For a change a court has handed down a decision just as I had predicted. The Constitutional Court today declined to intervene at this stage to hear arguments about the possible unconstitutionality of the abolition of the Scorpions.
The application, brought by businessman Hugh Glennister and supported by opposition parties and the Centre for Constitutional Rights, requested the Constitutional Court to set aside the decision of the Cabinet to abolish the Scorpions even before the relevant legislation was dealt with and adopted by Parliament. The Constitutional Court did not rule on the merits of the case, but in effect argued that the application was premature as the matter was still being dealt with by Parliament.
In doing so, the Court relied on the doctrine of separation of powers, which is not mentioned explicitly in the Constitution but is assumed to be part of the structure of the Constitution. Although I am not in favour of the scrapping of the Scorpions, the judgement by the Constitutional Court seems wise and astute, as it reflects an appropriate respect by the Court for the other branches of government.
The judgment quoted the following passage from its judgment in Doctors for Life International v Speaker of the National Assembly and Others:
Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the Judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.
The Court pointed out that it was being asked to consider a matter that is “presently within the sphere of responsibility of Parliament” and pointed out that the Constitution vests Parliament with the primary oversight function of the executive. The Court is thus being asked to intervene before Parliament has concluded its work.
It found that ordinarily a court will not interfere with the functioning of Parliament, but that a court in South Africa “may intervene if there is no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object”. To be succesful with such an extraordinary application, an applicant will have to show that the resultant harm will be “material and irreversible”. This, the Chief Justice said, was a formidable burden to meet. Cases that would warrant intervention on this approach would be extremely rare.
That burden was not met in this case. Lawyers had argued that because of the large number of resignations from the Scorpions over the past year, by the time the legislation is passed the Scorpions would have been destroyed. But the Constitutional Court pointed out that it was not clear at the time of the application what Parliament would decide to do. Parliament may have chosen to make significant and substantial amendments to the draft legislation or it may have chosen not to enact the legislation at all.
It was also not clear that the members of the Scorpions have been leaving because of the decision to initiate legislation to scrap the Scorpions. The causal relationship, therefore, between the executive decision to introduce the legislation and the fact that many members have left has not been clearly established.
The appropriate time to bring an application would be after Parliament had passed the legislation to disband the Scorpions. It was only then that the Constitutional Court would entertain the merits of the case .(A case which, in my opinion, is also not very strong.)
I am not a great fan of this kind of application as it attempts to legalise a political issue and creates the impression that political debates about the wisdom of scrapping the Scorpions should be circumvented by an (unelected) court. In South Africa we have a tendency to run to the courts to solve political problems – instead of fighting about the merits of the arguments in the political arena.
This is not good for our politics or for our courts, because it treats voters as passive bystanders and ignores the importance of political mobilisation for the health of a democracy. We want the courts to do out dirty work for us – which places the courts in an untenable position and unecessarily exposes them to attack by unscrupulous politicians.
This judgement signals that the Constitutional Court – although ready to defend the Constitution – will not easily interfere with the workings of the democratically elected branches of government. It demonstrates a respect for the electorate and for the democratic institutions created by our Constitution. I just hope that the media reports correctly on this case and do not blame the Constitutional Court for the abolition of the Scorpions.
It’s the ANC who is to blame for this decision and if people do not agree with it, they should organise protest marches or vote for another party come the next election. They should not attack the Constitutional Court.
I agree that Glenister’s application was premature. I do however not agree that, if the Scorpions were scrapped, an application will definitely not succeed. Glenister’s application in the Cape Provincial Division this afternoon, I think, has an excellent cahnce of succeeding – but then again, will the judge enter into the political domain like Nicholson J did (twice now, including the matter in the CPD against Rasool)?
i agree wholeheartedly with you u Prof., the Court was right to put money-crazy Glenister to his place and I wish they dimissed it with punitive cost applicable even to his attorneys for ill-advice.
Albeit, an ardent ANC supporter, I also agree voters should show their anger towards ANC but I think people sides with the ANC on this one, and I am not talking about people with access to the internet as we do, because this normally and unfortunately leads to a wrong perception that the majority here is the actual majority on the ground!
Is the fact that people where investigated by the scorpions disentitled to debates on its dismantlement or otherwise?
Should we conclude that the parlimentarians are naturally prejudiced and thus incapable of disabusing their minds of the fact that hte had been investigated by the scorpions. Will the Court preclude those investigated from participating in the debates and election thereby obliterating the quarum required for passing the legislation?
Such a a step would be a major step taken by the judiciary indeed. I suggest that the Court would sparingly consider such a route.
The parliamentarians have the obligation to respect the constitution. They must not invoke the extraneous considerations that they emerged not unscathed in previous investigations by the Scorpions in executing their duties to formulate laws.
It is possible for the Court to prohibit the law makers, in as much as I predict the parlimentarians to block the impeachment of Hlope in the near future by an undeliberated vote.
Rationality has taken a transient break in South Africa in the judiciary and Parliament. There is great uncertainty as to decision which may be arrived at.
A decision to refuse legislators to partake in their daily tasks on the basis of the possibility of bias will muddle the notion of separation of powers.
The effect of the decision is that the scorpions will exist until the new parliamentarians are sworn in.
The case is ripe for the court to deal with. I fully concur.
What reasons are being given by the ANC for the abolition of the Scorpions?
That it got infilftrated by former apartheid spies who were now selectively investigating their former ANC enemies by sparing their former bosses like die ‘groot krokodil” and Adriaan Vlok, but can you really doubt their suspicions?
Prof,
“… In South Africa we have a tendency to run to the courts to solve political problems – instead of fighting about the merits of the arguments in the political arena…”
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I find it strange that you do not counternance this tendency of us South Africans for the following reasons:
The first reason is of course the political structure of South Africa as a country. South Africa has a Constitution which is the supreme law of the Republic, see s 2 thereof. This means, inter alia, that South Africa is not merely a democracy, or to be academically correct, South Africa is not a pure democracy. South Africa is a constitutional democracy. This means, amongst other things, that even a single dissenting view should be taken into account when making any decision, especially a political one.
A quintessential example of this eventuality was demostrated in 1995 in S v Makwanyane when the Constitutional Court, contrary to public opinion, declared the death penalty to be unconstitutional. Scholars may remember the “counter-majoritarian dilemma”. To argue therefore, that a political debate should not be taken to court when your reason and logic is overtaken by that of the (unreasonable) majority is to be unmindful of or to neglect the fact that South Africa is a constitutional democracy.
Another reason stems from Chapter 8 of the Constitution. This Chapter deals with Courts and Administration of Justice. Section 165 thereof vests the courts with the judicial authority of the Republic. All scholars should know that the courts in the Republic of South Africa are the final abiters of all disputes. At a very high risk of over-simplification, I can say that all matters which are not capable of being fairly decided or agreed upon must be referred to these final abiters of all disputes. To discourage an aspirant litigant therefore of this constitutionally entrenched right of having his or her dispute, regardless of its nature, being adjudicated upon by a court of law if he or she suspects fairness or injustice would simply be reckless.
RE :Mdu // Oct 22, 2008 at 3:38 pm
That is interesting. You think their is any merit in the argument that they are trying to protect some of the ANC politicians who were investigated by the Scorpions?
RE :Mdu // Oct 22, 2008 at 3:38 pm
That is interesting. You think there is any merit in the argument that they are trying to protect some of the ANC politicians who were investigated by the Scorpions?
Yes I think so, as much as I think they were in turn protecting their equally dirty friends for in times of war(struggle) both sides got dirty
Mdu said “but can you really doubt their suspicions”.
Here is a good summary of the mandate of the scorpions from IDASA:
“The mandate of the Scorpions includes the investigation of criminal/ unlawful
activities or offences committed in an organized fashion as well as corruption
matters arising from the Prevention and Combating of Corruption Activities Act.
The core investigative areas therefore include white collar crime, fraud and
corruption”
The short answer to Mdu is: “Yes, I can”. Remember that these cases against ANC bosses have to do with money (corruption,fraud,etc), this is the specialty of the scorpions. To compare with investigating Vlok or Botha is not correct, because that is not the scorpions’ mandate, it would have been if Vlok and Botha were currently involved in some organised crime syndicate.
And we don’t see the police doing anything about Vlok or Botha, so have they also been infiltrated? After all they are the ones who should be doing something about them.
The “apartheid forces” argument is weak in many respects:
1. In order to know that these “forces” are “apartheid forces” you have to know who they are, since otherwise they could be CIA or 007. This creates a problem because:
a. Not one person has been named.
b. Not one person has been charged or disciplined, nor has there been any indication of any future prospects for this.
c. Black leadership of the NPA has denied this. (Who is closer to the action? And if they were connected with previous regime they wouldn’t be there)
d. This is not apartheid, they would have to do their work so secretly inside the unit that no one suspects anything. No indication of how they managed that.
2. You don’t disband a unit with a high success rate because of a few bad apples. You root out the bad apples, that is defensible logic? You only disband it if it is rotten to the core, surely if that were true someone would have been charged by now? After all, some claim the police don’t like them much.
3. If they managed to infiltrate the scorpions, what will keep them from infiltrating the new unit. Even worse, since no one has been charged or fired for this, and they will be retaining some of the scorpions staff, who says they won’t be just transferring them to another unit where they can continue their evil plots for a dead regime.
4. The alternative is much more plausible, since:
a. Several ANC NEC members are either under investigation, or have gone to jail.
b. The police commissioner.
c. Up to 150 members of parliament have been under investigation for the travel gate scandal, most of them ANC. Some have been prosecuted.
d. The president of the ANC has been investigated and charged through the work of this unit.
Z – Well said!!!
Anonymouse // Oct 23, 2008 at 9:34 am
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I fully concur…
As do I, Z well put. The problem is that the effect of the two bills which will be debated in but an hour and a bit in Parliament is to effectively destroy the Scorpions. There has been a battle royal over stuff related to the employment status of the unfortunates who will be transferred to the new “unit”. Halton Cheadle was called in at the last minute because the supposed labour expert the committe had at their disposal could not deliver. It is going to be very interesting how things develop in the NA this afternoon. Will their be a sizable vote against the Bills? There is huge opposition to the disbandment from within the ANC and maybe in the present climate, there will be a mini revolution. We can but hope
Spoiler
I’d be very surprised, it will be an open vote so they’ll know who split and you know what that means.
If some wanted to vote against something as a final bow before joining the new group I would hope that it would be to prevent the Expropriation Bill from going through (it was indicated that it will be put back on the table after the Alliance Economic Summit), as I suspect it would be a bigger disaster than the scorpions.
Someday I’ll post some more on land reform on an applicable post, since I have a friend who consults on agricultural empowerment projects. I’m sure Pierre would post on it when it is tabled.
z // Oct 23, 2008 at 1:47 pm
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It s nice to have friends across the different fields. I was also able to post a lot on the Department of Correctional Services (DCS) herein owing to information from my friend who works for DCS…
Sne
Yes, and I am one of those people who is interested in just about anything!
Yep, the expropriation bill is bad bad bad. Can’t help but think that the end of the Scorpions, while different, is just as serious – the reults will be an insidious increase in organised criminal activity and pol;itical corruption that we won’t really see happening…
z // Oct 23, 2008 at 2:24 pm
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It is good to know. Curiosity is one of the best ways to go about acquiring knowledge…
Sne,
I have been busy with exams, so, while catching up daily on everyone’s posts, I haven’t had a chance to comment.
For the record, my step-father was a Professor at Fort Hare (not in the Law Faculty, though) for over 20 years, having left there around 2001. He only married my mom in 2002, so we weren’t a “family” during his tenure.
He speaks very highly of the University and if he is anything to go by, the calibre of education and political discourse that you would have encountered there was of an exceptionally high standard.
It will be good to have someone like you here in the Mother City!! Good luck with the move and the new job!!!
Samantha // Oct 24, 2008 at 8:30 am
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Thanks Samantha I also cannot wait. Which department was your step-father working in? I was also in the Law Students’ Council (LSC) from 2006-7 whilst there but politics do not necessarily interest me much. Therefore, I focused more on those aspects of my job which were directly and incidental to my and other students’ studies whilst my colleagues focused on the political ramifications of their duties.
I will also be in Cape Town from 31 October 2008 until 22 November 2008 to attend my Practical Legal Training Courses (PLT) at Waalburg. My aunt and uncle, with whom I will be staying in Cape Town, have registered me for the Big Walk (see http://www.bigwalk.co.za) and I also look forward to that on 09 November 2008.
Sne,
He was a Professor of Fine Art, but was also quite political. In fact, he is currently extremely active in the ANC in the small town in which he now resides with my Mom. As I am a DA supporter, he and I have fabulous discussions about politics, although I am nowhere near his experience, knowledge and insight.
Just prepare yourself for the weather in CT. It’s a shocker!!
I’m extremely impressed that you will be doing the Big Walk and looking forward to it!!! Personally, I have never seen the point of walking (or running for that matter).
Samantha // Oct 24, 2008 at 9:35 am
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Wow! The discussions must be really interesting between the two of you… I would not know him for three reasons;
I was an introvert at varsity; the only contact I had with students was when I was in the library, watching movies (and I love movies), sports (especially crcket, football and rugby (in this order of preference) in the tv room and also in the computer laboratory as I was in charge of the computer lab in 2007.
Another reason is that I was only interested in law and law faculty and he was not in the law faculty as you have said. This made me ignorant of what was happening at varsity. Sometimes there would be a bash organised by SRC and I would not even know about it until I hear noise. I attended Miss Freshette and Miss Fort Hare only twice in my four years I spent there. That was in 2005 and 2006, respectively. I used to go home, in King Williams Town which was 63 km from the University of Fort Hare, twice in a month and that contributed to my little knowledge about the faculty.
The third reason is that he left there before I arrived. I enrolled at Fort Hare in 2004 and that was years after his departure…
Samantha // Oct 24, 2008 at 9:35 am
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As for the Big Walk, I will only do it to expiate or atone the fact that I do not exercise right now. The only exercise I give myself is to walk all the way to work when the weather is good and I am not feeling lazy.
This is also to prove a point to my aunt and uncle that I can and will do it. As a result I have taken 50 km instead of the 20 km taken by them.
Sne,
You’re a brave man!!
I relate to the exercise aspect. Until last year, I could have slothed for the Olympics. This year, things changed. Where some people find religion, I found squash and karate and I have become a total endorphin junkie. My answer now to any problem is to go and smash a squash ball or beat up my family at karate – it’s fantastic.
But, you still wouldn’t catch me running or walking!! So I am completely filled with admiration, whatever your motive.
Samantha // Oct 24, 2008 at 11:42 am
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Thanks. All the best in your karate and squash ball. To be honest I was once interested in karate, in fact, let me just say martial arts. I practised martial at a very tender age, I believe I was 7, but I stopped. The first reason I stopped is that we moved from where we were staying so I had to stop as both my parents were working at the time and there was no one who could be responsible for practice sessions.
The second reason is that I became drawn into my books. I was a reading fanatic so much that I would spend the whole day at home doing nothing except to read books, articles, newspapers, etc. as long as they were written in English. This contributed to me writing better English than I speak…
Moreover, this caused me to be thrown out of the school football team as a stopped coming to practice sessions and I stopped playing cricket and just became a nerd… But, I am not complaining as I am doing what I wanted to do since Grade 7 or Standard 5, i.e. practising as an attorney…
Sne,
It’s a pity you couldn’t carry on with your martial arts. I find that karate has brought incredible balance into my life and my husband and children and I do this one activity as a family, which is fantastic.
Well, it is certainly apparent from your submissions on this site that you are a voracious reader with extremely Catholic tastes.
I used to be a total bibliophile, but since I started doing my LLB through Unisa 3 years ago, I barely get to read a magazine these days, for lack of time!! I wish that I could get my kids to read more, but I have come to realise that people either love reading, or they don’t – nothing I say or do will turn my children into readers. I just hope that the quest for knowledge will some day grab them and through that they will discover the pure joy of books.
As far as being a nerd goes – it has never been more fashionable!!! Women24 recently ran a whole “How to catch a nerd and marry him” campaign, having decided that nerds make the best husbands!! So, far from it being a “bad” thing, you had better watch out!! Nerds are in more demand now than ever!!
Samantha // Oct 24, 2008 at 12:39 pm
“nerds make the best husbands!!”
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How so? Please be specific…