Businessman Hugh Glenister’s crusade to save the Scorpions was dealt a double blow on Wednesday by the Constitutional Court and the Cape High Court.
In a unanimous judgement, the Constitutional Court refused him leave to appeal an earlier Pretoria High Court ruling that it (the high court) lacked jurisdiction in the matter.
Glenister had sought to force the withdrawal of legislation that will see the National Prosecuting Authority’s crime-fighting body replaced by a unit under police jurisdiction.
On Wednesday night, following almost four hours of legal argument, Cape High Court Judge James Yekiso rejected Glenister’s bid to block Thursday’s National Assembly vote on the Scorpions Bills.
Critics claim the dissolution of the unit is a ploy to take the heat off African National Congress president Jacob Zuma on arms-deal corruption charges.
In its judgement, the Constitutional Court cited the doctrine of the separation of powers — which means the judiciary cannot interfere in the law-making process, unless it entails something that can cause considerable irreversible harm.
It said Glenister had not proved this to be the case.
It also dismissed his alternative request for direct access to the Constitutional Court for an order compelling the government to withdraw the Bills.
Glenister had submitted to the Constitutional Court that the circumstances were exceptional enough to warrant judicial intervention.
He said the Cabinet decision to scrap the unit had caused mass resignations from the Scorpions and had deprived South Africa of an effective crime-fighting unit.
However, Chief Justice Pius Langa held that in this case the executive had carried out its constitutionally mandated task of initiating and preparing the Bills.
”The applicant failed to establish that material and irreversible harm had arisen,” he said.
”A causal relationship between the decision taken by Cabinet and the resignations of members of the [Scorpions] was not clearly established, and in any event, the resignations would not necessarily cause irreversible harm.”
In the Cape Town case, Glenister initially asked the court for an order to block voting on the Bills until Parliament’s ethics committee had considered a complaint he lodged last month.
In the complaint, he insisted that MPs implicated in the Travelgate affair withdraw from all consideration of the Bills — including committee meetings. Because their role in the travel-voucher scam had been investigated by the Scorpions, they had a conflict of interest.
In court, however, his counsel, Ismail Jamie, said Glenister would be satisfied merely if 43 Travelgate MPs did not take part in the vote.
Jamie told Judge Yekiso the application was an attempt to compel Parliament to uphold its own rules.
In an affidavit opposing the application, Speaker Gwen Mahlangu-Nkabinde said the Assembly vote was not the last step in passing the Bills into law.
”Hence the applicant cannot be heard to complain that if the Bills were to be passed by the National Assembly, that he has suffered irreparable harm,” she said.
Her counsel, Anwar Albertus, told the court that there was no way of telling whether any of the implicated MPs would in fact take part in Thursday’s vote.
If Glenister felt aggrieved after the vote, he should then lay a complaint with the ethics committee.
Albertus said the more than two dozen MPs who had already concluded plea bargains with the Scorpions could not do anything to suppress their prosecution, which was now a fait accompli.
”They might not have any animus [ill-will] at all. The matter is behind them,” he said.
Yekiso said in his ruling that Glenister had failed to make out a case for the relief he sought, and awarded costs against him.
He did not give reasons for his decision.
Glenister’s attorney, Kevin Louis, said the ruling was disappointing.
”We thought that we’d made out a strong case,” he said.
After Thursday’s vote the Bills will be considered by the National Council of Provinces before going to the president for assent. — Sapa