Johannesburg businessman Hugh Glenister’s bid to stop the disbandment of the elite crime-fighting Scorpions will come before the Constitutional Court on Wednesday.
Justice and Constitutional Development Minister Brigitte Mabandla and Safety and Security Minister Charles Nqakula are opposing the bid, though President Thabo Mbeki has withdrawn his initial opposition to the action.
Glenister originally brought the case in the Pretoria High Court in May, but it was struck from the roll by Judge Willie van der Merwe who found that the court did not have the jurisdiction to decide on a matter involving the separation of powers.
The court held that the high court could not interfere with the executive’s power to prepare and initiate legislation and Parliament’s right to deliberate on legislation brought before it. It believed this was something the Constitutional Court needed to decide.
Glenister had asked the court to interdict Mbeki and six others, including Mabandla and Nqakula, from initiating legislation that sought to disband the National Prosecuting Authority’s Directorate of Special Operations (DSO), also known as the Scorpions.
Before the case was heard, two Bills dealing with the unit’s disbandment were tabled in Parliament. They concerned the possible replacement of the Scorpions with a new division within the South African Police Service, to be known as the Directorate for Priority Crime Investigation.
Glenister then amended his application to ask that Mbeki and the others be prohibited from passing the legislation.
Chief Justice Pius Langa directed that the application for leave to appeal be set down for 10am on Wednesday.
”The only issue that will be considered is whether, in the light of the doctrine of the separation of powers, it is appropriate for this court, in all the circumstances, to make any order setting aside the decision of the national executive that is challenged in this case,” Langa instructed in a direction issued on July 15.
In the meantime, Parliament’s portfolio committees on justice and constitutional development, and safety and security, have held public hearings on the Bills throughout the country.
Parliament said at the time of the hearings earlier this month that one of its core objectives was to enhance public participation in parliamentary processes, as well as the public’s access to the institution and its members.
Affidavit
In his affidavit to the Constitutional Court, Glenister argues that in initiating legislation to disband the DSO, Mbeki, Mabandla, Nqakula and the other respondents exceeded the limitations imposed on them by the Constitution and violated his and other opponents’ rights.
He claims the legislation is arbitrary and not rationally connected to a legitimate governmental purpose, but motivated by a desire to protect African National Congress members from corruption investigations.
He further charges that the legislation violates a constitutional provision that all spheres of government ”preserve the peace … of the Republic” and that initiating it will violate the national security provision.
Glenister contends that disbanding the Scorpions will not only violate the constitutional requirement that legislation ”ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”, but also the principle of accountability.
He maintains it could also violate a constitutional requirement that members of the Cabinet not ”expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.
He argues that the case is ”sufficiently exceptional” for the judiciary to interfere with the right of the executive to initiate legislation or deliberation around legislation. — Sapa