The NPA prefers to persist with the Investigating Directorate Against Corruption despite its inherent unconstitutionality and despite what the rule of law demands of it.
On 25 April 2025, the National Prosecuting Authority held a roundtable discussion with civil society organisations (CSOs), both online and at a venue in Pretoria. It was billed as interactive and solutions-oriented. It was interactive, certainly, solutions-oriented – not entirely.
The proceedings started with the reflections of NPA head, Shamila Batohi, on her insights gleaned from the NPA annual report, the lessons she has learnt and her list of anticipated challenges for the next NDPP who will succeed her in January 2026 when she retires after six years of service.
This presentation was followed by insights from “Prioritisation and Performance Areas” in which senior NPA personnel took the CSO attendees through the housebreaking prioritisation project, a study on organised crime and “the role and impact of Trauma Counselling Centres in supporting victims of gender-based violence”. According to the attendee from the Teddy Bear Foundation, rape cases involving children have a 4% success rate in SA.
Attendees from the CSOs were then given the floor to ask questions and provide their input.
Anti-corruption work
While it is appropriate to commend the openness of the occasion and to congratulate the NPA on the good work it is doing in so many facets of its work in the face of budget cuts and trying working conditions, the focus of this note is on anti-corruption work at which the NPA does not shine.
This is not to say that the NPA is unable to overcome its admittedly captured status during the State Capture period, a period which has not really ended. On the contrary, the purpose here is to test fidelity to the rule of law and, through that fidelity, to raise the doctrine of judicial precedent as reasons for contending that the NPA has no business involving itself in the prosecution or investigation of corruption of a serious nature.
Not because of the lack of success, but because these tasks belong elsewhere, in a body outside executive control, according to a binding decision of the Constitutional Court which has not been properly implemented.
In the anti-corruption context in SA, it is important to have regard to the rule of law and to the binding nature of decisions of the courts that relate to the appropriate way to counter the corrupt. The most basic AI overview reveals that:
“The rule of law requires that all individuals, including public officials and government institutions, are subject to and accountable under the law. Court decisions are a crucial part of upholding the rule of law, ensuring that laws are applied fairly and impartially. These decisions are binding on all persons and state organs to which they apply, and they must be made by independent and impartial courts.”
In the Constitution of SA, the rule of law is regarded as supreme: per Section 1. In terms of Section 165 (5), “an order or decision issued by a court binds all persons to whom and all organs of state to which it applies.”
In the Glenister litigation, waged thrice over between 2008 and 2014, the NPA, the president and the ministers of justice and police were parties to an attack upon the constitutionality of replacing the investigative functions of the Scorpions (eventually disbanded in 2009) with an investigating body within the police.
Political responsibility for this body, known colloquially as the Hawks, resides in the hands of the minister of police, whose task it is to determine national policing policy. The NPA has the power to institute criminal proceedings on behalf of the state. It is subject to the minister of justice having “final responsibility over” it under Section 179(6). The minister must concur in prosecution policy under Section 179(5)(a). The director-general of justice is the accounting officer of the NPA and it is operated as a programme within the Department of Justice.
Glenister Two
The majority judgment of the Constitutional Court in the case now known as Glenister Two gives careful consideration to these structures and reporting lines before coming to the wise and binding conclusion in paragraph 200 of its judgment that “our law demands a body outside executive control to deal effectively with corruption”.
As can be seen from the constitutional framework summarised above, neither the police nor the NPA are “outside executive control”. Despite the best lobbying efforts of the NPA, this is still, in 2025, the position.
The use of police personnel to investigate serious corruption has been a failure. The creation of an Investigating Directorate against Corruption (Idac) within the NPA bears mute testimony to the inability of the police to bring the necessary sapiential authority to bear on the task at hand. Many of the best investigators of corruption are employed by the SIU, which is not a part of the criminal justice system. SIU investigators are better paid than those in the criminal justice system.
Obviously, any successful corruption prosecution is preceded by a professional investigation.
The NPA itself does not enjoy institutional or operational independence, a fact repeatedly bemoaned by its leadership. All efforts to secure greater independence for it have come to nought. Even if it were to secure an adequate form of independence, it is a general prosecutions body, not a specialised body of the kind contemplated by the majority decision, as quoted above.
It would accordingly not fit the description of the particular “body outside executive control” that the court requires because of its lack of specialised focus on combating corruption.
Idac itself does not cut the constitutional mustard. This has been explained to the President and the NPA and indeed the public, ad nauseam. This is just one example.
Very properly, the leadership of the NPA does not regard itself as being involved in politics. It is, however, inextricably involved in the law, tasked constitutionally with the prosecution of crime in general.
The sad truth is that the politicians, up to now, have been unable to give proper effect to the prescriptions and criteria (the Stirs criteria) of the Glenister litigation. This is so despite the encouragement of the ANC’s National Executive Committee as long ago as August 2020.
A cure for the problem is at hand. The co-chair of the justice portfolio committee in the National Assembly, Glynnis Breytenbach, a former prosecutor, has introduced two Bills to establish and enable a new Chapter Nine body, the Anti-Corruption Commission. Not a toothless commission of inquiry, this proposed new body will be empowered to prevent, combat, detect, investigate and prosecute serious corruption and organised crime. As a Chapter Nine body, it would be, like all other such bodies, outside of executive control as is required by the highest court in the land.
Before the CSO engagement, the NPA was given a list of questions by Accountability Now that included:
- Given that section 179(4) of the Constitution [C 179] requires that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice,” and given that there is no such legislation, what has and is being done by the NPA about the failure to put any such legislation on the statute book in SA? Does the NPA have any drafts? Will it share them with civil society?
- Does the NPA plan to do anything in future about the failure of the government to enact the legislation required by C 179(4)? If so, what exactly is planned; if not, why not?
- Does the NPA recognise that it lacks the operational and structural features to enable it to act without fear, favour or prejudice? If not, why not?
- Is it appropriate in a dispensation in which the NPA is required to act without fear, favour or prejudice, that it operates as a programme within the Department of Justice under the final responsibility of the minister of justice, who must concur in all prosecution policy and whose director-general is the accounting officer of the NPA?
- The NPA was a party to the Glenister litigation. Does it regard itself as bound by the findings in that litigation pursuant to the provisions of C 165(5)? If not, why not?
- What has the NPA done since 2011 to secure compliance with the requirement of Glenister Two that a body outside executive control deal with corruption in a Stirs-compliant way as per para [200] of the binding majority judgment and orders 5 & 6 in the case?
- What does the NPA plan to do to secure compliance with the said judgment in accordance with the rule of law and the doctrine of judicial precedent?
- Does the NPA accept that its new directorate, the Investigating Directorate against Corruption (Idac), is not a constitutionally compliant body for the reasons spelt out in Accountability Now’s email to the President in May 2024.
- If there are factual errors or flaws in the reasoning set out in the email to the President linked to above, please enlighten us or confirm to us that there are no factual errors or flaws in the reasoning.
- The NPA has “noted”, per the late Rodney de Kock, the draft Bills we sent you in August 2020, and upon which are based the two private members Bills piloted by Adv G Breytenbach, a former NPA prosecutor and formerly shadow minister of justice, now co-chair of the Justice Portfolio Committee in the National Assembly. Does the NPA have any reservations or doubts about any of the provisions in the two Bills? If so, what are the reservations and doubts; and what can be done to improve the Bills? If the NPA has no stance on the Bills, why is that so?
- Does the NPA agree that the said two Bills would lead to the creation of a body outside executive control, which would be capable of being Stirs compliant?
- What, if anything, is the NDPP doing about the complaint of Accountability Now to the Public Protector regarding the failure of government to comply with the Glenister decisions as set out fully in the complaint itself? and
- What is the current status of the disciplinary proceedings against Gauteng DPP Andrew Chauke, and when will the NDPP’s review of his decision in the Zizi Kodwa matter be published?”
The Bills sponsored by Breytenbach are discussed here.
The NPA prefers to persist with Idac despite its inherent unconstitutionality and despite what the rule of law demands of it in relation to respecting the judgment in Glenister as quoted above. More’s the pity. It did not answer the written questions, but does regard the Breytenbach Bills as a political issue in respect of which it would prefer not to express itself in public.
A suggestion was made from the floor during question time at the CSO engagement that the principles of cooperative government and intergovernmental relations detailed in Section 41 of the Constitution should be invoked by the NPA in order to improve its effectiveness and efficiency as well as its compliance with the rule of law.
Why ever not? Before it does so, the NPA should stop avoiding the list of questions alluded to above and give its public answers to all of the questions posed by Accountability Now.
Its unwillingness to do so during the CSO engagement is surely not only attributable to the limited time available during the engagement, and may signify that it remains captured by a feral executive led by a politician who has never properly explained the presence of a great number of dollar bills in a couch at his farm. DM