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What the Concourt majority judgment found in Glenister’s case.

The order in Glenister’s case

5.      It is declared that Ch 6A of the South African Police Service Act 68 of 1995 is inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation.

 6.     The declaration of constitutional invalidity is suspended for 18 months in order to give Parliament the opportunity to remedy the defect.

The reasons for granting the order in a nutshell:

Lack of respect for human rights

[177] The Constitution enshrines the rights of all people in South Africa. These rights are specifically enumerated in the Bill of Rights, subject to limitation. Section 7(2) casts an especial duty upon the State. It requires  the State to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. It is incontestable that corruption undermines the rights in the Bill of Rights, and imperils democracy. To combat it requires an integrated and comprehensive response. The State’s obligation to ‘respect, protect, promote and fulfil’ the rights in the Bill of Rights thus inevitably, in the modern State, creates a duty to create efficient   anti-corruption mechanisms. Parliament itself has recognised this in the preamble to PRECCA.    All this constitutes uncontested public and legislative policy in South Africa. For it has been expressly articulated and enacted by Parliament. That, however, is not the end of the matter.

Non compliance with international obligations

[178] The core ground advanced in order to invalidate the legislation  that established the DPCI is that it lacks the necessary structural and operational independence to be an effective corruption-fighting mechanism. And that, for that reason, the impugned legislation is inconsistent with international obligations of the Republic and therefore the Constitution. It must be said that the Minister did not, nor could he, contend that independence is not a necessary attribute of a corruption-fighting mechanism. The impugned legislation provides in circuitous words that, when applying its terms, the need to ensure that the Directorate has the necessary independence to perform its function should be recognised and taken into account.   The ‘necessary independence’ is not defined. In order to understand the content of the constitutionally imposed requirement of independence we have to resort to international agreements that bind the Republic.    As we now show, our Constitution takes into its very heart obligations to which the Republic, through the solemn resolution of Parliament, has acceded, and which are binding on the Republic in international law, and makes them the measure of the State’s conduct in fulfilling its obligations in relation to the Bill of Rights. 

Implicit in s 7(2) is the requirement that the steps the State takes to respect, protect, promote and fulfil constitutional rights must be reasonable and effective.

International corruption fighting criteria not complied with

[187] The OECD report identified the main criteria for effective anti-corruption agencies to be independence, specialisation,   adequate training and resources.   The OECD report is not in itself binding in international law, but can be used to interpret and give content to the obligations in the conventions we have described.

Compromising independence as a key criterion

[188] ‘Independence primarily means that the anti-corruption bodies should be shielded from undue political interference. To this end, genuine political will to fight corruption is the key prerequisite. Such political will must be embedded in a comprehensive anti-corruption strategy. The level of independence can vary according to specific needs and conditions. Experience suggests that it is the structural and operational autonomy that is important, along with a clear legal basis and mandate for a special body, department or unit. This is particularly important for law enforcement bodies. Transparent procedures for appointment and removal of the director together with proper human resources management and internal controls are important elements to prevent undue interference.’

The Hawks don’t operate sufficiently independently

[194] That the Republic is bound under international law to create an anti-corruption unit with appropriate independence is of the foremost   interpretive significance in determining whether the State has fulfilled its duty to respect, protect, promote and fulfil the rights in the Bill of Rights, as s 7(2) requires. Section 7(2) implicitly demands that the steps the State takes must be reasonable. To create an anti-corruption unit that is not adequately independent would not constitute a reasonable step. In reaching this conclusion, the fact that s 231(2) provides that an international agreement that Parliament ratifies ‘binds the Republic’ is of prime significance. It makes it unreasonable for the State, in fulfilling its obligations under s 7(2), to create an anti-corruption entity that lacks sufficient independence.

What needs to be done

[191] Now plainly there are many ways in which the State can fulfil its duty to take positive measures to respect, protect, promote and fulfil the rights in the Bill of Rights. This court will not be prescriptive as to what measures the State takes, as long as they fall within the range of possible conduct that a reasonable decision-maker in the circumstances may adopt.   A range of possible measures is therefore open to the State, all   of which will accord with the duty the Constitution imposes, so long as the measures taken are reasonable.

In short:

As regards operational and structural independence; security of tenure of staff and their remuneration and as regards accountability and oversight the Hawks are not constitutionally compliant.

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