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The walls of South Africa’s criminal justice system are burning fiercely

What is required is urgent firefighting, not another long-running commission to replicate that which doubtless is already available.
Professor Balthazar
By Professor Balthazar
17 Jul 2025
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By his usual standards of vacillation, President Cyril Ramaphosa acted with lightning speed in appointing a judicial commission of inquiry to investigate the implications of the allegations made by KwaZulu-Natal Provincial Police Commissioner General Nhlanhla Mkhwanazi concerning the state of the criminal justice system.

To be sure, Ramaphosa should be commended for appointing Acting Deputy Chief Justice Mbuyiseli Madlanga to chair a commission mandated to investigate what the President referred to as “the infiltration of law enforcement intelligence and associated institutions within the criminal justice system by criminal syndicates”.

The country could not have wished for a more appropriately qualified judge to deal with this absolutely critical issue, supported as he will be by two senior counsel, advocate Sesi Baloyi SC and advocate Sandile Khumalo SC.  

Leaving aside the commendable decision to appoint highly qualified commissioners, a number of questions remain unanswered. 

In the first place, in May 2024, the President received a report by Professor Firoz Cachalia (now to be acting police minister) who at that time was chair of the National Anti-Corruption Advisory Council. The President did not release the report, nor has there been any tangible evidence that he has actively engaged therewith.

There was a further report by Professor Sandy Africa dealing with what was referred to as the “attempted insurrection” in July 2021, in which yet again the police were in the public eye for their inability to deal with the looting and lawlessness that went on for many days.

Then there was the monumental set of reports of the commission of inquiry into State Capture authored by then Chief Justice Raymond Zondo, which apart from ritual incantations of renewal by the ANC, has hardly received the kind of meaningful response from the President with regard to numerous politically connected figures who were on the receiving end of critical attention from the Chief Justice. 

The sharp point is that if there had been a will to cure the rot which is endemic in the criminal justice system in general, and law enforcement agencies in particular, the compelling evidence which has now again been repeated by Lt Gen Mkhwanazi could have led to tangible steps being taken by the President over the past three years.  

The terms of reference of the commission of inquiry are exceedingly broad. True, Judge Madlanga has been asked to issue an interim report within three months, but given the breadth of the terms of reference, one can reasonably expect this commission to drag on for a considerable amount of time.  

Urgency


But urgency is clearly demanded, given the damning allegations made by a senior police official. The least that could have been expected of the President was to demand the production of a report within three months, which focused entirely on testing the allegations made by Lt Gen Mkhwanazi and containing recommendations as to what responses the state should take in regard thereto. 

The walls of the criminal justice system are burning fiercely. What is required is urgent firefighting, and not another long-running commission to replicate that which doubtless is already available in the previous reports to which reference has been made. 

One can only hope that the Acting Deputy Chief Justice will on his own initiative concentrate exclusively on the Mkhwanazi allegations and inform the public by way of an interim report as to the veracity thereof within the three-month period.

The fact that the President has seen fit to appoint a judicial commission of inquiry also reflects luminously on his attitude as to the ability of the legislature to do its tasks, namely, holding the executive accountable.  

We know that the Speaker has commissioned various committees of Parliament to deal with this matter. Committees have powers of subpoena to pursue a meaningful inquiry. 

However, one suspects that given Parliament’s performance over a number of years with regard to its failure to hold the executive accountable, the President was left with little option other than the tried and tested recourse of a commission of inquiry.

This scenario calls into attention a broader problem within the context of the South African government. 

As this column has made clear previously, the Nobel Prize for Economics to Daron Acemoglu, Simon Johnson and James Robinson was given to these economists because they demonstrated the importance of societal institutions for a country’s prosperity. In particular, their research highlighted how societies with a poor rule of law and weak institutions that exploit the population cannot generate growth or change for the betterment of the population at large.  

The President is keen on speaking of vast amounts of investment that are supposed to be flooding into the country. The reality is that investments will not flood into this country when institutions of governance and the rule of law are as weak as they appear to be on the basis of Lt Gen Mkhwanazi’s claims.  

Public criticism


Over the past number of months, the National Prosecuting Authority, the Competition Commission, the Competition Tribunal and the South African Police Service have all been roundly criticised in public. 

Indeed, it is hard to think of viable institutions in South Africa save for the South African Reserve Bank, the South African Revenue Service and – notwithstanding comments made by General Mkhwanazi – the judiciary. 

Yet there has been remarkable vacillation about dealing with the inadequacy of these key institutions, all of which are vital for the health of the economy.   

Take, for example, the recommendation by the National Director of Public Prosecutions that advocate Andrew Chauke, the Gauteng head of the NPA, be suspended by the President. The request by advocate Shamila Batohi was made in August 2023. Almost two years later, the President has still not acted upon the recommendation.     

A further illustration of the President’s ability to kick the can down the road must be the National Dialogue.

Why, one might ask rhetorically, is a National Dialogue needed when it is surely clear from the National Development Plan and the countless economic proposals that have been published and the library of reports regarding State Capture and inadequate service delivery, that the country’s problems and solutions are well documented?

Hundreds of millions of rand will be spent on the dialogue, which doubtless will produce no further insights than already exist. To be fair, there is the advantage that the dialogue can help weld the country together.

But absent implementation of the necessary socioeconomic changes – which are surely common cause – talking alone will not suffice. The sharp point is the lamentable failure over many years to follow upon multiple recommendations by implementing a curative programme. DM