Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others

Following the Constitutional Court's decision in Glenister II declaring unconstitutional the original legislation establishing the Directorate for Priority Crime Investigation (DPCI, also known as the "Hawks"), Parliament amended the South African Police Service Act through the SAPS Amendment Act 10 of 2012. The Helen Suzman Foundation and Mr Hugh Glenister challenged various provisions of the amended Act, arguing they failed to ensure the DPCI's adequate structural and operational independence as required by the Constitution. Mr Glenister sought to have the entire legislative scheme declared invalid, arguing the DPCI's location within the SAPS was incompatible with adequate independence. The HSF challenged specific provisions relating to appointment criteria, financial control, integrity testing, suspension and removal procedures, and the DPCI's jurisdiction. The Western Cape High Court declared some provisions unconstitutional while dismissing others. Both parties applied to the Constitutional Court for confirmation of the invalidity order and leave to appeal various aspects of the High Court's decision.

• Whether the DPCI legislation provides for adequate structural and operational independence as required by Glenister II
• Whether the location of the DPCI within the SAPS is constitutionally permissible
• Whether ministerial policy guidelines undermine the DPCI's independence
• Whether the appointment process for the National Head ensures adequate independence
• Whether provisions for extension of tenure, suspension and removal, and jurisdictional scope comply with constitutional requirements for independence
• Whether certain evidence should be struck out as scandalous, vexatious or irrelevant

The order of constitutional invalidity was confirmed in part. The Court declared invalid and deleted: (a) words "in accordance with the approved policy guidelines" in section 16(2)(h) and (3); (b) section 17CA(15) and (16) on extension of tenure; (c) words "subject to any policy guidelines issued by the Minister and approved by Parliament" in section 17D(1)(a); (d) words "selected offences not limited to" in section 17D(1)(aA); (e) section 17D(1)(b) entirely; (f) section 17D(1A) on enforcement of policy guidelines; (g) the reference to subsection (2) in section 17DA(1) and the whole of section 17DA(2) on ministerial removal power; (h) section 17K(4), (7) and (8) on policy guidelines. All other provisions of sections 16 to 17K remained in force. The respondents were ordered to pay costs including for three counsel. Leave to appeal against the striking out order and dismissal of Mr Glenister's main application was refused by the majority, with costs awarded against Mr Glenister on the striking out application.

An anti-corruption entity must have adequate structural and operational independence, which requires: (1) clear legislative definition of its mandate and jurisdiction, not subject to ministerial policy guidelines that allow unfettered executive control over its functioning; (2) security of tenure for its leadership, including non-renewable fixed terms without provisions for extension that could create pressure to secure renewal; (3) removal procedures that involve parliamentary oversight rather than exclusive executive power; (4) while absolute independence is not required and political accountability is permissible, there must be sufficient insulation from political interference that could stifle independent functioning. The test is whether the legislative scheme provides autonomy-protecting features sufficient to enable the entity to carry out investigations vigorously and fearlessly, and whether a reasonably informed and reasonable member of the public would have confidence in the entity's independence. Each provision must be examined to determine whether it militates for or against adequate independence.

Mogoeng CJ observed that corruption is rife in South Africa and poses a real danger to the developing democracy, requiring stringent measures. The judgment noted that the quality of drafting of the SAPS Act could use improvement, with definitions and functions scattered across different sections making it difficult to identify the DPCI's mandate. On evidence, the Court emphasized that courts should not serve as platforms for political point-scoring or insult-trading, and that vitriolic statements should not lightly be allowed to form part of court records. However, constitutional litigation should not discourage parties from asserting rights through fear of costs orders. Cameron J (in concurrence) observed that public confidence in appointment processes is enhanced by parliamentary involvement which forces the process into public light, consistent with constitutional values of accountability, responsiveness and openness. Van der Westhuizen J noted that constitutional adjudication is necessarily "political" in that it applies constitutional values to socio-political reality, but courts must not "play politics" or become involved in partisan political battles. He emphasized that while institutional design is important, ultimately integrity and dedication to constitutional values in office-bearers is essential, as even sophisticated institutional designs require the exercise of discretion and cannot guarantee freedom from corruption if those exercising power lack integrity.

This judgment is significant as it provides detailed guidance on the constitutional requirements for an adequately independent anti-corruption entity in South Africa, building on Glenister II. It demonstrates the Court's willingness to scrutinize legislation affecting institutional independence while respecting parliamentary competence to determine policy choices within constitutional bounds. The decision clarifies that: (1) absolute independence is not required, but adequate structural and operational independence is constitutionally mandated; (2) political oversight is permissible but must not threaten operational independence; (3) ministerial policy guidelines that give unfettered discretion to determine an entity's functioning are unconstitutional; (4) renewable terms or extensions create unacceptable risks of political pressure; (5) the functional jurisdiction of anti-corruption bodies must be clearly defined in legislation, not left to ministerial or executive discretion. The case also addresses important procedural issues regarding the striking out of evidence and the boundaries of permissible evidence in constitutional challenges involving allegations of corruption in government.