"Odious Political Posturing" and the Constitutional Court.

The passage of time can be a great leveller. This axiom is illustrated by the fate of the legal challenges by Johannesburg businessman Hugh Glenister, whose patriotic concerns regarding the effectiveness of the anti-corruption machinery of state have taken him to Constitutional Hill three times since 2008. This is unique in the history of the Constitutional Court. Each time one issue has dominated: the adequacy of the independence of the corruption-busters of SA.

It started with the disbandment of the Scorpions, a regression that Glenister failed to head off in his first round of litigation. In the second round he enjoyed partial success on 17 March 2011 when, to the surprise of many, he succeeded in persuading a bare majority of the Court (5/4) that the Hawks are insufficiently independent to be an effective corruption fighting body.

Round three of the litigation ended on 27 November 2014, with a partial success that may prove Pyrrhic, when the Constitutional Court struck down parts of the amending legislation passed purportedly to cure the mischief identified in 2011, but refused Glenister any relief in regard to his contention that the location of the Hawks within the police is constitutionally inappropriate given the structure and functioning of the police, the high levels of corruption within the Hawks and police and the feral nature of the executive branch of government which has responsibility for policing.

The legal position of the Hawks is far from clear, despite the five learned judgments delivered in Glenister III and the more limited simultaneous Helen Suzman Foundation matter. There is fundamental disagreement between the justices as to the lengths to which the Constitution itself requires parliament should go in order to ensure a legislative framework that creates a specialised, trained, independent, properly resourced and effective Hawks unit that enjoys security of tenure of office; hence the five judgments. In this type of situation the findings of the majority are decisive, the findings of the minority are however instructive and may invite further litigation.

Two topical aspects of the multiplicity of judgments deserve mention: the power of the minister of police to suspend the head of the Hawks and the basis upon which the majority of the Constitutional Court (but not the minority) was prepared to close its eyes to the factual matrix put up on oath by Glenister to highlight the flawed circumstances, corruption-wise, in which the Hawks, the police in general and the executive branch of government find themselves.

The first aspect is topical because the minister has, on legal advice, purported to suspend chief Hawk, General Anwa Dramat. The minister contends that he has the power to do so and presumably will rely on a passage in the majority judgment of the Chief Justice which reads:

"[85] But for "as the Minister deems fit" and the possibility of a suspension without pay and benefits provided for in subsection (2)(c), I can find no reason to attack the bases on which this subsection empowers the Minister to suspend the National Head. These are specific, objectively verifiable and acceptable grounds for suspension and removal". (These grounds include misconduct, ill-health, incapacity and no longer being a fit and proper person).

Puzzlingly, irreconcilably and without any discernible explanation, the order of the majority of the court proceeds to delete the whole of section 17DA(2) from the legislation (the very subsection to which glowing reference is apparently made in the passage quoted above). The majority judgment holds that "subsection (2) itself [is] inconsistent with the constitutional obligation to establish an adequately independent corruption-busting agency... The balance of section 17DA passes constitutional muster and would thus continue to guide the suspension and removal process of the National Head".

The problem the minister now faces is that the balance of the section 17DA does not give him any untrammelled power to suspend. Instead, a much more limited power, only exercisable after parliament commences a process to remove the Head, is contemplated. It seems that the contention made on behalf of Dramat that his suspension is unconstitutional, has merit, because parliament has not commenced removal proceedings. The HSF has launched a review based on this argument.

The second aspect, concerning the majority's refusal to have regard to the circumstances in which the Hawks, SAPS and the executive find themselves is one rich in irony. The court refused to admit any evidence of political and police corruption, labelling the expert's affidavits and the supporting allegations on oath by Glenister as "odious political posturing", a novel jurisprudential basis for striking out material adduced in public interest litigation. Part of the material so struck out suggests that Dramat was involved in illegal renditions thereby disqualifying himself as a fit and proper person to head the corruption-busters.

In a delicious twist, the basis upon which the minister now relies for purporting to suspend Dramat is that he was allegedly involved in the renditions back in 2010. It is passing strange that the ministry, in opposing the Glenister III application, declined to answer the allegations against Dramat and sought, with success, to have Glenister's allegations struck out as irrelevant.

In short, the ministry did not have the gall to suggest that the claims were false, only pleading irrelevance. It blind-sided the Constitutional Court by biding its time before apparently acting on the basis that the Glenister allegations were true, or at least, at long last, sufficiently cogent to investigate.

The locus of any "odious political posturing" is therefore arguably not with Glenister.

How the majority of the court concluded that allegations of Dramat's involvement in illegal renditions could be struck out as irrelevant is difficult to divine and hard to explain. Dramat, a party in the case, made no attempt to deal with the allegations; now he is reaping the whirlwind in the form of a purported ministerial suspension which adopts the very allegations of malfeasance by him which none of the respondents in Glenister III were prepared to answer.

Jurisprudence and the rule of law have been done a disservice by the majority judgment of the Constitutional Court characterising Glenister's brave and selfless attempt to draw the attention of the courts to the details of corruption and malfeasance in the Hawks, police and the executive as "odious political posturing" as a basis for striking out that evidence as irrelevant. To their credit, some of the minority justices took the opposite view.

Less than two months after the judgment was delivered a questionable purge has erupted in the Hawks following Dramat's purported suspension and those of some of his junior colleagues.  A sober reconsideration of the effectiveness and constitutionality of locating the Hawks within SAPS is indicated.

Manifestly, it is preferable to locate the anti-corruption machinery of state within Chapter Nine of the Constitution as an independent Integrity Commission that specialises in effectively and independently combating corruption in all its forms. Unless and until the political will to rise above reckless and odious political corruption is generated, and while the majority of the Constitutional Court is prepared to turn a blind eye to the factual circumstances regarding corruption in high places and in the police, there is little hope of a happy ending. However, time is a great leveller.

Tim Dunne is Chair of Trustees of the Institute for Accountability in Southern Africa.

This article first appeared in Business Day.

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