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21 May 2008 17:07
Johannesburg businessman Hugh Glenister will likely hear next week whether his court bid to stop the government from disbanding the Scorpions has succeeded.
The Pretoria High Court on Wednesday reserved judgement in his case, with Judge Willie van der Merwe indicating it was likely he would deliver judgement sometime next week.
“I have a clear picture in my mind [although] I need time to rethink certain aspects of the case,” he said.
Glenister initially brought an application against President Thabo Mbeki and six others, but in the end it was just Safety and Security Minister Charles Nqakula and Justice and Constitutional Development Minister Brigitte Mabandla who opposed his case.
Arguing on their behalf, advocate Tshepo Sibeko SC said an implication that Mbeki and the Cabinet based their decision to dissolve the Scorpions on an African National Congress (ANC) resolution was “completely unfounded”.
He said the government had been considering how to enhance the fight against high-impact organised crime for the last three to four years.
He pointed to the fact that the Cabinet had already in 2006 asked the state security council to look at ways of implementing the recommendations of the Khampepe commission, which had investigated the mandate and location of the Directorate of Special Operations (DSO), as the Scorpions are formally known.
The commission, although stating the need for the continued existence of the Scorpions, recommended that the investigative arm of the unit fall under the control of the safety and security minister.
It was that recommendation that had given rise to the current legislation, Sibeko argued.
“While it may seem that there is an intention to destroy the DSO, we would submit that they would only be changed in form rather than substance,” he added.
Earlier on Wednesday, advocate Michael Osborne, for the African Christian Democratic Party, the Democratic Alliance, the Independent Democrats, the Inkatha Freedom Party and the United Democratic Movement, told the court that the country’s executive took a decision that was not legal.
He said Mbeki “abdicated his power” to the ANC in deciding to disband the Scorpions.
“Legality implies applying one’s mind and legality also requires one not abdicate power to an outside party,” he said.
He said it was unfair to expect Parliament to overturn a decision on the Scorpions as it seemed to be a done deal.
“To leave it up to Parliament to clear something fundamentally wrong does not work.”
Glenister’s counsel, David Unterhalter SC, told the court that the government’s proposed Bill, which would lead to the disbanding of the unit, was “structural amputation of the organisation”.
On Tuesday he argued that the government’s decision to dissolve the Scorpions was unlawful as it was not in the public interest, but in the “narrow interests” of the ANC.
“This is not being done in order to create a better oiled machine, it is being done to carry out the narrow interests of the ANC as a political party,” he told the court.
He said the decision to disband the unit was irrational and taken after the conference of the ANC in December, and followed the Scorpions’ investigation of high-ranking party officials.
“It was precisely because the [Scorpions] were seen to have become threatening to a particular political party that it was taken out.
“You cannot take apart an entire institution because of the instance of a political party that is saying its scrutiny of it is too much,” he further contended.
He said proposed legislation to dis-establish the Scorpions was arbitrary since it was not connected to a legitimate governmental purpose, but rather to adhere to the ANC.
“There is a prevailing case for intervention here because it would cause such harm,” he said.—Sapa
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