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Transcript of constitutional Court Of South Africa Helen - SAFLII .CONSTITUTIONAL COURT OF SOUTH AFRICA Cases CCT

  • CONSTITUTIONAL COURT OF SOUTH AFRICA

    Cases CCT 07/14 and CCT 09/14

    In the matter between:

    HELEN SUZMAN FOUNDATION Applicant

    and

    PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent

    MINISTER OF POLICE Second Respondent

    HEAD OF THE DIRECTORATE FOR PRIORITY CRIME INVESTIGATION Third Respondent

    GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Fourth Respondent

    And the matter between:

    HUGH GLENISTER Applicant

    and

    PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent

    MINISTER OF POLICE Second Respondent

    MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Third Respondent

    NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent

    GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Fifth Respondent

  • Neutral citation: Helen Suzman Foundation v President of the Republic of South

    Africa and Others; Glenister v President of the Republic of South

    Africa and Others [2014] ZACC 32

    Coram: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J,

    Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J,

    Van der Westhuizen J and Zondo J

    Heard on: 19 August 2014

    Decided on: 27 November 2014

    Summary: South African Police Service Amendment Act 10 of 2012

    confirmation of an order of constitutional invalidity

    South African Police Service Act 68 of 1995 Directorate for

    Priority Crime Investigation adequacy of the structural and

    operational independence of a constitutionally mandated

    anti-corruption entity

    ORDER

    Application for confirmation of the order of the Western Cape Division of the High

    Court, Cape Town:

    1. Leave to appeal against the order of the Western Cape Division of the

    High Court, Cape Town striking out the additional evidence sought to be

    led by Mr Glenister is refused with costs in this Court and the High

    Court, including costs of three counsel.

    2. Leave to appeal against the order of the Western Cape Division of the

    High Court, Cape Town dismissing Mr Glenisters application to have

    the entire legislative scheme of the South African Police Service

  • Amendment Act 10 of 2012 declared constitutionally invalid is refused,

    and each party is to pay its own costs.

    3. Leave to appeal against the order of the Western Cape Division of the

    High Court, Cape Town dismissing the application by the Helen

    Suzman Foundation to declare sections 17E(8), 17G, 17H, 17I and 24 of

    the South African Police Service Act 68 of 1995 as amended

    constitutionally invalid is granted, but the appeal is dismissed with no

    order as to costs.

    4. The order of constitutional invalidity made by the Western Cape

    Division of the High Court, Cape Town is confirmed to the extent set

    out in paragraph 5.

    5. The following provisions of the South African Police Service Act 68 of

    1995 as amended are inconsistent with the Constitution and are declared

    invalid and deleted from the date of this order:

    (a) The words in accordance with the approved policy guidelines

    as contained in section 16(2)(h) and (3).

    (b) Section 17CA(15) and (16).

    (c) The words subject to any policy guidelines by the Minister and

    approved by Parliament in section 17D(1)(a).

    (d) The words selected offences not limited to and and in

    section 17D(1)(aA).

    (e) Section 17D(1)(b).

    (f) Section 17D(1A).

  • 4

    (g) The (2) in section 17DA(1) and the whole of section 17DA(2).

    (h) Section 17K(4), (7) and (8).

    6. All other provisions of sections 16 to 17K of the South African Police

    Service Act 68 of 1995 as amended remain in force.

    7. The respondents are to pay the applicants costs in the High Court as

    well as costs of the confirmation application, including costs occasioned

    by the employment of three counsel.

    8. The first respondent is also to pay wasted costs occasioned by the

    postponement on 15 May 2014 to the applicants, including costs of three

    counsel.

    JUDGMENT

    MOGOENG CJ (Moseneke DCJ, Jafta J, Khampepe J, Leeuw AJ and Zondo J

    concurring):

    Introduction

    [1] All South Africans across the racial, religious, class and political divide are in

    broad agreement that corruption is rife in this country and that stringent measures are

    required to contain this malady before it graduates into something terminal.1

    1 Glenister v President of the Republic of South Africa and Others [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011

    (7) BCLR 651 (CC) (Glenister II) at para 57:

    Corruption has become a scourge in our country and it poses a real danger to our developing

    democracy. It undermines the ability of the government to meet its commitment to fight

    poverty and to deliver on other social and economic rights guaranteed in our Bill of Rights.

    Organised crime and drug syndicates also pose a real threat to our democracy. The amount of

  • MOGOENG CJ

    5

    [2] We are in one accord that South Africa needs an agency dedicated to the

    containment and eventual eradication of the scourge of corruption. We also agree that

    that entity must enjoy adequate structural and operational independence to deliver

    effectively and efficiently on its core mandate. And this in a way is the issue that lies

    at the heart of this matter. Does the South African Police Service Act2 (SAPS Act), as

    amended again,3 comply with the constitutional obligation to establish an adequately

    independent anti-corruption agency?4

    Parties

    [3] The applicant in CCT 07/14 is the Helen Suzman Foundation (HSF), while

    Mr Hugh Glenister (Mr Glenister) is the applicant in CCT 09/14. The respondents in

    both matters include: the President of the Republic of South Africa (President); the

    Minister of Police (Minister); the National Head of the Directorate for Priority Crime

    Investigation (National Head); the Minister of Justice and Constitutional Development

    (Minister of Justice); the National Director of Public Prosecutions (NDPP); and the

    Government of the Republic of South Africa (Government).

    drugs confiscated inside our borders testifies to this. The sophisticated international network

    that is responsible for transporting these drugs requires urgent attention.

    An assertion that corruption has become a scourge in our country and that it poses a real danger to our

    developing democracy reinforces the view that corruption is rife in this country. Corruption must necessarily

    be rife to rise to the level of being a scourge in our country. And it is particularly when corruption is widespread

    that it would pose a real danger to our young democracy. It is not merely isolated and insignificant incidents of

    corruption that our country has to contend with, but large scale and serious levels of corruption.

    2 68 of 1995.

    3 The SAPS Act was amended by the South African Police Service Amendment Act 10 of 2012 (SAPS

    Amendment Act).

    4 See Glenister II above n 1 at paras 189 and 191-2, where this Court held that the state has an obligation to

    create an adequately independent anti-corruption unit.

  • MOGOENG CJ

    6

    Background

    [4] South Africa had an agency that was practically established for the primary

    purpose of combating corruption and specialised offences. That agency, the

    Directorate of Special Operations (DSO), popularly known as the Scorpions, was

    eventually dissolved.5 Out of its ashes emerged the Directorate for Priority Crime

    Investigation (DPCI), otherwise known as the Hawks.6 This was achieved by

    amending both the National Prosecuting Authority Act7 (NPA Act) and the SAPS Act.

    The constitutional validity of Chapter 6A of the SAPS Act, in terms of which the

    DPCI was established, was successfully challenged by Mr Glenister in this Court in

    Glenister II.8

    [5] In dealing with the constitutionality of the legislative scheme that created the

    DPCI, this Court chose not to prescribe to Parliament how the constitutional defects

    were to be cured.9 And in an attempt to remedy those defects, Parliament amended

    the SAPS Act again. The legislative scheme of this amended version was again

    5 The DSO, which was located within the National Prosecuting Authority (NPA), was established in terms of

    section 7(1)(a) of the National Prosecuting Authority Act 32 of 1998 as amended by the National Prosecuting

    Authority Amendment Act 61 of 2000 (DSO Act). This entity was abolished by the National Prosecuting

    Authority Amendment Act 56 of 2008.

    6 The DPCI, which is located within the South African Police Service (SAPS), was established in terms of

    Chapter 6A of the South African Police Service Amendment Act 57 of 2008.

    7 32 of 1998.

    8 See Glenister II above n 1, in which Mr Glenister was the applicant and the HSF appeared as amicus curiae.

    9 Id at para 191.

  • MOGOENG CJ

    7

    challenged by Mr Glenister, whereas several sections were specifically impugned by

    the HSF in the Western Cape Division of the High Court, Cape Town (High Court).10

    [6] The High Court dismissed Mr Glenisters application. In line with the

    Ministers applicatio