PRESENTATION TO PORTFOLIO COMMITTEE ON POLICE THE GLENISTER JUDGEMENT 16 AUGUST

SUMMARY The South African Police Service Act and the National Prosecuting Act, both as amended during 2008, effected the closure of the Directorate for Special Operations (DSO) in the National Prosecuting Authority (NPA) and the establishment of the Directorate for Priority Crime Investigation within the South African Police Service (SAPS). The South African Police Service Act and the National Prosecuting Act, both as amended during 2008, effected the closure of the Directorate for Special Operations (DSO) in the National Prosecuting Authority (NPA) and the establishment of the Directorate for Priority Crime Investigation within the South African Police Service (SAPS). In the Glenister case the constitutionality of the said laws have been questioned. In the Glenister case the constitutionality of the said laws have been questioned. The Judgement consists of a minority decision (4 Judges) and a majority decision (5 Judges) The Judgement consists of a minority decision (4 Judges) and a majority decision (5 Judges) One Judge, Judge Khampepe refrained from supporting either decision. One Judge, Judge Khampepe refrained from supporting either decision. 2

ISSUES CONSIDERED Both the majority and minority decisions are in agreement that the legislation which created the Directorate for Priority Crime Investigation cannot be invalidated on the grounds that it is irrational or that Parliament failed to facilitate public involvement in the legislative process. Both the majority and minority decisions are in agreement that the legislation which created the Directorate for Priority Crime Investigation cannot be invalidated on the grounds that it is irrational or that Parliament failed to facilitate public involvement in the legislative process. There was also agreement that section 179 of the Constitution does not oblige Parliament to locate a specialised corruption- fighting unit in the NPA or elsewhere. There was also agreement that section 179 of the Constitution does not oblige Parliament to locate a specialised corruption- fighting unit in the NPA or elsewhere. “The creation of a separate corruption-fighting unit within the SAPS was not in itself unconstitutional” and “the legislative choice to abolish the DSO and to create the DPCI did not in itself offend the Constitution”. “The creation of a separate corruption-fighting unit within the SAPS was not in itself unconstitutional” and “the legislative choice to abolish the DSO and to create the DPCI did not in itself offend the Constitution”. 3

ISSUES CONSIDERED Two crucial questions were considered by the Court: Two crucial questions were considered by the Court: Does the Constitution impose an obligation on the State to establish and maintain an independent body to combat corruption and organised crime? –This was answered positively. Does the Constitution impose an obligation on the State to establish and maintain an independent body to combat corruption and organised crime? –This was answered positively. Does the specialised unit which the impugned legislation has established, the DPCI, meet the requirements of independence? This question was answered in the negative - the legislative provisions establishing the DPCI is constitutionally invalid and suspended the declaration of invalidity in order to give Parliament the opportunity to remedy the constitutional defect within 18 months. Does the specialised unit which the impugned legislation has established, the DPCI, meet the requirements of independence? This question was answered in the negative - the legislative provisions establishing the DPCI is constitutionally invalid and suspended the declaration of invalidity in order to give Parliament the opportunity to remedy the constitutional defect within 18 months. The finding was made on 17 March 2011, which means that the new legislation needs to be implemented not later than 17 September The finding was made on 17 March 2011, which means that the new legislation needs to be implemented not later than 17 September

PRINCIPLES Court found that the Constitution is the primal source for the duty of the state to fight corruption. Court found that the Constitution is the primal source for the duty of the state to fight corruption. Constitution does not contain an express command for the establishment of an anti-corruption-fighting unit. Constitution does not contain an express command for the establishment of an anti-corruption-fighting unit. Scheme of Constitution taken as a whole imposes duty upon the state to set up a concrete and effective mechanism to combat corruption Scheme of Constitution taken as a whole imposes duty upon the state to set up a concrete and effective mechanism to combat corruption State’s obligation to “respect, protect, promote and fulfil the rights in the Bill of Rights,“ creates a duty to establish an efficient anti-corruption mechanism. State’s obligation to “respect, protect, promote and fulfil the rights in the Bill of Rights,“ creates a duty to establish an efficient anti-corruption mechanism. The Republic is bound by international law to create an anti- corruption unit with appropriate independence. The Republic is bound by international law to create an anti- corruption unit with appropriate independence. Reasonableness of such step is of crucial importance. Reasonableness of such step is of crucial importance. 5

PRINCIPLES The state must establish an anti-corruption entity with the necessary independence - this is Constitutionally enforceable- sourced from “our legislation” and from “our domesticated international obligations” and is therefore an intrinsic part of the Constitution. The state must establish an anti-corruption entity with the necessary independence - this is Constitutionally enforceable- sourced from “our legislation” and from “our domesticated international obligations” and is therefore an intrinsic part of the Constitution. “On a common sense approach, our law demands a body outside executive control to deal effectively with corruption”. p 106. “On a common sense approach, our law demands a body outside executive control to deal effectively with corruption”. p 106. It is confirmed that there is no conflict between international law and the Constitution in this regard. p 107 It is confirmed that there is no conflict between international law and the Constitution in this regard. p 107 The Anti-corruption Unit must be able to perform its functions effectively without undue influence. Any possibility of individuals’ abusing the chain of The Anti-corruption Unit must be able to perform its functions effectively without undue influence. Any possibility of individuals’ abusing the chain of command and hierarchical structure must be limited and sufficient protection must be provided against any interference in operational decisions regarding the initiation, conducting and finalisation of criminal investigations and prosecutions. 6

PRINCIPLES Full independence not required, but an adequate level of structural and operational autonomy, secured through institutional and legal mechanisms to prevent undue political interference. Full independence not required, but an adequate level of structural and operational autonomy, secured through institutional and legal mechanisms to prevent undue political interference. The appearance or perception of independence plays an important role in evaluating whether independence indeed exists: “Hence if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.”. The appearance or perception of independence plays an important role in evaluating whether independence indeed exists: “Hence if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.”. 7

INDEPENDENCE OF THE DPCI Court concluded that currently the DPCI does not have adequate measures of autonomy – firstly, it is insufficiently insulated from political influence (structures and functioning) Secondly, that the conditions of service pertaining to members and the Head of the DPCI, negate autonomy. Court concluded that currently the DPCI does not have adequate measures of autonomy – firstly, it is insufficiently insulated from political influence (structures and functioning) Secondly, that the conditions of service pertaining to members and the Head of the DPCI, negate autonomy. Court emphasized that a reasonable and informed member of the public may have misgivings over the DPCI’s independence. Court emphasized that a reasonable and informed member of the public may have misgivings over the DPCI’s independence. The political oversight the legislation requires over the DPCI was found to be incompatible with adequate independence. The political oversight the legislation requires over the DPCI was found to be incompatible with adequate independence. Insulation from political accountability is not required, but only insulation from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit. Insulation from political accountability is not required, but only insulation from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit. 8

SECURITY OF TENURE AND REMUNERATION The Court requires the members of the DPCI to swear an oath of office or affirmation to perform their duties without fear, favour or prejudice. The Court requires the members of the DPCI to swear an oath of office or affirmation to perform their duties without fear, favour or prejudice. Court found that Head of the DPCI and members enjoy little, if any job security. Court found that Head of the DPCI and members enjoy little, if any job security. The DPCI comprises persons appointed by the National Commissioner of the SAPS “on the recommendation” of the Head, plus an adequate number of legal officers and seconded officials. The DPCI comprises persons appointed by the National Commissioner of the SAPS “on the recommendation” of the Head, plus an adequate number of legal officers and seconded officials. Members are subject to enquiries into their fitness to remain in the Service on account of indisposition, ill-health, disease or injury and on various other grounds. Members are subject to enquiries into their fitness to remain in the Service on account of indisposition, ill-health, disease or injury and on various other grounds. The National Commissioner may discharge a member of the DPCI on account of redundancy or the interests of the Service and even if the discharge “will promote efficiency or economy within the SAPS” this appears to include the Head of the Directorate. The National Commissioner may discharge a member of the DPCI on account of redundancy or the interests of the Service and even if the discharge “will promote efficiency or economy within the SAPS” this appears to include the Head of the Directorate. 9

SECURITY OF TENURE AND REMUNERATION Members of the Directorate enjoy no specially entrenched employment security- no special provisions secure their employment. Members of the Directorate enjoy no specially entrenched employment security- no special provisions secure their employment. The Court found that the lack of specially entrenched employment security is not calculated to instil confidence in the members of the DPCI. The Court found that the lack of specially entrenched employment security is not calculated to instil confidence in the members of the DPCI. This is exacerbated by the fact that the appointment of the National Commissioner is itself renewable, as opposed to that of the National Director of Public Prosecutions. This is exacerbated by the fact that the appointment of the National Commissioner is itself renewable, as opposed to that of the National Director of Public Prosecutions. This heightens the risk that the office-bearer may be vulnerable to political and other pressures. This heightens the risk that the office-bearer may be vulnerable to political and other pressures. Absence of specially secured employment may well disincline members of the DPCI from reporting undue influence to the retired Judge due to fear of retribution. Absence of specially secured employment may well disincline members of the DPCI from reporting undue influence to the retired Judge due to fear of retribution. 10

SECURITY OF TENURE AND REMUNERATION The Head of the Directorate for Special Operations (DSO) is contrasted with that of the Head of the DPCI. The Head of the DSO was a Deputy NDPP, assigned by the NDPP and reporting to the NDPP. The Head of the Directorate for Special Operations (DSO) is contrasted with that of the Head of the DPCI. The Head of the DSO was a Deputy NDPP, assigned by the NDPP and reporting to the NDPP. A Deputy NDPP may be removed from office only by the President on grounds of misconduct, continued ill-health or incapacity, or if he or she is no longer fit to hold office. Parliament also holds a veto over the office of the NDPP. A Deputy NDPP may be removed from office only by the President on grounds of misconduct, continued ill-health or incapacity, or if he or she is no longer fit to hold office. Parliament also holds a veto over the office of the NDPP. Parliament must be informed of the reasons for removal and representations and may resolve to restore the Deputy NDPP to office. Parliament must be informed of the reasons for removal and representations and may resolve to restore the Deputy NDPP to office. This also applied to the Investigating Directors in the DSO. This also applied to the Investigating Directors in the DSO. Court of the opinion that these measures in the DSO served to reduce the possibility of an individual member to be threatened with removal for failing to yield to pressure in a politically unpopular investigation or prosecution. Court of the opinion that these measures in the DSO served to reduce the possibility of an individual member to be threatened with removal for failing to yield to pressure in a politically unpopular investigation or prosecution. Court found that the absence of secured remuneration levels is indicative of the lower status of the new entity. Court found that the absence of secured remuneration levels is indicative of the lower status of the new entity. 11

MINISTERIAL COMMITTEE Coordination by Cabinet (Ministerial Committee) was the gravest disquiet over the impugned provisions. Coordination by Cabinet (Ministerial Committee) was the gravest disquiet over the impugned provisions. The Ministerial Committee consists of the Ministers of Police, Finance, Home Affairs, Intelligence and Justice and any other Minister included by the President. The Ministerial Committee consists of the Ministers of Police, Finance, Home Affairs, Intelligence and Justice and any other Minister included by the President. The Ministerial Committee is empowered to lay down guidelines in respect of the functioning of the DPCI. The Ministerial Committee is empowered to lay down guidelines in respect of the functioning of the DPCI. The Head of the DPCI is accountable to the National Commissioner, whose post lacks security of tenure. The Head of the DPCI is accountable to the National Commissioner, whose post lacks security of tenure. Powers of the Ministerial Committee to lay down guidelines for the functioning of the DPCI creates “a plain risk of executive and political influence on investigations”. Powers of the Ministerial Committee to lay down guidelines for the functioning of the DPCI creates “a plain risk of executive and political influence on investigations”. The powers of the Ministerial Committee appears to be untrammelled. The powers of the Ministerial Committee appears to be untrammelled. The legislation does not rule out far-fetched inhibitions of effective anti- corruption activities, despite requirement to submit guidelines to Parliament. The legislation does not rule out far-fetched inhibitions of effective anti- corruption activities, despite requirement to submit guidelines to Parliament. 12

MINISTERIAL COMMITTEE DPCI is not dedicated to anti-corruption only, matters to be investigated are subject to the discretion of the Head, who is subject to the Ministerial guidelines. DPCI is not dedicated to anti-corruption only, matters to be investigated are subject to the discretion of the Head, who is subject to the Ministerial guidelines. The Court did not assume that the power will be abused, but that senior politicians are given the competence to determine the limits, outlines and contents of the new Unit, which is deemed inimical to independence. The Court did not assume that the power will be abused, but that senior politicians are given the competence to determine the limits, outlines and contents of the new Unit, which is deemed inimical to independence. The Act makes provision for a hands-on supervision: The Act makes provision for a hands-on supervision: “(a) The Ministerial Committee shall oversee the functioning of the Directorate and shall meet as regularly as necessary, but not less than four times annually. (b) The National Commissioner and the Head of the Directorate shall, upon request of the Ministerial Committee, provide performance and implementation reports to the Ministerial Committee.” 13

MINISTERIAL COMMITTEE Requirement of regular meetings and power to request reports creates the possibility of hands-on management, hands-on supervision and hands-on interference. Requirement of regular meetings and power to request reports creates the possibility of hands-on management, hands-on supervision and hands-on interference. The power to determine policy guidelines, and to oversee the functioning of the DPCI, goes much further than ultimate oversight. It lays the ground for an almost inevitable intrusion into the core function of the new entity by senior politicians, when that intrusion is itself inimical to independence. The power to determine policy guidelines, and to oversee the functioning of the DPCI, goes much further than ultimate oversight. It lays the ground for an almost inevitable intrusion into the core function of the new entity by senior politicians, when that intrusion is itself inimical to independence. 14

PARLIAMENTARY OVERSIGHT Two points are made: Firstly, the parliamentary oversight the new provision requires is more benign and less intrusive than that of the Ministerial Committee. Firstly, the parliamentary oversight the new provision requires is more benign and less intrusive than that of the Ministerial Committee. Secondly, Parliament’s powers are insufficient to allow it to rectify the deficiencies of independence that flow from the extensive powers of the Ministerial Committee. This diluted level of oversight, in contrast to the high degree of involvement permitted to the Ministerial Committee in the functioning of the Directorate, cannot restore the level of independence taken at source. Secondly, Parliament’s powers are insufficient to allow it to rectify the deficiencies of independence that flow from the extensive powers of the Ministerial Committee. This diluted level of oversight, in contrast to the high degree of involvement permitted to the Ministerial Committee in the functioning of the Directorate, cannot restore the level of independence taken at source. The Ministerial Committee and the head of the DPCI have power to determine what the reports to Parliament contain. The Ministerial Committee and the head of the DPCI have power to determine what the reports to Parliament contain. 15

OTHER SAFEGUARDS The National Commissioner may request prosecutors to assist the DPCI with its investigations. This is deemed as inadequate. The National Commissioner may request prosecutors to assist the DPCI with its investigations. This is deemed as inadequate. Other safeguards to save the new entity from a significant risk of political interest and influence are regarded as inadequate. Other safeguards to save the new entity from a significant risk of political interest and influence are regarded as inadequate. The complaints mechanism (Judge) acts after the fact. The complaints mechanism (Judge) acts after the fact. The fact that the National Prosecuting Authority may refuse on reasonable grounds a request for information from the Judge is criticised. The fact that the National Prosecuting Authority may refuse on reasonable grounds a request for information from the Judge is criticised. An ex post facto review, rather than insisting on a structure that ab initio prevents interference, has in our view serious and obvious limitations. An ex post facto review, rather than insisting on a structure that ab initio prevents interference, has in our view serious and obvious limitations. In some cases, irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. In some cases, irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. Only adequate mechanisms designed to prevent interference in the first place would ensure that these never happen. Only adequate mechanisms designed to prevent interference in the first place would ensure that these never happen. 16

CONCLUSIONS The statutory institution establishing the DPCI derogates the constitutional obligation of Parliament to create an independent anti-corruption entity, which is intrinsic to the Constitution itself and which Parliament assumed when it approved relevant international instruments, including the UN Convention. “We (the Court) do not prescribe to Parliament what that obligation requires”. The statutory institution establishing the DPCI derogates the constitutional obligation of Parliament to create an independent anti-corruption entity, which is intrinsic to the Constitution itself and which Parliament assumed when it approved relevant international instruments, including the UN Convention. “We (the Court) do not prescribe to Parliament what that obligation requires”. The court concludes 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. The court concludes 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. 17

CONCLUSIONS...cont The Court also found that the interpretive admonition in section 17B(b)(ii) of the SAPS Act (“that the DPCI must have the necessary independence to perform its functions”) is not sufficient to secure independence. The Court also found that the interpretive admonition in section 17B(b)(ii) of the SAPS Act (“that the DPCI must have the necessary independence to perform its functions”) is not sufficient to secure independence. The lack of employment security, including the existence of renewable terms of office and of flexible grounds for dismissal that do not rest on objectively verifiable grounds like misconduct or ill-health, and absence of statutorily secured remuneration levels are incompatible with adequate independence. The lack of employment security, including the existence of renewable terms of office and of flexible grounds for dismissal that do not rest on objectively verifiable grounds like misconduct or ill-health, and absence of statutorily secured remuneration levels are incompatible with adequate independence. Appointment of the members of the DPCI is not sufficiently shielded from political influence. Appointment of the members of the DPCI is not sufficiently shielded from political influence. 18

CONCLUSIONS...cont The untrammelled power of the Ministerial Committee to determine policy guidelines in respect of the functioning of the DPCI, as well as for the selection of national priority offences, is incompatible with necessary independence. The untrammelled power of the Ministerial Committee to determine policy guidelines in respect of the functioning of the DPCI, as well as for the selection of national priority offences, is incompatible with necessary independence. The power to request prosecutors to join an investigation has limited impact, given that the National Commissioner is the functionary who has the power to request it, and not the DPCI Head. The power to request prosecutors to join an investigation has limited impact, given that the National Commissioner is the functionary who has the power to request it, and not the DPCI Head. 19

CONCLUSIONS...cont Current mechanisms protecting against interference are inadequate, while Parliament’s oversight function is undermined by the level of involvement of the Ministerial Committee Current mechanisms protecting against interference are inadequate, while Parliament’s oversight function is undermined by the level of involvement of the Ministerial Committee The complaints system involving a retired judge regarding past incidents does not afford sufficient protection against future interference. The complaints system involving a retired judge regarding past incidents does not afford sufficient protection against future interference. 20

ORDER OF THE COURT The constitutional challenge to the National Prosecuting Authority Amendment Act 56 of 2008 and the South African Police Service Amendment Act 57 of 2008, for failure to facilitate public involvement in the legislative process, is dismissed. The constitutional challenge to the National Prosecuting Authority Amendment Act 56 of 2008 and the South African Police Service Amendment Act 57 of 2008, for failure to facilitate public involvement in the legislative process, is dismissed. It is declared that Chapter 6A of the South African Police Service Act 68 of 1995 (as amended) 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. It is declared that Chapter 6A of the South African Police Service Act 68 of 1995 (as amended) 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. 21

ORDER OF THE COURT...cont The declaration of constitutional invalidity is suspended for 18 months in order to give Parliament the opportunity to remedy the defect. The declaration of constitutional invalidity is suspended for 18 months in order to give Parliament the opportunity to remedy the defect. 22

PLANNING Internal consultations within the Department has commenced some time ago. Internal consultations within the Department has commenced some time ago. A draft policy document and Bill is being developed jointly by the DPCI and Civilian Secretariat for Police in order to give effect to the findings of the Court. A draft policy document and Bill is being developed jointly by the DPCI and Civilian Secretariat for Police in order to give effect to the findings of the Court. The draft documents will form the basis for consultation with other relevant and affected Government role-players during September The draft documents will form the basis for consultation with other relevant and affected Government role-players during September Public consultations will then follow soon thereafter, and Cabinet will be approached during this year in order to be able to introduce the proposed legislation as early as possible during the 2012 Parliamentary legislative programme. Public consultations will then follow soon thereafter, and Cabinet will be approached during this year in order to be able to introduce the proposed legislation as early as possible during the 2012 Parliamentary legislative programme. 23

THANK YOU Lt Gen A Dramat (Head:DPCI) Lt Gen A Dramat (Head:DPCI) Ms J Irish-Qhobosheane (Secretary of Police). Ms J Irish-Qhobosheane (Secretary of Police). 24