Every governance system begins with a difficult assumption: that those entrusted with authority will exercise it lawfully, fairly and with restraint. Boards oversee, executives manage, regulators supervise, and committees investigate, recommend and discipline. Yet the harder question arrives when the use of that power itself becomes contested.
Who governs those who govern?
This question has become increasingly relevant in South Africa’s public and corporate governance landscape. It is visible where suspensions and administrative interventions are challenged and set aside in court, where regulators are accused of exceeding their authority, where commissions expose mandate drift, and where boards face legal consequences for decisions later found unlawful.
The NSFAS matter now brings the lesson into sharp focus. The institution had already been placed under administration following reported governance, financial and operational concerns. The Gauteng High Court has now suspended the appointment of Professor Hlengani Mathebula as administrator and ordered the reinstatement of the board. The issue is not whether NSFAS required urgent attention. The governance question is whether an intervention intended to restore order was itself exercised through a lawful and procedurally defensible route.
The PIC matter reinforces the same point in another setting. The Gauteng High Court set aside the precautionary suspension of chief executive Patrick Dlamini and declared the suspension notice unlawful and invalid. The judgment found that the board acted without the required ministerial and Cabinet approval. Suspension may be a legitimate governance instrument, but it becomes vulnerable when authority, process, records and fairness are unclear. The label “precautionary” cannot cure a defective process. Governance requires lawful authority, proper reasons and procedural discipline.
The RTMC matter illustrates this sharply. The Gauteng High Court, yet again, set aside the precautionary suspension of chief executive Makhosini Msibi after finding that the board lacked the legal authority to suspend him. The court also dealt with the board charter that had been relied upon, reinforcing the point that governance documents must themselves rest on proper authority. A board may believe it is acting in the interests of the institution, but belief cannot replace delegated power.
This is one of the most important lessons in governance. Power must have a source, limits and a record.
The same principle applies beyond suspensions. In the Sipho Pityana matter involving Absa and the Prudential Authority, the Gauteng Division of the High Court found that the Prudential Authority acted unlawfully and in excess of its powers by engaging in an informal process in connection with his nomination as chairperson. That case is important because it shows how informal influence can become a governance problem when it affects rights, process and institutional outcomes without following the formal path created by law.
Regulators are essential to healthy markets. Their authority protects the public, depositors, investors and systemic confidence. Yet even regulatory power must remain within lawful boundaries. The guardian also has rules.
The unfolding evidence around IDAC before the Madlanga Commission adds another dimension. The former head of IDAC, Advocate Andrea Johnson, reportedly conceded that she erred in concluding that a particular corruption matter fell within the directorate’s mandate.
The commission has also heard difficult evidence about the speed, basis and authority of certain investigative steps. These matters remain subject to proper findings. The governance point is that institutions with coercive public power carry an even heavier duty to stay within mandate.
Where an anti-corruption body acts outside its mandate, the harm is not procedural only. Public confidence is damaged because the institution created to uphold legality may itself appear uncertain about the limits of its power. That is why commissions of inquiry, courts and parliamentary oversight matter. They create a place where power can be questioned when internal systems have failed to reveal enough.
The SABC and Hlaudi Motsoeneng success-fee matter remains another strong reminder. The Local Division of the Gauteng High Court reviewed and set aside the decision to pay Motsoeneng more than R11.5 million, declaring the decision unlawful and invalid. Later, former SABC board members were ordered to pay the amount jointly and severally. This shows that governance decisions do not disappear once the meeting ends. They can return years later through court papers, audit trails and recovery proceedings.
Minutes, resolutions, reasons and conflicts therefore matter. They are not administrative debris. They are the institutional memory through which power is later judged.
The Companies Act, PFMA, entity-specific legislation, King V, memoranda of incorporation, board charters and committee terms of reference all exist to discipline power. They tell institutions who may decide, how decisions must be taken, what interests must be declared, what records must be kept and which processes must be followed before rights are affected.
The problem begins when governance instruments are treated as internal conveniences rather than binding disciplines. Their legitimacy depends on lawful foundations, proper authority, statutory compliance and respect for process. Once charters, suspensions, regulatory interventions, executive decisions or board actions are used outside those boundaries, the very instruments meant to protect governance can become the source of governance failure.
Governance fails when those entrusted to exercise power become the only people able to explain, justify and protect that power.
This is where access to independent accountability becomes essential. Courts test legality. Regulators supervise conduct. Commissions expose hidden patterns. Parliament interrogates public institutions. Auditors test records. Shareholders, members and stakeholders demand explanations. Whistleblowers surface uncomfortable information. Company secretaries, internal auditors and governance professionals protect process from within.
Each of these mechanisms answers the same question in a different way: who watches the watchers?
The answer should not rest in one person. It should lie in a system of reviewable authority.
For boards, the lesson is direct. Decisions must be properly authorized, supported by evidence and recorded with sufficient clarity. Dissent must be captured. Conflicts must be managed. Reasons must be capable of surviving scrutiny. A board that cannot explain how it reached a decision has already weakened the decision, even before a court examines it.
For executives, the lesson is equally important. Management power is delegated, not inherent. Executives operate within mandate, policy, contract and law. Where management controls information flows, suppresses escalation, withholds records, or treats oversight as interference, governance becomes fragile. The organization may still have structures, but their ability to restrain power is compromised.
For regulators and public authorities, the lesson is that public interest does not excuse procedural shortcuts. Lawful power is strongest when exercised transparently, formally and within jurisdiction. Informality may seem efficient, but it can create uncertainty, unfairness and eventual litigation.
For affected individuals and institutions, the courts often become the final guardian. That is sometimes necessary, but it should trouble institutions when the only meaningful route to accountability lies outside the organization. The NSFAS and PIC developments show the danger of court correction becoming routine. Good governance should provide internal clarity before litigation becomes inevitable. Yet the goal is not to avoid accountability, but to make it so disciplined internally that external correction becomes the exception, not the norm.
The deeper issue is therefore not whether institutions should act against wrongdoing. They must. Allegations must be investigated, misconduct must carry consequences, public funds must be protected and executives and directors must be held accountable. Yet accountability pursued without lawful process becomes another form of governance failure.
Power must be disciplined by process.
South Africa needs institutions that can act firmly without becoming arbitrary, investigate seriously without prejudging, regulate strongly without overreach and govern decisively without losing the discipline of law. The strength of governance is measured not only by the power to act, but by the willingness to have that action tested.
Who governs those who govern?
In a constitutional democracy, the answer must be found in law, records, reasons, independent oversight and the courage to make power answerable. Governance begins by giving power direction. It matures when power itself can be questioned.
* Nqobani Mzizi is a Professional Accountant (SA), Cert.Dir (IoDSA) and an Academic.
**The views expressed do not necessarily reflect the views of the National Media Group.