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.
I was quite surprised to read that the African National Congress (ANC) in Parliament has rejected the unit proposed by the South African Police Service (SAPS) to replace the Scorpions, although it remains committed to replacing the elite unit and has ordered the bills to be redrafted. They have proposed five possible models instead of the current Bill before Parliament.
The five models are:
n To retain the Scorpions but to rid it of the flaws that have been identified. Prosecutors investigating and prosecuting in court is one of the ANC’s principle objections.
n To have a separate, independent organised crime unit under the authority of the safety and security minister.
n To stick to the model proposed by the SAPS Amendment Bill for the creation of a directorate for priority crimes investigation (DPCI).
n An improved DPCI. The new unit will not simply be the amalgamation of the SAPS organised crime unit with the Scorpions but a more complex arrangement of a unit in the SAPS.
n To create a new ministry of priority crimes where the new unit would be located.
This bold move by Parliament seems to suggest that there is a fluidity within the ANC in Parliament created by the divisions between Thabo Mbeki’s supporters and the incoming Jacob Zuma factions within the ANC. It is refreshing to see that Parliament is actually doing its job and subjecting draft legislation to the rigorous process of analysis and critique.
The move by the relevant portfolio committee also means that the disbanding of the Scorpions is going to take a bit longer than expected (as most of us said before) and that something might still be salvaged from the extremely short sighted decision taken by the delegates at Polokwane to disband the one unit which have had some success in fighting organised crime and corruption.
I always said that if there was anything wrong with the Scorpions it was not the legislation – which created very explicit political oversight mechanisms which was supposed to be run by the former Minister of Justice. Unfortunately she never really was awake for long enough to implement the clear provisions of the act which allows a ministerial committee to set guidelines for how and when the Scorpions had to investigate.
It will be interesting to see how the NEC of the ANC reacts to this newfound independence of the ANC MPs. They might not want to be to forceful on this because the party is so fragile and the talk of a split or the forming of a new party so loud, that they might wisely decide to let Parliament do its work unhindred. One thing is for sure, I can imagine some members of the NEC being very, very unhappy with this move by ANC Parliamentarians.
We may see some more fireworks in the party despite all the claims of unity.BACK TO TOP