/ 24 August 2008

Court slams the incredible Mr Simelane

Justice Department Director General Menzi Simelane received a harsh rebuke from Constitutional Court judges this week for not taking seriously a challenge to the dissolution of the Scorpions by businessman Bob Glenister.

Justices Zak Yacoob and Kate O’Regan reprimanded Simelane for ”taking technical points” in his founding affidavit to support government’s opposition to Glenister’s application. Glenister is attempting to set aside two Bills that will integrate the Scorpions’ investigators into the South African Police Service (SAPS).

In his affidavit, signed on April 29, Simelane stated ”no decision has been taken by Cabinet to dissolve the DSO [Directorate of Special Operations]”. Both Justice Minister Brigitte Mabandla and Safety and Security Minister Charles Nqakula confirmed the affidavit.

The next day, however, Cabinet approved the General Law Amendment Bill and National Prosecuting Authority Bill — the two pieces of legislation to implement the ANC’s Polokwane resolution that the Scorpions must be moved into the SAPS.

Glenister’s opposition against the move was heard by the Constitutional Court on Wednesday after the Pretoria High Court found it had no jurisdiction to tell the legislature what to do about government policy.

The application is for leave to appeal only so the Constitutional Court must decide whether it has jurisdiction over a matter that is currently before Parliament.

Yacoob started his questioning of government’s senior counsel Tshepo Sibeko by asking him why Simelane said nothing in his affidavit about the Bills when he knew ”the decision was in the pipeline”.

Government must account fully in court papers and look beyond technical positions, Yacoob said.

”Government must respond fully, frankly and openly to affidavits. This is a very serious matter.”

Sibeko responded that, at the time of the launch of Glenister’s application, government had discussed certain proposals regarding the restructuring of the criminal justice system. The relevant Bills may or may not have been on the agenda for the April 30 Cabinet meeting.

Yacoob responded sharply: ”It was!”

Sibeko conceded this, but said that Simelane would not necessarily have been aware of this. O’Regan would have none of this and said all legislation is preceded by drafts and that it must have been clear to Simelane on April 29 that the Bills were ready for approval.

Sibeko backed down and said he couldn’t take the point any further. He subsequently withdrew government’s critique in court papers that Glenister’s complaint about the Simelane affidavit was ”absurd”.

However, Sibeko wasn’t the lone sufferer of the judges’ sharp tongues on Wednesday.

Glenister’s counsel David Unterhalter was repeatedly questioned by almost each of the nine sitting judges as to why the court should intervene in legislation that was already initiated and currently being scrutinised by Parliament.

O’Regan questioned Unterhalter on the timing of the application. ”If we step in now, will we not weaken the powers of Parliament? Of course if Parliament doesn’t do what it should, the court should step in, but is the timing right here?”

She raised the same concern later with advocate Michael Osborne, acting on behalf of the four opposition parties — the DA, the United Democratic Movement, the Independent Democrats and the African Christian Democratic Party — which are supporting Glenister’s actions.

”This court is duty bound to respect Parliament. What bothers me is that the real effect [of what Glenister asks the court to do] would be for us to say we just don’t trust Parliament to get it right.”

Unterhalter was at pains to convince the bench that this is indeed a ”special case”, a situation so extreme that failing to intervene would finally destroy the Scorpions. The unit is already hemorrhaging staff.

On the question of why Glenister could not wait for the outcome of the parliamentary process and then come back to court if the Bills in their final form are still perceived to be unconstitutional, Unterhalter said the harm that is already being caused by the uncertainty will be ongoing.

”Glenister can bring a challenge in nine months’ time, but in the interim our ability to fight organized crime will diminish. How much additional crime are we willing to tolerate while Parliament considers the legislation?”

O’Regan concluded that the only way the court could intervene was for it to be convinced that the harm suffered by the Scorpions in the interim is grave and irreparable.

During her interaction with Sibeko, O’Regan also posed a veiled warning to government that South Africa, being a signatory to the United Nations Convention against Corruption, is obliged under article six of the convention to have a law enforcement agency specifically given the task of fighting corruption. ”I hope it will emerge, whatever government does.”