The anxiously awaited and important decision of the Constitutional Court in the Scorpions case was deleivered earliet today and resulted in a complete and well deserved victory for Bob Glenister and his legal team, especially Paul Hoffman SC.

The order made by the CC included the following orders:

“It is declared that Chapter 6A of the South African Police Service Act 68 of1995 is inconsistent with the 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 is suspended for 18 months in order to give Parliament the opportunity to remedy the defect”.

Click to view or download the judgment of the Constitutional Court: Glenister v President of the Republic of South Africa (CCT48/10), thanks to SAFLII.

There are two judgments:

The majority of the Court (in a joint judgment by Moseneke DCJ and Cameron J, in which Froneman J, Nkabinde J and Skweyiya J concur); and

The minority judgment by Ngcobo CJ, in which Brand AJ, Mogoeng J and Yacoob J concur.

The majorty made two crucial findings:

  • The Constitution imposes an obligation on the state to establish and maintain an independent body to combat corruption and organised crime.
  • The DPCI fails to meet the constitutional requirement of adequate independence.

This is an extracts from the majority judgment:

“[248] For these reasons we conclude that the statutory structure creating the DPCI offends the constitutional obligation resting on Parliament to create an independent anti-corruption entity, which is both intrinsic to the Constitution itself and which Parliament assumed when it approved the relevant international instruments, including the UN Convention.   We do not prescribe to Parliament what that obligation requires.

In summary, however, we have concluded that the absence of specially secured conditions of employment, the imposition of oversight by a committee of political executives, and the subordination of the DPCI‘s power to investigate at the hands of members of the executive, who control the DPCI’s policy guidelines, are inimical to the degree of independence that is required. We have also found that the interpretive admonition in section 17B(b)(ii) of the SAPS Act is not sufficient to secure independence”.