IN A victory for citizenship, businessman Hugh Glenister yesterday won his long battle questioning the death of the Scorpions.
The Constitutional Court ruled that the Directorate for Priority Crime Investigation - known as the Hawks, which replaced the Scorpions - was not independent as required by international law and the constitution.
This is a blow to the African National Congress (ANC), which decided at its Polokwane conference in 2007 that the Scorpions should be disbanded. The unit's probe of arms deal-related fraud was an obstacle to President Jacob Zuma's ascent to power.
The court yesterday found that the legislative provisions establishing the Directorate for Priority Crime Investigation were constitutionally invalid.
Its judges suspended this declaration and gave Parliament 18 months to remedy the defect.
The ANC said yesterday it was bound by the constitution and the courts. National executive committee member Ngoako Ramatlhodi said: "We will look at the ruling with a view to complying."
The Department of Justice said the National Prosecuting Authority Act and the South African Police Service Act were intended to give the Hawks greater independence than the Scorpions had enjoyed. "We have noted that the Constitutional Court has indicated that the Hawks are not sufficiently independent and that the legislation must be changed to give it greater independence and to shield it from possible interference," department spokesman Tlali Tlali said.
"Steps will be taken to give effect to this judgment."
Mr Tlali said the judgment did not affect the Hawks' work.
"Parliament has been vindicated as the court did not find anything irrational in how it processed the legislation," he said.
The majority of the court, in a judgment written by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron, said international law unequivocally obliged SA to establish an anticorruption entity with the necessary independence.
"That is a duty this country itself undertook when it acceded to these international agreements," they said.
The justices said the conclusion that the constitution required the state to create an anticorruption entity with adequate independence was intrinsic to the constitution itself.
In a minority judgment, Chief Justice Sandile Ngcobo said international law did not dictate to state parties the particular form of independence that must be granted to an anticorruption unit.
Chief Justice Ngcobo said there were important operational safeguards to ensure the independence of the Hawks. "I hold that the (Hawks) enjoy an adequate level of structural and operational autonomy . aimed at preventing undue political interference," the chief justice said.
He said the constitution assigned to the police the role of preventing, combating and investigating crime. "The placement of an anticorruption unit that is dedicated to preventing, combating and investigating particular forms of criminal conduct within the SAPS is therefore entirely consistent with the constitution."
Justices Moseneke and Cameron said the absence of specially secured conditions of employment; the imposition of oversight by a committee of political executives; and the subordination of the Hawks' power to investigate at the hands of members of the executive who control its policy guidelines, were harmful to the degree of independence required.
Opposition parties hailed the judgment. United Democratic Movement leader Bantu Holomisa said the decision to disband the Scorpions had the sole aim of preventing certain leaders from facing criminal charges.
Democratic Alliance MP Dianne Kohler Barnard said: "The Scorpions were enormously successful in their mandate of fighting crime and corruption. They achieved an unprecedented 94% conviction rate."