The Constitutional Court on Wednesday refused businessman Hugh Glenister leave to appeal against a Pretoria High Court decision regarding the fate of the Scorpions.
The Pretoria High Court ruled in May this year that it lacked jurisdiction to hear the matter when Glenister sought to challenge a decision taken by the Cabinet to initiate legislation dissolving the Directorate of Special Operations (DSO), commonly known as the Scorpions.
He then approached the Constitutional Court for leave to appeal against that decision, and applied for direct access to the Constitutional Court for an order compelling the government to withdraw the relevant Bills from Parliament.
”The only issue for determination was whether, in view of the principle of separation of powers, the circumstances of this case permitted the [Constitutional Court] to consider the validity of the decision taken by Cabinet while the Bills were still before Parliament and the legislative process still under way,” said a court statement on Wednesday.
Glenister had submitted that the circumstances of this case were exceptional enough to warrant judicial intervention at this stage of the legislative process.
He had argued that the Cabinet’s decision had caused mass resignations within the DSO, in effect bringing about its dissolution and depriving South Africa of an effective crime-fighting unit even before the conclusion of the legislative process.
The ministers of safety and security and of justice and constitutional development opposed the application.
”They conceded that there may be exceptional circumstances which would justify intervention by the courts in the legislative process before Parliament had completed its deliberations. They argued that this was not such a case and that judicial intervention was not therefore appropriate,” said the court statement.
”In a unanimous judgement by Langa CJ, the court discussed the importance of the separation of powers doctrine implicitly recognised in our Constitution,” it said.
The doctrine ensures that each branch of government — the executive, legislature and judiciary — is able to fulfil its constitutional mandate without interference by any of the other branches.
Judge Pius Langa held that, in this case, the executive had carried out its constitutionally mandated task of initiating and preparing legislation, which is before Parliament — the body that has the primary responsibility of overseeing the executive’s actions.
”There may be circumstances in which a court will intervene where draft legislation is still being considered by Parliament, but the circumstances that warrant judicial intervention would have to be exceptional and an applicant would need to demonstrate material and irreversible harm in the sense that no effective remedy would be available once the legislative process is complete,” said the Constitutional Court statement.
”The applicant failed to establish that material and irreversible harm had arisen. A causal relationship between the decision taken by Cabinet and the resignations of members of the DSO was not clearly established, and in any event, the resignations would not necessarily cause irreversible harm.”
Abuse of power
Meanwhile, the Inkatha Freedom Party said on Wednesday that the ANC’s intention to ”force” the two Bills dissolving the Scorpions through the National Assembly on Thursday was a clear indication of the party’s abuse of power and its total disregard for
public opinion.
”In a country which has been ravaged by crime, the Scorpions’ successful track record has served as a boost to our country’s crime-fighting efforts, which at times has looked hopeless to the ordinary man on the street,” said Inkatha Freedom Party spokesperson Velaphi Ndlovu.
”By dissolving the Scorpions as an independent crime-fighting unit it once again shows the extent the ANC will go, to push its own agenda against the wishes of most South Africans,” he said.
The ANC’s decision at its Polokwane conference to axe the Scorpions was followed by a parliamentary and public participation process, which from the outset was never going to make a difference to the ANC’s political campaign against the National Prosecuting Authority.
”I am sure that 90% of the public who made submissions on the Scorpions’ future did not agree with the ruling party’s plans.
”It was clear from the beginning that the public participation process was a sham and that the ANC was hell-bent on getting rid of them,” Ndlovu said.
The IFP would oppose the legislation on the grounds that it destroyed the independence of the Scorpions by creating a new directorate within the South African Police Service [SAPS].
Furthermore, the new unit could be subject to political interference as the head of the unit would have to report to the police National Commissioner.
The new directorate would also not have its own dedicated budget, and would get its operating funds and other resources from the SAPS budget.
Ndlovu said the issue of existing cases under investigation by the Scorpions should also be put under the spotlight.
”We are afraid that high-profile or so-called sensitive cases might fall through the cracks.
”The IFP therefore calls on the Minister of Safety and Security to reassure the public that this will not be the case by finalising these cases as a matter of urgency,” he said. – Sapa