Scorpions 'were the best'
Cape Town - Disbanding the Scorpions spells the end of the "most successful investigative unit" the country has ever had, a full bench of the Cape High Court heard on Tuesday.
Senior counsel Paul Hofman told the court of a report in which former Deputy Justice Minister Johnny de Lange said, for various reasons, the justice system was in disarray.
However, Hofman added: "If you have a system that's in disarray, you don't try to change it by fixing something that's not broken."
Hofman, assisted by fellow senior counsel Peter Hazell, were representing businessman Hugh Glenister.
Glenister had challenged the validity of the South African Police Services Amendment Act as well as the National Prosecution Authority Amendment Act, in terms of which the Directorate for Special Operations (Scorpions) unit was to be dissolved and its members transferred to the SA Police Services (SAPS).
Pieces of legislation declared invalid
The proceedings, before Judges Siraj Desai, Burton Fourie and Dumisani Zondi, took the form of an urgent application to have the two pieces of legislation declared invalid on the grounds they were unconstitutional, pertaining to the disbanding of the Scorpions.
Hofman said the application was "radical and important" because the entire scheme of the two Acts was under attack.
Under apartheid, Parliament was sovereign and could not only make any law it wished but could also effect any encroachment against anyone.
However, in the new dispensation, the Constitution was sovereign and Parliament could not promulgate any legislation unless it was in line with the Constitution, he said.
He added: "The sovereign power of the old Parliament has, in our new dispensation, been handed over to the Constitution, the executive and legislature in the new dispensation no longer enjoy sovereignty."
Scorpions fully independent
Hofman said the National Directorate for Public Prosecutions (NDPP), which included the Scorpions, enjoyed full independence and the function of the national director himself was to decide prosecutorial policy without fear, favour or prejudice.
This was in contrast to the SAPS which did not enjoy independence while its national commissioner was responsible to the minister of police.
Hofman said the national executive could only participate in NDPP decision-making by invitation from the NDPP.
Protected by Constitution
The core reason for the successes of the Scorpions was the independence of the NDPP as enshrined by the Constitution.
He added: "It was the independence of the NDPP that enabled the Scorpions to get on with it and do the job."
He said organised crime and corruption was better dealt with by the Scorpions, which were not answerable to politicians.
The case continues.