'Cabinet acted unlawfully'
2008-08-20 16:49
Johannesburg - Businessman Hugh Glenister's lawyer argued hard in the Constitutional Court on Wednesday to stop the legislation that would move the Scorpions to the police.
But, the judges of the court kept expressing concerns over the ramifications of the intervention in the parliamentary processes.
"This is a case where initiating the legislation gives rise to the destruction of an institution," argued Glenister's lawyer, David Unterhalter.
He said that according to the National Prosecuting Authority's acting head Mokotedi Mpshe, staff were leaving as morale was low and their capacity to prosecute organised crime would be lost during the legislative process.
He said the police were "institutionally stressed".
Avoiding 'scrutiny'
He submitted that by initiating legislation made on a resolution made by the ruling African National Congress, Cabinet was subordinating the law so that certain ANC national executive committee members could avoid scrutiny.
He said the Cabinet had acted unconstitutionally by initiating the legislation and this gave the Constitutional Court the power to intervene.
Unterhalter said the separation of powers was just a doctrine of prudence and there could be cases which justified judicial intervention in parliamentary process.
But the judges remained sceptical.
Judge Sandile Ngcobo said: "These considerations should be placed before parliament. Presently there are hearings which are hearing these issues.
"And, presently we are sitting as the court looking at these issues. That just can't be right... That just can't be right."
10% of staff quit
Judge Kate O'Regan said it was speculative to argue that the Scorpions would be ineffective until the process was complete.
She was also not convinced that staff departures during the legislative process were cataclysmic.
She calculated that only about 10% of the Scorpions? staff had left.
"I am not sure that is the cataclysmic kind of effect that requires interfering with parliament," she said.
Unterhalter also argued that the court would have to weigh up whether it should intervene with the legislative process against the amounts of crime it would be happy having committed during this process.
Additional crime
"How much additional crime are we prepared to tolerate to allow the parliamentary process take its cause?"
ANC president Jacob Zuma and ANC NEC member National Police Commissioner Jackie Selebi are among those currently under investigation by the unit.
The party has criticised what it perceives to be selective prosecuting and Hollywood-style tactics by the Scorpions.
But, O'Regan said none of the current Cabinet members were facing prosecution, and thus questioned why they could be considered to be acting in private interest.
Unterhalter also said some of the NEC members had also faced prosecution in the Travelgate scandal, which involved fraudulent use of parliamentary travel vouchers.
The hearing continues.
- SAPA