Glenister v President of the Republic of South Africa and Others

The applicant, Mr Glenister, challenged the constitutional validity of the National Prosecuting Authority Amendment Act 56 of 2008 (NPAA Act) and the South African Police Service Amendment Act 57 of 2008 (SAPSA Act) (collectively referred to as the impugned laws). These two statutes disbanded the Directorate of Special Operations (DSO), a specialised crime-fighting unit located within the National Prosecuting Authority (NPA), and replaced it with the Directorate of Priority Crime Investigation (DPCI), located within the South African Police Service (SAPS). The applicant challenged the impugned laws in the High Court on various grounds, including: irrationality, failure to facilitate public involvement in the legislative process, violation of constitutional obligations relating to the NPA, and failure to establish an independent anti-corruption unit as required by South Africa's international treaty obligations. The High Court dismissed all the grounds of attack. The applicant then sought leave to appeal to the Constitutional Court.

• Whether the impugned laws are irrational
• Whether Parliament failed to facilitate public involvement in the legislative process
• Whether the impugned laws violate constitutional provisions dealing with the powers and functioning of the NPA
• Whether the Constitution requires Parliament to establish an independent anti-corruption unit
• Whether the DPCI has the necessary independence to combat corruption
• Whether the impugned laws infringe rights in the Bill of Rights

The minority judgment prevailed (5-4). The Court declared Chapter 6A of the South African Police Service Act 68 of 1995 inconsistent with the Constitution and invalid to the extent that it failed to secure an adequate degree of independence for the Directorate for Priority Crime Investigation. The declaration of constitutional invalidity was suspended for 18 months to give Parliament the opportunity to remedy the defect. The respondents were ordered to pay the costs of the applicant, including the costs of two counsel, in the High Court and in the Constitutional Court.

1. The Constitution, read with section 7(2) (the state's duty to protect and fulfil rights in the Bill of Rights) and section 39(1)(b) (the obligation to consider international law when interpreting the Bill of Rights), creates a constitutional obligation on the state to establish an anti-corruption entity with adequate independence. 2. This obligation is informed by South Africa's binding international treaty obligations, particularly the UN Convention against Corruption, which requires states parties to establish an independent anti-corruption body. 3. While international agreements ratified under section 231(2) do not automatically become domestic constitutional law, they are binding on the Republic under international law. Section 39(1)(b) requires courts to consider such agreements when interpreting the Bill of Rights, and thus they become part of the measure of what constitutes reasonable state action in fulfilling section 7(2) obligations. 4. Independence in this context means adequate structural and operational autonomy, secured through mechanisms such as: secure tenure and remuneration; transparent appointment and removal procedures; freedom from undue political interference in operational decisions; adequate resources; and accountability mechanisms that do not undermine independence. 5. The DPCI as established by the impugned legislation lacks adequate independence because: (a) its members lack specially secured employment conditions; (b) it is subject to untrammelled oversight by a Ministerial Committee of political executives who can determine policy guidelines for its functioning; (c) parliamentary oversight is insufficient to counterbalance political oversight; and (d) the complaints mechanism is reactive rather than preventive. 6. Chapter 6A of the SAPS Act is therefore inconsistent with the Constitution to the extent that it fails to secure adequate independence for the DPCI.

1. The majority judgment noted that the Constitution does not prescribe to Parliament where to locate an anti-corruption unit, and that it is permissible to locate such a unit within the SAPS rather than the NPA. 2. The majority observed that international law, including the UN Convention, does not require absolute or complete independence, but rather independence appropriate to the fundamental principles of a state's legal system. It noted that in South Africa's constitutional system, political oversight over the police is expressly contemplated. 3. The minority judgment observed that corruption has deleterious effects on virtually all rights in the Bill of Rights and threatens the foundations of constitutional democracy. It noted that even without international law, the scheme of the Constitution points to the need for an independent body to combat corruption. 4. Both judgments noted that there are many permissible ways to structure an anti-corruption entity, and the choice among reasonable alternatives is a political judgment for the executive and Parliament. 5. The minority judgment noted that the form and structure of an anti-corruption entity lie within the reasonable power of the state, provided the chosen form ensures sufficient independence. The question is not what form the entity must take, but whether the chosen form ensures adequate independence. 6. The Court noted the importance of public perception of independence as a component of actual independence, though this principle was more fully developed in the minority judgment. 7. The minority judgment observed that adequate independence does not require complete insulation from political accountability, but does require insulation from a degree of political management that threatens to stifle independent functioning. 8. The majority judgment warned that judicial oversight should not be used to prescribe to other branches the most appropriate way to secure independence; the judicial role is limited to determining whether the structure complies with the Constitution.

This case is of fundamental importance in South African constitutional law and the fight against corruption. It establishes that: 1. The Constitution, interpreted in light of South Africa's international treaty obligations, requires the state to establish an anti-corruption entity with adequate independence. 2. The obligation flows from section 7(2) of the Constitution (the state's duty to respect, protect, promote and fulfil the rights in the Bill of Rights), read with section 39(1)(b) (the obligation to consider international law when interpreting the Bill of Rights). 3. International agreements ratified by Parliament under section 231(2), while not automatically incorporated into domestic law, have constitutional significance in defining the state's obligations under the Bill of Rights. 4. Independence in the context of an anti-corruption entity means adequate structural and operational autonomy, secured through institutional and legal mechanisms, to prevent undue political interference. 5. Public perception of independence is a component of actual independence. The case affirms the constitutional importance of combating corruption and the need for effective, independent mechanisms to do so. It also demonstrates the Constitutional Court's willingness to engage deeply with international law in interpreting domestic constitutional obligations.