In handing down the majority judgment in Helen Suzman Foundation v President of the Republic of South Africa and Others and Glenister v President of the Republic of South Africa and Others, Chief Justice Mogoeng agreed with the Western Cape High Court that the Act still failed to secure as required by International Law and the Constitution (and as previously pointed out by the former Court) an adequate degree of independence for the Directorate for Priority Crime Investigation (DPCI) (the “Hawks”). According to the Chief Justice, “a lot has been done in the course of creating the new anti-corruption entity to significantly water down its primary area of focus.” He also raised concerns about the role of policy guidelines in the determination of the offences to be investigated by the DPCI. He observed that “lowering the power to determine additional offences or categories of offences…” had deepened “concerns about the willingness to live up to the declared commitment to fight corruption more decisively.” According to Justice Mogoeng, the SAPS Act contained a number of specific deficiencies, including:

In this regard and in order to provide legal certainty, the Court (after previously having provided Parliament the opportunity to correct unconstitutional provisions) now remedied the defective legislation by severing those parts of specific sections that were found to be inconsistent with the Constitution. Accordingly, the Court held as follows:

In one of four separate minority judgments, Justice Cameron held that the process for the appointment of the National Head was not constitutionally compliant. He contended that a concentration of the power of appointment in the Minister of Police, without an express process of parliamentary approval, would jeopardise the DPCI’s independence. Likewise, Justice Van der Westhuizen contended that Parliament should be involved in the appointment of the National Head of the DPCI.

The CFCR supports the views expressed by Justices Cameron and Van der Westhuizen as they will further prevent a concentration of power of appointment and allow for transparency and accountability – both matters which have also proved to be problematic in the appointment of the National Director of Public Prosecutions by the President alone.

Corruption, especially in the public sector, is, according to the primary international law instrument aimed at combating corruption, the United Nations Convention against Corruption, “an insidious plague that has a wide range of corrosive effects“. According to the Convention, corruption “undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish” and is “a key element in economic underperformance and a major obstacle to poverty alleviation and development.”

The CFCR, in its submission to Parliament on the SAPS Amendment Act in 2012, submitted that the location of the DPCI as a division of the South African Police Service (the SAPS), the manner in which the Head of the DPCI is appointed, retained or removed, and the manner in which the Minister of Police could influence the work of this Division by means of policy directives, did not meet constitutional muster. Although the majority judgment disagreed in relation to the location of the DPCI, the Court’s judgment, in principle, confirmed the legitimacy of our concerns as submitted to Parliament.

The DPCI was established as a division of the SAPS ostensibly to lead the state’s efforts to investigate and combat corruption. In fact, it was a purely political decision arising from a resolution at the ANC’s National Conference at Polokwane in December 2007 to disband the National Prosecuting Authority’s highly effective and genuinely independent Directorate for Special Operations (the DSO) or the “Scorpions”.

The CFCR remains of the opinion that the very principle of maintaining an anti-corruption entity within the SAPS directly and negatively affects the structural and operational independence of such entity. According to Chief Justice Mogoeng, “South Africa needs a dedicated and better focused anti-corruption entity“. We agree.

We also agree with the Court’s view that “our ability as a nation to eradicate corruption depends on the institutional capacities of the machinery created to that end.” As such, and in order to ensure independence, effectiveness, credibility and public trust, it remains, in our opinion, necessary to establish and maintain an anti-corruption agency with an adequate degree of independence and insulation from undue political interference -both in fact and public perception.

This could be achieved through the creation of a truly independent entity in terms of Chapter 9 of the Constitution along the lines of the Public Protector and Auditor-General, but with the necessary executive enforcement powers. However, such a decision would be dependent on the depth of the commitment of the National Executive and Parliament to promote accountable, responsive and transparent government and on their willingness to take credible action to prevent and prosecute corruption.

By Adv Johan Kruger, Director: Centre for Constitutional Rights

For comment:
Adv Johan Kruger: Director, Centre for Constitutional Rights
Phone: 27 21 (0) 930 3622

Megan Dick: Communications Officer, FW de Klerk Foundation
Phone: 27 21 (0) 930 3622