legislating, enabling and establishing such a body in a STIRS compliant manner as is required by that court. This legislative task, which is that of parliament alone, has been left unattended for too long.

____________________

Robert Paul Hoffman SC

Dated at Cape Town this 29^th day of September, 2025.

I certify that:

1. the deponent acknowledged to me that:
2. he knows and understands the contents of this declaration;
3. he has no objection to taking the prescribed oath;
4. he considers the oath binding on his conscience;
5. the deponent thereafter said “I swear the contents of this affidavit are true, so help me God”

III. the deponent signed this affidavit in my presence at the address hereunder.

COMMISSIONER OF OATHS

FULL NAME:

DESIGNATION: