Paul Hoffman: Mr President, NACAC’s multi-agency plan clashes with constitutional law
Key topics:
Glenister rulings demand a single, independent anti-corruption body in SA
NACAC’s multi-agency approach conflicts with constitutional court orders
Breytenbach bills aim to create a Chapter Nine Anti-Corruption Commission
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By Paul Hoffman*
In his most recent weekly newsletter dated 8 September 2025, the President, Cyril Ramaphosa, reflects on the final report of the National Anti-Corruption Advisory Council (NACAC) which he received at the end of August 2025.
The President’s newsletter has been published in full on the Politicsweb website.
In the letter, the President reminds his “Fellow South Africans” that he set up NACAC in 2022 to guide the implementation of the National Anti-Corruption Strategy (NACS) and to strengthen the state’s anti-corruption architecture. NACS comes from the Zuma era; if it is to be drawn on at all, a long spoon is the appropriate utensil.
In NACS, the binding judgments of the Constitutional Court in the Glenister litigation are misrepresented and mangled, as follows:
“6.3.2 THE GLENISTER CASES
In the Glenister cases, the Constitutional Court laid down the principles governing the independence that is required for the DPCI as an anti-corruption agency located within the SAPS. • The Court found that the question is not whether the DPCI has full independence, but whether it has an adequate level of structural and operational autonomy, secured through institutional and legal mechanisms, to prevent undue political interference…”
Actually, the majority judgment in Glenister Two spells out that:
“… our law demands a body outside executive control to deal effectively with corruption” [200]
This step was taken, the court explains:
“…to respect the careful way in which the Constitution itself creates concordance and unity between the Republic’s external obligations under international law, and their domestic legal impact.” [201]
SA is party to several anti-corruption treaties which bind it to establish and maintain independent anti-corruption machinery of state. These treaties include the UN Convention against Corruption or UNCAC, and similar treaties at AU and SADC levels.
The use of the word “adequate” in the order handed down in the case has been latched on to by the Zuma administration to force a false interpretation on its meaning in the phrase:
“The Hawks legislation is inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Hawks.”
Plain and unambiguous
Obviously, the interpretation of the word “adequate” in the order must depend on the context in which it is used, in the light of what is set out in the judgment itself. The requirement that a body outside executive control is what is being ordered is clear. If it is outside executive control, it is adequately independent, if not, it is not what the court requires in the plain and unambiguous language set out in paragraph 200 of the judgment as quoted above. Given the constitutional context: our police are under the control of the minister of police, and our prosecutors fall under the final responsibility of the minister of justice.
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It bears mentioning that the court, appropriately deferential to the other branches of government, broadly hinted in paragraph [205] that the appropriate constitutional home for its envisaged body would be in Chapter Nine of the Constitution. That chapter is the home of the bodies designed to enforce constitutional democracy in SA. They all enjoy guaranteed independence and impartiality, free of the executive branch of government because they report only to the multi-party legislature.
The passage in paragraph [205] of Glenister Two gives the lie to the NACS contention that tinkering with the Hawks as a police unit is all the case was about.
It is also obvious that the Hawks of today are not independent. If they were, the President need not have appointed the Madlanga Commission of Inquiry, because the minister of police, Senzo Mchunu, (now on gardening leave) would have had no business commandeering 121 dockets and threatening to close down the political killings task team, thereby sparking the complaints made by General Mkhwanazi during his famous media briefing of 6 July 2025.
Outside executive control
Had Glenister Two been properly implemented, that team’s anti-corruption work would have resided in a body outside executive control, and far from the reach of the type of interference, influence and attempted control of which the general complains. He will complain in greater detail before the Madlanga Commission and the Ad Hoc parliamentary committee in the coming days.
The prescience of the court (the judgment was handed down on 17 March 2011) is quite remarkable. “State capture” was not a term in common usage at the time. The demise of the Scorpions unit in the NPA was not yet generally regarded as the first act of the Zuma-era state capture. The NPA was still in fine fettle in 2011, especially if one compares it to the hollowed-out and saboteur-infested body that is currently awaiting the appointment of an unfortunate new leader to take over from the beleaguered Shamila Batohi. Her term ends in January 2026, upon her turning 65 and becoming ineligible for the position after seven years of the ten years the law allows to younger incumbents. She is the first NDPP to see out her term of office: a remarkable achievement despite her lacklustre performance on corruption, which has ActionSA calling for her head on a plate. All her predecessors fell by the wayside prematurely, due to clashes with the executive branch of government or to the ill-advised nature of their appointment.
In Glenister Three, the court doubled down on the notion of an adequately independent (in the sense explained above) anti-corruption body. Its majority judgment opens in trenchant terms:
“… corruption is rife in this country, and stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
Most unfortunately, NACAC has overlooked the insistence of the courts on a single-entity approach to anti-corruption work in SA. There is international controversy around the clashes between the multi-agency approach favoured by NACS and NACAC and the single-agency approach of our highest court. Unlike NACAC, which is an advisory body whose recommendations bind no one, the courts make binding decisions in their judgments. The rule of law as well as section 165(5) of the Constitution require that the orders and decisions of our courts bind all to whom they apply, including organs of state.
Fall to be rejected
To the extent that NACAC has embraced the multi-agency approach to countering corruption in its final report, the very proper presidential respect for the rule of law requires that the NACAC recommendations that envisage the multi-agency approach fall to be rejected both by the executive and legislative spheres of government. They should harmonise properly with what the court requires of the anti-corruption entity in SA
There is an additional flaw in the architecture that NACAC recommends for the Office of Public Integrity (OPI). Quite apart from not including prosecution in its mandate, a fatal flaw, there is a formal recommendation from NACAC that the President will be allowed to issue proclamations instructing the OPI to investigate corrupt activities in SA that the President identifies. This notion openly flouts the requirement that the OPI entity be outside executive control. This deviation from the Glenister rulings renders the role of the President in the OPI structure invalid and unconstitutional, because a flood of proclamations would be as illegal as a single proclamation.
The Special Investigations Unit (SIU) is not part of the criminal justice administration in the current set-up in SA. It does nothing but act on proclamations issued in the exercise of the presidential power. In truth, it cannot act unless it has a presidential proclamation authorising it to investigate. The SIU is no more than a statutory debt-collection agency. When it uncovers corruption, it is required to refer and defer to the Hawks and the NPA. The body in the NPA that investigates corruption, the Investigating Directorate Against Corruption (IDAC), is as unconstitutional as the OPI would be if it ever saw the light of day, because it is not independent. This was explained in detail to the President when he was preparing to sign the IDAC bill into law, all to no good effect.
That the ability of the criminal justice administration to deal with serious corruption in SA is wanting is beyond dispute. This flaw is the subject matter of a detailed complaint by Accountability Now to the Office of the Public Protector which is currently under investigation.
In August 2020, long before the establishment of IDAC, the NEC of the ANC called upon cabinet to effect, urgently, what the Constitutional Court required of Parliament in the Glenister litigation, namely the establishment of a stand-alone permanent and independent entity to counter corruption. The NEC is the highest decision-making body in the ANC between conferences. It has never been explained in public why this sensible instruction has been ignored by the national cabinet, which, at all material times, has been dominated by ANC members and has been led by the President himself. The resolution taken by the NEC in August 2020 was discussed and celebrated in detail by Accountability Now, shortly after it was taken.
That resolution was drawn to the attention of the President in an email addressed to him by Accountability Now in November 2020. which is recorded on page 307 et seq. of “Under the Swinging Arch”, an ebook accessible for free by googling its title.
Draft legislation
No reply was received to that email, which also drew attention to draft legislation aimed at enforcing the decisions of the courts in the Glenister cases which Accountability Now prepared in 2020, after the NEC announcement.
The draft legislation caught the eye of Advocate Glynnis Breytenbach, currently co-chair of the justice portfolio committee in the National Assembly and former shadow minister of justice in the sixth parliament. On 1 November 2024 she presented fine-tuned refinements of the Accountability Now drafts to the said committee as private members’ bills. They are currently in the works in Parliament, as the legislation for a new Chapter Nine Anti-Corruption Commission (Ch9ACC).
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The Breytenbach bills are constitutionally compliant. Their successful passage through the legislative process requires the support of the ANC, because a two-thirds majority is needed to amend Chapter Nine of the Constitution and bring into being the stand-alone, permanent and independent body that the NEC of the ANC called for back in August 2020. The ANC commands roughly 40% of the seats in Parliament at present.
The President will do well to study the entire Glenister litigation saga as recorded in “Under the Swinging Arch.” He needs to appreciate the centrality of, and embrace, a single-entity approach: an entity independent of the executive branch of government, if corruption in SA is to be effectively dealt with in the future. To the extent that the NACAC report does not reflect a constitutionally pure approach, the executive should approach its recommendations with caution. There is much of value in the NACAC report but its interpretation of the binding Glenister judgments is wanting: inter alia, in the respects highlighted above.
Experience shows that the multi-agency approach has not worked in dealing with corruption in SA. What the law clearly requires is a single entity “one-stop shop”, as envisioned by the Constitutional Court. The NPA is not currently, and will not for the foreseeable future be, in a fit state to mount successful prosecutions of the seriously corrupt.
Specialist body
Adv Breytenbach, an ex-prosecutor, will be able to help recruit the expertise required by her Ch9ACC, if it is set up as a specialist body of trained experts who are within a structure that is independent, properly resourced and which operates with secure tenure of office. These STIRS criteria are what the courts require, not as a “nice to have” but as binding requirements of the law.
The Scorpions lacked secure tenure of office, but they did demonstrate as “The people’s Advocates” that SA does have the talent required to handle the corrupt. Its successful prosecutions of police chief Jackie Selebi, ANC chief whip Tony Yengeni and Schabir Shaik, (even the still pending corruption prosecution of Jacob Zuma is the work of the Scorpions) demonstrate that it is possible in SA to secure convictions in high-profile corruption cases.
The President can and should summon the necessary political will to secure the adoption of the Breytenbach bills. It will do the GNU and the country a power of good.
*Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt.
This article was first published by Daily Friend and is republished with permission