An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
If I was employed at the Directorate of Special Operations (popularly known as the Scorpions), I would be frantically scouting around for another job – who knows, maybe President Mbeki could still swing a diplomatic positing as security attaché to outer Mongolia? – as the ANC NEC seems to be adamant that this unit should be abolished (another word for “incorporated into the South African Police Service”).
Others have pointed out that this move will inevitably give the appearance of being motivated by corrupt self-interest as several members of the NEC have been investigated or are still being investigated by the Scorpions for fraud and corruption. This view is further bolstered if one analyse the reasons given for the “incorporation” of the Scorpions into the SAPS.
First, the ANC resolution at the Polokwane conference states that the Directorate of Special Operations (Scorpions) must be dissolved and members of the DSO performing policing functions must fall under the South African Police Services because the “constitutional imperative that there be a Single Police Service should be implemented”.
This constitutional imperative refers to section 199 of the Constitution which states that there must be a single police service for South Africa. But in 2001 in the Constitutional Court in the Potswane case 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 functions performed by the SAPS. The ANC resolution calling for the abolishment of the Scorpions is therefore based on a misunderstanding of the Constitution.
Second, it is often said that there is no political oversight of the Scorpions and that its investigative function should really be overseen by the Minister of Safety and Security. But section 31 of the National Prosecuting Authority Act creates a Ministerial Coordination Committee, comprising of the ministers of Justice,Correctional Services, Defence, Intelligence Service, Safety and Security and any other Cabinet Minister appointed by the President.
This Committee may determine policy guidelines for the functioning of the Scorpions as well as procedures to co-ordinate its activities with “other relevant government institutions”. It is also empowered to determine procedures to be followed for the referral or the assigning of any investigation to the Scorpions.
This means a mechanism does exist for political oversight and co-ordination of the Scorpions but the Minister of Justice complained to the Kamphephe Commission that it had not met for four years. This is a bit absurd, seeing that the Minister would be the one to make sure that such a Committee meet and do its work so she was in effect complaining that her Department was not doing its job.
Re-reading the National prosecuting Authority Act I was also intrigued to note that the Scorpions are legislatively empowered only to investigate organised crime, which is admittedly broadly defined to include crimes of an ongoing fashion like those associated with a “generally corrupt relationship” between two people.
The President can, however, broaden the scope of Scorpion investigations by proclamation in the Government Gazette. I have not been able to obtain such a proclamation but I would imagine the wings of the SCorpions to investigate individual ANC members could be clipped quite successfully by just having the President revoke this proclamation and getting the Scorpions to focus narrowly on organised crime through work done by the Ministerial Coordination Committee.
One question to ask is why was this not done? The Zumaites will argue that it was not done because Mbeki wanted to use the Scorpions to settle political scores. The Mbekites will argue that the President is just concerned about corruption no matter where it might be found and was just following the law.
But all the subtleties are of course being lost in the highly emotive drive by some crooks in the NEC to get rid of the one body who has shown that it would – at least sometimes – fearlessly go after people in high places. If we are lucky these subtleties will emerge during the Parliamentary process that will now have to be followed to abolish the Scorpions.
In any event, by looking at the Constitutional Court judgments and the NPA ACT it is clear that the reasons given by the ANC NEC’s for abolishing the Scorpions hold no water. This reinforces the idea that this move is really a naked power grab by people who think they should be abovce scrutiny and hence above the law.BACK TO TOP