Constitutional Hill

March, 2012:

JSC will (finally) have to make a decision on Hlophe

As I predicted, the Constitutional Court today dismissed the application of Judge President John Hlophe to appeal against two judgments handed down by the Supreme Court of Appeal (SCA) regarding the decision of the Judicial Service Commission (JSC) not to investigate the charges of gross misconduct against the Judge President.

In the first judgment, the SCA found that the Constitution requires the Premier of the Western Cape to sit on the JSC when it considers disciplinary action against a Western cape judge, with the effect that JSC had to reconsider both the Constitutional Court Justices’ complaint, and Hlophe’s counter-complaint.

In the second case, the SCA set aside the decision of the JSC “that the evidence in respect of the complaint does not justify a finding that HlopheJP is guilty of gross misconduct”, with the effect that the JSC had to reconsider the complaint against Hlophe by the judges of the Constitutional Court. In this second judgment it was pointed out that in a case like this where two versions of an event is presented it is required to cross-examine witnesses and make a determination on the preponderance of probabilities to determine who is lying and who is speaking the truth.

In a unanimous judgment by the Constitutional Court (Mogoeng CJ, Cameron J, Froneman J, Khampepe J, Skweyiya J, van der Westhuizen J, Yacoob J and Zondo AJ writing as “The Court”), it was decided that acting judges could not be appointed to hear the case and that it was not in the interest of justice for the “compromised” Constitutional Court to hear the merits of the two appeals from the SCA judgments.

The Court pointed out that section 167(1) of the Constitution provides that the Court consists of eleven Judges and that the Court usually sits en banc (in other words, with all 11 judges). However, section 167(2) provides that a matter before the Constitutional Court must be heard by at least eight Judges. The problem in this case arose because six of the serving Justices currently appointed to the Court were serving as Constitutional Court Judges when the complaint against the applicant was lodged with the JSC. Three of them recused themselves from the hearing before it was argued (but one acting judge – Ray Zondo - is currently serving on the Court). This left the Court with a bare constitutional quorum of eight, including three Justices who were parties to the complaint lodged with the JSC against the applicant and two others who had been involved in attempted mediation.

If these Judges were disqualified from hearing the applications for leave to appeal because of their perceived or actual interest in the outcome of the matter, there would be no quorum for this Court to hear and determine the matters. Because of this unusual situation all the parties accepted that it was necessary for the Court (even with its possible five “tainted” judges) to decide whether Acting Judges may be appointed to the Constitutional Court in terms of section 175 of the Constitution to hear the application for leave to appeal and the appeal; and, if not, whether the existing judges should adjudicate upon the substantive merits of the applications for leave to appeal.

In terms of section1 75, the President may, on the recommendation of the Minister of Justice and Constitutional Development acting with the concurrence of the Chief Justice, appoint a woman or a man to be an Acting Judge of the Constitutional Court “if there is a vacancy or if a Judge is absent”. Pointing out that the “ordinary meaning of the word ‘absent’ carries some ambiguity”, the Court nevertheless found that:

any possible ambiguity is removed when we consider that the recusal from a particular case does not preclude Constitutional Court Judges from continuing to perform duties of their office. A recused Judge remains required to perform the rest of her judicial duties. The action of recusal is the performance of a judicial duty. The effect of a recusal therefore cannot be considered to be an absence… Recusal leading to a lack of a necessary quorum in this Court is an exceptional occurrence. Vacancies of Constitutional Court posts resulting from retirement, possible ill-health and death are not. Nor are temporary physical absences of Justices of the Court, caused by periods of leave, personal circumstances or some illness unusual. Viewed in a general context, it is clear that the purpose of section 175(1) is to deal with these normal instances of vacancies and physical absences.

This interpretation is supported if one took into account the context of the Constitution as a whole. In this regard one must remember that constitutional provisions relating to the appointment of Judges must be interpreted with due regard to the constitutional imperatives of separation of powers and entrenchment of judicial independence. There was a potential danger to judicial independence and the separation of powers whenever individual  judges are appointment to hear a specific case. Mindful of this danger, it is not possible to interpret “absent” in section 175(1) as covering a situation where Constitutional Court Judges recuse themselves from hearing a specific matter.

The next question to be answered by the Court was whether the eight judges (three of them having been involved in lodging the complaint against Hlophe JP) nevertheless had to hear the substantive appeals because of section 34 of the Constitution, which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

The Court found (once again as predicted) that they could not hear the case and pointed out that section 167(6) of the Constitution does not provide litigants with a right to have their case heard by the Constitutional Court. Litigants only have a right to consideration of any application for leave to appeal. As the Constitutional Court found in S v Pennington and Another litigants do not have an automatic right of appeal. Leave must only be granted if the Court concludes that it is in the interests of justice to do so.

A balance needs to be struck between the Court’s obligation to provide finality in this matter (as it would be intolerable to have a case pending indefinitely) and possible injustice to the applicant. These factors weigh heavily in determining the extent to which it is in the interests of justice to enter into the merits, and thus whether to grant leave to appeal. All the parties were in agreement that this matter cannot remain pending. There is a need for finality. This was not disputed. In determining the extent to which we should consider the merits, regard must be had to whether substantial injustice will be done to the applicant should this Court refuse to grant leave to appeal. The underlying right which the applicant seeks to protect on final instance to this Court is, importantly, a procedural one: the rejection of that right will result in the continuance of a process only and will not result, without more, in a finding against him on the substance of the complaint. What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice. In addition, although the parties have consented to the conflicted Judges’ sitting in the present matter, regard must still be had to the fact that they would ordinarily have to recuse themselves. For this reason, this Court should deny leave to appeal to preserve the fairness of its own processes.

As I have thus argued consistently throughout this process, there is no right for anybody to have their case heard by the Constitutional Court. It is only when it is in the interest of justice to dos o, that the Constitutional Court hears a case (if it deals with a constitutional matter, of course).

This means that Judge President Hlophe’s attempt to stall the investigation into his alleged gross misconduct has finally come to an end. The JSC will now have to consider the matter again and will have to call both Hlophe and the accusing judges who will then be cross-examined to try and determine whether it was Hlophe or the judges of the Constitutional Court who lied.

But of course the JSC has in fact already admitted that it believes it was Hlophe who lied and not his accusers as subsequent to the complaints being made it appointed one of his accusers (justice Chris Jafta) to a permanent post on the Constitutional Court, something it would surely not have done if it had thought that he had lied about the alleged attempt by Hlophe JP to influence the Constitutional Court.

It will be interesting to see how the JSC deals with this hot potato. Who knows, it might even act correctly and restore some of its lost credibility. One lives in hope.

A word on identity and classification

This I find strange: In South Africa a serious debate is raging about the classification of people according to their racial identities and the use of those racial categories in legal or other contexts to effect redress. Why not use class instead of race, some people say? Why do we focus on race when we have experienced the harmful effect of past racial classification in apartheid South Africa?

We are on the slippery slope to a fascist state, not unlike that of Nazi Germany, people warn darkly. According to these critics of the use of racial categories in law and in other formal settings, there is something inherently evil and dangerous about classifying people on the basis of race (or about allowing people to classify themselves in terms of their race) and about invoking those classifications to try and address the effects of past and ongoing discrimination and prejudice.

What is strange is that the state and others classify people all the time in various ways, and hardly anybody ever objects to these classifications. Most people embrace different kinds of identity classifications and rely on them to describe who we are — even when these classifications were enforced by the law in the past and have been used to oppress some and advantage others. But somehow hardly anyone ever complains about this or warns about the evils inherent in these classifications — even when these identity categories have often been used to marginalise and oppress groups of people and these categories continue to form the basis of much of the prejudice and discrimination in our society.

Whether these classifications are based on our religion, our sex or gender or our sexual orientation, most of us happily admit that we are heterosexual or homosexual, Muslim or Christian or atheist, male or female. But ask (mostly white) South Africans to classify themselves as black or white and all hell breaks lose.

In South Africa, gay men and lesbians still experience severe forms of prejudice, discrimination and (in some cases) physical violence. People harbour severe prejudices against others because they are Muslims, atheists or (in some cases) even Christians and apartheid South Africa was often decried as a Christian Nationalist State. Discrimination against women were until recently endorsed by our laws and even today sexism is rife in society, leading to discrimination and in some cases to physical harm to women.

To counter this, the Constitution (as well as the Promotion of Equality and Prevention of Unfair Discrimination Act and the Employment Equity Act) prohibits unfair discrimination against anyone based on their sexual orientation, religion or sex and gender. Our courts have said that this means that gay men and lesbians, and woman and religious minorities cannot be unfairly discriminated against and that one should take into account the specific vulnerability of these groups when deciding whether different treatment of these groups constitute fair or unfair discrimination.

However, no one ever shouts and screams blue murder because we have not yet abolished the notion of heterosexuality, of Christianity or of being a man. No one claims that the fact that the law recognises that there is such a thing as a heterosexual or a homosexual means that we are on the slippery slope to Nazism. I have not read any angry letters in the paper because the Employment Equity Act allows affirmative action for women. No one has started a campaign to encourage all people to stop classifying themselves as Christians or Jews or Muslims, as men or women.

Why do people not claim that we are on the slippery slope to Nazism because we have separate toilets for men and women, because we distinguish between men and women in affirmative action legislation, because many people still believe that it is acceptable to treat men and women differently and to ascribe different social rules for men and women?

Surely, if the logic of the absolute danger of racial classification holds, it should be inherently dangerous or even evil to continue classifying people on the basis of identity categories which were used in the past (and continues to be used at present) to perpetuate discrimination and prejudice against certain people? Does this not mean we should stop categorising people as heterosexuals and homosexuals, as men and women, as Christians, Jews, atheists or Muslims? Should we boycott the census because it asks us whether we are male or female, Christian or Muslim?

But yet we do not. There are no angry letters by Mr Bodley-Smith from Fishoek published in the local paper because legal rules and other regulations still classify people as being either men or women. DASO does not make representations to UCT because the application forms still require an applicant to UCT to state whether that applicant is a woman or a man. (I note that UCT’s application form still requires a woman to say whether she is a Mrs or a Ms, not asking of a man whether he is married or not, surely endorsing a sexist practice but yet it is hardly ever commented on.)

Could this double standard be related to the fact that those who benefit (either directly or indirectly) from the classification system based on sexual orientation, sex and gender or religious affiliations be the very people with the social capital and with the economic or political power (the same people who usually write angry letters to the newspaper) in our society? Are so many white people anxious about racial classification because they have lost the power to classify people and have lost the power to benefit from their own racial classification? There is somehow nothing scary about being classified as a Christian or as a heterosexual because Christians and heterosexuals rule the country. White people do not.

Or is something else (also) going on?

Maybe, we do not object to being classified as men or women because we all have intimate knowledge of someone of the opposite sex and the men who (to some extent at least) still control the political and economic system therefore do not harbour unspoken fears about women. If one is a man, one may live with a woman (either because she is your girlfriend or wife), or one may have fond memories of one’s mother.

The same can, of course, not be said in South Africa about people of different races. In South Africa many white people do not have intimate relationships with black people. (Being raised by a black nanny whose surname one never bothered to learn and whose house one never visited does not count.) Moreover, there might be a deeply entrenched but invisible master narrative about race that animates the fears of some white people about being classified in terms of race.

White people grow up with stories of Dingaan’s killing of Piet Retief, of the “evil” Mau Mau who supposedly murdered white settlers in Kenya. We read in the newspapers about black criminals who commit farm murders and invade the suburban homes of white people and feel under siege (even though most violent crime is committed against black South Africans living in townships). Can it be that a deep-seated and irrational fear of black people lie at the heart of this (mostly white) anxiety about racial classification?

It might well be that our world will be a better place if we can manage to become truly blind to (often constructed) differences of sexual orientation, of sex and gender, of religion and of race. But that is not going to happen anytime soon because apart from racial classification, very few people see any problem with the classification of people on the basis of their identity commitments.

Should we therefore not rather stop obsessing about the alleged “evils” of racial classification and rather accept it as a given, but deal with all classifications on the basis that these classifications say little about who we truly are as human beings? (Although these classifications can say much about our relative economic deprivation and our experience of prejudice and discrimination.) Whether somebody is a man or a woman, black or white, gay or straight, a Christian or an atheist, in itself says nothing about what kind of person he or she is or how that person will treat you. These classifications have been invented by humans to put others in boxes and/or to help them make sense of the world. They can be used for evil purposes (the Holocaust, the Rwandan genocide and apartheid being examples of this), but in and of itself these classifications are not the issue.

In others words, is the challenge not for our society to learn to live with difference (constructed or otherwise), to celebrate the differences but to accept that these differences really says nothing about us as human beings. Rather than to pretend that differences (even if these differences are of our making) do not exist, we might do well to begin to learn to manage it.

Assessment of judiciary represents a retreat for reactionary forces in government

When cabinet spokesperson Jimmy Manyi announced in November last year that the cabinet had decided to have the decisions of the Constitutional Court assessed to determine how “decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”, I wrote that on its face, this statement could be viewed as a positive development.

I went on to questioned aspects of the statement which suggested that “appropriate mechanisms be developed to facilitate … regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals”. This criticism was recently echoed by Acting Deputy Chief Justice Zach Yacoob, who said in a speech delivered at UCT Constitution Week that he could not agree with any suggestion that the two political branches of government had to discuss matters of importance with the judiciary directly and outside a court hearing, in an effort to influence it.

Because of statements like these about the need for debates and discussion between three branches of government, statements repeated in the discussion document released last month about the proposed review of the Constitutional Court, concerns were obviously raised about the proposed review of the Constitutional Court. Why assess the Constitutional Court when we all know that the reasons for the lack of economic transformation in South Africa are structural (a huge skills shortage and race-based inequality, amongst them) and political (the deployment of unqualified politically connected people to positions in the state sector)?

This anxiety was further exacerbated by previous irresponsible and uninformed statements made by ANC Secretary General Gwede Mantashe about the judiciary destabilising the government and being used to undermine Parliament as well as the more recent perplexing comment by President Zuma that government did not “want to review the Constitutional Court, we want to review its powers”.

Now the Department of Justice has finally announced the terms of reference for the review, and it is looking good for the judiciary. There are two big surprises in these terms of reference. First, the Supreme Court of Appeal (SCA) has now been included in the review along with the Constitutional Court. Of course, given the fact that the original announcement only spoke about assessing the judgments of the Constitutional Court, there will immediately be questions asked about the inclusion of the SCA in the review so shortly after that court had made an adverse finding (on technical issues) in a case that could affect the future political career of the President of the country. But such fears may be allayed by the actual terms of reference of the proposed assessment.

This brings me to the second big surprise of this announcement, namely the actual terms of reference of this proposed assessment. These terms of reference shy away from the controversial (some would say bizarre) proposals about the fundamental weakening of the separation of powers between the judiciary and the other branches of government in order to “facilitate debates” between the three branches of government to ensure they act towards a common goal. The previous two documents both contained talk of this, but the terms of reference avoid this altogether and focuses on many of the really important issues facing the development of our constitutional jurisprudence.

The assessment will be a mammoth (if not impossible) task to complete, and will require “a comprehensive analysis of the decisions of the Constitutional Court and the Supreme Court of Appeal since the advent of democracy” to try and establish:

the extent to which such decisions have contributed to the reform of South African jurisprudence and the law to advance the values embodied in the Constitution; to assess the evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity; assess the impact on the development of a South African jurisprudence that upholds and entrenches the founding principles and values as espoused in the Constitution and how such jurisprudence contributes to and is enriched by the development of jurisprudence in the SADC region, the continent and globally; and assess the extent to which South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South Africa as envisaged by the Constitution.

The last aspect of this part of the brief is particularly welcome. Section 39(2) of the Constitution states that when courts develop the common law or customary law, they “must promote the spirit, purport and objects of the Bill of Rights”. Because there are not many lawyers and judges whose expertise lies outside the Constitutional Law field who actually engage with this provision seriously, there has been limited development of the common law, despite this powerful tool provided to lawyers to help mould the common law into a more egalitarian and fairer system or rules that focus more directly on whether the application of common law rules lead to just outcomes in particular cases.

In an article published in 2010 in the South African Journal on Human Rights, Dennis Davis and Karl Klare surveyed judgments over the first 15 years of the new dispensation, and found that although some leading judgments demonstrated the capability of the courts to transform the common law and provided glimpses of a more egalitarian, inclusive, and caring legal infrastructure, the jurisprudence is not without its limitations.

The authors found that the chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of powers issues. The authors argued that while the inhibiting effect of mainstream legal culture was not entirely responsible for these difficulties, it is nevertheless true that concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.

It is also welcome to see that the review envisages a study of the implementation of the decisions of the Constitutional Court and the Supreme Court of Appeal by the State and would aim to determine:

progress made and challenges encountered in the implementation of the decisions of these courts; legislation, policies and government programmes that have been put in place to give effect to these decisions; and capacity of the state within the available resources to realise the outcome envisaged by such court decisions.

This is indeed a huge and complex task, both in terms of the sheer volume of judgments that would have to be scrutinised but also because of the methodological challenges that will arise in deciding how progress by the State should be measured. How does one measure whether a particular decision about an unreasonable housing policy, say, was indeed implemented by the various departments (including provincial housing departments)? Would the study focus only on national government, or would it also focus on provincial government and local government (where most of the “delivery” happens and where most of the problems in implementing social and economic rights occur)? The terms of reference are unclear on this point.

Of course, one of the biggest problems in South Africa relating to the promotion and protection of the rights in the Bill of Rights is that most South Africans do not have access to courts. Poor people almost never get their cases heard by the Constitutional Court unless they can persuade an NGO’s (not a group of institutions much loved by the government) to take up a case on their behalf. Without NGO’s our jurisprudence would have been much impoverished – both in the field of social and economic rights jurisprudence and more general Rule of Law jurisprudence.

The review therefore requires that a study be conducted on direct access to the Constitutional Court through a comparative study of other jurisdictions, to identify factors that inhibit access to justice in relation to:

the costs of litigation; legislative frameworks, structures and processes that inhibit access; the right of access to the Constitutional Court by indigent and unrepresented persons; and whether the rules and the practices with regard to direct access to the Constitutional Court promote access to justice in particular to the indigent and unrepresented persons.

The Constitutional Court discourages direct access to the highest court as such an approach will fail to ensure that the ordinary High Courts and the SCA deal with Constitutional Law cases and engage vigorously with Constitutional issues. It will also make it very difficult for the Constitutional Court to deal properly with cases that come before it. In the absence of a comprehensive programme to fund human rights litigation ordinary people will often not be able to get to the highest court. Of course, another option is to amalgamate the various Chapter 9 institutions dealing with human rights and to create a super Human Rights Commission that will take up cases on behalf of indigent people whose rights have been infringed by the state or private institutions. This was proposed by the Asmal Report, but the proposal has never been taken up by the government or by Parliament.

Judging from the terms of reference of the assessment of the Constitutional Court (and now the SCA), the government has retreated from its innitial far more problematic position about why the review was needed. Gone is the threatening tone and any mention of the assessment being needed “to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic in terms of non-racialism, gender, disability and other transformational variables”. Gone is any talk of the review being needed to promote “interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution”.

In short, as is often the case with the ANC-led government, there are obviously two competing views about the judiciary inside the government represented by the various statements about this assessment. The one faction is deeply hostile to the judiciary (after all, judges review and set aside unlawful and unconstitutional actions by the President and unconstitutional laws made by Parliament and judges also convict and send to prison those who have been proven to be corrupt). The other faction understands the importance of an independent judiciary that is eager and empowered to implement the many progressive aspects of the Constitution. The original cabinet statement seemed to be influenced by the first faction, while the latter faction seemed to have had a bigger hand in preparing the terms of reference.

If done well, it might well assist the government to provide better access to justice and to create the mechanism that would help it to better implement progressive court judgments.

It remains an open question whether any institution or a number of institutions will actually be able to complete this review in the 18 month period envisaged by the terms of reference. After all the SCA delivers over 250 judgments each year while the Constitutional Court hands down between 30 and 40 judgments a year. That means the reviewers will potentially have to consider more than 5000 judgments and will then have to ask how all the relevant judgements (selected from these 5000) have impacted on the state and to what extent the state has actually implemented the relevant judgments. Quite frankly, I am not sure this is practically possible at all.

All I can say is: I am glad it’s not a job I will have to do.

Another unconstitutional law on the horizon?

I was asked to prepare a memorandum on the draft amendments to the South African Police Service Act, purporting to give effect to the Constitutional Court judgment in the Glenister case. The Glenister judgemnt found that the abolition of The Scorpions and the creation of The Hawks was unconstitutional in several respects and ordered Parliament to fix the problem within 18 months. These amendments are a purported attempt to comply with the judgment.

In the memorandum I concluded that the proposed amendments fall far short of the minimum requirements as set out in the majority judgment in the Glenister case. (The full memo can be accessed here.)

What is clear from the draft is that there is no political will to create an independent body free from political influence or interference to fight corruption. It would be far too dangerous for the kleptocratic members of the political elite to create such a body, hence the minimalist attempts contained in the draft Bill which attempts to create a partly independent body, but one which will retain “sufficient” political control over it to ensure that the body does not investigate the “wrong” people.

But creating a partly independent corruption fighting body is like making a woman half pregnant – not something that seems possible at present. (Not that I am an expert on that particular score.)

As the Glenister judgment set out, at the heart of the inquiry is whether the body will be free from political influence and interference so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. What is essential in achieving this balance is to depoliticise the anti-corruption institution or institutions. To achieve this a body need not attain the kind of independence guaranteed for the judiciary (“full independence”), but it does need to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence.

Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent – in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations – to enable it to carry out its functions effectively and free from any undue political influence or undue intervention.

The Bill opts of a “minimalist approach”, including amendments to several sections of Chapter 6A of the South African Police Service Act but retaining the DPCI, albeit in a slightly different format, instead of creating a completely new body. The amendments represent a rejection of a return to the previous position where the DSO was situated within the National Directorate of Public Prosecutions. The approach also rejects the option of creating an independent body outside the formal structures of the South African Police Service. This approach is not necessarily precluded by the majority judgment in the Glenister case (although the judgment did not deal with the difficulties regarding financial independence that will arise because of the non-independent National Commissioner of Police’s role as the Chief Financial Officer of the “independent” unit). As long as the amendments create an independent corruption-fighting unit free from potential political influence and interference, a body that – judged in its entirety – is not only in fact sufficiently independent but is also reasonably perceived as being independent, the amendments will comply with the judgment.

As it stands, an overall assessment of the proposed amendments suggest that the amendments fall far short of what is required by the Glenister judgment in several ways. This is because the amendments do not remove the potential for political influence and interference in the work of the Hawks because the new body is neither sufficiently structurally or operationally independent to and cannot reasonably be perceived as being so independent. The amendments provide far too much power for politicians to regulate the work of the unit, rendering it not sufficiently operationally independent. Neither is it sufficiently structurally independent because of lack of safeguards regarding security of tenure for all members of the unit as well as effective mechanism to report and investigate allegations of political influence and interference in its work. Both in fact and in terms of a reasonable perception of independence the proposals for a reconfigured Hawks fail to safeguard independence as required by the judgment. In this regard, the following are the main problems with the proposed amendments.

The amendments provide insufficient guarantees to safeguard the structural independence of the Directorate as it fails to provide security of tenure for all the members of the Directorate and fails to establish statutory secured levels of remuneration for all members of the Directorate.

In terms of a newly created section 17M all members of the Directorate remain members of the South African Police Service “with all the powers, duties and functions of other members of the South African Police Service”. Section 17G which states that the remuneration, allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24 of the Act (a section which allows the Minister to make regulations about the reduction in rank of members as well as the remuneration structure of members), falls short of the security of tenure for all members. As the majority judgment in Glenister made clear, in the absence of explicit provisions entrenching the employment security and remuneration levels of members of the Directorate, “individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution”, which would be inimical to structural independence.

Ordinary members of the Hakws would therefore remain subject to the hierarchical structure and discipline of the SAP and could be removed by the National Police Commissioner (who is not an independent person). The National Commissioner would retain the power to “discharge” any member of the DPCI from the SAPS on account of redundancy or the interests of the SAPS. The Commissioner would also still be empowered to discharge a member of the service if, for reasons other than unfitness or incapacity, the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. Ordinary members of the Directorate therefore would therefore not be sufficiently protected in terms of job security as required by the Glenister judgment.

Moreover, although a newly inserted section 17DA provides limited protection for the employment security for the Head of the Directorate, and the newly inserted section 17CA(c) provides limited remuneration protection for the Head, Deputy Head and Provincial Heads of the Directorate, it contains no such protection for other members of the Directorate. This means that ordinary members of the Directorate will be subject to the ordinary remuneration regime of the SAPS in exactly the same manner as other members of the SAPS, rendering them insufficiently independent in a structural sense. This falls foul of the Glenister judgment as discussed in section 2.3.2.3 above.

The security of tenure of the Head of the Directorate is not sufficiently protected as required by the judgment as discussed in section 2.3.2 above. A newly inserted section 17DA deals with this matter, but provides wide discretion for the Minister in suspending and removing the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and then may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned. Subsection (3) allows removal from office by an address of the two Houses of Parliament for the same reasons as set out above. Where the Head is suspended, he or she shall receive no salary or such salary as the Minister will determine.

Four aspects of this provision might cause problems. First, any enquiry into the fitness of the Head of the Directorate to hold office will be conducted as the Minister sees fit. There are no formal requirements for how this enquiry should be conducted or who should conduct the enquiry. This wide discretion means that an enquiry could be conducted by the Minister him or herself or by someone in the Minister’s office watering down the safeguard of an objective determination on whether one of the four criteria for removal is in fact present. Second, the third requirement relating to the Head’s possible incapacity to carry out his or her duties of office efficiently, is exceedingly broad and not easily susceptible to objective determination.

The notion of efficiency renders the subsection overbroad and potentially allows the Minister to remove the Head of the Directorate if, in his or her opinion (or, in his or her stated opinion), the Head has not been efficient, opening the door for removal on non-objective grounds, which is not compatible with actual independence or perceived independence.

Third, when the Head of the Directorate is preliminary suspended, he or she could be suspended without a salary and could therefore in effect be punished even before he or she is formally removed, placing considerable potential power in the hands of the Minister to put pressure on the Head of the Directorate, and thus rendering the independence of the Head of the Directorate tenuous at best. Lastly, the two Houses of Parliament can remove the Head of the Directorate by “praying for such removal on any of the grounds” referred to above.

No enquiry is required in this regard and the wording is vague, which means the section could be interpreted as not requiring the two Houses of Parliament actually to have established as objective fact that one or more of the grounds listed is actually present. In one reading of this section, this would render this power as little more than the exercise of a political discretion which may not easily be reviewed by a Court, rendering the security of tenure and hence the independence of the Head of the Directorate.

These fears are reinforced by the heading of this section, which states that the section relates to “Loss of Confidence in Head of Directorate”. A “loss of confidence” is a subjective standard, not an objective standard, as it relates to whether the Minister or the Parliament had stopped having confidence in the Head of the Directorate and such loss of confidence could just as well relate to political reasons as to objective criteria reviewable by a court of law.

Despite the proposed amendments, the possibility of political influence and interference in the work of the Directorate looms large, both in fact and in terms of reasonable perceptions about such influence and interference. The requirements set out in the Glenister judgment (as discussed in section 2.2.3 above) have therefore not been met. Section 17CA(1) proposes that the Minister of Police, with the concurrence of the Cabinet, appoint the Head of the Directorate for a non-renewable term “not exceeding seven years”, while section 17CA(3) requires that the Deputy Head be appointed by the Head with the concurrence of the Minister of Police and section 17CA(4) requires that the Provincial Head of the Directorate to be appointed by the Head with the concurrence of the Minister of Police. This means that the Minister has a veto right over the appointment of the Deputy Head and the Provincial Heads of the Directorate.

No objective minimum criteria are prescribed regarding the skills, experience or commitment to independence of any of the men or woman appointed to these positions. In theory the Minister could appoint an outgoing member of Parliament of the governing party (or another political party) or a sitting member of the highest decision making body of the governing political party (or another political party), somebody without any police experience or someone embroiled in allegations of corruption, in any of these positions. Absent a mechanism that provides for safeguards against the appointment of individuals who are in fact or are perceived not to be politically partial, the perception may well be created that the Directorate is not in fact independent and will thus fly in the face of the requirement that the body should be independent in fact and in terms of perceptions.

The amendments also do not include any legally binding requirement that the Head of the Directorate or any other member of the Directorate need to fulfill his or her duties independently (or, alternatively) without fear, favour or prejudice. A proposed insertion of section 17E(9)(a) states that a member of the Directorate “shall serve impartially and exercise his or her powers or perform his or her functions in good faith” while section 17E(1) requires members to take an oath to “enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law”.

There are several problems with this section. First, there is a distinction between serving impartially and acting in good faith, on the one hand, and being independent on the other. Second, there is no sanction for anyone not acting independently and impartially. Third, the oath seems to be at best ambivalent as it states that one needs to act without fear favour or prejudice but only “as the circumstances of any particular case may require” leaving open the possibility that this means that in certain cases one need not act so and need not act in accordance with the Constitution and the law if the circumstances of the particular case requires it.

A new proposed section 17D(1)(a)(A) states that the functions of the Directorate are, inter alia, to prevent, combat and investigate “in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act.” It is unclear what these “selected offenses” are intended to be and who will select the offenses. However section 17D(1)(a) and 17D(1)(c) states that national priority offenses and other offences can be investigated at discretion of Head or if it is referred to the unit by the National Commissioner, but this remains subject to policy guidelines issued by the Minister (currently the guidelines are to be issued by the Ministerial Committee).

The insertion of a specific focus on charges in terms of the Corruption Act, goes some way to allay fears of political influence and interference. However, corruption is often closely aligned with other offenses such as fraud. The fact that the Minister therefore would retain broad discretion to issue policy guidelines on which priority crimes to investigate might potentially hamstrung investigations in which fraud and corruption are intertwined. Such a broad discretion provided to apolitical actors was not compatible with independence as required by the judgment.

The judgment required far more effective mechanism to protect members of the Directorate from political influence and interference, both prospectively and retrospectively. The judgment thus found that section 17L did not meet the requirements for independence in this regard as the retired judge empowered to investigate allegations of undue influence could only deal with retrospective complaints of interference. Curiously, the proposed amendments wholly fail to address these concerns.

Although it is proposed that section 17L(7) be amended to allow a retired judge to obtain information from the NDPP, there are no proposals to create a structure that ab initio prevents political interference in the work of the corruption-fighting unit. As the judgment found, in some cases irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. That is why it was necessary to create “adequate mechanisms designed to prevent interference in the first place” as this was required to ensure that political interference does not happen from the start. This failure renders the proposed Bill unconstitutional.

Pierre de Vos: memo on SA Police Service Amendment Bill

The South African Police Service Amendment Bill: compliance with Glenister v President of the Republic of South Africa

 Pierre de Vos°

1. Introduction

1.1 In Glenister v President of the Republic of South Africa and Others[1] a majority of members of the Constitutional Court[2] found the national legislation that brought into being the Directorate for Priority Crime Investigation (DPCI,[3] popularly known as the Hawks) and disbanded the Directorate of Special Operations ((DSO,[4] popularly known as the Scorpions) unconstitutional. The majority declared the Chapter 6A of the South African Police Service Act 68 of 1995 inconsistent with Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation. The declaration of constitutional invalidity was suspended for 18 months in order to give Parliament the opportunity to remedy the defects.[5] This memorandum evaluates the South African Police Service Amendment Bill[6] in order to establish whether it complies with the Glenister judgment.

1.2 It is important to note at the outset what the judgment did and did not find. It did not find that section 179 of the Constitution obliges Parliament to locate a specialised corruption-fighting unit within the National Prosecuting Authority (NPA) and nowhere else (as was the case with the Scorpions). The creation of a separate corruption-fighting unit within the South African Police Service (SAPS) was also not in itself found to be unconstitutional and thus the DPCI legislation was not invalidated “on that ground alone”. The judgment did not ask or answer the question whether, given the provisions of the Public Finance Management Act which requires the National Commissioner of Police to remain the accounting officer of any unit situated within the Police, whether it was indeed possible to situate an independent corruption fighting unit within the Police Service. The judgment failed to consider the import of the problems which emerged regarding the safeguarding of the constitutionally guaranteed independence of the National Prosecuting Authority (which arose during the GInwala Enquiry into whether Adv Vusi Pikoli was a fit and proper person able to continue serving as National Director of Public Prosecutions), which arose from the fac that the Director General believed that he remained the Chief Financial Officer responsible for the finances of the NPA in terms of the Public Finances Management Act.  Similarly, the legislative choice to abolish the DSO and to create the DPCI was not in itself found to have offended the Constitution.[7] The majority in the Glenister case did find that the Constitution imposed a positive obligation on the state to establish and maintain a sufficiently independent body to combat corruption and organised crime. Second it did find that the specialised unit (the Hawks) did not meet the requirement of independence imposed by the Constitution.[8]

1.3 In this memorandum I will first set out the reasons for the majority judgment, distilling the legal requirements that the proposed legislation has to meet to comply with the Glenister judgment. I will then discuss the provisions of the draft Bill – first looking at the document as a comprehensive “package” and then focusing on the individual clauses – before concluding whether the proposed Bill comply with the requirements set out in the majority Constitutional Court judgment. I will then provide some suggestions for improvements to the Bill.

2. The obligations imposed by the Glenister judgment

2.1 The operational aspects of the Glenister judgment can be divided into two distinct parts. First, the judgment sets out general requirements or principles that must be used to judge whether the body is indeed a sufficiently independent corruption fighting body that complies with the Constitution (read with South Africa’s International Law obligations). Second, relying on the broad requirements set out in the first part of the judgment, it then proceeds to set our specific reasons why aspects of Chapter 6A of the South African Police Service Act are unconstitutional, and in the process sets out specific requirements that must be met for a sufficiently independent corruption fighting body to comply with the Constitution (read with South Africa’s International law obligations). Any legislation purporting to give effect to the Glenister judgment needs to comply with both the broad requirements for sufficient independence and with the specific requirements highlighted in the second part of the judgment. The two sections are interrelated and the second part amplifies and deals with particular components relating to the general principles set out in the first part, but this second part of the judgment does not circumscribe those general requirements set out in the first part, which must be met in its totality. It is therefore not possible to meet the requirements set in the Glenister judgment merely by focusing on the specific problems with the existing legislation highlighted in the second part of the majority judgment.

2.2 General Principles

2.2.1 Although the Constitution does not explicitly require it, its scheme taken as a whole imposes a duty on the state to set up a concrete and effective mechanism to prevent and root out corruption and cognate corrupt practices. This is because corruption has deleterious effects on the foundations of our constitutional democracy and on the full enjoyment of fundamental rights and freedoms.[9] At the heart of the inquiry is whether the body will be free from political influence[10] and interference[11] so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. What is essential in achieving this balance is to depoliticise the anti-corruption institution or institutions.[12] To achieve this a body need not attain the kind of independence guaranteed for the judiciary (“full independence”), but it does need to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence. Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent – in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations[13] – to enable it to carry out its functions effectively and free from any undue political influence or undue intervention

2.2.2 First it needs to be structurally independent. This relates to the appointment of its members, the conditions under which its members operate and its funding, which must all be regulated in such a manner as to ensure it is independent in fact and is also perceived to be independent by the public. To prevent undue political intervention the proper appointment and recruiting mechanisms that guarantee the designation of persons of high professional quality and integrity is required and the body must be free to initiate and conduct investigations.[14] The conditions of service that pertain to its members and in particular its head is pivotal to insulate the body from political interference or influence.[15] This kind of independence is assessed on the basis of factors such as security of tenure and remuneration, and mechanisms for accountability and oversight.[16] Because the international instruments require independence within the South African legal conceptions, it is necessary to look at how South Africa’s own constitutionally-created institutions manifest independence. In this regard the arrangements regarding the National Prosecuting Authority, the Public Protector and the Auditor General will be of assistance. All these institutions adequately embody the degree of independence appropriate to their constitutional role and functioning.[17] The necessary material resources and specialized staff, as well as the training that such staff is required to carry out their functions.[18]

2.2.3 Second it needs to be operationally independent. This relates to the body’s relationship with the legislature and executive, oversight over the body, and accountability to the two political branches of government. Where a body is placed within existing police structures special care must be taken to safeguard its operational independence. The judgment quoted approvingly from a report prepared by the Organisation for Economic Co-operation and Development (OECD): Specialised Anti-corruption Institutions: Review of Models (OECD Report)[19] which noted that the question of independence of the law enforcement bodies that are institutionally placed within existing structures in the form of specialised departments or units within the Police requires special attention because police and other investigative bodies are in most countries highly centralised, hierarchical structures reporting at the final level to the Minister of Interior or Justice.

“In such systems the risks of undue interference is substantially higher when an individual investigator or prosecutor lacks autonomous decision-making powers in handling cases, and where the law grants his/her superior or the chief prosecutor substantive discretion to interfere in a particular case. Accordingly, the independence of such bodies requires careful consideration in order to limit the possibility of individuals’ abusing the chain of command and hierarchical structure, either to discredit the confidentiality of investigations or to interfere in the crucial operational decisions such as commencement, continuation and termination of criminal investigations and prosecutions. There are many ways to address this risk. For instance, special anti-corruption departments or units within the police or the prosecution service can be subject to separate hierarchical rules and appointment procedures; police officers working on corruption cases, though institutionally placed within the police, should in individual cases report only and directly to the competent prosecutor.

2.2.4 A range of possible measures can be adopted to achieve the goal of establishing an independent body and the legislature did have some leeway in this regard. What was required was for the measures taken to be reasonable. But in deciding whether the measures fall within this range, the courts’ obligation to consider international law when interpreting the Bill of Rights is of pivotal importance. And international law, through the inter-locking grid of conventions, agreements and protocols discussed in the judgment (and whose main features were set out above) “unequivocally obliges South Africa to establish an anti-corruption entity with the necessary independence”.[20] Moreover, it would be difficult to rely on section 36 (the limitation clause) to justify legislation that does not create a sufficiently independent corruption fighting unit. “The need for a sufficiently independent anti-corruption unit is so patent, and the beneficent potential of its operation so incontestable, and the disadvantages of its creation so hard to conceive, that justification would be hard to muster.”[21]

2.2.5 An important additional general principle holds that it is not only the actual arrangements that guarantees structural and operational independence that must be met before such a body would comply with the requirements of the Constitution. Additionally, a court will focus on whether “the appearance or perception of independence” is present in evaluating whether independence in fact exists. Public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is therefore important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.[22]

2.3 Specific requirements for independence relating to the existing DPCI (Hawks)

2.3.1 As the draft Bill attempts to fix the exisiting problems with the Hawks not by creating a new body but by proposing amendments to the exisiting legislation, the specific reasons advanaced by the Glenister judgment for declaring parts of Chapter 6A unconstitutional, must be instructive in evaluating the proposed amendments as these will provide some guidelines (over and above the general principles set out above) to measure the proposed amanedments against. It is thus important to note that against the background of the general principles set out above, the Constitutional Court found that the existing provisions in Chapter 6A of the South African Police Service Amendment Bill were inadequate. The thrust of the reasoning was that the Hawks was insufficiently insulated from political influence.[23] There were primarily two reasons advanced for this conclusion. First, there is an absence of security of tenure protecting the employment of the members of the Hawks and hence its conditions of service were flawed. Second, it found that the structure and functioning of the Hawks allowed for direct political oversight of the entity’s functioning in a manner incompatible with independence.[24]

2.3.2 Security of tenure and institutional safeguards

2.3.2.1 On the first point, it was pointed out that currently the head of the DPCI is appointed by the political head of the Police, namely the Minister and that after appointment neither the head or other persons appointed to the DPCI enjoy any special job security.[25] The DPCI is a Deputy National Commissioner of the SAPS, and is “appointed by the Minister in concurrence with the Cabinet”. In addition to the head, the Directorate comprises persons appointed by the National Commissioner of the SAPS “on the recommendation” of the head, plus “an adequate number of legal officers” and seconded officials. The Minister is required to report to Parliament on the appointment of the head of the DPCI.[26]The Commissioner is empowered to discharge a member of the service if, for reasons other than objective criteria like unfitness or incapacity, as long as the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. The reach of this provision appears to include the head of the Directorate.[27] Their dismissal is therefore subject to no special inhibitions, and the grounds for dismissal under the SAPS Act are broad and can occur at a threshold lower than dismissal on an objectively verifiable ground like misconduct or continued ill-health.[28] These provisions fail the minimum requirements for the creation of a suitably independent unit that is insulated from political influence or interference. What is required is specially entrenched employment security.[29].  This is exacerbated by the fact that the appointment of the National Commissioner of the SAPS is itself renewable. By contrast, the appointment of the National Director Public Prosecutions (NDPP) – who selected the head of the DSO from amongst the Deputy NDPPs – is not. A renewable term of office, in contradistinction to a non-renewable term, heightens the risk that the office-holder may be vulnerable to political and other pressures.[30]

2.3.2.2 The majority judgment suggested that the current arrangement in section 179 of the Constitution and the repealed provisions of the National Prosecuting Authority Act relating to the Scorpions, would be s suitable one for the head of a corruption fighting unit. The NPA Act provided that a deputy NDPP (which included the head of the Scorpions) may be removed from office only by the President, on objective grounds of misconduct, continued ill-health or incapacity, or if he or she is no longer a fit and proper person to hold the office. And Parliament held a veto over the removal of a deputy NDPP. The reason for the removal, and the representations of the deputy NDPP, had to be communicated to Parliament, which was allowed to resolve to restore the deputy NDPP to office.[31]

“These protections applied also to investigating directors within the DSO. The special protection afforded the members of the DSO served to reduce the possibility that an individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution.”[32]

2.3.2.3 Further institutional safeguards required is “statutorily secured remuneration levels”, the absence of which “gives rise to problems similar to those occasioned by a lack of secure employment tenure”.[33] Such safeguards are not currently in place. Not only do the members not benefit from any special provisions securing their emoluments, but the absence of secured remuneration levels is indicative of the lower status of the new entity compared to the DSO (Scorpions).[34] The head of the DSO, as a deputy NDPP, enjoyed a minimum rate of remuneration, which was determined by reference to the salary of a judge of the High Court.[35] By contrast, the new provisions stipulate that the conditions of service for all members (including the grading of posts, remuneration and dismissal) are governed by regulations,[36] which the Minister for Police determines. This is not compatible with security of tenure for members of the unit.

2.3.3 Insulation from political interference and influence versus accountability

2.3.3.1 The Constitution requires that a member of Cabinet “must be responsible for policing”.[37] This requirement must be squared with the requirement that a policing body responsible for investigating corruption with the aim of securing successful criminal prosecution must be insulated from political influence or interference. The majority in the Glenister judgment emphasized that this constitutional injunction does not require “that the anti-corruption unit must itself function under political oversight”. To this end, the particular political oversight arrangements in the impugned legislation were found to be incompatible with adequate independence.[38] However, adequate independence does not require insulation from political accountability (as opposed to political oversight). What was required was not total “insulation from political accountability, but only insulation from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.[39]

2.3.3.2 Given these general principles, the following arrangements regarding the powers of the unit to choose which crimes to investigate would not be compatible with the carefully constructed balance between operational independence on the one hand and political accountability on the other. Where Cabinet (or a member of Cabinet) is empowered to coordinate the unit’s activities, this will raise constitutional problems. Co-ordination can be direct or indirect. Direct co-ordination will occur where a member of Cabinet can influence the selection of the crimes to be investigated by the unit. Indirect co-ordination will occur where a member of the Cabinet can issue policy guidelines in respect of the functioning of the unit as well as for the selection of national priority offences.Both issues were found to be problematic in the impugned legislation. First, section 17D(1)(a) determined that the DPCI could investigate “priority crimes” which in the opinion of the DPCI needs to be investigated. This section did not explicitly state that the DPCI could investigate corruption). Furthermore, this discretion was made subject to the policy guidelines issued by a Ministerial Committee. This power of the Ministerial Committee to issue policy guidelines for the functioning of the DPCI (which could in theory direct that only some kinds of crimes should be investigated) created a “plain risk of executive and political influence on investigations and on the entity’s functioning” and was therefore unconstitutional.[40] Second, in terms of section 17D(1)(b), the National Police Commissioner can also refer matters to the DPCI for investigation, but once again subject to any policy guidelines issued by the Ministerial Committee. This raised the same concerns as above. Indirect influence or interference can occur where the political principles or their politically accountable underlings can influence the operation of the unit. This occurs in two ways in the impugned legislation. First, the head of the DPCI, as a Deputy National Commissioner and a member of the SAPS,218 is accountable to the National Commissioner, whose post lacks sufficient security of tenure,219 thus inevitably creating vulnerability to political pressure. (This means that the National Commissioner of the SAPS is not suitably independent and cannot play any direct role in the supervision of the work of a truly independent corruption-fighting unit.) Second, in terms of section 17I(2)(a) and (d) a Ministerial Committee is allowed to issue policy guidelines in respect of the functioning of the DPCI and may determine procedures to coordinate the activities of the Directorate and other relevant departments or institutions. This power of the Ministerial Committee to issue policy guidelines for the functioning of the DPCI creates a plain risk of executive and political influence on investigations and on the entity’s functioning.[41] Nothing in the statute requires the said policy guidelines to be broad and harmless and the power of the Ministerial Committee to determine guidelines appears to be untrammelled. “The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI to investigate – or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.”[42] This, found the majority, is plainly at odds with a structure designed to secure effective independence. It underscores the conclusion that the legislation does too little to secure the DPCI from interference.[43] In this regard the majority stated:

The competence vested in the Ministerial Committee to issue policy guidelines puts significant power in the hands of senior political executives. It cannot be disputed that those very political executives could themselves, were the circumstances to require, be the subject of anti-corruption investigations. They “oversee” an anti-corruption entity when of necessity they are themselves part of the operational field within which it is supposed to function. Their power over it is unavoidably inhibitory.[44]

The majority points out that because senior politicians are given competence to determine the limits, outlines and contents of the new entity’s work, these provisions are “inimical to independence”.[45]

2.3.3.3 But the new provisions go further than providing the Ministerial Committee with the competence to determine guidelines. They also make provision for hands-on supervision in section 17I(3) which states that: “(a) The Ministerial Committee shall oversee the functioning of the Directorate and shall meet as regularly as necessary, but not less than four times annually. (b) The National Commissioner and the Head of the Directorate shall, upon request of the Ministerial Committee, provide performance and implementation reports to the Ministerial Committee.”

Once again this is found to be constitutionally problematic:

These provisions afford the political executive the power directly to manage the decision-making and policy-making of the DPCI. As with the power to formulate policy guidelines, the statute places no limit on the power of the Ministerial Committee in overseeing the functioning of the DPCI. On the contrary – the requirement that the Ministerial Committee must meet regularly, and that on request performance and implementation reports must be provided to it, in our view creates the possibility of hands-on management, hands-on supervision, and hands-on interference. We find this impossible to square with the requirement of independence. We accept that financial and political accountability of executive and administrative functions requires ultimate oversight by the executive. But the power given to senior political executives to determine policy guidelines, and to oversee the functioning of the DPCI, goes far further than ultimate oversight. It lays the ground for an almost inevitable intrusion into the core function of the new entity by senior politicians, when that intrusion is itself inimical to independence.[46]

Although the South African legal system requires some level of executive involvement in any area of executive functioning, the extent of the involvement here is far reaching and not compliant with the Constitution. .

2.3.3.4 Section 17L does create a safeguard to protect members of the DPCI from undue influence or interference as it allows a retired judge to consider complaints about such influence or interference,[47] but this safeguard is inadequate to save the new entity from a significant risk of political influence and interference.[48] The retired judge has the power to refer a complaint for prosecution,[49]but this mechanism is insufficient as it “operates after the fact”. This does not constitute an effective hedge against interference as it only deals with the past and does not provide for a mechanism that pre-emptively protect inbvestigators against political influence or interference. Moreover the powers of the retired judge is limited. Although section 17L(7) allows the retired judge in the course of this investigation to request information from the NDPP in so far as it may be necessary, but the NDPP may on “reasonable grounds” refuse to accede to such request. That may place a considerable hurdle in the way of the retired judge’s investigation.

In short, an ex post facto review, rather than insisting on a structure that ab initio prevents interference, has in our view serious and obvious limitations. In some cases, irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. Only adequate mechanisms designed to prevent interference in the first place would ensure that these never happen. These are signally lacking.

What was therefore required was a mechanism that protected members of the corruption-fighting unit not only after the fact but could also be used to pre-empt political influence and interference. For such a mechanism to be effective the person or body empowered to deal with compliants of prospective or after the fact incidences of influence or interference had to be provided with succifient power and authority to do the job effectively.

3. Proposed amendments to the South African Police Service Act and compliance with the Glenister judgment

3.1 Overall assessment of the draft Bill

3.1.1 The Bill opts of a “minimalist approach”, including amendments to several sections of Chapter 6A of the South African Police Service Act but retaining the DPCI, albeit in a slightly different format, instead of creating a completely new body. The amendments represent a rejection of a return to the previous position where the DSO was situated within the National Directorate of Public Prosecutions. The approach also rejects the option of creating an independent body outside the formal structures of the South African Police Service. This approach is not necessarily precluded by the majority judgment in the Glenister case (although the judgment did not deal with the difficulties regarding financial independence that will arise because of the non-independent National Commissioner of Police’s role as the Chief Financial Officer of the “independent” unit). As long as the amendments create an independent corruption-fighting unit free from potential political influence and interference, a body that – judged in its entirety – is not only in fact sufficiently independent but is also reasonably perceived as being independent, the amendments will comply with the judgment.

3.1.2 As it stands, an overall assessment of the proposed amendments suggest that the amendments fall far short of what is required by the Glenister judgment in several ways. This is because the amendments do not remove the potential for political influence and interference in the work of the Hawks because the new body is neither sufficiently structurally or operationally independent to and cannot reasonably be perceived as being so independent. The amendments provide far too much power for politicians to regulate the work of the unit, rendering it not sufficiently operationally independent. Neither is it sufficiently structurally independent because of lack of safeguards regarding security of tenure for all members of the unit as well as effective mechanism to report and investigate allegations of political influence and interference in its work. Both in fact and in terms of a reasonable perception of independence the proposals for a reconfigured Hawks fail to safeguard independence as required by the judgment. In this regard, the following are the main problems with the proposed amendments.

3.1.3 The amendments provide insufficient guarantees to safeguard the structural independence of the Directorate as it fails to provide security of tenure for all the members of the Directorate and fails to establish statutory secured levels of remuneration for all members of the Directorate.

3.1.3.1 In terms of a newly created section 17M all members of the Directorate remain members of the South African Police Service “with all the powers, duties and functions of other members of the South African Police Service”. Section 17G which states that the remuneration, allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24 of the Act (a section which allows the Minister to make regulations about the reduction in rank of members as well as the remuneration structure of members), falls short of the security of tenure for all members discussed in the judgment and raised in section 2.3.2 above. As the majority judgment in Glenister made clear, in the absence of explicit provisions entrenching the employment security and remuneration levels of members of the Directorate, “individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution”, which would be inimical to structural independence. Ordinary members of the Hakws would therefore remain subject to the hierarchical structure and discipline of the SAP and could be removed by the National Police Commissioner (who is not an independent person). The National Commissioner would retain the power to “discharge” any member of the DPCI from the SAPS on account of redundancy or the interests of the SAPS. The Commissioner would also still be empowered to discharge a member of the service if, for reasons other than unfitness or incapacity, the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. Ordinary members of the Directorate therefore would therefore not be sufficiently protected in terms of job security as required by the Glenister judgment and as discussed in section 2.3.2 above.

3.1.3.2 Moreover, although a newly inserted section 17DA provides limited protection for the employment security for the Head of the Directorate, and the newly inserted section 17CA(c) provides limited remuneration protection for the Head, Deputy Head and Provincial Heads of the Directorate, it contains no such protection for other members of the Directorate. This means that ordinary members of the Directorate will be subject to the ordinary remuneration regime of the SAPS in exactly the same manner as other members of the SAPS, rendering them insufficiently independent in a structural sense. This falls foul of the Glenister judgment as discussed in section 2.3.2.3 above.

3.1.3.3 The security of tenure of the Head of the Directorate is not sufficiently protected as required by the judgment as discussed in section 2.3.2 above. A newly inserted section 17DA deals with this matter, but provides wide discretion for the Minister in suspending and removing the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and then may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned. Subsection (3) allows removal from office by an address of the two Houses of Parliament for the same reasons as set out above. Where the Head is suspended, he or she shall receive no salary or such salary as the Minister will determine. Four aspects of this provision might cause problems. First, any enquiry into the fitness of the Head of the Directorate to hold office will be conducted as the Minister sees fit. There are no formal requirements for how this enquiry should be conducted or who should conduct the enquiry. This wide discretion means that an enquiry could be conducted by the Minister him or herself or by someone in the Minister’s office watering down the safeguard of an objective determination on whether one of the four criteria for removal is in fact present. Second, the third requirement relating to the Head’s possible incapacity to carry out his or her duties of office efficiently, is exceedingly broad and not easily susceptible to objective determination. The notion of efficiency renders the subsection overbroad and potentially allows the Minister to remove the Head of the Directorate if, in his or her opinion (or, in his or her stated opinion), the Head has not been efficient, opening the door for removal on non-objective grounds, which is not compatible with actual independence or perceived independence. Third, when the Head of the Directorate is preliminary suspended, he or she could be suspended without a salary and could therefore in effect be punished even before he or she is formally removed, placing considerable potential power in the hands of the Minister to put pressure on the Head of the Directorate, and thus rendering the independence of the Head of the Directorate tenuous at best. Lastly, the two Houses of Parliament can remove the Head of the Directorate by “praying for such removal on any of the grounds” referred to above. No enquiry is required in this regard and the wording is vague, which means the section could be interpreted as not requiring the two Houses of Parliament actually to have established as objective fact that one or more of the grounds listed is actually present. In one reading of this section, this would render this power as little more than the exercise of a political discretion which may not easily be reviewed by a Court, rendering the security of tenure and hence the independence of the Head of the Directorate. These fears are reinforced by the heading of this section, which states that the section relates to “Loss of Confidence in Head of Directorate”. A “loss of confidence” is a subjective standard, not an objective standard, as it relates to whether the Minister or the Parliament had stopped having confidence in the Head of the Directorate and such loss of confidence could just as well relate to political reasons as to objective criteria reviewable by a court of law.

3.1.4 Despite the proposed amendments, the possibility of political influence and interference in the work of the Directorate looms large, both in fact and in terms of reasonable perceptions about such influence and interference. The requirements set out in the Glenister judgment (as discussed in section 2.2.3 above) have therefore not been met. Section 17CA(1) proposes that the Minister of Police, with the concurrence of the Cabinet, appoint the Head of the Directorate for a non-renewable term “not exceeding seven years”, while section 17CA(3) requires that the Deputy Head be appointed by the Head with the concurrence of the Minister of Police and section 17CA(4) requires that the Provincial Head of the Directorate to be appointed by the Head with the concurrence of the Minister of Police. This means that the Minister has a veto right over the appointment of the Deputy Head and the Provincial Heads of the Directorate. No objective minimum criteria are prescribed regarding the skills, experience or commitment to independence of any of the men or woman appointed to these positions. In theory the Minister could appoint an outgoing member of Parliament of the governing party (or another political party) or a sitting member of the highest decision making body of the governing political party (or another political party), somebody without any police experience or someone embroiled in allegations of corruption, in any of these positions. Absent a mechanism that provides for safeguards against the appointment of individuals who are in fact or are perceived not to be politically partial, the perception may well be created that the Directorate is not in fact independent and will thus fly in the face of the requirement that the body should be independent in fact and in terms of perceptions (as discussed in 2.2.5 above). The amendments also do not include any legally binding requirement that the Head of the Directorate or any other member of the Directorate need to fulfill his or her duties independently (or, alternatively) without fear, favour or prejudice. A proposed insertion of section 17E(9)(a) states that a member of the Directorate “shall serve impartially and exercise his or her powers or perform his or her functions in good faith” while section 17E(1) requires members to take an oath to “enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law”. There are several problems with this section. First, there is a distinction between serving impartially and acting in good faith, on the one hand, and being independent on the other. Second, there is no sanction for anyone not acting independently and impartially. Third, the oath seems to be at best ambivalent as it states that one needs to act without fear favour or prejudice but only “as the circumstances of any particular case may require” leaving open the possibility that this means that in certain cases one need not act so and need not act in accordance with the Constitution and the law if the circumstances of the particular case requires it.

3.1.5 A new proposed section 17D(1)(a)(A) states that the functions of the Directorate are, inter alia, to prevent, combat and investigate “in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act.” It is unclear what these “selected offenses” are intended to be and who will select the offenses. However section 17D(1)(a) and 17D(1)(c) states that national priority offenses and other offences can be investigated at discretion of Head or if it is referred to the unit by the National Commissioner, but this remains subject to policy guidelines issued by the Minister (currently the guidelines are to be issued by the Ministerial Committee). The insertion of a specific focus on charges in terms of the Corruption Act, goes some way to allay fears of political influence and interference. However, corruption is often closely aligned with other offenses such as fraud. The fact that the Minister therefore would retain broad discretion to issue policy guidelines on which priority crimes to investigate might potentially hamstrung investigations in which fraud and corruption are intertwined. As was pointed out in 2.3.3.2, such a broad discretion provided to apolitical actors was not compatible with independence as required by the judgment.

3.1.6 As was discussed in 2.3.3.5 above, the judgment required far more effective mechanism to protect members of the Directorate from political influence and interference, both prospectively and retrospectively. The judgment thus found that section 17L did not meet the requirements for independence in this regard as the retired judge empowered to investigate allegations of undue influence could only deal with retrospective complaints of interference. Curiously, the proposed amendments wholly fail to address these concerns. Although it is proposed that section 17L(7) be amended to allow a retired judge to obtain information from the NDPP, there are no proposals to create a structure that ab initio prevents political interference in the work of the corruption-fighting unit. As the judgment found, in some cases irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. That is why it was necessary to create “adequate mechanisms designed to prevent interference in the first place” as this was required to ensure that political interference does not happen from the start. This failure renders the proposed Bill unconstitutional.

3.2 Specific questions and issues with the proposed amendments

3.2.1 In terms of a proposed section 17CA, the Head of the Directorate, the Deputy Head and the Provincial Heads are to be appointed by the Minister for a non-renewable fixed term for a period “not exceeding seven years”. There are several problems with this section. First, the appointment is to be made by the political head of the South African Police Service, namely the Minister of Police. It was found that the National Commissioner, appointed by the Minister of Police, was not an independent person as the appointment was done by the political head of the Police and could be renewed. It is inappropriate that the political head of the Police, a politician whose colleagues may be investigated by the unit, has the sole discretion to appoint the Head. This would render the Head insufficiently independent both in fact and in terms of perception by the public. Another mechanism for appointment will have to be found to ensure that the Head is not a political appointee with political loyalties that would render him or her in fact and in terms of perception not independent. Second, the wording of the proposed section means that a person could be appointed for any period of less than seven years. There are two potential problems with this sections, First, the discretion provided to the Minister to determine the term of office of the Head, Deputy Head and Provincial Heads (as long as this term is no longer than seven years) is open to abuse and impractical and could, arguably, be used to render the Directorate less effective or ineffective. If appointments are made for short periods it would make it difficult for the individuals appointed to gain the necessary knowledge, skill and confidence to do their jobs effectively, thus rendering the Hawks less effective than required. Whether the provision of this discretion rises to the level of a constitutional problem, by not guaranteeing that the Hawks act effectively to combat corruption, is a close call. Second, the term of office of seven years is arguably too short. Given the fact that the members remain members of the Police Service, are subject to the other provisions of this Chapter employed in terms of the South African Police Services Act, and are therefore not guaranteed any special pension benefits at the end of the seven year term, might place the Head, the Deputy Head and the Provincial Heads in a vulnerable position as they may have to return to the ordinary Police Service after the completion of their seven year stint, rendering them susceptible to political influence and interference. If these appointees need to return to the ordinary Police Service in order to secure for themselves a livable pension on retirement, they might tread carefully regarding politically sensitive cases in order not to jeopardize their chances for such “redeployment”. Moreover the proposed section 17CA(12) provides that the Head and Deputy Head, who would normally have to retire at the age of 60, may be retained at the Discretion of the Minister for a period of up to two years. If a person of suitable age is thus appointed to one of these positions it would render such a person vulnerable to political influence or interference as the person, rightly or wrongly, might believe that the Minister will not exercise his or her discretion in his or her favour unless politically sensitive cases are handled to take account of the wishes of the Minister.

3.2.2 Section 17E deals with the requirement that every member of the Directorate needs to obtain security clearance in terms of the relevant legislation in order to work and to continue working at the Directorate. Other members of the Police Services are not subjected to the same requirement. Moreover in terms of subsection (4) the National Commissioner (not the Head of the Directorate) may transfer an individual or if such a person cannot be redeployed elsewhere may discharge such a person if his or her security clearance is degraded, withdrawn or refused “on reasonable grounds”. This provision is open to abuse, First, the decisions of members of the Intelligence Services are kept secret and it will be very difficult if not impossible to have any decision to degrade, withdraw or refuse security clearance reviewed by a court. This means that (given the politicization of the Intelligence Services) these provisions would be capable of being used to influence, interfere and even remove members of the Directorate for political reasons. Second, the power and hence also the discretion to remove the individual from the Directorate is retained by the National Commissioner, a political appointee who is not independent and who might exercise his or her discretion wrongly for political reasons. At the very least, this power needs to be transferred to the Head of the Directorate in order to ensure that the exercise of this discretion to some degree protected from political abuse. Third, it is unclear why security clearance is required for all members of the unit. Ordinary members of the Police Service need not obtain security clearance of this sort. There is nothing inherently related to national security in the investigation of corruption (even the corruption of high powered business people or politicians) and most investigators would not encounter issues of national security. While a minimum number of members of the Directorate may be required to obtain security clearance in order to deal with matters of national security, this sweeping requirement is unnecessary and could well create the well founded perception that the unit is not independent.

3.2.3 A new section 17H is proposed, dealing with “Finances and Financial Accountability” of the Hawks. Some degree of financial security is guaranteed in that the section provides for ring-fenced funds allocated to it by Parliament, money that cannot be used by the rest of the Police Service (see section 17H(4)). But because the proposals envisage that the Hawks remains part of the SA Police Service, in terms of the Public Finance Management Act the National Commissioner remains the accounting officer for the Hawks and is also required “after consultation with the Head of the Directorate” to prepare the budget of the unit (see section 17H(2)). This means that the National Commissioner (and not the Head of the Directorate) is responsible for the drafting the budget of the Hawks. The National Commissioner (not an independent person) must consult with the Head but need not follow the advice of the Head. This means that the National Commissioner is entitled to ignore the advice of the Head of the Directorate as far as the drafting of a budget for the Hawks will be concerned, meaning that a political appointee who is politically open to influence and interference by politicians, will in effect have a final say on the budget of the Hawks, leaving open the possibility of indirect political influence and interference coming into play via the threat of starving the unit of the funds required to to its job without fear, favour or prejudice.

3.2.3 Proposals for the amendment of section 17I goes some way to allay fears expressed in the Glenister judgment about direct management of the work of the Hawks as it proposes the scrapping of almost all the powers of the Ministerial Committee to draft policy guidelines for the functioning and selection of priority crimes which may be investigated by the unit. In the light of the above, it may not immediately be clear why the Ministerial Committee is retained at all. If its only power were to request performance and implementation reports from the National Commissioner and the Head of the Directorate (in terms of section 17I(3)(b)), the Committee would hardly have any powers. As the Minister will now take over responsibility for drafting of guidelines regarding the investigation of priority crimes (other than corruption), for the appointment and also the removal of the Head, and as the Minister will take final responsibility for the Hawks, (similar to the Minister of Justice taking final responsibility for the NPA), the Ministerial Committee appears – judges on these provisions alone – to have  become obsolete. However, section 17J(2)(b) provides for an Operational Committee  to “perform such functions as from time to time may be directed by the Ministerial Committee”. The Operational Committee is comprised primarily of politically appointed functionaries. The section provides no guidelines for what kind of functions the Operational Committee might be instructed to engage in regarding the Hawks. This section may therefore be used – or will perceived to be open tom misuse – by the Ministerial Committee and as such, is not compatible with the Glenister judgement. Moreover, as was pointed out in section 2.3.3.4, the judgment found that the existing section 17I(3)(a) and (b) left open the danger of political interference in the operation of the unit by a political body, the Ministerial Committee. The Bill proposes to amend section 17I(3)(a) to remove language that would have allowed the Ministerial Committee to oversee the functioning of the Directorate, but it leaves in place section 17I(3)(b), which requires BOTH the National Commissioner (who is supposed to have no influence or oversight whatsoever over the unit) as well as the Head of the Directorate to provide performance and implementation reports to the Ministerial Committee. It is unclear what performance and implementation reports might entail and whether it would entail reports about specific cases and the evidence gathered in regard such cases. As such it is unclear whether the retention of this section is compatible with the judgment.

3.2.4 Proposed amendments to section 17K(4) include a proposed amendment that makes no sense. Namely a proposed newly inserted section 17L(4)(b) states that the “Minister shall submit to Parliament any policy guidelines referred to in section for concurrence”. The relevant sections are not mentioned which means this section is arbitrary and irrationally vague and does not comply with the basic requirements for adherence to the principle of legality, an incidence of the Rule of Law, and is therefore invalid.

4. Proposed way forward

4.1 The proposed draft Bill purporting to give effect to the Glenister judgment falls short of the requirements set out in that judgment. The reasons for this are clear: the drafters aimed at retaining the unit within the general hierarchy and structure of the South African Police Services which generally operates under the assumption of some political control and influence over the work of the various units in the SAPS. Following such an approach, it would be very difficult (but perhaps not impossible) to ensure that an effective, efficient and sufficiently independent corruption-fighting unit is created. This is because, first, the terms of the Public Finance Management Act requires the National Commissioner to remain the accounting officer and hence ultimately the “boss” of the unit. Second, given the hierarchical structure of the South African Police Service it is difficult to provide for structural and operational safeguards – including entrenched tenure security and salary provisions as well as insulation form political influence or even interference in a unit retained within the South African Police Service.

4.2 The judgment suggests that a better model to follow would be the National Prosecuting Authority or the relevant Chapter 9 institutions such as the Auditor General or the Public Protector (even though this might not be contained inside the Constitution), institutions that remain accountable to Parliament, but does not report directly to the political entity (the Minister of Finance or the Minister of Justice) from whose budget these bodies are financed and is hence free from the direct political influence or interference which the judgment warned against. It would be far easier to create an efficient, structurally and operationally independent, anti-corruption fighting unit safeguarded from political influence or interference as a separate unit (not included with the NPA nor with the Police). Detractors might argue that section 199(1) of the Constitution renders this option a non-starter as this section states that:

The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.

But in 2001 in the Constitutional Court in the Potsane case[50] interpreted a similar phrase referring to a single Prosecuting Authority in its historical context and said it did not mean that the Defence Force could not have its own prosecuting arm for military offenses. It only meant that the various prosecuting authorities of the so called homelands had to be amalgamated into one prosecuting authority for the country. As the Kamphephe Commission of inquiry pointed out, this means that there is not constitutional imperative to have only one prosecuting authority for the country. By analogy it would also mean that there is no constitutional imperative to have all investigative policing functions performed by the SAPS.

4.3 It is important to note that the Glenister judgment required the creation of a body that was independent in fact and that was perceived to be independent by all reasonable people. This would require extraordinary measures regarding the appointment of the Head of the Unit (perhaps by a super majority of members of Parliament after a process that includes input from civil society); as well as extraordinary protections for the security of tenure of both the Head of the unit and of all the other members of the unit (something that is not possible within the South African Police Service where entrenched job security for ordinary members of the unit will be difficult to square with the practices and culture within the SAPS and with the fact that the National Commissioner remains the Financial Officer of such a unit.

4.4 It would also require the creation of a credible mechanism to actually protect every single member of the unit from both prospective and retrospective political influence and interference and to ensure that this protection is also perceived by all reasonable people to be effective and real. This would require the creation of a mechanism that is in fact and is perceived to be completely free from political influence and interference, one that provides sufficient powers and standing to allow the person or body empowered to safeguard the independence of the unit to do its work without fear, favour or prejudice.


° Claude Leon Foundation Chair in Constitutional Governance, Department of Public Law, University of Cape Town, email: Pierre.devos@uct.ac.za.

[1]2011 (7) BCLR 651 (CC).

[2]I focus throughout on the majority judgment, because this judgment is binding. I refer to it throughout as the Glenister judgment.

[3]South African Police Service Act 68 of 1995 (SAPS Act) as amended by the South African Police Service Amendment Act 57 of 2008 (SAPS Amendment Act).

[4]National Prosecuting Authority Act 32 of 1998 (NPA Act) as amended by the National Prosecuting Authority Amendment Act 56 of 2008 (NPA Amendment Act).

[5]Par 251.

[6]As published on 24 February 2012, Bill B7-2012.

[7] Par 162.

[8] Par 163.

[9] Par 175.

[10] Par 208.

[11] Par 206.

[12] Par 188.

[13] Obligations which the majority found bound South Africa and informed its interpretation of the constitutional duty to create an independent corruption fighting unit. See par 189.

[14] Par 184.

[15] Par 208.

[16] Par 210.

[17] Par 211.

[18] Par 183, quoting from article 6(2) of the United Nations Convention against Corruption,http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf. The UN Convention was adopted by South Africa on 31 October 2003 and entered into force on 14 December 2005. South Africa signed the Convention on 9 December 2003 and ratified it on 22 November 2004.

[19] Par 188. The quoted section is from page 17 of the Report which can be accessed at http://www.oecd.org/dataoecd/7/4/39971975.pdf.

[20] Par 192.

[21] Par 203.

[22] Par 207.

[23] Par 208.

[24] Par 213

[25] Par 219.

[26] Par 219.

[27] Par 220.

[28] Par 221.

[29] Par 222.

[30] Par 223. This view is in line with the Constitutional Court judgment in Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others 2011 (10) BCLR 1017 (CC) at par 69.

[31] Par 225.

[32] Par 226.

[33] Par 227.

[34] Par 227.

[35] Section 17(1) of the NPA Act before amendment by the NPA Amendment Act.

[36] Sections 17G and 24 of the SAPS Act.

[37] Section 206(1).

[38] Par 215.

[39] Par 216.

[40] Par 229.

[41] Par 229.

[42] Par 230.

[43] Par 231.

[44] Par 232.

[45] Par 234.

[46] Par 235 and 236.

[47] Section 17L(4)(b) of the South African Police Service Act.

[48] Par 246.

[49] Section 17L(5) of the South African Police Service Act.

[50] Minister of Defence v Potsane and Another, Legal Soldier (Pty) Ltd and Others v Minister of Defence and Others 2001 (11) BCLR 1137.

On changing the Constitution

Recent statements by politicians about the need to review the judgment of the Constitutional Court with a view to assess the need for changes to the Constitution, is often accompanied by assurances that the South African Constitution has already been amended 16 times. It is argued that the Constitution was a compromise document foisted on the people of South Africa by evil right-wingers, that the document has become a stumbling block to the effective governing of the country and hence has become a hinderance to the economic transformation of the country. Over the past year many ordinary folk, taking its cue from those talking about changing the Constitution, have taken up this whispering campaign against the Constitution.

There are two problems with this line of reasoning. First, the mere fact that the Constitution has been amended 16 times is irrelevant, as the number of amendments is not what is in issue. Rather what is in issue is the nature of any proposed amendments. Are they good for democracy and for the country or are they bad? Would they insulate the governing party from scrutiny when it flouts the law and the Constitution or would it enhance oversight and democratic accountability for any governing party? Would amendments rob citizens of their rights and their ability to have those rights enforced by the courts, or would it make it easier for citizens to enforce their rights? Would amendments hamper economic transformation by protecting the corrupt in government and the private sector, or would it advance transformation by ensuring open, accountable and transparent government with the requisite oversight powers for the courts?

What those who argue that the Constitution has been amended 16 times do not say, is that almost all of these amendments passed so far have been mere technical amendments of no real substantive or political effect. Where substantive amendments have been made, this has tended to weaken the Constitution and the checks and balances in it, instead of strengthening it, and as such was criticised by many in academia and civil society.

But most amendments have been entirely uncontroversial.

Thus the first amendment dealt with the oath of office to be sworn by the Acting President. Amendment two, inter alia, changed the name of the South African Human Rights Commission to that of Human Rights Commission. Amendment four was needed to confirm that a provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature. The fifth amendment, inter alia, was aimed at allowing a proclamation calling and setting dates for an election of the National Assembly to be issued either before or after the expiry of the term of the National Assembly. And on it goes.

So far only four sets of amendments of some importance and political relevance have been made to our Constitution. The sixth amendment stated that the head of the Constitutional Court (and not the head of the Supreme Court of Appeal) will become the Chief Justice of South Africa and also provided for the extension of the term of office of a Constitutional Court judge by the legislature. The second part of this amendment was highly controversial as it potentially affected the separation of powers and the security of tenure of Constitutional Court judges and was vigorously opposed by academics and civil society groups. It did not help that Parliament unconstitutionally tried to delegate the power to extend the term of office of a Constitutional Court judge to the President, a provision that was first relied upon by President Jacob Zuma when he wanted to extend the term of office of former Chief Justice Sandile Ngcobo.

The eighth, ninth and tenth amendments were passed to introduce the highly contentious floor crossing provisions, which allowed members of national and Provincial Parliaments and Municipalities to cross the floor during two window periods — as long as more than 10% of the members of the party crossed the floor. These provisions insulated the ANC from floor crossing (as it would have required between 25 and 30 ANC members to cross the floor together) but decimated smaller parties where even 1 person could easily cross the floor.

In 2009, after the Polokwane conference and in the face of threats of factionalism within the ANC, the fourteenth and fifteenth amendments were adopted to abolish the floor crossing, thus protecting the ANC from possible floor crossing defections by the losing factions of party elections at national, provincial and local government level.

The twelfth and thirteenth amendments provided for the elimination of cross-border municipalities by changes to the boundaries of certain provinces. These were highly contentious as citizens living in KwaZulu-Natal and Gauteng did not want to be moved to worst performing provinces of the Eastern Cape and North-West respectively. Despite valiant efforts by the people of Matatiele and Merafong, and despite some promises made to the contrary before national elections, the ANC used its then two-thirds majority to force these communities into provinces they did not want to go to.

Every proposed amendment to the Constitution must surely be evaluated on its merits. Amending the Constitution is not per se a problem. Only those proposed amendments to the Constitution that will protect the governing elite at the expense of citizens or will undermine the very nature of our Constitutional democracy, will be problematic. Each proposed amendment will have to be judged on its own merit.

Which brings me to the second problem with this talk about amending the Constitution. Those who argue that the Constitution must be amended because the Constitution has become a stumbling block to the effective governance of the country and hence in effect prevents social and economic transformation, are rather vague about how the Constitution should be amended.

There seems to be two general arguments circulating and being whispered about in this regard. First, some among us are upset that the courts can review and set aside decisions by the President, other members of the executive and other organs of state, when such decisions are not authorised by the Constitution or the law, do not comply with the Constitution or ordinary law or when these decisions are not rational (in other words, when the decisions are arbitrary, made in bad faith or capricious). This argument is based on the premise that those in government should not be bound by the law and should, in effect, be above the law.

For example, if the Constitution or an ordinary piece of legislation requires the President to appoint a “fit and proper” person to a position and he then decides to appoint somebody to that position who has been found guilty of corruption or murder, so the argument goes, it is not for the non-elected members of the judiciary to declare such an appointment invalid merely because the appointment did not meet the minimum requirements set by the law.

Such an argument is no more than an argument for lawlessness. Of course, in such a case there is nothing that prevents the legislature from amending the relevant legislation (or the Constitution – if the requisite majority can be mustered to do so) to abolish the requirement that only a “fit and proper” person should be appointed to the job. What cannot ever be accepted in a constitutional democracy, is a situation where the law and the Constitution can be flouted at will, with no recourse open to the courts to check this flouting of the law.

A second argument is made that the Constitution is a compromise document agreed on by the Constitutional Assembly in line with the 34 Constitutional Principles contained in the interim Constitution and as such lacks legitimacy because it contains many anti-transformation provisions.

Of course, the interim Constitution contained a provision that would have allowed the final certified Constitution to be submitted to voters in a referendum if two-thirds of the members of the Constitutional Assembly could not agree on the text. If at least 60% of the voters approved of the draft Constitution in a referendum, it would have taken effect. The ANC and the NP both avoided this by agreeing on the text. The fact that a referendum was never enforced suggest that the ANC was worried that its version of the Constitution would not obtain a 60% majority in a referendum. Instead both parties, after extensive public participation, agreed to a document which it could live with – although almost all commentators have since argued that the ANC out negotiated the National Party and secured a Constitution that was far closer to its original plans than they could have dreamed about.

In any case, it is unclear which provisions of the Constitution hinders social and economic transformation in South Africa. The property clause is often singled out in this regard, but as I have pointed out several time before that section does not require a “willing-buyer willing-seller” land reform process. Neither does it require the payment of market value for all land expropriated for purposes of land reform. Those who claim that the Constitution obstructs social and economic change has not yet been able to point to any other provisions in the Constitution that mitt be objectionable. This is probably because there are none.

Ours is not an exclusively liberal Constitution. Although it contains a system of government based on the separation of powers and checks and balances as well as all the traditional liberal human rights like freedom of expression, it also contains a set of social and economic rights that places a positive duty on the state to take reasonable steps to provide better and more expansive access to housing, health care, education and other social and economic rights. Moreover, the Constitution applies, to a large degree, horizontally also binding private individuals and institutions like businesses. This aspect is based on the view that the human rights of an individual can be trampled on not only by the state but also by powerful private interests and by individuals.

My question would be: which sections of the Constitution exactly are those that hinder transformation? In my view there are no such sections to be found in our Constitution. Those who argue that it might be time to amend the Constitution to effect social and economic transformation need to say which sections they find objectionable. We can then have a sensible debate about this question. In the absence of such clear proposals and arguments, the mutterings and whispers about the need to change the Constitution can be treated as ill-informed and self serving drivel by those who are seeking a scapegoat to avoid accountability for governance failures over the past 18 years.

My challenge to those who whisper and grumble about the need to change the Constitution is this: either put your cards on the table so that we can debate the issue or stop your self-serving campaign to discredit the Constitution. In the absence of concrete proposals one will have to assume that those who talk about changes to the Constitution are not interested in the well-being of South Africans, but rather in retaining power and access to tenders by scapegoating the Constitution.

A worrying attack on the Rule of Law

The decision of the Supreme Court of Appeal (SCA) on Tuesday in the Jacob Zuma case, must come as a political – but not yet as much of a legal – blow to President Jacob Zuma. Coming just as the unofficial succession debate is hotting up, this judgment will provide some ammunition to President Zuma’s opponents inside the ANC as it will remind party activist and ordinary voters alike that Zuma had a corruption case to answer, that his financial advisor was convicted of bribing him but that he never got his day in court to clear his name.

It is important to note that the decision does not deal with the merits of the case brought by the DA, as the NDPP and the President have been using stalling tactics to ensure that this case is not finalized before the ANC elective conference this December. The question of whether the decision of the National Director of Public Prosecutions (NDPP) to drop all corruption charges against Jacob Zuma was unlawful and should be set aside, will only be considered once an appeal of this judgment had been finalised by the Constitutional Court, and then only if the Constitutional Court confirms the SCA judgment.

Legally there is therefore still a long way to go. Even if the Constitutional Court confirms the SCA judgment, the merits of the case will then have to be ventilated in the High Court and will almost certainly be appealed to the SCA and then the Constitutional Court. But the Constitutional Court judgment might well be finalized before December, which would mean that if the SCA judgment is confirmed, the NDPP will have to hand over almost all relevant documents which were considered by the NDPP when he made the controversial decision to drop charges against Zuma to the court. The NDPP would not have to hand over the written submissions made to the NPA on behalf of Zuma as these documents are confidential – unless President Zuma waives his right to confidentiality in this regard.

As Navsa J explained, this will present difficult choices for the NDPP and for President Zuma, as they run the risk of ultimately losing the case if they fail to put sufficient documents before the court to legally justify the decision to drop the charges against the President. Such information, crucially, will have to include evidence of the tape recordings which ostensibly led to the dropping of charges as well as evidence about the way the tapes were obtained and by whom they were made. I quote from the judgment.

In the event of an order compelling production of the record, the office of the NDPP will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution. It will then fall to the reviewing court to assess its value in answering the questions posed in the review application. If the reduced record provides an incomplete picture it might well have the effect of the NDPP being at risk of not being able to justify the decision. This might be the result of Mr Zuma’s decision not to waive the confidentiality of the representations made by him. On the other hand, a reduced record might redound to the benefit of the NDPP and Mr Zuma.

Interestingly, the SCA decided not to deal with the question of whether a decision by the NPA to drop charges constituted administrative action under the Promotion of Administrative Justice Act (PAJA). Instead it found that the decision was reviewable under section 1(c) of the Constitution. This is where the curious statement of the ANC becomes relevant. In the statement following the judgment the ANC said, amongst others:

This matter, whilst it receives a deeper legal analysis, we however want to highlight the following:

  • The continued attempt by the DA to use the Courts to undermine and paralyse government.
  • The granting of blanket permission to political parties to can review any State decisions, using Courts.
  • How the DA will conduct a review of the case when it can`t have access to all the information which informed the NDPPs decision, to withdraw the charges.

Given these facts, it is clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of State.

Leaving aside for the moment that the NPA is not part of government as suggested by the statement, but in fact an independent body that must make decisions on whether to charge and prosecute somebody “without fear, favour or prejudice, the statement shows a worrying lack of understanding of the Rule of Law. The Rule of Law requires, at a minimum, that public power must be exercised in accordance with the law and in a rational manner. The ANC statement suggests that when the government of the day (or in this case the NPA) acted illegally (in the sense that it ignored the law or was not authorised by law to act or where there was no rational relationship between the act and the reasons given for the act, then a political party should not be allowed to approach a court to challenge this flouting of the law and the Constitution as this would open the floodgates of litigation, would undermine all organs of state and would paralyse government.

As I see it, this seems like an extraordinary admission on the part of the ANC that the government it heads flouts the law and the Constitution so regularly that it would be completely paralysed if it is taken to court every time this happens. Why else would political parties flood the courts (spending millions of Rand they could have spent on election campaigns) unless they believe they can prove that the government has flouted the law. I am not sure the statement was meant to make this admission, but that is the necessary implication of it. The SCA dealt with the floodgates argument in the following (to my mind convincing) passage, starting with a quote from a High Court judgment:

“One of the principal objections often raised against the adoption of a more flexible approach to the problem of locus standi the floodgates will thereby be opened, giving rise to an uncontrollable torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument that to afford locus standi to a body such as first applicant in circumstances such as these would be to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous applications against the State. Should they be tempted to do so, I have no doubt that appropriate order of costs would soon inhibit their litigious ardour.”

Thirdly, as was pointed out by Budlender, ‘if the cases are well-founded, there can be no objection to a flood of people trying to achieve justice’.

What the ANC does not seem to understand is what is at stake here: the very essence of respect for the Rule of Law, a founding value of our Constitution contained in section 1(c) of the Constitution. That section proclaims the supremacy of the Constitution and the concomitant supremacy of the Rule of Law. In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy. When a political party approaches the court on a Rule of Law question, it is also helping to safeguard democracy. This principle is important, and is explained thus in the judgment:

Put simply, it means that each of the arms of government and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. Put differently, it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future.

The ANC should have thanked the DA for spending pots of money to safeguard this cherished principle, money they could have spent to fight elections. This does not mean the DA will ultimately win their case. This will have to be decided afresh by the High Court. There are two aspects relating to the Rule of Law that might be relevant to this case, depending on the facts and depending on the evidence placed before a court.

First, although the judgment does not expressly say so, the NDPP would not have acted in accordance with the law and the Constitution, if he had dropped the charges on grounds not provided for in the NPA’s prosecuting policy to which the NPA is bound. What will make the NDPP’s case more difficult is that the acting NDPP, Mokothedi Mpshe, had failed to refer to the prosecuting policy at all when he provided reasons for the dropping of charges. The argument would therefore be that the charges were not dropped in accordance with this legally binding prosecution policy and was thus unlawful and an affront to the Rule of Law.

But there is a second aspect of the Rule of Law which might apply here. This is that when public power is exercised in terms of the Constitution or other legislation, this exercise of power had to be rational. As Navsa pointed out, “the rule of law also requires rationality as a prerequisite for the validity of the exercise of all public power”. This means that where somebody exercises public power, there must be a rational connection between the decision taken and the stated reasons or goal of that decision. Where reasons were cribbed from an overturned Hong Kong decision, say, the body making the decision will have some work to do to convince a court that the decision was rational.

However, it is important to note that the SCA did not endorse the view that the decision would have to be viewed on these two grounds. That, said Navsa, was a question for the high court – the court seized with the application for the review. Because arguments made by the NDPP about the extent to which the decision was reviewable were premature, it was for the High Court to determine the grounds of review. Criticising the now suspended head of the NDPP, Menzi Simelane, (which was not the first time Simelane has been criticised by our courts) on this point, the SCA remarked that it “is difficult to understand why it persisted in pursuing the appeal on this aspect. It does not reflect well on the NDPP.”

It might well be that eventually a court will decide that there are sufficient reasons to grant a permanent stay of prosecution in this case. But usually those decisions are taken by a judge, not by the NDPP. If the NDPP had acted irrationally or if it had not followed its own prosecution policy it would have flouted the law for political reasons and would have treated one person – the current President – as above the law. That is why it is important that the courts decide whether this decision was valid or not. Who knows, the evidence provided by the NDPP (and perhaps by President Zuma, if he decides to release his submissions to the NDPP) might satisfy the courts that this decision did not flout the Rule of Law.

If that were to be the case, the ANC would have again have to thank the DA for clearing this up and for helping our courts to reaffirm our confidence in our prosecuting authority. At the moment the NPA is not a body that instils much confidence with anybody, as there is some evidence that it has been politically captured by the Zuma faction inside the ANC over the past three years (and there is some evidence that it was politically captured by the Mbeki faction before that). I suspect the statement was made not because of a sudden attack of conscience or principle on the part of the ANC, but rather because the judgment provided a political opening for opponents of President Jacob Zuma and needed to be discredited.

In doing so, this statement represents a worrying attack on the Rule of Law.

How can we solve problems with our electoral system?

In certain circles it is fashionable to complain about South Africa’s electoral system and to state that South Africa’s democracy will work almost perfectly if only we changed the electoral system. But although our electoral system is far from perfect, the changing of the electoral system will not magically turn our MP’s into fearless fighter for justice. Neither will it necessarily bring elected representatives closer to the people.

After all, half of our representatives at local level are directly elected in wards and no one is claiming that local government in all towns and cities is working perfectly. And, one suspects, many who yearn for the strengthening of the link between MP’s and voters would be horrified if MP’s actually started representing the true interests of those they represented and voted as their constituents want them to on all issues — including abortion, gay rights, the death penalty and gender rights.

Not that the present system is optimal. In South Africa, at both national and provincial level, we only vote for a political party, never for an individual. The political parties decide which candidates appear at what positions on their electoral lists and political parties therefore in effect decide who will represent us voters in the various legislatures. (Voters merely decide how many representatives from each party list will eventually go to the various legislatures.)

If someone appears at number 1 on the party list, that person is going to represent his or her party in the National Assembly as long as his or her party obtains at least 0.25% of the vote. If a party obtains 50% of the vote in the election, the first 200 names on its party list will go to the National Assembly.

Where the selection of representatives to party lists are done according to a system of internal party democracy and where the lists cannot be changed by party leaders — either before the election or after the election — and where MP’s cannot be removed from Parliament once elected, there is at least a semblance of democracy present in the selection of MP’s and in their post-election role. But where a political party change party lists more or less compiled in an intra-party democratic process (as is the case with the ANC) or where the members are never given a real choice but where selection of party candidates is done by an elite selection committee of party leaders (as is the case with the DA), ordinary voters have almost no say in who would represent them in Parliament.

This means that members of Parliament are not beholden to voters at all and have no independent power base and they have no incentive to listen to and respond to the wishes of the electorate in their informally allocated “constituencies”. Instead they are wholly beholden to the party bosses who can give them instructions on how to behave in the legislature, which Bills to vote for, and how vigorously to hold members of the executive to account.  As these MP’s can be removed them from Parliament if they do not behave as the party wishes, only the most brave or foolhardy MP’s will consistently act according to their conscience or the wishes of their “constituents”.

Both the ANC and the DA remove members from Parliament for various reasons or shift them around from one legislature to the other to promote or demote them. Not that ordinary voters would notice this, because we have no clue who represents us in Parliament. This is because MP’s first and foremost represent their political parties, instead of geographically defined constituencies, and can afford to ignore the voters in the area to which their parties assign them.

In South Africa the democratic nature of the system is further weakened by the fact that we have a Parliamentary government. The majority party in the National Assembly elects the President. If one party were to receive less than 50% of the votes, a coalition of parties will have to agree on the election of a President.

This means that ordinary voters has never gotten the chance to vote for the President and for the executive, who only remains in the executive for as long as the party they belong to can muster a majority in the National Assembly. THat is why Thabo Mbeki was never directly elected by the voters. He was indirectly elected by the MP’s of the majority party who elected him as President because he was selected as President of the majority party at a party elective conference where about 4000 delegates could vote (although his two elections as ANC President were unopposed so there was actually no vote by ANC members in favour of his Presidency).

Some ardent critics of this system argue that we should ditch the closed list proportional representation system in favour of a first-past-the-post system in which we elect one representative who obtains the most votes in each distinct constituency. It is argued that if MP’s were to be elected directly by voters in constituencies, those MP’s would be far more responsive to the needs of the voters in the constituencies and would be far more willing to ensure that the hopes and dreams of their constituents find expression in our legislatures.

Moreover, so it is argued, in such a system MP’s would have an independent power base and would be able to defy party bosses and act independently according to their conscience when they think this is required (say when they have to uncover a serious financial scandal or when they wished to vote against Bills introducing abortion, more controls over shoot-to-kill police officers to prevent them from murdering too many innocent civilians, or same-sex marriage).

But in South Africa it is far from clear that this will be the case and that MP’s will act in a more responsive manner — even if directly elected. MP’s are most responsive if they are scared that they will lose their seat in the next election. Where the support of major parties are concentrated in certain areas where their elected representatives will have unassailable majorities, the MP elected for his or her party will have little incentive to listen to his constituents because they will vote for him or her because he or she happens to be a member of the popular party in that constituency.

In most parts of South Africa, a ward will be either dominated by the ANC or the DA and no matter what happens (Jacob Zuma getting convicted of corruption; Helen Zille caught stealing a Billion Rand), the traditional supporters of these parties will vote en masse for their candidate and that candidate will be almost just as unresponsive to the needs of the voters than he or she would have been under a system of close proportional representation.

Moreover, where support for an MP is linked to support for the government of the day (as is the case in our system where the President is elected by Parliament and not directly by voters), it is far from clear that voters will change their electoral behaviour based on how much they like or respect an individual MP in their constituency.

Say an ANC MP works tirelessly for her constituents in Sandton and is much respected and loved because of her hard work, her fearlessness and her independent spirit, she will still lose her seat. This is because the dominant DA electorate is still not going to vote her back into Parliament because to form a government the DA would need a majority of seats in Parliament (or may need more MP’s to form a “wrong opposition”) and the voters would vote their party allegiance rather than for the individual MP. That is why individual characteristics of a Congressman or Woman in the USA (where the government is elected via independent Presidential elections) would matter far more than the individual characteristics of an MP in the United Kingdom (where the majority party in Parliament forms a government).

There is another point: In the USA, where representatives standing in elections are selected in primary elections by the voters registered as members of a particular party, the members of Congress are far more likely to respond directly to the wishes of their constituents. This means that the Congress will be far more likely to hold the executive to account and will not always agree to pass laws proposed by the President. This is different from our system where the parliamentarians are selected by party bosses or by an elite group within the party.

(Nevertheless, even in the USA, over the past 15 years the members of Congress and the Senate have become far more reliably split along ideological lines and even the most conservative Democrat is now just about as conservative as the most liberal Republican.) In the UK and in South Africa where the party leaders play a decisive role in deciding who MP’s will be, those MP’s are going to be more beholden to party bosses than voters — even if they are elected in single member first-past-the-post constituency elections.

All this suggests that changing the electoral system alone would not make a big difference in the way our MP’s operate. As long as our political culture valorises strong political parties and insists on strong allegiances to political parties and as long as political parties do not embrace full internal party democracy in the selection of MP’s, a change in the system will hardly make any differences.

And as long as voters vote for parties because of their emotional allegiance to the party, instead of voting for a party because of the ideological disposition of that party or the strong character of the representative of a particular party, the election will not produce highly responsive MP’s – no matter what electoral system is used. Here is a quick test: how many traditional white DA voters (who have voted for the party since at least 1999) have ever considered voting for the ANC? A large majority of white DA voters will vote for the DA no matter who the candidate is.

The only way to change this dynamic is to put in place mechanism to weaken party discipline over elected representatives. This can be done by enforcing internal party democracy on all parties, by protecting elected MP’s from their parties by providing them with job security for the life of the Parliament, and by introducing an element of direct representation via constituency elections. Introducing direct Presidential elections might also help, although this would provide the executive with its own mandate from voters that will strengthen the powers of the President vis-a-vis those of Parliament, leading to the potential creation of an imperial Presidency with all the concomitant dangers of abuse of powers that go with this (just ask Americans who remember the abuse of power by Richard Nixon).

There is no perfect electoral system. In the absence of a change in the political dynamics in South Africa and the watering down of party discipline, we are bound to end up with a legislature that will do the bidding of the party leadership, instead of the voters. Whether this is necessarily a bad thing is open to question. Many of the more progressive laws in South Africa would never have been passed by Parliament had it not been for strong party discipline. Progressives are therefore faced with a conundrum: in principle a more representative and democratically responsive legislature would depend democracy, but it may also well lead to a far more reactionary Parliament and government.

How do we solve this conundrum? For once, I am not at all sure whether I have the answer to this question. Maybe readers of this Blog have some suggestions?

There was no coup to oust Mbeki

It is ironic that Reverend Frank Chikane now claims (in his book Eight Days in September: The Removal of Thabo Mbeki) that the removal by the ANC leadership of President Thabo Mbeki as President was akin to a coup d’état.

After all, Chikane loyally served President Thabo Mbeki through thick and thin: through his late night, Internet searches aimed at uncovering the “truth” about Aids (a “truth” peddled by crackpot Aids denialists); trough his undermining of Parliament when his enforcer, Essops Fables, forced the ANC members of Scopa to stop digging for dirt on the arms deal scandal engulfing the ANC; through his flouting of the constitutional provision that the National Director of Public Prosecutions had to act without fear, favour or prejudice (even when he needed to arrest an old Police Commissioner friend of the President) when he suspended Vusi Pikoli.

The claim is, of course, nonsense and has no basis in fact or law.

In his book, Chikane states several times that the removal of Mbeki was something close to a coup. On page 143 of his book he finally attempts to justify this extraordinary claim. He argues that given the 60%-40% support for Jacob Zuma and Thabo Mbeki at Polokwane, it was no forgone conclusion that 50% of the members of the National Assembly would have voted for a motion of no confidence in President Mbeki. He also states that the President could not have been removed legally and constitutionally from his post as President.

The Constitution, read with the Electoral Act, tells a different story. There are two provisions in the Constitution providing for the removal of a sitting President. Section 89(1) of the Constitution allows for the removal of a President on non-political grounds. It states that:

The National Assembly, by a resolution adopted with a supporting vote of at least two-thirds of its members, may remove the President from office only on the grounds of: (a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office.

So, where the President is convicted, say, of fraud and corruption, or where it is found that the President had misused his powers to protect a friend in an unlawful manner, or when the President had a stroke and could not speak anymore, then two-thirds of the members of Parliament could remove that President from office. These grounds are “objective” in the sense that Parliament would only be able to impeach a President in this way if some factual basis existed to justify the removal.

But this is not the only provision allowing for the removal of the President from his or her position. Section 102(2) of the Constitution allows for the “political” removal of a President and states that:

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

This provision relates to the system of Parliamentary government operating in South Africa. The President is elected by Parliament (the President is a member of Parliament for the few hours from his or her swearing in until his or her election after which he or she stops being a member of Parliament), all but two of the cabinet Ministers must also at all times be members of Parliament. This means that in theory the President and his or her cabinet must at all times retain the political confidence of the majority of members of Parliament. If the President loses this confidence, the majority can rely on section 102(2) and remove the President for any reason it wished.

Members of Parliament could therefore decide that they had stopped having confidence in the President, say, because the President had lost an internal party election or because he was supporting a neo-liberal economic policy or because he was unfriendly or because he was seen enjoying a drink with the leader of the opposition. It matters not what the reason is, if Parliament loses confidence in the President it can pass a vote by simple majority and that is the end of the President.

Now, in our system, with one party — the ANC – retaining more than 65% of the votes in the National Assembly, and with the imposition of strict party discipline on members of Parliament, the ANC could at any time instruct its MP’s to impose and vote for a vote of no confidence in the President.

If President Mbeki had refused to resign, he would have suffered the indignity of losing such a vote of no confidence. This is because every ANC member of Parliament would have been instructed to vote for the motion of no confidence. If they had refused, they would have been redeployed. If they had refused to be redeployed they would have been expelled from the ANC and would automatically have lost their seat in the National Assembly. They would then have been replaced with Jacob Zuma loyalists and that would have been the end of Mbeki. IF Mbeki refused to resign he would have been booted out in the most undignified way, so his agreement to resign was in his own interest.

There was therefore no way in which President Mbeki could have clung onto the Presidency once the ANC leadership had decided he had to go. That is the obvious consequence of our system of government and our electoral system, in which we vote for a party and not for individual MP’s who can make their own decisions and can defy the party leadership if they are brave enough. In South Africa defying the instructions from the party leaders is not brave, it is suicidal because one will eventually be kicked out of the party and out of Parliament, finish and klaar (as Mbeki’s crook of a friend used to say).

There was no  coup d’état. There was nothing close to a coup. Instead there was a loss of political support for the President inside the ANC and like Tony Blair and Margareth Thatcher in the UK, he had to resign as a result of this. It is true that the ANC insisted on receiving a letter of resignation from the President, who insisted that the Speaker of the National Assembly had to receive this letter. It is also true that until the Speaker had been informed about the resignation it would not have had any legal effect. A letter sent by the President to his party signalling his intention to resign formally as President, would have calmed the waters, but it would not in itself have signalled his official resignation. All that was required from the President was to send another letter to the Speaker, something one assumes he was capable of doing.

Mbeki was no martyr. He was merely the victim of his decision to stand for a third term as ANC President so as to try and remote control the President of the country (a-la-Putin) while serving as leader of the ANC, something he would have been able to do for exactly the same political reasons his opponents were able to force him to resign: those who control the party, control the Presidency.

That is the way our system operates. This system is made worse by the fact that the way in which our Electoral Law is interpreted means that members of a political party can be redeployed to and from Parliament as the list of potential MP’s can be changed at various times during the life of the Parliament. Somebody can therefore be shifted from the Western Cape Provincial Parliament to the National Assembly and vice versa without too much trouble. This means that members of Parliament live in fear of their bosses. If you happen to be in the majority party (either nationally or in the provinces) those bosses are the very people you are constitutionally required to hold to account.

No wonder our national and provincial Parliaments are so weak and our Ministers and MEC’s often so imperious and arrogant. If we are talking about amending the Constitution, maybe this is where we should start.

We might think the system is anti-democratic or that it provides far too much power for party bosses and invites a blurring of the boundaries between the governing party and the state (which it clearly does), but until we change the Constitution (something the ANC will not do as it will weaken the extra-Parliamentary wing of the Party and will empower the Parliamentary wing of the party), there is nothing to be done about this.

The good news from “Dr” Molapo and “Dr” Maxwell

Some examples of what judges would have had to endure if they had attended the “Leadership Conference”, which they were urged to attend by Chief Justice Mogoeng Mogoeng. All I can say is that I am glad I did not have to attend this event. Apart from the lack of fashion sense displayed by the speakers, I would have felt pretty insulted for being sold this quackery and having had to PAY to attend to listen to it.

First up, “Dr” David Molapo:

Second up, “Dr” John Maxwell