Saturday, July 19, 2014
Hugh Glenister's bid rejected
THE FORMER SCORPIONS CRIME FIGHTING UNIT ..........
Merging with the police
The ANC decided to merge the Scorpions with the SA Police Service following the Khampepe Commission by June 2008, reducing their power.The disbandment was recommended by South Africa's minister of safety and security, Charles Nqakula.
The decision was controversial, and was opposed by a majority of South Africans and interest groups ranging from opposition parties to organised business. The Democratic Alliance has accused the ANC of merging the Scorpions with the South African Police Service in order to subvert investigations into the SA Police and protect corrupt ANC officials.
On 23 October 2008, the South African parliament officially abolished the Scorpions. The vote was 252 in favour with 63 against. Preparations were made for the remaining Scorpions members to start work in the Police's Directorate for Priority Crime Investigation (DPCI). This unit is known as the Hawks.
Subsequently, the Hawks shut down the probe the Scorpions had been conducting into bribery among Zuma allies in a multibillion-rand arms deal.
Constitutional Court ruling
The South African Constitutional Court ruled that the legislation, which replaced the Scorpions crime fighting unit with the Hawks, was “constitutionally invalid”. The reason being that the Hawks are “vulnerable to political interference.”
This case was brought to trial by a private individual (businessman Hugh Glenister) using his own personal money (ZAR 3.5 million) to fund the case. The money retrieved from the victory is to be placed into a trust for use on similar cases in future.
The judges in the matter were: Judge Dikgang Moseneke and Judge Edwin Cameron. They have suspended the effect of the judgement for 18 months to allow time for parliament to take remedial action.
In response the South African Parliament passed the SA Police Service Amendment Act, however a Court judgement by the Western Cape High Court again found that the Act does not go far enough to secure independence for the Hawks.
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:
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.
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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Cape Town - The Constitutional Court on Friday rejected an application by Hugh Glenister to cover the costs of an expert, who testified for him in his successful challenge to the founding legislation of the police's elite Hawks unit.
Glenister argued that the court had mistakenly overlooked his request in the initial case for costs, because neither the majority nor the minority judgment mentioned it.
In its 2011 judgment, the court had ordered that the government pay Glenister's legal costs.
On Friday, the court agreed that the issue of the witness should be addressed, but found the rules for payment were not met because the expert did not provide "appreciable help" to the court.
It said the issue at hand was the constitutional validity of the legislation, and this fell "well within the competence of this court”.
In its original judgment, the Constitutional Court found that the SAPS Amendment Act gave inadequate independence to the Hawks in investigating corruption.
It gave the executive 18 months to amend the legislation.
Changes were signed into law by President Jacob Zuma in September last year.
Critics, including Glenister, have maintained that these fail to protect the unit sufficiently from potential political meddling.
Read more on: police | hawks | jacob zuma | hugh glenister | johannesburg
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Court orders Parliament to fix SAPS Act again
16 DEC 2013 07:43 SARAH EVANS
The high court in Cape Town has told Parliament to fix sections of the SAPS Amendment Act, again.
The problem with the Act lay with the lack of security of tenure and remuneration of Hawks members, and the degree of accountability and oversight by the ministerial committee. (Gallo)
When the Scorpions were disbanded in 2009, many people feared its replacement, the Hawks, would be politically pliable. As it turned out, the legislation enacted to create the Hawks left the unit vulnerable.
The Constitutional Court in 2011 gave Parliament an opportunity to fix sections of the SAPS Act that rendered the Hawks vulnerable to political interference.
On Friday, the high court in Cape Town found that Parliament's attempts to fix the offending legislation were simply not enough.
In 2011, the Constitutional Court found that section 6A of the South African Police Service Act was unconstitutional and invalid because it failed to give the Hawks and adequate degree of independence.
In essence, the problem with the Act lay with the lack of security of tenure and remuneration of Hawks members, and the degree of accountability and oversight by the ministerial committee (as well as its "untrammelled" power: the Consitutional Court found that the ministerial committee "undermined" Parliament's oversight function).
The declaration of invalidity was suspended for 18 months to give Parliament a chance to rectify the problem. Parliament duly "fixed" the relevant section, and the SAPS Amendment Act of 2012 was enacted.
But the Helen Suzman Foundation and businessperson Hugh Glenister felt Parliament's attempts did not fix the problem, and that the Hawks were still not independent enough or sufficiently protected from political pressures.
The Constitutional Court had already ruled that the location of an anticorruption unit such as the Hawks within the police was not unconstitutional. It was therefore up to the high court in Cape Town to decide whether the Act gave the Hawks sufficient "structural and operational autonomy so as to shield it from undue political influence".
Thus the high court last week appeared careful to avoid "falling into the trap of seeking to satisfy … paranoia" and busied itself with the "objective" nature of the task before it: trying to assess whether the relevant portions of the Act were adequate.
Central to the issue were sections 16 and 17 of the Act. Two of these went to the core of the case before the high court, namely the appointment of the head of the Hawks and the lack of parliamentary oversight on the anti-corruption body.
The applicants argued that the current legislation gave the minister too much discretion in appointing the Hawks' head.
President Jacob Zuma, also a respondent, argued that the courts could limit the power of the minister on review. The high court found this was "misplaced".
As the court stated on Friday: "The imperative of including, in any empowering statute, sufficient guidance to guard against the infringement of rights in the exercise of the power conferred, is not a question of objectivity but rather of the clarity and specificity of the criteria prescribed. This is precisely because … the legislation … must limit the risk of the unconstitutional exercise of the discretionary power conferred. The risk is not limited by the mere ability to test the exercise of that power on an objective basis in a review."
Next was the matter of Parliamentary oversight. The applicants complained to the court that the head of the Hawks is not insulated from political interference because the minister of police, with Cabinet, appoints him or her, without Parliament.
The Constitutional Court previously held public perception of independence was an important criteria when measuring the independence of an organisation such as the Hawks.
The respondents relied on case law (Van Rooyen and others versus the State and others) to argue that the executive was allowed to make appointments on its own. In that case, the Constitutional Court ruled that it was "constitutionally acceptable" for the minister of justice to appoint magistrates.
But the high court on Friday said this comparison was "misplaced". "First, magistrates apply the law. They do not investigate corruption. Second, and more importantly, magistrates, like judges, are constitutionally fully independent."
The high court ruled that section 16, as well as sections 17A, 17CA, 17DA, and 17K(4) to (9) of the SAPS Amendment Act, are unconstitutional.
Parliament has a year to remedy the problem.
Sarah Evans is a Mail & Guardian news reporter.
Read more from Sarah Evans
Glenister: 'Hawks must fly free'
Anti-corruption unit, the Hawks, should be free of political meddling, says Hugh Glenister at the public hearings on the police Bill in Parliament.
Hawks head Anwa Dramat was listening attentively to the public hearings in Parliament on the South African Police Service Amendment Bill, but like everyone else he must have been waiting for the headline act.
The assembled gathering was anticipating the appearance of grey-haired lobbyist Hugh Glenister. His lonely campaign to fight against the disbandment of the directorate of special operations, which became known as the Scorpions, has captured the public’s attention over the years.
Although Glenister might have lost his legal battle to save the Scorpions, a unit that achieved a conviction rate of more than 90% and pursued many high-profile cases, it had other, unexpected consequences.
His application to the Constitutional Court resulted in a ruling last year that sections of the Act that disbanded the Scorpions and created the directorate for priority crime investigation, known as the Hawks, were inconsistent with the Constitution.
The Constitutional Court ordered that chapter 6A of the South African Police Service Act of 1995 be sent back to Parliament until it had been rectified. The order of constitutional invalidity was suspended for 18 months.
Room for interference
Deputy Chief Justice Dikgang Moseneke had delivered the majority judgment, prepared with Justice Edwin Cameron, ruling that “the directorate for priority crime investigation is insufficiently insulated from political interference”.
And so Glenister was given an opportunity this week to make a personal appeal to members of the parliamentary portfolio committee on police.
“We are all on the same side,” he said. “I have heard some startling things about private and public sector corruption. But corruption is corruption. We look to you [the MPs] as the people who would lead us in this fight.”
Glenister said that corruption occurred because opportunities were created for it to flourish. “You are making us cry. Lead us forward, so we can believe that you represent our check against the executive.”
His legal representative, Paul Hoffman, who is director of the Institute for Accountability in Southern Africa, told the committee that his client had already told him that he would challenge the Bill if an acceptable solution was not found.
“We are not making threats, just stating a fact,” said Hoffman. “We accept that everybody on the committee is against corruption and that you want to come up with a constitutionally viable solution.”
It was in the interest of every member of the committee, as well as society as a whole, to see what could be done to deal with the scourge of corruption, said Hoffman. And it was “inappropriate” to house the Hawks in the South African Police Service, he said, using the organisation’s recent history by way of illustration.
“National police commissioners [have not had] a good track record in the past few years,” Hoffman told the committee.
Police commissioners’ bad reputations
He cited the case of former police commissioner Jackie Selebi, who is in jail for 15 years on charges of corruption, adding that incumbent Bheki Cele was awaiting the verdict of a board of inquiry set up to investigate the police lease scandal.
South Africa deserved best practice, said Hoffman, and suggested that the Hawks become a constitutionally protected or chapter 9 institution.
“You have to get real about what is going on in this country. It is not all right to leave this anticorruption body inside the police.”
Constitutional law expert Pierre de Vos also voiced his concerns at the public hearings, saying the Hawks were still not guaranteed freedom from political influence.
“The heart of the matter is that the court said there has to be sufficient independence to keep this body at arm’s length from potential political interference,” De Vos said.
Trying to retain the Hawks within police hierarchy and structures and at the same time make the unit independent would be difficult, if not impossible, he said.
De Vos proposed that making it a criminal offence for anyone to interfere with or stop an investigation could go some way towards giving the Hawks independence.
As the Bill stands, there was the potential for political involvement in the appointment of the director of the Hawks, he said, and there was no protection for the dismissal of members of the Hawks.
And, crucially, there were no proactive mechanisms to protect members of the Hawks from political pressure.
Read more from Glynnis Underhill