A day before Cabinet approved legislation that will shut down the Scorpions, the director general of justice and two Cabinet ministers stated under oath that ‘no decision has been taken by Cabinet to dissolve the DSO [Directorate of Special Operations]â€.
On Tuesday justice Director General Menzi Simelane filed government’s answering affidavit in response to a court application by businessperson Bob Glenister to stop the Scorpions from being incorporated into the South African Police Service.
Simelane disputes the ‘ripeness†of Glenister’s application and says that he should wait for legislation to be introduced before legally challenging it.
‘I have repeatedly stated that no decision has been taken by Cabinet to initiate legislation to disestablish the DSO as alleged by the applicant [Glenister],†reads Simelane’s affidavit, confirmed by both Justice and Constitutional Development Minister Brigitte Mabandla and Safety and Security Minister Charles Nqakula.
One day later, however, Cabinet approved the General Law Amendment Bill and National Prosecuting Authority Bill — the two pieces of legislation designed to give effect to the ANC’s Polokwane resolution to move the Scorpions to the South African Police Service.
The Bills, with the entire Khampepe report on the future of the Scorpions, will be published on Monday. Cabinet ‘noted†the planned publication of the Khampepe report and said that it ‘laid the basis for the analysis and review of the criminal justice systemâ€.
In his affidavit Simelane refers to the Khampepe inquiry as part of a bigger process of restructuring the criminal justice system that Mabandla and Nqakula started ‘no less than three to four years†ago.
This bears out suggestions in the ANC that its old and new guard have reached a compromise: that dissolving the Scorpions will be styled as government’s strategy to improve the criminal justice system, including establishing a new ‘super†unit against organised crime in the police.
The plan is to incorporate Scorpions investigators into this unit, but a senior SAPS source said this week that the service has no hope that any of the Scorpions’s senior sleuths will join the police.
Simelane’s affidavit also discloses that the new ‘super†unit will incorporate the Scorpions’s operational model of prosecution-guided investigations. The ANC has been clear that this is one of the reasons it wants the Scorpions out.
Chair of the ANC’s peace and stability subcommittee and former defence force chief Siphiwe Nyanda told the Mail & Guardian in February that ‘— the main consideration for the ANC to want the Scorpions to move from [the] NPA is because we think that it undermines the principle of the separation of powers. You have investigators who investigate the case and take the case and prosecute it. We think that there is a problem with that.â€
At a recent seminar on the Scorpions, Nyanda reiterated that it was important to separate investigators from prosecutors to prevent an ‘abuse of authorityâ€.
In his affidavit Simelane accuses Glenister of trying to prevent the executive from applying its mind with regard to crime-fighting; says Glenister cannot prove that more Scorpions than usual are resigning because of a possible move to the SAPS; and states that any suggestion that Cabinet’s ‘decision†is ‘based entirely†on the ANC’s resolution is ‘completely unfoundedâ€.
‘It may be coincidental,†Simelane says, that the ANC resolution came at a time when Mabandla and Nqakula were already ‘considering the issue of the enhancement of the capacity to fight high impact organised crimeâ€.