The controversial National Prosecuting Authority Amendment Act and the South African Police Services Amendment Act bring about respectively the demise of Directorate of Special Operation (DSO) or the Scorpions, as they are known to the public, and the creation of a new unit to deal with, inter alia, organised crime to replace the Scorpions.
This legislation has proved to be highly politically divisive, since the ANC perceived the Scorpions to be notorious because of its relentless pursuit and prosecution of high profile members of the ANC among whom were Jacob Zuma, Jackie Selebi and more than 100 persons allegedly implicated in the Travelgate corruption debacle. All this activity was inextricable bound up with, in the view of post Polokwane ANC political leadership, a nefarious conspiracy directed at Jacob Zuma. In contrast, opposition parties viewed the DSO as an effective and bold crime-investigating unit that was no respecter of persons and epitomized the principle of equality before the law that initiated and pursued investigations and prosecutions without fear or favour.
The fight to retain the Scorpions is not over, since the constitutionality of the legislation referred to above, is to be challenged in the Cape High Court by Mr Hugh Glenister, a public minded Johannesburg business man, who last year, unsuccessfully challenged the bills which have now become the legislation, referred to above. The jurisprudential argument which forms the basis of the challenge is that the constitutionally prejudicial effect of the legislation is such that it deprives the National Prosecuting Authority of its ability to boldly, fearlessly and independently investigate allegations relating to serious and organised crime, since it is now dependent on SAPS for investigations preceding prosecutions.
As a result of the legislation, the investigative function has been transferred to the Directorate of Priority Crime Investigation, situated within SAPS, falling under the control and authority of the Minister of Safety and Security. The latter, who is an ANC minister of state, will obviously do the bidding of the governing political party. This is constitutionally and legally suspect, since prosecutions can then quite easily be subject to manipulation by the ANC and there is a distinct possibility that certain favoured individuals could be placed beyond the law and others, not so favoured, could be victimised. Such a state of affairs is in manifest conflict with section 179(4) of the Constitution which declares that “National legislation must ensure that the prosecuting authority exercises its function without, fear, favour or prejudice”. Furthermore, a contextual and purposive interpretation of section 179(2) of the Constitution, which states that the NPA should have the power “to carry out any necessary functions incidental to instituting criminal proceedings”, requires the NPA itself to carry out its functions without fear or favour, in instituting criminal investigations.
The legislation in question has its origin in the contentious resolutions adopted by the ANC at its Polokwane conference in December 2007, which was alarmed by the investigating and prosecution high profile members of the ANC, thereby causing grave embarrassment and anger within the movement. From a jurisprudential point of view, the legislation is also in conflict with decisions and principles established by the Constitutional Court in the Metrorail and Potwana cases. In addition, the Kamphepe Commission, that conducted a thorough investigation into the DSO and its relationship with SAPS and the Department of Justice, recommended that the unit should be retained within the NPA. Lastly in this regard, the legislation is in manifest conflict with South Africa’s solemn treaty obligations relation to both the U N and the African Union to which solemn obligations were given to keep independent institutions in place to combat corruption.
In the light of the above arguments, there is a very real possibility that the Cape High Court may find the legislation to be a violation of both the letter and spirit of the Constitution, which would then have to be confirmed by the Constitution Court, which acts as the final arbiter in constitutional matters. Should this indeed occur it would, it is submitted, have serious political consequences and could precipitate a constitutional crisis, the extent of which is difficult to predict, but would inevitably involve the celebrated counter-majoritarian dilemma, which flows from the fact that Constitutional and other judges are appointed and not elected, as is the position in contrast with the political leaders who form the executive government. This causes a manifest tension between the three branches of government i.e. the judiciary on the one hand and the executive and legislature on the other hand. It involves the conundrum that unelected judges can invalidate conduct of elected officials and legislation of the democratic legislature. This is inevitable with a supreme constitution, and a Constitutional Court that is its guardian. This would further exacerbate tension between the judiciary on the one hand and the executive and the legislature on the other hand. This is of course the price that needs to be paid for having an operative and dynamic constitutional democracy.
George Devenish is a DA Councillor with the Ethekweni Municipality.
He writes in his personal capacity.