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The Centre for Constitutional Rights (the CFCR) welcomes, in principle, a judgment delivered by the Constitutional Court in which it confirmed that the South African Police Service Act 68 of 1995 as amended (the Act), was still inconsistent with the constitutional obligation to create a structurally and operationally independent anti-corruption unit.

In handing down the majority judgment in Helen Suzman Foundation v President of the Republic of South Africa and Others and Glenister v President of the Republic of South Africa and Others, Chief Justice Mogoeng agreed with the Western Cape High Court that the Act still failed to secure as required by International Law and the Constitution (and as previously pointed out by the former Court) an adequate degree of independence for the Directorate for Priority Crime Investigation (DPCI) (the "Hawks"). According to the Chief Justice, "a lot has been done in the course of creating the new anti-corruption entity to significantly water down its primary area of focus." He also raised concerns about the role of policy guidelines in the determination of the offences to be investigated by the DPCI. He observed that "lowering the power to determine additional offences or categories of offences..." had deepened "concerns about the willingness to live up to the declared commitment to fight corruption more decisively." According to Justice Mogoeng, the SAPS Act contained a number of specific deficiencies, including:

    Unconstitutionality of the provisions relating to the extension of tenure of the National Head of the DPCI;
    The potential for undue political interference in the operations of the DPCI through ministerial policy guidelines; and
    The untrammelled power of the Minister of Police to remove the Head of the DPCI.

In this regard and in order to provide legal certainty, the Court (after previously having provided Parliament the opportunity to correct unconstitutional provisions) now remedied the defective legislation by severing those parts of specific sections that were found to be inconsistent with the Constitution. Accordingly, the Court held as follows:

•     Deletion of the words "in accordance with the approved policy guidelines" from sections 16(2)(h) and 16(3), leaving the National Head to identify the national priority offences to be investigated without any regard to policy guidelines by the Minister;
•     Deletion of sections 17CA(15) and 17CA(16), making it impossible to retain the National Head beyond the age of 60. The Court held that these sections "militate against independence by potentially birthing an illegitimate hope in the belatedly-appointed National Head that a less assertive approach to certain investigations might just enhance the prospects of renewal";
•     Deletion of segments of section 17D which are "toxic to the operational independence of the DPCI" including the words "subject to any policy guidelines by the Minister and approved by Parliament" in section 17D(1)(a). It thereby provided clarity that the mandate and function of the DPCI is to prevent, combat and investigate "national priority offences, which in the opinion of the National Head of the Directorate need to be addressed by the Directorate";
•     Deletion of the words "selected offences not limited to" in section 17D(1)(aA), now clearly and unambiguously empowering the DPCI to investigate "offences referred to in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act...";
•     Deletion of section 17D(1)(b) referring to "offence or category of offences referred to it from time to time by the National Commissioner, subject to any policy guidelines issued by the Minister and approved by Parliament", thus leaving it to the National Head and legislation to determine which offences to investigate;
•     Deletion of sections 17K(4), 17K(7), 17K(8) and 17D(1A) which provided for the "unbridled power to make ministerial policy guidelines that touch at the heart of the DPCI's operational independence" and which required the National Head to enforce such policy guidelines; and
•     Deletion of section 17DA(2) thus preventing the Minister from unilaterally suspending the National Head provisionally pending an inquiry.

In one of four separate minority judgments, Justice Cameron held that the process for the appointment of the National Head was not constitutionally compliant. He contended that a concentration of the power of appointment in the Minister of Police, without an express process of parliamentary approval, would jeopardise the DPCI’s independence. Likewise, Justice Van der Westhuizen contended that Parliament should be involved in the appointment of the National Head of the DPCI.

The CFCR supports the views expressed by Justices Cameron and Van der Westhuizen as they will further prevent a concentration of power of appointment and allow for transparency and accountability - both matters which have also proved to be problematic in the appointment of the National Director of Public Prosecutions by the President alone.

Corruption, especially in the public sector, is, according to the primary international law instrument aimed at combating corruption, the United Nations Convention against Corruption, "an insidious plague that has a wide range of corrosive effects". According to the Convention, corruption "undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish" and is "a key element in economic underperformance and a major obstacle to poverty alleviation and development."

The CFCR, in its submission to Parliament on the SAPS Amendment Act in 2012, submitted that the location of the DPCI as a division of the South African Police Service (the SAPS), the manner in which the Head of the DPCI is appointed, retained or removed, and the manner in which the Minister of Police could influence the work of this Division by means of policy directives, did not meet constitutional muster. Although the majority judgment disagreed in relation to the location of the DPCI, the Court's judgment, in principle, confirmed the legitimacy of our concerns as submitted to Parliament.

The DPCI was established as a division of the SAPS ostensibly to lead the state’s efforts to investigate and combat corruption. In fact, it was a purely political decision arising from a resolution at the ANC’s National Conference at Polokwane in December 2007 to disband the National Prosecuting Authority's highly effective and genuinely independent Directorate for Special Operations (the DSO) or the "Scorpions".

The CFCR remains of the opinion that the very principle of maintaining an anti-corruption entity within the SAPS directly and negatively affects the structural and operational independence of such entity. According to Chief Justice Mogoeng, "South Africa needs a dedicated and better focused anti-corruption entity". We agree.

We also agree with the Court's view that "our ability as a nation to eradicate corruption depends on the institutional capacities of the machinery created to that end." As such, and in order to ensure independence, effectiveness, credibility and public trust, it remains, in our opinion, necessary to establish and maintain an anti-corruption agency with an adequate degree of independence and insulation from undue political interference -both in fact and public perception.

This could be achieved through the creation of a truly independent entity in terms of Chapter 9 of the Constitution along the lines of the Public Protector and Auditor-General, but with the necessary executive enforcement powers. However, such a decision would be dependent on the depth of the commitment of the National Executive and Parliament to promote accountable, responsive and transparent government and on their willingness to take credible action to prevent and prosecute corruption.

Issued by Centre for Constitutional Rights