Affidavit claims ‘constitutional crisis' in South Africa

Businessman Hugh Glenister today filed his answering affidavit in the matter which he hopes will see the High Court prevent the disestablishment of the Directorate of Special Operations (DSO) or ‘Scorpions'. 

In a supporting affidavit, also filed today, from world-renowned constitutional academic, Loammi Wolf, said South Africa was in a constitutional crisis, originating in the Presidency, which "by far eclipses the constitutional crisis sparked off by the Harris cases in the 1950s, which paved the way for pushing through apartheid policies."

Wolf said not only do the President's actions violate the constitution, but the rule of law which, she concluded, should lead to his impeachment.

In response to the affidavit filed on behalf of the Minister of Safety and Security and the Minister of Justice and Constitutional Development, Glenister said he was surprised and deeply disappointed that it was so devoid of substance, particularly after government had requested an extension because the matter was of such ‘national importance'.

He said the deponent, Advocate Menzi Simelane, neglected to argue that there was, in fact some ‘legitimate government purpose' for the disestablishment of the DSO, nor did Simelane demonstrate, despite protestations to the contrary, that any consultation whatsoever had taken place.

"Government's affidavit takes neither the court nor the public into its confidence. It supplies not a single shred of evidence in support of its affidavit to demonstrate with whom the matter had been canvassed. Further, the deponent outrageously suggested that nothing firm was on the table mere minutes before (or simultaneously with) the tabling of the draft legislation before Cabinet!"

Echoing this sentiment, Wolf's affidavit reads: "[Bulldozing the bill through Parliament] constitutes a grotesque negation of the dignity, accessibility and effectiveness of the Court in terms of section 165(4) of the Constitution. The respondents in this case have clearly shown their true colours. They act as if South Africa is not a constitutional democracy but a one party state where the ruling party calls the shots."

Furthermore, continued Glenister, "There was no attempt by Simelane to disassociate this decision of ‘national importance' from politics and fear. It's natural that a ruling party, with a disproportionate share of power will be tempted by corruption and hence investigated, but we can't forget that the Scorpions also brought to your televisions the Fidentia scandal, uncovered abalone smuggling and assisted the asset forfeiture unit in the recovery of millions of rands on behalf of the taxpayer."

Glenister also said that it was noteworthy that the bald generalities advanced in the government's affidavit failed to state in what manner the disbanding and/or relocating of the DSO into the SAPS would enhance the State's capacity to fight high-impact organised crime.

With regard to the Polokwane resolution to disband the Scorpions, Wolf writes: "The standing of the ANC is that of a political party - not that of an organ of state. It is therefore highly problematic when a political party usurps the powers of state organs by forcing the president to use his constitutional power to initiate legislation to destruct a highly effective state prosecuting organ whose functional independence has been guaranteed constitutionally in terms of section 179(4) of the Constitution."

The draft legislation would remove the DSO's prosecutorial powers, making it an investigative body and another police force, undermining its mandate.

In her supporting affidavit, Wolf said she believed that both the Minister for Justice and Constitutional Development and the President had usurped their powers in matters pertinent to this case:

"The President abused his executive powers in that he invoked a discontinued royal prerogative by granting a royal pardon to all members of the national assembly who were involved in the Travelgate affair," Wolf said. "The President does not have the power to grant them a royal pardon, because this is contrary to the central tenets of the constitutional state in terms of Section 1(c). This is a serious transgression of the rule of law since it affords protection to corrupt members of the legislature from criminal law and it also suspends provisions of insolvency law."

She said that the Minister unconstitutionally usurped powers of the NPA by ordering the Director of the NPA to obey her, even if it was patently clear that she was abusing her powers in contravention of Section 96(2)(c) that proscribes a member of the Cabinet to ‘use their position or any information entrusted to them...to improperly benefit another persons' The Minster improperly used her executive powers to benefit the police commissioner and claimed the power for the executive to decide which cases might be heard by the courts and which not.

Wolf decides that given the concerted role [the Ministers] played in the demise of the Scorpions, their actions are tantamount to a ‘constitutional coup d'état'.

Glenister concluded: "As the evidence unfolds I'm more convinced than when I started that this was the right course of action to take, but I am deeply saddened that my government, which I helped elect, has let me and all South Africans down so badly.

"The one thing I hope comes of all this is that South Africans become unafraid to question their government and learn that they have a right to have their say."

Statement issued on behalf of Hugh Glenister and Kevin Louis May 16 2008. The affidavits in filed in this case can be accessed here.