Hugh Glenister v President of the Republic of South Africa & Ors (CCT 48/10) [2011] ZACC 6 (17 March 2011)
Summary

The Constitutional Court of South Africa declared legislation which disbanded and replaced an anti-corruption body constitutionally invalid. Through a joint judgment by Moseneke DCJ and Cameron J, the majority of the Court gave Parliament 18 months to amend the legislation.

The applicant, South African businessman Hugh Glenister, successfully argued that the South African Constitution imposes an obligation on the state to establish and maintain an independent anti-corruption body, and that a recently-formed body lacks sufficient independence.

Facts

In 2009, the President signed into law the National Prosecuting Authority Amendment Act 2008 and the South African Police Service Amendment Act 2008 (“the Acts”). The Acts disbanded the Directorate of Special Operations (“DSO”), an anti-corruption body located within the prosecuting authority, and replaced it with the Directorate of Priority Crime Investigation (“DPCI”), located within the police service.

The former DSO was markedly different to the DPCI in terms of its employment conditions and political oversight. The DPCI’s members are subject to the same conditions of tenure as ordinary members of the police force, and no longer enjoy statutorily secured remuneration levels.  A Ministerial Committee, comprising the Ministers for Finance, Home Affairs, Intelligence, Justice and Police, as well as any other Minister designated by the President, was established to determine policy guidelines for the DPCI and to direct the selection of “national priority offences”.  To offset these changes, one of the Acts contains an interpretive provision emphasising the need for DPCI to have necessary independence.

The applicant unsuccessfully challenged the Acts in the High Court. On appeal to the Constitutional Court, the applicant maintained that corruption undermines the enjoyment of human rights and that therefore the state is obliged to maintain an independent anti-corruption body.

Decision

A majority of the Court granted the application for leave to appeal, suspending the declaration of constitutional invalidity for 18 months in order to give Parliament the opportunity to remedy the Acts’ defects. The majority’s reasoning proceeded in three steps.

First, it impressed the need to combat corruption, a force which “threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order”. Corruption was said to undermine human dignity and the advancement of human rights, disproportionately hurting the poor.

Second, the majority found that the state is constitutionally obliged to establish and maintain an independent anti-corruption body. Although the Constitution does not expressly command it, “its scheme taken as a whole” was said to require such a body. Section 7(2) of the Constitution obliges the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”, implicitly requiring that it do so reasonably and effectively. As corruption undermines those rights, this obligation extends to anti-corruption measures. In determining what are “reasonable” and “effective” measures, the majority turned to s 39(1)(b), which directs that when interpreting the Bill of Rights (including s 7(2)) a court “must consider international law”. The Court also turned to s 231(2), which provides that an international agreement approved by Parliament “binds the Republic”. Relevant international law included an “inter-locking grid of conventions, agreements and protocols” which variously require independent anti-corruption bodies, and as a result “reasonable” and “effective” measures under s 7(2) required the same.

Third, the DPCI was found not to be sufficiently independent. The majority accepted that relevant international law requires independence within a state’s own legal conceptions, and that South Africa’s constitutional structure necessitates political accountability. However, the DPCI’s lack of specially secured employment conditions and its oversight by political executives were said to be inimical to the independence required. Further, the interpretive provision emphasising the need for necessary independence was judged ineffectual.

To summarise, the state is obliged to protect human rights and thus to combat corruption.  Understood in the context of international law, this obligation includes establishing anti-corruption bodies with greater independence than the DPCI.

Relevance to the Victorian Charter

The Court’s restatement in Glenister of the relationship between corruption and human rights is a reminder of the potential reach of rights charters. Section 38(1) of the Victorian Charter requires that the conduct of public authorities be compatible with human rights, and advocates would do well to keep in mind the potential of this requirement to oblige anti-corruption measures.

The decision is at http://www.saflii.org/za/cases/ZACC/2011/6.html.

Daniel Allman, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group