PRESENTATION TO PRESENTATION TO PORTFOLIO COMMITTEE PORTFOLIO COMMITTEE

ON POLICEON POLICE

THE GLENISTER THE GLENISTER JUDGEMENTJUDGEMENT

16 AUGUST 201116 AUGUST 2011

1

SUMMARYSUMMARY The South African Police Service Act and the The South African Police Service Act and the

National Prosecuting Act, both as amended National Prosecuting Act, both as amended during 2008, effected the closure of the during 2008, effected the closure of the Directorate for Special Operations (DSO) in the Directorate for Special Operations (DSO) in the National Prosecuting Authority (NPA) and the National Prosecuting Authority (NPA) and the establishment of the Directorate for Priority establishment of the Directorate for Priority Crime Investigation within the South African Crime Investigation within the South African Police Service (SAPS). Police Service (SAPS).

In the Glenister case the constitutionality of the In the Glenister case the constitutionality of the said laws have been questioned.said laws have been questioned.

The Judgement consists of a minority decision (4 The Judgement consists of a minority decision (4 Judges) and a majority decision (5 Judges)Judges) and a majority decision (5 Judges)

One Judge, Judge Khampepe refrained from One Judge, Judge Khampepe refrained from supporting either decision.supporting either decision.

2

ISSUES CONSIDEREDISSUES CONSIDERED Both the majority and minority decisions are in Both the majority and minority decisions are in

agreement that the legislation which created the agreement that the legislation which created the Directorate for Priority Crime Investigation cannot be Directorate for Priority Crime Investigation cannot be invalidated on the grounds that it is irrational or that invalidated on the grounds that it is irrational or that Parliament failed to facilitate public involvement in the Parliament failed to facilitate public involvement in the legislative process. legislative process.

There was also agreement that section 179 of the There was also agreement that section 179 of the Constitution does not oblige Parliament to locate a Constitution does not oblige Parliament to locate a specialised corruption-fighting unit in the NPA or specialised corruption-fighting unit in the NPA or elsewhere . elsewhere .

““The creation of a separate corruption-fighting The creation of a separate corruption-fighting unit within the SAPS was not in itself unit within the SAPS was not in itself unconstitutional” and “the legislative choice to unconstitutional” and “the legislative choice to abolish the DSO and to create the DPCI did not in abolish the DSO and to create the DPCI did not in itself offend the Constitution”itself offend the Constitution”..

3

ISSUES CONSIDEREDISSUES 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 Does the Constitution impose an obligation on the State to

establish and maintain an independent body to combat establish and maintain an independent body to combat corruption and organised crime? –corruption and organised crime? –This was answered positively.This was answered positively.

Does the specialised unit which the impugned legislation has Does the specialised unit which the impugned legislation has established, the DPCI, meet the requirements of independence? established, the DPCI, meet the requirements of independence? This question was answered in the negative - the legislative This question was answered in the negative - the legislative provisions establishing the DPCI is constitutionally invalid and provisions establishing the DPCI is constitutionally invalid and suspended the declaration of invalidity in order to give suspended the declaration of invalidity in order to give Parliament the opportunity to remedy the constitutional defect Parliament the opportunity to remedy the constitutional defect within 18 months.within 18 months.

The finding was made on 17 March 2011, which means The finding was made on 17 March 2011, which means that the new legislation needs to be implemented not that the new legislation needs to be implemented not later than later than 17 September 2012 17 September 2012 ..

4

PRINCIPLESPRINCIPLES Court found that the Constitution is the primal source Court found that the Constitution is the primal source

for the duty of the state to fight corruption.for the duty of the state to fight corruption. Constitution does not contain an express command for Constitution does not contain an express command for

the establishment of an anti-corruption-fighting unit.the establishment of an anti-corruption-fighting unit. Scheme of Constitution taken as a whole imposes duty Scheme of Constitution taken as a whole imposes duty

upon the state to set up a concrete and effective upon the state to set up a concrete and effective mechanism to combat corruptionmechanism to combat corruption

State’s obligation to “respect, protect, promote and State’s obligation to “respect, protect, promote and fulfil the rights in the Bill of Rights,“ creates a duty to fulfil the rights in the Bill of Rights,“ creates a duty to establish an efficient anti-corruption mechanism.establish an efficient anti-corruption mechanism.

The Republic is bound by international law to create an The Republic is bound by international law to create an anti-corruption unit with appropriate independence.anti-corruption unit with appropriate independence.

Reasonableness of such step is of crucial importance.Reasonableness of such step is of crucial importance.5

PRINCIPLESPRINCIPLES The state must establish an anti-corruption entity with the The state must establish an anti-corruption entity with the

necessary independence - this is Constitutionally enforceable- necessary independence - this is Constitutionally enforceable- sourced from “our legislation” and from “our domesticated sourced from “our legislation” and from “our domesticated international obligations” and is therefore an intrinsic part of the international obligations” and is therefore an intrinsic part of the Constitution.Constitution.

““On a common sense approach, our law demands a body outside On a common sense approach, our law demands a body outside executive control to deal effectively with corruption”. p 106.executive control to deal effectively with corruption”. p 106.

It is confirmed that there is no conflict between international law It is confirmed that there is no conflict between international law and the Constitution in this regard. p 107and the Constitution in this regard. p 107

The Anti-corruption Unit must be able to perform its functions The Anti-corruption Unit must be able to perform its functions effectively without undue influence. Any possibility of individuals’ effectively without undue influence. Any possibility of individuals’ abusing the chain ofabusing the chain of

command and hierarchical structure must be limited and sufficient command and hierarchical structure must be limited and sufficient protection must be provided against any interference in operational protection must be provided against any interference in operational decisions regarding the initiation, conducting and finalisation of decisions regarding the initiation, conducting and finalisation of criminal investigations and prosecutions.criminal investigations and prosecutions.

6

PRINCIPLESPRINCIPLES Full independence not required, but an adequate Full independence not required, but an adequate

level of structural and operational autonomy, level of structural and operational autonomy, secured through institutional and legal secured through institutional and legal mechanisms to prevent undue political mechanisms to prevent undue political interference.interference.

The appearance or perception of independence The appearance or perception of independence plays an important role in evaluating whether plays an important role in evaluating whether independence indeed exists: “Hence if Parliament independence indeed exists: “Hence if Parliament fails to create an institution that appears from the fails to create an institution that appears from the reasonable standpoint of the public to be reasonable standpoint of the public to be independent, it has failed to meet one of the independent, it has failed to meet one of the objective benchmarks for independence. This is objective benchmarks for independence. This is because public confidence that an institution is because public confidence that an institution is independent is a component of, or is constitutive independent is a component of, or is constitutive of, its independence.”.of, its independence.”.

7

INDEPENDENCE OF THE INDEPENDENCE OF THE DPCIDPCI

Court concluded that currently the DPCI does not have Court concluded that currently the DPCI does not have adequate measures of autonomy – firstly, it is insufficiently adequate measures of autonomy – firstly, it is insufficiently insulated from political influence (structures and insulated from political influence (structures and functioning) Secondly, that the conditions of service functioning) Secondly, that the conditions of service pertaining to members and the Head of the DPCI, negate pertaining to members and the Head of the DPCI, negate autonomy.autonomy.

Court emphasized that a reasonable and informed member Court emphasized that a reasonable and informed member of the public may have misgivings over the DPCI’s of the public may have misgivings over the DPCI’s independence.independence.

The political oversight the legislation requires over the DPCI The political oversight the legislation requires over the DPCI was found to be incompatible with adequate independence.was found to be incompatible with adequate independence.

Insulation from political accountability is not required, but Insulation from political accountability is not required, but only insulation from a degree of management by political only insulation from a degree of management by political actors that threatens imminently to stifle the independent actors that threatens imminently to stifle the independent functioning and operations of the unit.functioning and operations of the unit. 8

SECURITY OF TENURE AND SECURITY OF TENURE AND REMUNERATIONREMUNERATION

The Court requires the members of the DPCI to swear an oath of The Court requires the members of the DPCI to swear an oath of office or affirmation to perform their duties without fear, favour or office or affirmation to perform their duties without fear, favour or prejudice.prejudice.

Court found that Head of the DPCI and members enjoy little, if any Court found that Head of the DPCI and members enjoy little, if any job security.job security.

The DPCI comprises persons appointed by the National The DPCI comprises persons appointed by the National Commissioner of the SAPS “on the recommendation” of the Head, Commissioner of the SAPS “on the recommendation” of the Head, plus an adequate number of legal officers and seconded officials.plus an adequate number of legal officers and seconded officials.

Members are subject to enquiries into their fitness to remain in the Members are subject to enquiries into their fitness to remain in the Service on account of indisposition, ill-health, disease or injury and Service on account of indisposition, ill-health, disease or injury and on various other grounds.on various other grounds.

The National Commissioner may discharge a member of the DPCI The National Commissioner may discharge a member of the DPCI on account of redundancy or the interests of the Service and even on account of redundancy or the interests of the Service and even if the discharge “will promote efficiency or economy within the if the discharge “will promote efficiency or economy within the SAPS” this appears to include the Head of the Directorate.SAPS” this appears to include the Head of the Directorate.

9

SECURITY OF TENURE AND SECURITY OF TENURE AND REMUNERATIONREMUNERATION

Members of the Directorate enjoy no specially entrenched Members of the Directorate enjoy no specially entrenched employment security- no special provisions secure their employment security- no special provisions secure their employment.employment.

The Court found that the lack of specially entrenched The Court found that the lack of specially entrenched employment security is not calculated to instil confidence in the employment security is not calculated to instil confidence in the members of the DPCI.members of the DPCI.

This is exacerbated by the fact that the appointment of the This is exacerbated by the fact that the appointment of the National Commissioner is itself renewable, as opposed to that of National Commissioner is itself renewable, as opposed to that of the National Director of Public Prosecutions.the National Director of Public Prosecutions.

This heightens the risk that the office-bearer may be vulnerable This heightens the risk that the office-bearer may be vulnerable to political and other pressures.to political and other pressures.

Absence of specially secured employment may well disincline Absence of specially secured employment may well disincline members of the DPCI from reporting undue influence to the members of the DPCI from reporting undue influence to the retired Judge due to fear of retribution.retired Judge due to fear of retribution.

10

SECURITY OF TENURE AND SECURITY OF TENURE AND REMUNERATIONREMUNERATION

The Head of the Directorate for Special Operations (DSO) is The Head of the Directorate for Special Operations (DSO) is contrasted with that of the Head of the DPCI. The Head of the DSO 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.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 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 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 she is no longer fit to hold office. Parliament also holds a veto over the office of the NDPP.the office of the NDPP.

Parliament must be informed of the reasons for removal and Parliament must be informed of the reasons for removal and representations and may resolve to restore the Deputy NDPP to representations and may resolve to restore the Deputy NDPP to office.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 Court of the opinion that these measures in the DSO served to reduce

the possibility of an individual member to be threatened with removal the possibility of an individual member to be threatened with removal for failing to yield to pressure in a politically unpopular investigation for failing to yield to pressure in a politically unpopular investigation or prosecution.or prosecution.

Court found that the absence of secured remuneration levels is Court found that the absence of secured remuneration levels is indicative of the lower status of the new entity. indicative of the lower status of the new entity.

11

MINISTERIAL COMMITTEEMINISTERIAL COMMITTEE Coordination by Cabinet (Ministerial Committee) was the gravest Coordination by Cabinet (Ministerial Committee) was the gravest

disquiet over the impugned provisions.disquiet over the impugned provisions. The Ministerial Committee consists of the Ministers of Police, The Ministerial Committee consists of the Ministers of Police,

Finance, Home Affairs, Intelligence and Justice and any other Finance, Home Affairs, Intelligence and Justice and any other Minister included by the President.Minister included by the President.

The Ministerial Committee is empowered to lay down guidelines in The Ministerial Committee is empowered to lay down guidelines in respect of the functioning of the DPCI.respect of the functioning of the DPCI.

The Head of the DPCI is accountable to the National Commissioner, The Head of the DPCI is accountable to the National Commissioner, whose post lacks security of tenure.whose post lacks security of tenure.

Powers of the Ministerial Committee to lay down guidelines for the Powers of the Ministerial Committee to lay down guidelines for the functioning of the DPCI creates “a plain risk of executive and functioning of the DPCI creates “a plain risk of executive and political influence on investigations”.political influence on investigations”.

The powers of the Ministerial Committee appears to be The powers of the Ministerial Committee appears to be untrammelled.untrammelled.

The legislation does not rule out far-fetched inhibitions of effective The legislation does not rule out far-fetched inhibitions of effective anti-corruption activities, despite requirement to submit guidelines anti-corruption activities, despite requirement to submit guidelines to Parliament.to Parliament. 12

MINISTERIAL COMMITTEEMINISTERIAL COMMITTEE DPCI is not dedicated to anti-corruption only, matters to be DPCI is not dedicated to anti-corruption only, matters to be

investigated are subject to the discretion of the Head, who is investigated are subject to the discretion of the Head, who is subject to the Ministerial guidelines.subject to the Ministerial guidelines.

The Court did not assume that the power will be abused, but that The Court did not assume that the power will be abused, but that senior politicians are given the competence to determine the senior politicians are given the competence to determine the limits, outlines and contents of the new Unit, which is deemed limits, outlines and contents of the new Unit, which is deemed inimical to independence.inimical to independence.

The Act makes provision for a hands-on supervision:The Act makes provision for a hands-on supervision:

““(a) (a) The Ministerial Committee shall oversee the The Ministerial Committee shall oversee the functioning functioning of of the Directorate and shall meet as the Directorate and shall meet as regularly as necessary, regularly as necessary, but but not less than four times not less than four times annually.annually.

(b) (b) The National Commissioner and the Head of the The National Commissioner and the Head of the Directorate Directorate shall, upon request of the Ministerial shall, upon request of the Ministerial Committee, Committee, provide provide performance and implementation performance and implementation reports to the Ministerial reports to the Ministerial Committee.”Committee.”

13

MINISTERIAL COMMITTEEMINISTERIAL COMMITTEE Requirement of regular meetings and power to Requirement of regular meetings and power to

request reports creates the possibility of hands-request reports creates the possibility of hands-on management, hands-on supervision and on management, hands-on supervision and hands-on interference.hands-on interference.

The power to determine policy guidelines, and The power to determine policy guidelines, and to oversee the functioning of the DPCI, goes to oversee the functioning of the DPCI, goes much further than ultimate oversight. It lays the much further than ultimate oversight. It lays the ground for an almost inevitable intrusion into ground for an almost inevitable intrusion into the core function of the new entity by senior the core function of the new entity by senior politicians, when that intrusion is itself inimical politicians, when that intrusion is itself inimical to independence.to independence.

14

PARLIAMENTARY PARLIAMENTARY OVERSIGHTOVERSIGHT

Two points are made:Two points are made: FirstlyFirstly, the parliamentary oversight the new provision , the parliamentary oversight the new provision

requires is more benign and less intrusive than that of the requires is more benign and less intrusive than that of the Ministerial Committee.Ministerial Committee.

SecondlySecondly, Parliament’s powers are insufficient to allow it , Parliament’s powers are insufficient to allow it to rectify the deficiencies of independence that flow from to rectify the deficiencies of independence that flow from the extensive powers of the Ministerial Committee. This the extensive powers of the Ministerial Committee. This diluted level of oversight, in contrast to the high degree diluted level of oversight, in contrast to the high degree of involvement permitted to the Ministerial Committee in of involvement permitted to the Ministerial Committee in the functioning of the Directorate, cannot restore the the functioning of the Directorate, cannot restore the level of independence taken at source.level of independence taken at source.

The Ministerial Committee and the head of the DPCI have The Ministerial Committee and the head of the DPCI have power to determine what the reports to Parliament power to determine what the reports to Parliament contain.contain. 15

OTHER SAFEGUARDSOTHER SAFEGUARDS The National Commissioner may request prosecutors to assist the The National Commissioner may request prosecutors to assist the

DPCI with its investigations. This is deemed as inadequate.DPCI with its investigations. This is deemed as inadequate. Other safeguards to save the new entity from a significant risk of Other safeguards to save the new entity from a significant risk of

political interest and influence are regarded as inadequate.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 The fact that the National Prosecuting Authority may refuse on

reasonable grounds a request for information from the Judge is reasonable grounds a request for information from the Judge is criticised.criticised.

An An ex post facto review, rather than insisting on a structure that ab ex post facto review, rather than insisting on a structure that ab initio prevents interference, has in our view serious and obvious initio prevents interference, has in our view serious and obvious limitations. limitations.

In some In some cases, irreparable harm may have been caused which cases, irreparable harm may have been caused which judicial review and complaints can do little to remedy. More judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. unreported, and never reach the judicial review or complaints stage.

Only adequate mechanisms designed to prevent interference in the Only adequate mechanisms designed to prevent interference in the first place would ensure that these never happen.first place would ensure that these never happen. 16

CONCLUSIONSCONCLUSIONS The statutory institution establishing the DPCI The statutory institution establishing the DPCI

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

The court concludes that the absence of specially The court concludes that the absence of specially secured conditions of employment, the imposition of secured conditions of employment, the imposition of oversight by a committee of political executives, and oversight by a committee of political executives, and the subordination of the DPCI’s power to investigate at the subordination of the DPCI’s power to investigate at the hands of members of the executive, who control the the hands of members of the executive, who control the DPCI’s policy guidelines, are inimical to the degree of DPCI’s policy guidelines, are inimical to the degree of independence that is required.independence that is required. 17

CONCLUSIONS...contCONCLUSIONS...cont The Court also found that the interpretive The Court also found that the interpretive

admonition in section 17B(b)(ii) of the SAPS Act admonition in section 17B(b)(ii) of the SAPS Act (“that the DPCI must have the necessary (“that the DPCI must have the necessary independence to perform its functions”) is not independence to perform its functions”) is not sufficient to secure independence.sufficient to secure independence.

The lack of employment security, including the The lack of employment security, including the existence of renewable terms of office and of existence of renewable terms of office and of flexible grounds for dismissal that do not rest flexible grounds for dismissal that do not rest on objectively verifiable grounds like on objectively verifiable grounds like misconduct or ill-health, and absence of misconduct or ill-health, and absence of statutorily secured remuneration levels are statutorily secured remuneration levels are incompatible with adequate independence.incompatible with adequate independence.

Appointment of the members of the DPCI is not Appointment of the members of the DPCI is not sufficiently shielded from political influence.sufficiently shielded from political influence.

18

CONCLUSIONS...contCONCLUSIONS...cont The untrammelled power of the The untrammelled power of the

Ministerial Committee to determine policy Ministerial Committee to determine policy guidelines in respect of the functioning of guidelines in respect of the functioning of the DPCI, as well as for the selection of the DPCI, as well as for the selection of national priority offences, is incompatible national priority offences, is incompatible with necessary independence.with necessary independence.

The power to request prosecutors to join The power to request prosecutors to join an investigation has limited impact, given an investigation has limited impact, given that the National Commissioner is the that the National Commissioner is the functionary who has the power to request functionary who has the power to request it, and not the DPCI Headit, and not the DPCI Head..

19

CONCLUSIONS...contCONCLUSIONS...cont Current mechanisms protecting against Current mechanisms protecting against

interference are inadequate, while interference are inadequate, while Parliament’s oversight function is Parliament’s oversight function is undermined by the level of involvement undermined by the level of involvement of the Ministerial Committeeof the Ministerial Committee

The complaints system involving a retired The complaints system involving a retired judge regarding past incidents does not judge regarding past incidents does not afford sufficient protection against future afford sufficient protection against future interference.interference.

20

ORDER OF THE COURTORDER OF THE COURT The constitutional challenge to the National Prosecuting The constitutional challenge to the National Prosecuting

Authority Amendment Act 56 of 2008 and the South Authority Amendment Act 56 of 2008 and the South African Police Service Amendment Act 57 of 2008, for African Police Service Amendment Act 57 of 2008, for failure to facilitate public involvement in the legislative failure to facilitate public involvement in the legislative process, is dismissed.process, is dismissed.

It is declared that Chapter 6A of the South African It is declared that Chapter 6A of the South African Police Service Act 68 of 1995 (as amended) is Police Service Act 68 of 1995 (as amended) is inconsistent with the Constitution and invalid to the inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime independence for the Directorate for Priority Crime Investigation.Investigation.

21

ORDER OF THE COURT...contORDER OF THE COURT...cont

The declaration of constitutional The declaration of constitutional invalidity is suspended for 18 months invalidity is suspended for 18 months in order to give Parliament the in order to give Parliament the opportunity to remedy the defect. opportunity to remedy the defect.

22

PLANNING PLANNING Internal consultations within the Department has Internal consultations within the Department has

commenced some time ago.commenced some time ago. A draft policy document and Bill is being developed A draft policy document and Bill is being developed

jointly by the DPCI and Civilian Secretariat for Police in jointly by the DPCI and Civilian Secretariat for Police in order to give effect to the findings of the Court.order to give effect to the findings of the Court.

The draft documents will form the basis for consultation The draft documents will form the basis for consultation with other relevant and affected Government role-with other relevant and affected Government role-players during September 2011.players during September 2011.

Public consultations will then follow soon thereafter, Public consultations will then follow soon thereafter, and Cabinet will be approached during this year in and Cabinet will be approached during this year in order to be able to introduce the proposed legislation order to be able to introduce the proposed legislation as early as possible during the 2012 Parliamentary as early as possible during the 2012 Parliamentary legislative programme. legislative programme.

23

THANK YOUTHANK YOU

Lt Gen A Dramat (Head:DPCI)Lt Gen A Dramat (Head:DPCI) Ms J Irish-Qhobosheane (Secretary of Ms J Irish-Qhobosheane (Secretary of

Police).Police).

24