There is a myth abroad in SA, a myth that the National Prosecuting Authority is an independent institution of state. The NPA is constitutionally tasked with the prosecution of crime. It is not independent. Its leadership and staff would like it to be independent, the minister of justice believes it is independent and says so in public, but its constitutional architecture precludes independence in any way, shape or form.

Recent media coverage of the goings on at the Khampepe Commission into executive interference in the prosecution of persons who did not receive amnesty from the TRC bears careful scrutiny and an explanation:

“In a secret internal memorandum to Mabandla (then Minister of Justice) in December 2004, Ramaite (NPA head) stated that the claim by Selebi (then chief of police) and “certain Cabinet ministers” that ANC arrests were imminent was “unfounded”.

The memo also informed the minister that the divisional police commissioner, Johannes de Beer, had advised the PCLU (Political Crimes Litigation Unit) that no assistance would be provided for high-profile cases without a written instruction from the President.

This was a bridge too far for the PCLU as well as the National Prosecuting Authority head Bulelani Ngcuka, and later his successor, advocate Vusi Pikoli, regarding the independence of the NPA to make prosecutorial decisions.”  [all quoted from a Daily Maverick article by Marianne Thamm on 22 May 2026].

The independence of the NPA is more illusory than real; the corner of the constitutional architecture in which it resides in Chapter Eight of the Constitution expects impartiality not independence. The roles of the minister of justice and the director general of justice (DG), who is the accounting officer of the NPA, ensure that the NPA is kept under executive control both operationally (through control of its purse strings) and at policy level, which can work in ways that are detrimental to the even-handed administration of criminal justice. The DG as the accounting officer of the NPA has control of its purse strings. The minister of justice has “final responsibility over” it. The minister must concur in all prosecution policy in SA and “must exercise final responsibility over the prosecuting authority” according to the provisions of section 179(6) of the Constitution, our supreme law.

Any criminal prosecution is only as good as the police investigation of the crime it addresses. The investigation obviously precedes the prosecutorial process; the recorded refusal of the divisional commissioner of  police to investigate without written instructions from the president leaves the NPA up the creek without a paddle. The NPA is run as a programme within the department of justice and must observe all of its  policy directives  that are produced with the concurrence of the minister. In effect the minister has a veto on any new policy proposals coming out of the NPA leadership.

The  myth of prosecutorial independence derives from a misinterpretation of the well-worn phrase that requires the law to “ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. Properly interpreted in the context in which the phrase is used in section 179(4) of the Constitution, it means no more than that the operations of the NPA must be conducted impartially. To suggest that the phrase implies independence is to ignore the roles of the minister and DG, particularly the exercise of ministerial final responsibility over the NPA. The phrase has to be interpreted in the context of the section of the Constitution in which it appears.

In a rare presidential media briefing held on 24 April 2026, the president spoke about “rebuilding and restructuring” the criminal justice system to deal effectively with the impunity of organised criminals and the corrupt.  He also recalled his SONA statements on the greatest threat to democracy in SA https://accountabilitynow.org.za/bullseye-mr-president/.

The national cabinet could do a lot worse than endorsing the Chapter Nine Anti-Corruption Commission (or Ch9ACC) that Glynnis Breytenbach, Chief Whip of the Democratic Alliance has been punting since her conversion to supporting the Ch9ACC notion via the proper implementation of the Glenister rulings of the Constitutional Court in the litigation that followed the disbandment of the Scorpions unit within the NPA. https://accountabilitynow.org.za/?s=Introducing+the+all+new.

Litigating the NPA’s structural logjam away by assailing the unconstitutionality of the Investigating Directorate Against Corruption (IDAC) set up might become the next step toward achieving the longed for independence of the NPA, unless the Madlanga Commission report, due on 31 August 2026, aims at enforcing the seminal Glenister rules properly https://accountabilitynow.org.za/has-cyril-forgotten-what-happened-in-glenister-3/.

Strangely though, back in August 2020 the NEC of the ANC passed a marvellous resolution that embraced the Glenister rules https://accountabilitynow.org.za/?s=Eureka. It turned out to be Ace Magashula, then briefly secretary general of the ANC, being mischievous. He was apparently trying to counter the meme “Voetsek ANC” that was in vogue at the time! The national cabinet both in sixth and seventh parliaments has ignored the NEC resolution, despite the NEC being the highest decision-making body in the ANC and despite the dominant role the ANC plays in the post 2024 coalition government at national level.

The culture of corruption with impunity that is abroad in SA will not end unless the state is capacitated to deal firmly with those who indulge in that culture. The deterrent effect of well functioning anti corruption machinery of state is well documented in the international literature on the subject. Corruption is a deliberate and calculated crime. Getting away with it is part of the calculations of those complating a corrupt enterprise or activity.

The Chancellor of the University of the Free State, Bonang Mohale, made a telling observation recently, when receiving an award in the USA.

“The great problem for South Africa is rampant greed.” he said, “[It] is essentially a problem for the once glorious African National Congress that has morphed into an organised crime syndicate, primarily because for a solid 30 years of our democracy, they held the absolute majority power in everything that matters”.

In a sense, the learned Chancellor is echoing the sentiments expressed by Lord Acton, in a letter to his bishop back in the nineteenth century, when he wrote:

“Power tends to corrupt, and absolute power corrupts absolutely.”

A possible dividend of coalition government in SA is the recognition that without properly capacitated anti-corruption machinery of state, the rot will continue and worsen until SA becomes another failed African kleptocracy. The Constitutional Court has already pointed government in the right direction by insisting on a body outside the control of the executive to deal with corruption effectively. It is high time government effects the necessary reform of the criminal justice administration. As the court remarked in Glenister Two:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

Paul Hoffman is a director of Accountability Now.

31 May 2026.