On the eve of the UN's International Anti-Corruption Day whose theme this year is Break the Corruption Chain, it is appropriate to recall the words of Mogoeng CJ, in the recent case in which the Helen Suzman Foundation appeared before the Constitutional Court:
"Our ability as a nation to eradicate corruption depends on the institutional capacities of the machinery created to that end."
Introduction
The Helen Suzman Foundation ("HSF") was successful in challenging the constitutionality of section 16 and Chapter 6A of the South African Police Service Act, 1995 (as amended) ("the Act"), which governs the establishment and operation of the Directorate of Priority Crime Investigation ("the DPCI" or "the Hawks"). The HSF argued that the Act failed to secure an adequate degree of structural and operational independence for the Hawks.
The HSF had applied to the Constitutional Court for an order confirming a decision of a Full Bench of the Western Cape Division of the High Court, Cape Town ("the High Court"), handed down on 13 December 2013, which declared certain provisions of the Act unconstitutional, as well as for leave to appeal in respect of additional grounds of constitutional invalidity.
The Constitutional Court declared, to the extent set out in the judgment, certain key provisions of the Act inconsistent with the Constitution and invalid, and it took the extraordinary step of deleting these sections from the Act as from the date of the order.
Chapter 6A of the SAPS Act was first challenged in the landmark 2011 decision in Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) ("Glenister II") in which the HSF intervened decisively as amicus curiae focussing on the substantive requirements of section 7 of the Constitution, the Bill of Rights and international law. The Court, ruling in Glenister's favour, pointed out that:
"There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk."
This eloquent declaration should serve both as a guide and a reminder to all South Africans who are concerned with what appears to be the endemic corruption which so characterizes much of our public life.
In Glenister II the Constitutional Court declared the chapter in question unconstitutional and invalid to the extent that it failed to secure an adequate degree of independence for the DPCI, which is required to be an effective and dedicated anti-corruption agency.
One consequence of the Glenister II judgment is that civil society has again realised the importance of addressing the institutional dimensions of anti-corruption architecture, and it was within this context that the HSF vigorously argued before the Parliamentary Special Committee against the SAPS Amendment Bill when it was first published.
When it was signed into law by President Zuma in 2012, the HSF took the matter to Court on the grounds that certain sections of the amended Act failed to pass constitutional muster and were inimical to the Glenister II judgment. The full bench of the High Court ruled in the HSF's favour, allowing the HSF to apply to the Constitutional Court for an order of confirmation.
On 27 November 2014, the Constitutional Court delivered judgment in favour of the HSF on a number of key issues. The majority judgment was penned by Mogoeng CJ with Moseneke DCJ, Jafta J, Khampepe J, Leeuw AJ and Zondo J concurring. Each of the other judges of the Constitutional Court, Cameron J, Froneman J, Nkabinde J and Van Der Westhuizen J concurred in each of the declarations of invalidity made by the majority. The judgment marks the end of a five year court battle which originated when the Directorate for Special Operations ("Scorpions"), which fell under the jurisdiction of the National Prosecuting Authority ("the NPA"), was dissolved and replaced by the Hawks who are currently located within the SAPS.
Judgment in the application for confirmation
The Court held that the amended Act does not ensure adequate independence for the Hawks, finding certain sections to be unconstitutional to the extent that they did not sufficiently insulate the Hawks from potential executive interference.
It should be noted that the Court held that the Hawks are not required to be absolutely independent, but rather adequately independent.
In its judgment of 27 November 2014, the Constitutional Court confirmed the following:
Extension of tenure. The Court upheld the HSF's challenges - that sections 17CA(15) and (16) amounted to the renewal of Head's and the Deputy Head's terms of office which undermines the operational independence of the Head and Deputy Head of the Hawks.
On suspension and removal. The Court held that the Minister's power to remove the Head from office in section 17DA is a threat to his/her job security. The suspension and removal of the Head through a parliamentary process, however, guarantees job security and accords with the notion of adequate independence. The Court deleted the provisions allowing the Minister to suspend and remove the Head of the Hawks, and any suspension without pay. The Court retained the sections which provided for the Head to be removed only by a two-thirds vote from Parliament.
On jurisdiction. The Court found that the State's failure to provide a clear mandate to the Hawks to fight corruption and to provide for a dedicated anti-corruption agency was unacceptable.
National priority offences. The Court found that the provisions in relation to national priority offences that provide for the policy guidelines (issued by the Minister of Police), that determine the functions of the Hawks, are inconsistent with the Constitution, and should be excised. The issuing of guidelines in relation to national priority offences by political actors who can then influence the functional activities of the Hawks was held to undermine the independence of the DPCI.
Selected offences. The term "selected offences" in section 17D(1) (aA) were not defined in the amended Act and there was no indication as to how they are selected and by whom. The Court found that this could easily limit the functional independence of the Hawks, and allow for undue executive or political interference. The Court held that an institution of this importance should never be left guessing as to what its functions are. The undefined "selected offences" were thus held to be a threat to the operational independence of the Hawks. The offending wording was thus severed from the provision.
Any other offence or category of offences. The Hawks were charged under the Act with the duty to prevent, combat and investigate "any other offence or category of offences referred to it from time to time by the National Commissioner, subject to any policy guidelines issued by the Minister and approved by parliament". The Court found that this provision, by vesting in the Commissioner the power to prescribe part of what the Hawks are to do, was a constitutionally impermissible encroachment and interference into the operational space of the Hawks and thus at odds with an adequately independent anti-corruption unit. It was thus confirmed that section 17D(1)(d) is constitutionally invalid.
The HSF was concerned about the financial control which the DPCI could exercise, but the Court held that as Parliament has the final say in the budget, the Head of the Hawks could make representation to Parliament. Likewise, the HSF's concern about a Ministerial Committee determining procedures to co-ordinate the activities of the Hawks did not meet with favour by the Court.
Two points of interest which should be noted:
The Court did not send the legislation back to Parliament to remedy the defects highlighted by the Court but employed the exceptional remedy of severing the offending provisions itself. As Mogoeng CJ pointed out:
"The need and urgency to put an end to the uncertainty about the particular functions that the DPCI is required to perform, require direct and immediate judicial intervention, without usurping the legislative powers of Parliament."
On the main substantive issues in this matter, the Court was unanimous. But on some of the other issues, there was divergence, as Mogoeng CJ pointed out:
"We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. And this in a way is the issue that lies at the heart of this matter. Does the South African Police Service Act,... as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?"
Cameron, J, found that the vesting of the appointment of the Head of the DPCI in the National Executive was unconstitutional, in accord with the HSF's arguments. Froneman and Van der Westhuizen JJ, entertained this possibility.
Nkabinde J also found (in line with the HSF's arguments), that the provisions which allowed the Minister of Police to prescribe measures to test the integrity of members of the DPCI to be unconstitutional on the basis of impermissible vagueness.
Conclusion
The Constitutional Court's ruling represents a substantial vindication of the rule of law and the protection of the democratic values which are embodied in our Constitution. It reaffirms protections necessary to facilitate the fight against corruption and the consequent realisation of political and socio-economic rights as promised in the Constitution. The Judgments also provide key guidelines for Parliamentary conduct and legislative propriety in future. The HSF trusts that the judgment will further enhance and guide political and legal discourse in relation to the State's duties in combating corruption and in promoting human rights.
Our challenge then is to break the corruption chain and, with the more independent Hawks, to begin to eradicate corruption.
Statement issued by Francis Antonie, Director, Helen Suzman Foundation, December 8 2014
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