Paul Hoffman: Towards an independent National Prosecuting Authority

The NPA’s latest annual report revives a push for operational and financial independence from the Justice Department, but it would keep the minister’s final responsibility over the prosecuting authority. Paul Hoffman SC, lead counsel in the Glenister litigation, argues that this falls short of the Constitutional Court’s binding order that anti-corruption bodies sit outside executive control. Fifteen years on, the Hawks have failed, IDAC has imploded before the Madlanga Commission, and the ANC, DA and MKP each want something different. Hoffman says the stakes for South Africa are existential, and that only a new Chapter Nine body can turn the tide against corruption and organised crime..By Paul Hoffman*.The 2025/2026 annual report of the National Prosecuting Authority (NPA) was published by the Parliamentary Monitoring Group on 30 September 2026. The foreword of the report was signed by the head of the NPA, National Director of Public Prosecutions, newly promoted Adv Andy Mothibi, on 31 August 2026.The report contains some important reflections on its 22nd page, worth quoting in full:“In February 2026, the management of the NPA and the NDPP Adv. Andy Mothibi resolved to revive and advance the work previously undertaken by the organisation concerning the possible enhancement of the NPA’s operational and financial independence from the Department of Justice and Constitutional Development (“the Department”). Against this background, consideration is given to whether the existing financial governance model adequately supports the NPA’s constitutional role, or whether appropriate reforms may be required to strengthen the NPA’s operational and financial autonomy. Any such reforms would necessarily seek to preserve the constitutional principle of the Minister’s final responsibility contemplated in section 179(6) of the Constitution, together with the applicable oversight, accountability, and public finance management mechanisms. Furthermore, such reforms would aim to strengthen the NPA in the effective discharge of its duties. The Legal Affairs Division (LAD) in consultation with the state attorney facilitated the appointment of a legal team led by reputable Senior Counsel to undertake this work, supported by a project team consisting of officials from the NPA, SIU and the Legislative Development Unit within the Department. During consultation with Counsel, it was resolved that a consultation with designated officials in various entities was necessary in view of the strategic role that they play within the inter-governmental setting and the impact the process might have on government broadly. A preliminary opinion, with an outline of work to be done, has been obtained from the legal team, such will be considered during a project review consultation to be held during July 2026, after which the legal opinion will be completed for a formal submission to be made to the Department with a clear proposal on the best model to give effect to the operational and financial independence objective. It is projected that the amendments, if any, would be tabled during the next reporting period.”The most significant aspect of this passage relates to the role of the minister of justice in the NPA. It reads:“Any such reforms would necessarily seek to preserve the constitutional principle of the Minister’s final responsibility contemplated in section 179(6) of the Constitution, together with the applicable oversight, accountability, and public finance management mechanisms.”Although the authors of the report cannot bring themselves to spell out the dire circumstances of the NPA, it is pertinent to spell out for the lay reader that section 179, in keeping with the theme of that entire section, headed “Prosecuting Authority” prescribes a general constitutional requirement not only that the minister is given the power to “exercise final responsibility over” the NPA, the minister also enjoys what is in effect a veto right over prosecution policies developed by the leaders of the NPA (section 179(5)). These structural features do not fit in with the requirements of the law, as laid down in the Glenister litigation which prescribes, in binding terms, that those involved in dealing with corruption and organised crime must be “outside executive control”. The NPA is run as a programme of the department of justice; its director general is the accounting officer of the NPA.Section 179(4) relates to the way in which the NPA operates, not to the way in which it is structured. It provides that:“National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”See: https://accountabilitynow.org.za/are-sas-prosecutors-free-to-act-independently/. The role of parliament in the structure and operations of the NPA is constitutionally reinforced by section 179(7) which provides that:“All other matters concerning the prosecuting authority must be determined by national legislation”.It is to this provision that one must turn in order to make sense of the orders given in the case now called Glenister Two, the litigation concerning the disbandment of the Scorpions and their replacement, from an investigative perspective, by the Hawks. The Scorpions had received a mandate from parliament to tackle corruption both at investigative and prosecutorial levels. Investigations of this kind had been handed over to the Hawks, a police unit, by parliament upon the disbandment of the Scorpions in 2009. This legislative change was declared inconsistent with the Constitution and “invalid to the extent that it fails to secure an adequate degree of independence for” the Hawks. This order was made in March 2011 and parliament was given 18 months to remedy the defect in the legislation it had passed.Instead of securing an adequate degree of independence for the Hawks, the order of court was fudged away by parliamentary tinkering with the provisions which created the Hawks. When the tinkering was challenged, the court further tweaked the legislation itself, but allowed the Hawks to continue with their anti-corruption work in addition to the other priority crimes allocated to the Hawks by parliament. The Hawks have consistently failed to discharge this anti-corruption mandate properly. The Hawks efforts have been neither effective nor efficient.The orders made in Glenister Two are predicated upon international treaty obligations of the state to keep independent anti-corruption machinery of state and upon its duty to “respect, protect, promote and fulfil” the human rights guaranteed to all in the Bill of Rights. Short delivery on this duty is attributable, at least in part, to the failure of successive parliaments to properly address the legal underpinning of the decisions made in Glenister Two. The court was at pains to describe the effects of corruption on the health of democracy in the country. It noted in the majority (and therefore binding) joint judgment of Deputy Chief Justice Moseneke and Justice Cameron at paragraph 200 that:“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.”The court went on to hint in paragraph 205 that parliament would do well to create a new Chapter Nine body to do the anti-corruption and anti-organised crime work of the state in SA:“We add that any obligation binding upon the Republic under international law must not conflict with express provisions of the Constitution, including those in the Bill of Rights. Here, there is no conflict. Far from containing any provision at odds with the obligation to create an independent corruption-fighting entity, the very structure of our Constitution — in which the rule of law is a founding value, which distributes power by separating it between the legislature, the executive and the judiciary, and which creates various institutions supporting constitutional democracy, which it expressly decrees must be independent and impartial — affords the obligation a homely and emphatic welcome.”Even in Glenister Three, the opening words of the majority judgment are terse but telling:“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 South Africa 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.”Eventually, when the situation became increasingly parlous, the term of office of Zuma was ended in 2018 and his replacement as president moved to create first the Investigating Directorate within the NPA and then, via legislation rather than proclamation, the Investigating Directorate Against Corruption or IDAC as a directorate within the NPA (from which all investigative capacity had been stripped when the Scorpions were scuttled.) Today, as is being revealed by the work of the Madlanga Commission, the war on corruption and organised crime in SA is being won by the corrupt and the criminals both within and outside the state, including the criminal justice administration itself. Although the courts found that closing down the Scorpions was a lawful exercise of the powers of parliament, the current Acting Minister of Police, has conceded under oath, that it was a mistake to end the Scorpions and replace them with the Hawks. The IDAC, both structurally and operationally, is, legally speaking, indistinguishable from the Scorpions (quality of personnel aside) as both were set up to deal with corruption and organised crime as a unit within the NPA with investigative capacity. Parliament is back where it started before it disbanded the Scorpions. The future of IDAC is uncertain: the second and third biggest parties in parliament do not want it to continue. The DA favours a Chapter Nine body it calls the “Anti-Corruption Commission” while the MKP wishes to revert to the pre Scorpions dispensation in which all crime of whatever nature is investigated by SAPS and prosecuted by the NPA. The weaknesses in both institutions, both structurally and operationally, make this an attractive option for those with the baggage of “smallanyana skeletons” in their corruption closets.It cannot be argued seriously that the IDAC is a constitutionally compliant body. On the day in May 2024 when he signed the bill for the IDAC into law, President Ramaphosa received an early morning email from Accountability Now explaining in detail why it is that the IDAC is unconstitutional. https://accountabilitynow.org.za/the-future-of-countering-corruption-after-ramaphosa-hastily-signs-flawed-idac-law/. Since then the IDAC has imploded spectacularly during evidence received from its leadership in the Madlanga Commission. The NPA, with the support of SA’s first non-lawyer minister of justice, plans a “reset and renewal” of the IDAC; the DA and MKP have other plans for it which are of a divergent nature.The powerful finding in Glenister Two that:“…Our law demands a body outside executive control to deal effectively with corruption” has yet to be implemented. It is the duty of parliament as the body ordered to pass appropriate remedial legislation, to find a way to remedy the situation. The tower of babel comes to mind when the ANC “reset and renew” strategy is contrasted with the DA’s Chapter Nine body and the MKP’s desire for a reversion to the pre-Scorpions era.It behoves all concerned to have proper regard to what the courts have laid down in binding fashion in the passages from judgments of our apex court quoted above. No one is suggesting that the Hawks (and even the IDAC in its current incarnation) are the appropriate institutions, while a reversion to the pre-Scorpions dispensation, may only appeal to those liable to be investigated and prosecuted by a properly designed anti-corruption body that complies optimally with the various “STIRS” criteria laid down in Glenister Two.The Chapter Nine body hinted at in Glenister Two and the bills promoted by the DA are the best practice solution to a problem that constitutes an existential threat to the future of constitutional democracy in SA. The evidence led from world expert on corruption and organised crime, Dr Mark Shaw, at the Madlanga commission is chilling:https://accountabilitynow.org.za/forget-the-hawks-paul-hoffman-sc-says-sa-needs-the-eagles/. .Read more:.Is the NPA truly independent or under executive control?: Paul Hoffman.It is simply not appropriate to tinker with the existing systems that seek to counter corruption in SA. A reset, not of the IDAC – an unconstitutional failed experiment – but of the entire system that aims to counter the corrupt and organised criminals effectively and efficiently as is required by Section 195(1)(b) of the Constitution. The NPA as constituted currently is not fit for this purpose. However, the new Chapter Nine body envisaged in the pending DA bills is the best known solution to the task of rendering the war on organised crime and corruption constitutionally compliant..*Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox every morning on weekdays. Register here.Support South Africa's bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. 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Paul Hoffman: Towards an independent National Prosecuting Authority

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