Jacques Pauw, author of two anti-corruption treatises “The President’s Keepers” and “Our Poisoned Land”, has made a fact-filled and sterling contribution to the debate on the future of the criminal justice system in SA in his News24 weekend essay “ Long claw of the law: How the Hawks failed South Africa.”

There is a notable omission from the analysis Pauw has brought to bear on the fight against corruption that bedevils progress and prosperity for the vast majority of those who live or work in SA in 2025. The omission leads Pauw to blame the head of the Hawks, Godfrey Lebeya, for circumstances and failings not of his making. As the Hawks are burdened with a 50% vacancy rate for the posts created for their effective and efficient countering of the corrupt, it is small wonder that they fail to live up to the expectations of the public. With only 16 forensic accountants in the employ of the Hawks, complex commercial crimes fill the inboxes and gather dust. As the new IDAC unit within the NPA has only about 120 investigators, it is plain that it cannot currently step into the shoes of the Hawks whose staff complement exceeds 5000.

Here is what Pauw overlooks: In terms of a binding Constitutional Court ruling made in March 2011, our corruption busters should be a specialist body of trained experts who are operationally and structurally independent, resourced in guaranteed fashion and secure in their tenure of office. These have become known as the STIRS criteria of the Glenister Two decision which were the essence of that case.

The Hawks are not imbued with any of the STIRS criteria.

In November 2014 the same court confirmed that a single body outside executive control is required by law to deal with the corrupt  in our midst, adequately independent to be equal to this task and clothed with the STIRS criteria. It was up to parliament to pass the new law required and the duty of the executive to implement it properly. The court had to tinker with the puny effort made by parliament in 2012 as it was plain that the political will to implement the judgment was absent, and still is to this day.

In effect, that new law has yet to be passed by parliament and implemented by the executive. The politically expedient experiment of leaving investigation to the Hawks and prosecution of the corrupt to the NPA has not worked properly in any way, shape or form.

The Hawks, tasked with an array of “priority crimes” are not a specialist body; indeed, they lack the specialised skills required. As a police unit they are under the ultimate management of the minister of police and are accordingly not institutionally independent either in structure or in their operations. They have no guaranteed resources and are as vulnerable to dismissal as any ordinary police personnel.

The reason for ignoring or “working around” the decisions of the Constitutional Court is that before May 2024 parliament lacked the political will to do what is required of it in loud and clear terms in Glenister Two: establish and enable a body outside executive control to deal with corruption. When the executive is as corrupt as it is alleged to be in SA, there is difficulty in mustering the necessary political will, especially when parliament is as weak as it was back then. Since May 2024, when the largest political party mustered only 16% of the possible votes (assuming all eligible voters actually voted on election day) during the national elections held then, the prospect of putting together the votes needed to wholeheartedly do what the court ordered parliament to do in 2011 is real.

The DA has two private members bills in the works in parliament. They are based on the work of Accountability Now and envisage the establishment and empowerment of a new Chapter Nine body, the Anti-Corruption Commission to do the work that the NPA and Hawks have so signally failed to do since the establishment of the latter in 2009. The progress of the Glenister case is discussed in the ebook Under the Swinging Arch, which is available for downloading for free by simply googling its title.

It would not be constitutionally compliant to simply build IDAC into the shape and size required because IDAC, like the Hawks, is bereft of the STIRS criteria that apply to it as the anti-corruption entity – set up as a stand-alone body, envisaged by the court in Glenister Two. IDAC is the creature of an ordinary statute signed into law in May 2024, just before the elections were held. A simple majority in parliament is all that is required to close down IDAC in the same way as the Scorpions were dissolved. The Chapter Nine body that the DA envisages can only be created and ended by way of the two thirds majority the Constitution requires for an amendment to that chapter.

It is a fallacy that the NPA is independent. The Constitution itself shows that the minister of justice enjoys the right to “exercise final responsibility over” the NPA. The minister must concur in the policies of the NPA and her director general, as its accounting officer, holds the purse strings of the NPA which functions as a programme within the department of justice. Leaders of the NPA who have tried to act independently have been disciplined or bribed to leave office. Calls by the current NPA leadership for institutional independence have fallen on deaf political ears.

Whether coalition politics will bring those who have resisted proper implementation of the Glenister rules to the realisation that to be seen to be soft on corruption by opposing the DA bills is political suicide remains to be established. Recent polling suggests that the current largest party in parliament may no longer be the largest party once the votes in the next general election are counted.

Obeying orders of court is naturally the right thing to do. Obedience is required by section 165(5) of the Constitution itself. It is a national disgrace that the STIRS rulings in Glenister Two, made by then Deputy Chief Justice Moseneke and Justice Cameron, who is now on the National Dialogue panel, have languished in limbo for so long. That dialogue and the lobbying around the DA bills for the Chapter Nine Anti-Corruption Commission may bring opposition to the bills to zero in a country weary of the high levels of corruption endured since state capture. Paul Pretorius SC, who led the evidence at the State Capture Commission, believes that state capture is an ongoing phenomenon in SA. He should know.

So, spare a thought for Advocate, Doctor, General Lebeya as he sails into the sunset at the end of his career as head of the Hawks. Pauw’s suggestion that the Hawks be disbanded is probably a good one. Certainly anti-corruption work is above the station in life of the Hawks, a mere police unit answerable to the minister of police. The Hawks lack the sapiential authority  (or clout) to acquit themselves of the tasks required of a proper STIRS compliant anti-corruption entity. There are other priority crimes which the Hawks are able to investigate with greater effectiveness and efficiency, the constitutional hallmarks of good governance in the public administration.

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

23 June 2025.