The Foundation believed that this case raised matters of fundamental constitutional importance. The Foundation viewed the Amendment Acts which effectively disbanded the Directorate of Special Operations (Scorpions) and established the Directorate for Priority Crime Investigation (Hawks) were constitutionally invalid in that they: unjustifiably infringed a variety of basic human rights; breached the State’s constitutional obligation to promote, protect and fulfil these rights; violated the State’s obligations in international law; and severely hampered the State’s ability to deal effectively with the scourge of corruption and organised crime.
In today’s judgement, the Constitutional Court made two key findings. First, that the Constitution imposes a duty on the State to establish and maintain an independent body to combat corruption and organised crime.
Secondly, that the creation of the Hawks does not meet the constitutional requirement of adequate independence, especially with regard to the risk of political influence and interference. Crucially, the Constitutional Court pointed out that corruption undermines the rights which are enshrined in the Bill of Rights, and that this imperils our democracy. The Foundation had argued in Court that the failure on the part of the State to create a sufficiently independent anti-corruption entity infringed a number of rights which include the rights to equality, human dignity, freedom, security of the person, administrative justice and socio-economic rights, including the rights to education, housing and healthcare. By acknowledging the centrality of rights, and the duty of the State to protect them, the Constitutional Court has advanced the cause of liberal constitutional democracy in South Africa.
17 March 2011
