Authored By: Katlego Phakedi
Eduvos
Abstract
Judicial commissions of inquiry are used in South Africa as tools to investigate allegations of corruption and institutional failure. Grounding their work in constitutional values such as transparency, accountability, and the rule of law, these commissions are intended to establish the truth and recommend corrective measures.[1]. This article evaluates the effectiveness of judicial commissions of inquiry as an instrument for state accountability in South Africa with particular reference to the Madlanga Commission. It adopts an in-depth evaluation method by assessing the legal framework surrounding these commissions and evaluating their practical impact on governance. The article argues that while commissions of inquiry are crucial for investigating facts and increasing public awareness, their ability to ensure accountability is often limited by structural constraints, such as reliance on political will and their advisory nature. The article concludes that while commissions enhance procedural transparency and accountability, their effectiveness remains conditional and, in certain instances, largely symbolic.
Introduction
Judicial commissions of inquiry have emerged as a prominent mechanism in South Africa’s constitutional democracy, primarily tasked with addressing corruption, maladministration, and systemic governance failures.[2] Established primarily under Section 84(2)(f) of the Constitution of the Republic of South Africa, 1996[3]. These commissions are intended to investigate matters of public concern and to promote transparency and accountability within state institutions. By acting in this manner, they serve as an important mechanism for the government to uphold the rule of law and restore public confidence in governance.
The purpose of this article is to examine whether judicial commissions of inquiry effectively promote accountability in South Africa, with specific reference to the Madlanga Commission. Judicial commissions are designed to gather evidence, summon witnesses, and produce a final comprehensive report. While they have the authority to compel people to testify or produce documents and can function similarly to a court, they cannot directly prosecute individuals or legally enforce their own recommendations. They ultimately function as advisory, truth-seeking bodies whose findings can shape future action, but lack the binding enforcement powers to implement consequences or mandate compliance. And as a result, some doubts arise regarding their practical effectiveness in ensuring that wrongdoing is addressed and that meaningful reforms are implemented.[4]
The Madlanga Commission established procedural accountability by exposing administrative failures, yet its impact on substantive accountability was limited by the non-legally binding nature of its recommendations.[5]. By examining the commission’s terms of reference, its core legal findings, and the subsequent implementation of its report, this analysis will evaluate whether such judicial interventions are a genuine catalyst for legal reform or if they are constrained by the boundaries of executive discretion.
This article is structured as follows: the first section outlines the legal and constitutional framework governing commissions of inquiry in South Africa. The second section examines their role and functions within the broader system of governance. The third section provides a critical analysis of the Madlanga Commission and evaluates its effectiveness in promoting accountability.
Background
Judicial commissions of inquiry are investigative bodies established by the Interim Constitution of 1993(Section 105), and section 178(5) of the Constitution to examine matters of public concern. In South Africa, these commissions are typically appointed by the president under Section 84(2)(f) of the Constitution of the Republic of South Africa, 1996, and derive their authority from the Commissions Act 8 of 1947 and the Constitution.[6]. Their Main function is to gather evidence, establish facts, and make recommendations aimed at addressing systemic issues within public institutions.
The establishment of such commissions reflect the constitutional commitment to accountability, transparency, and the rule of law. Section 1of the Constitution identifies these values as foundational, thereby providing the normative basis for the use of commissions as tools of governance.
The Madlanga Commission was created within this framework to investigate the allegations of corruption and institutional failure within the criminal justice system. The establishment of this commission demonstrates that the government still relies on commissions of inquiry to address complex governance challenges and restore public confidence in state institutions.[7]
Main Body
Section 1: The Legal Framework Governing Commissions of Inquiry
In South Africa, judicial commissions of inquiry are created under a legal framework that defines their powers and limitations. According to the Commissions Act 8 of 1947[8]Commissions have the authority to summon witnesses, require the production of documents, and collect evidence related to their investigations. [9]
From a legal perspective, appointing a commission of inquiry is considered an exercise of executive rather than administrative action. This distinction is crucial for accountability while executive acts are not subject to the Promotion of Administrative Justice Act (PAJA), they are still strictly bound by the Principle of Legality. As established in the President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU III)[10]The President’s power to appoint a commission is not absolute and must be exercised rationally. In the context of the Madlanga Commission, the legal framework requires that its terms of reference must be clearly defined to ensure that the inquiry does not exceed its constitutional mandate.
Furthermore, the legal framework establishes that a commission acts primarily as an advisory body. As confirmed by the Constitutional Court in SARFU III[11] The findings and recommendations of a commission do not bind the President. The President retains the discretion to decide which recommendations to implement. This inherent legal constraint is the core debate over accountability. If the legal framework ensures a rigorous investigation but allows executive noncompliance, the commission’s role as a catalyst for reform is effectively mitigated by the very laws that govern its existence.
Section 2: The Role and Functions of Judicial Commissions
Within the broader system of South African governance, Judicial commissions play a vital role in uncovering facts and promoting transparency within democratic systems[12]. The Judicial Commission’s primary role is to conduct formal and independent investigations into matters of serious public concern. Through public hearings and detailed reporting, they enhance public understanding of governance failures and provide a platform for accountability.[13]This role is essential for maintaining the fundamental agreement between the government and the people, as it provides a public forum for scrutiny and transparent accountability.
In Heath v President of the Republic of South Africa 2001 (1) SA 883 (CC)[14]The Constitutional Court emphasised the importance of maintaining the separation of powers, highlighting that investigative bodies should not assume judicial functions. This reinforces the position that commissions are primarily fact-finding institutions rather than courts of law.[15] While the members of the judiciary may head them, their role is to assist the executive in uncovering the truth rather than adjudicate on legal guilt or innocence.
Essentially, this distinction is vital for understanding the accountability gap: because a commission’s findings are not judicial, they don’t carry the legal finality of a high court. However, the Heath judgement clarifies that their power lies in their independence and their ability to provide a neutral factual record instead of stripping their value. In the context of the Madlanga Commission, this meant that while Justice Madlanga could not legally mandate a new salary structure, his findings established a powerful evidentiary foundation. This effectively forced the state to address systemic public service inequalities under intense public and legal pressure.
Scholars have further emphasised their democratic value. Budlender argues that commissions strengthen accountability by exposing wrongdoing and enabling public participation in governance.[16]
Section 3: A Critical Analysis of the Madlanga Commission
The Madlanga Commission serves as a contemporary example of the use of judicial commissions to promote accountability within South Africa’s constitutional framework. [17]Established to investigate allegations of corruption and interference in the criminal justice system, the Commission reflects the government’s reliance on independent panels to uncover systemic failures and restore public confidence in key institutions.[18]
A key strength of the Commission lies in its ability to discover facts through extensive investigative powers. In terms of the Commissions Act 8 of 1947, including the ability to subpoena witnesses and compel evidence under oath.[19] These powers enhance transparency and allow the Commission to construct a comprehensive report of the issues under investigation, making it easier to uncover unethical misconduct, thereby supporting accountability. This function was recognised in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC), where the Court affirmed the importance of commissions in addressing matters of public concern.[20]
However, the effectiveness of the Commission is limited by the non-binding nature of its findings. Judicial Commissions do not have the authority to impose legal consequences, as proven in Heath v President of the Republic of South Africa 2001 (1) SA 883 (CC), where the Court clarified the distinction between investigative bodies and courts of law. Essentially, the success of the Madlanga Commission in promoting accountability depends on whether the executive or prosecuting authorities act on its recommendations. Critics argue that relying on political involvement weakens commissions, especially when past recommendations have not been fully acted upon.
Despite this limitation, the Commission still contributes to accountability by promoting transparency and public scrutiny. In Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC), the Court emphasised the constitutional importance of accountability and openness.[21] By placing information in the public domain, the Commission ensures greater accountability and scrutiny.
Furthermore, commissions may serve as catalysts for subsequent legal and institutional action. Their findings can inform criminal investigations, disciplinary proceedings, and policy reforms. Academic writers such as Cora Hoexter argue that commissions play an important role in strengthening administrative accountability, even where they lack direct enforcement powers.[22] Similarly, Dyzenhaus notes that commissions help the executive in making informed decisions by providing a detailed factual record.[23]
Overall, while the Madlanga Commission demonstrates both the strengths and limitations of judicial commissions, it cannot be said that such bodies are ineffective. Rather, their contribution to accountability is conditional and indirect. They are most effective when their findings are followed by decisive action from the relevant authorities. Without such implementation, their impact remains limited.
Conclusion
The central inquiry of this article has been whether judicial commissions of inquiry, specifically the Madlanga Commission, serve as an effective resource of accountability within the South African legal framework. Judicial commissions of inquiry play a significant role in South Africa’s constitutional framework by promoting transparency and facilitating investigations related to matters of public concern. The Madlanga Commission demonstrates how such bodies can expose misconduct, generate public awareness, and contribute to the broader goal of accountability. Through their investigative powers, commissions can bring to light complex institutional failures that might otherwise remain hidden.
However, this analysis has shown that the effectiveness of judicial commissions in promoting accountability is inherently limited. As confirmed in Heath v President of the Republic of South Africa 2001 (1) SA 883 (CC), commissions lack the adjudicative authority and cannot impose binding legal consequences.[24], This means that their impact ultimately depends on the willingness of the executive and other state institutions to act on their findings. Without implementation, commissions are merely symbolic rather than substantive mechanisms of accountability.
Nevertheless, judicial commissions should not be dismissed as ineffective. By placing critical information in the public domain, they strengthen democratic oversight and reinforce constitutional values such as accountability, openness, and responsiveness, as emphasised in Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC).[25]In this sense, their contribution is indirect but still meaningful.
In conclusion, while judicial commissions such as the Madlanga Commission do promote accountability, they do so in a limited and conditional manner. Their true effectiveness lies not in their ability to enforce consequences, but in their capacity to expose wrongdoing and catalyse further legal and institutional action.
Bibliography
Legislation
Constitution of the Republic of South Africa, 1996
Commissions Act 8 of 1947
Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution)
Promotion of Administrative Justice Act 3 of 200
Cases
Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC)
Heath v President of the Republic of South Africa 2001 (1) SA 883 (CC)
President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC)
President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC)
Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC)
Books
Hoexter C, Administrative Law in South Africa (2nd edn, Juta 2012)
SANEF, ‘Commissions of Inquiry’ in Court Reporting Guide (SANEF 2021)
Journal Articles
Budlender G, ‘The Role of Commissions of Inquiry’ (2011) 27 South African Journal on Human Rights 35
Dyzenhaus D, ‘The Past and Future of the Rule of Law in South Africa’ (2007) 124 South African Law Journal 734
Khan F, ‘The Concept and Role of Commissions of Inquiry in South Africa’ (2025) 658 De Rebus 17
Vuma P, ‘The Madlanga Commission through the Lens of South Africa’s Constitutional Mandate of Oversight’ (2026) 14(10) International Journal of Research in Business and Social Science 526
Websites and Reports
Madonsela T, ‘Address on Accountability and the Role of Commissions’ (University of Stellenbosch, 2018)
Report of the Commission of Inquiry into the Remuneration and Conditions of Service of the Public Service and · Corruption Watch, ‘A Quick Guide to Commissions of Inquiry in South Africa’ (2024) https://www.corruptionwatch.org.za/a-quick-guide-to-commissions-of-inquiry-in-south-africa/
Department of Justice and Constitutional Development, ‘The Judicial Service Commission’ (DoJ&CD FAQs) https://www.justice.gov.za/faq/faq-jsc.html
Public Service Commission, ‘About the Commission’ (Public Service Commission) https://www.psc.gov.za/about/about.asp
[1] Judiciary of South Africa, ‘About the JSC’ https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc accessed 28 March 2026
[2] ‘Investigating without consequence: A critical review of South Africa’s commissions of inquiry’ (2025) De Rebus https://www.derebus.org.za/investigating-without-consequence-a-critical-review-of-south-africas-commissions-of-inquiry/ accessed 28 March 2026
[3] Constitution of the Republic of South Africa, 1996, s 84(2)
[4] Corruption Watch, ‘A Quick Guide to Commissions of Inquiry in South Africa’ (Corruption Watch, 2024) https://www.corruptionwatch.org.za/a-quick-guide-to-commissions-of-inquiry-in-south-africa/ accessed 28 March 2026
[5] Phillip Vuma, ‘The Madlanga Commission through the Lens of South Africa’s Constitutional Mandate of Oversight’ (2026) 14(10) International Journal of Research in Business and Social Science 526 https://doi.org/10.20525/ijrbs.v14i10.4731 accessed 28 March 2026
Fawzia Khan, ‘The Concept and Role of Commissions of Inquiry in South Africa’ (2025) 658 De Rebus 17 https://www.derebus.org.za/the-concept-and-role-of-commissions-of-inquiry-in-south-africa/ accessed 28 March 2026
[7] Corruption Watch n4 [2]
[8] Commissions Act 8 of 1947
[9] Department of Justice and Constitutional Development, ‘The Judicial Service Commission’ (DoJ&CD FAQs) https://www.justice.gov.za/faq/faq-jsc.html accessed 28 March 2026
[10] President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC)
[11] ibid
[12] Public Service Commission, ‘About the Commission’ (Public Service Commission) https://www.psc.gov.za/about/about.asp accessed 30 March 2026
[13] Ibid(12)
[14] Heath v President of the Republic of South Africa 2001 (1) SA 883 (CC)
[15] SANEF, ‘Commissions of Inquiry’ in Court Reporting Guide (SANEF 2021) 1
[16] Geoff Budlender, ‘The Judicial Role in Cases Involving Resource Allocation’ (2011) 24(1) Advocate 35
[17] Corruption Watch, ‘A Quick Guide to Commissions of Inquiry in South Africa’ (Corruption Watch, 2024) https://www.corruptionwatch.org.za/a-quick-guide-to-commissions-of-inquiry-in-south-africa/ accessed 28 March 2026
[18] Evan Wright, ‘How Can an Inquiry Be Used to Create Justice and Tackle Systemic Issues?’ Acquisition International (30 March 2026) https://www.acquisition-international.com/how-can-an-inquiry-be-used-to-create-justice-and-tackle-systemic-issues/ accessed 30 March 2026.
[19] Commissions Act 8 of 1947
[20] President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC)
[21] Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC)
[22] C Hoexter, Administrative Law in South Africa (2nd edn, Juta 2012)
[23] D Dyzenhaus, ‘The Role of Commissions of Inquiry’ (1998) 13 SA Public Law
[24] Heath v President of the Republic of South Africa 2001 (1) SA 883 (CC)
[25] Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC)
