The establishment of the Madlanga Commission of Inquiry represents a significant moment in South Africa’s democratic and constitutional development.
Established following allegations made by KwaZulu-Natal Police Commissioner Lieutenant-General Nhlanhla Mkhwanazi concerning political interference, corruption, and the infiltration of law enforcement institutions by organised criminal networks, the Commission has become a lens through which the health of South Africa’s constitutional order is being examined.
At its core, the Commission examines whether institutions responsible for safeguarding the rule of law have become vulnerable to manipulation by political and criminal interests. These concerns are particularly significant in the aftermath of the State Capture era, which demonstrated how public institutions could be systematically weakened and redirected to serve private interests.
The allegations before the Commission suggest that similar patterns may persist within segments of the criminal justice system, especially in policing, intelligence operations, and prosecutorial decision-making.
The significance of these concerns is reflected in constitutional theory and legal scholarship. Constitutional Court Justice Albie Sachs argued that democratic institutions must function “without fear, favour or prejudice” if constitutional democracy is to be sustained.
When criminal investigations are allegedly manipulated, sensitive case dockets are transferred without adequate justification, or prosecutions appear selectively pursued, citizens may perceive the law as a political instrument rather than an impartial mechanism of justice.
Testimony dominated by IDAC witnesses in the past week was a classic demonstration of how such perceptions can weaken institutional legitimacy and public trust.
Furthermore, in recent weeks, our community has been shaken by troubling testimonies regarding the legitimacy of our criminal justice institutions. At the heart of this issue lies Tyler’s (2006) theory of procedural justice, which highlights the critical link between societal compliance with the law and public perceptions of legitimacy. Sadly, these perceptions are increasingly being challenged, raising alarm bells about the future of our justice system.
Legitimacy, as defined by scholars like Kelman and Hamilton (1989) and Hurd (1999), is founded on the belief that authorities not only deserve to rule but also that their actions are appropriate and just. Yet the Madlanga Commission hearings reveal a disturbing narrative; a growing number of citizens view our institutions with scepticism and distrust.
This erosion of legitimacy could demonstrate profound implications. Notably, when the public perceives the actions of the police and judicial systems as unjust or inappropriate, compliance and cooperation naturally diminish.
As a community, we must critically examine the findings from recent testimonies. It is imperative that our legal institutions take proactive steps to restore faith among the populace. This involves not only addressing the specific concerns raised but also fostering a culture of transparency and accountability.
The question remains: how do we restore legitimacy in a system that many now perceive as flawed? Would it begin with a commitment to fairness, equity, and the principles of justice that should underpin our legal institutions? Who would be the guardian to ensure that those entrusted to legitimise our criminal justice system are held wholly and authentically accountable to influence the rebuilding of trust that is vital for a functioning democracy and a healthy society?
If we fail to act, we risk further alienating a public that deserves, and indeed demands, a justice system that is legitimate in both perception and practice.
Undoubtedly, a central issue emerging from the Commission’s proceedings thus far is the challenge of impunity for law enforcers who have become obsessed with running their own internal shows where the benefits either feed their egos or their pockets.
These shows star several actors, including politicians, SAPS members, and civil society members. Thus, leading South Africans to justifiably conclude that when criminal actors acquire influence within institutions responsible for combating crime, the authority of the state itself is undermined.
In the case of legal authorities, empirical studies have indicated that the legitimacy of the police, the courts, and the law shapes a variety of important public behaviours. These include deference to police authority during personal encounters (Tyler; Huo, 2002), everyday compliance with the law (Jackson et al., 2012; Tyler, 2006b), and cooperation with the police (Tyler; Fagan, 2008).
Thus, perceptions that politically connected individuals evade accountability while ordinary citizens face prosecution can contribute to declining public confidence in the criminal justice system (Tyler, 2006).
Theoretical perspectives on institutional decline provide important insights into the issues being examined. North (1990) describes institutions as the “rules of the game” that structure interactions within society.
Where these rules are distorted by corruption or undue influence, governance is weakened, and accountability diminished. Similarly, Fukuyama (2014) argues that democracies can experience “repatrimonialisation,” a process in which public institutions cease to serve the public interest and instead become instruments of patronage, personal loyalty, and private enrichment.
South Africa’s experience during the State Capture period provides a practical illustration of this phenomenon. Further concerns relate to vulnerabilities within anti-corruption structures and law enforcement agencies.
Evidence and analysis emerging from the Commission suggest that jurisdictional disputes, operational fragmentation, and inadequate coordination between specialised investigative units may have undermined effective law enforcement responses.
In particular, tensions among SAPS, the Political Killings Task Team, and the Investigating Directorate Against Corruption (IDAC) have highlighted challenges stemming from overlapping mandates and competing institutional priorities. Such fragmentation may create opportunities for organised criminal networks to exploit weaknesses within the system and evade accountability.
Questions regarding institutional independence are equally important. The Constitutional Court in Glenister v President of the Republic of South Africa (2011) held that South Africa has a constitutional obligation to establish anti-corruption institutions that are adequately independent, properly resourced, and protected from political interference.
The Court recognised corruption not only as a criminal justice issue but also as a constitutional threat capable of undermining democratic governance. Allegations considered by the Madlanga Commission, therefore, raise important constitutional concerns regarding whether existing institutions possess sufficient autonomy and resilience to resist external influence (Glenister v President of the Republic of South Africa, 2011).
Ultimately, the Madlanga Commission represents a critical constitutional test for South Africa. Former Chief Justice Arthur Chaskalson consistently maintained that constitutional democracy depends not only on legal frameworks but also on a culture of constitutionalism that promotes accountability, transparency, and lawful conduct.
Regardless of their conclusions, social media platforms and news agencies have already highlighted the extent to which public confidence in legal and law-enforcement institutions has been eroded.
Perhaps now is the time for the acting Police Minister (Prof Firoz Cachalia) to undertake a national referendum seeking the public’s views on how they want to be policed and ultimately served justice if he agrees with Dio Cocceianus that “The more prevalent kind of democracy is bold and arrogant, difficult to please in anything, fastidious, resembling tyrants or much worse, seeing that its vice is not that of one individual or of one kind but a jumble of the vices of thousands; and so it is a multifarious and dreadful beast”.
Ι Gopal is a senior Criminology lecturer at the University of KwaZulu-Natal.
**The views expressed do not necessarily reflect the views of the National Media Group.