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The Scorpions vs The Hawks – A Royal Battle

The Constitutional Court judgment handed down on Thursday last week involving Glenister versus the President of the Republic of South Africa, is undoubtedly a landmark judgement that is likely to spawn important political and constitutional consequences. It is probably one of the most significant, if not the most important judgment, handed down by the Constitutional Court, since its inception in 1994. The fundamental issue in this case is whether national legislation that established the Directorate for Policy Crime Investigation, colloquially designated as the Hawks (DPCI), and simultaneously disestablished the Directorate of Special Operations, known as the Scorpions(DSO), was unconstitutional or not.

In a bold, convincing and well reasoned judgment, Deputy Chief Justice Moseneke and Judge Cameron, in which three other Constitutional Court judges concurred, for the majority of the Court, ruled that Chapter 6 of the South African Police Service Act 68 of 1995 as amended, was incompatible with the Constitution in that it fails to secure a sufficient degree of independence for the DPSI. In this regard the Court made two cardinal findings:

    1. Firstly, it holds that the Constitution obligates the state to establish and maintain an independent body to combat corruption and organised crime. This seminal obligation can be clearly inferred from both the Constitution and international law treaties which are binding on the South African state. The Court was at pains to declare that endemic corruption undermines the very fabric of the rights, enshrined in our Bill of Rights and thereby imperils our fledgling democracy. Furthermore, the Court points out that a raft of international law instruments dealing with the combating of corruption have been approved by our Parliament and are consequently binding on the state. These require an anti-corruption unit that is sufficiently independent and that the DPSI is manifestly wanting in this regard.
    2. Secondly, the Court held that the DPSI was not sufficiently insulated from patent political influence in its structure and functioning. The reason for this is that the relevant legislation requires that the DPCI’s activities must be co-ordinated by the Cabinet and that a Ministerial Committee may determine policy guidelines in respect of its functioning, as well as national prosecuting offences. By the very nature of such oversight, it was held that the DPSI is vulnerable to political interference and inimical to genuine independence. It also found that the members of DPSI lacked the kind of security of tenure required for such independence.
      The Court therefore upheld the appeal, and declared the offending provisions establishing the DPSI constitutionally invalid and suspended the declaration of invalidity for 18 months in order to give Parliament the opportunity to remedy the defect.
      In a minority judgment delivered by Chief Justice Ngcobo, in which three other Constitutional Court judges concurred, it is held that the Constitution does not obligate the state to establish an independent corruption-fighting unit. He held further in his judgment that there were indeed sufficient institutional and legal mechanisms to prevent undue interference and guarantee the independence of the DPSI. The judgment lacks the perceptive insight and profundity of the majority judgment.
      The majority judgment is a singular victory for constitutional democracy in South Africa. It is also an exceptional and exemplary triumph for Mr Hugh Glenister, his Counsel and their attorneys, who have expended a vast some of money (about R3.8 million) and energy in a titanic litigation struggle against corruption in order to protect and advance the cause of the fundamental values encapsulated in the Constitution. South Africa is profoundly indebted to this public spirited man, who as a libertarian, has demonstrated in no uncertain terms the right of ordinary citizens of the country to hold the government to account for its conduct measured against our supreme Constitution. This case is likely to rank with the historic Coloured voters cases, ie the Harris, High Court of Parliament and Collins cases, as a landmark decision of a courageous and sagacious Constitutional Court, giving judgment without fear or favour, and proving its worth as an illustrious Court, ranking with the American Supreme Court and the House of Lords.
      Bearing mind that the Court is intensely divided on the issue, and decided on the narrowest of majorities, namely by 5 to 4 judges, and the robust political controversy relating to the conduct and the demise of the Scorpions, the reaction of both the Executive and leaders of the ANC will be of crucial importance. Will they react in the magnanimous manner that President Mandela did in the Western Cape case, in which the Constitutional Court also invalidated a politically contentious statute of the first democratic parliament of South Africa? In the last mentioned case, President Mandela immediately responded to the Court’s judgment with characteristic statesmanship by praising the Constitutional Court’s judgment and observing that ‘this judgment is not the first, nor the last, in which the Constitutional Court assists both the government and society to ensure constitutionality and effective governance’. Mandela thereby with consummate maturity and tact, immediately defused a crisis situation which had arisen out of the counter majoritarian dilemma, inherent in the nature of the Interim Constitution. As a result, both the Court and the Executive emerged unscathed out of the crisis and had traversed the most ‘fundamental questions of constitutional law’ and ‘matters of grave public moment’. This was in marked contrast to the almost belligerent attitude of the politically aggrieved Malan government in the early 1950’s to the seminal decision in Harris versus the Minister of the Interior, referred to above.
      The Western Cape case represented a consummate victory for constitutionalism, since for the first time the Constitutional Court had invalidated a highly politicized parliamentary statute, passed by a democratically elected and legitimate national legislature and a President, venerated and acclaimed both nationally and internationally for his moral and political courage and sagacity, who responded with characteristic magnanimity to the Court’s decision. The great ship of state was thereby navigated by both the Constitutional Court and the President through the turbulent seas of potentially hazardous conflict to reach ‘safe and certain water’.
      Will the extant Executive, headed by President Zuma and more importantly, the ANC leadership, rise to the occasion and display the same kind of leadership and magnanimity that Mandela displayed? Failure to do so could herald a protracted and acrimonious constitutional crisis not dissimilar to that involving the Coloured voters in the 1950’s. Time alone will tell.
      George Devenish is a DA Councillor in the Ethekweni Municipality.
      He is a former Professor of Public Law at the University of KwaZulu-Natal (Durban).
      He writes in his personal capacity.

 

 

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