ConCourt's 'no' to Judge Heath heading commission

2000-11-28 11:16

Johannesburg - The Constitutional Court on Tuesday declared Judge Willem Heath's heading of the Special Investigative Unit of the Heath Commission as inconsistent with the constitution.

Heath's SIU, established during former president Nelson Mandela's tenure, was initially asked to investigate government corruption in the Eastern Cape. Mandela extended the unit's mandate to encompass the whole country.

In July, while addressing a two-day conference on corruption, Heath said the unit had recovered R314 million since it was founded in 1997.

Constitutional Court president Arthur Chaskalson said the functions of the head of the SIU were far removed from the normal functions of the judiciary.

He said the intrusive investigative quality of the SIU was incompatible with the separation of powers between the judiciary and the government, as required by the South African constitution.

The judgment was unanimous.

Chaskalson's order, declaring the relevant sections of the Special Investigating Units and Special Tribunals Act constitutionally invalid, has been suspended for a year to ensure an orderly transfer of the leadership of the SIU.

Heath Commission spokesperson Naomi Goodley said the body had not had an opportunity to see the court's judgment and would probably not comment on Tuesday, but would issue a media release on Wednesday.

The challenge to Heath came from an application by the SA Association of Personal Injury Lawyers (Saapil), which protested when President Thabo Mbeki asked the SIU to investigate allegations that some attorneys acting for Road Accident Fund (RAF) claimants were not paying their clients all the compensation due to them.

The Transport Department last year reported that of 143 cases investigated, 56 percent of the amount owed to RAF claimants was kept by unscrupulous lawyers. In six cases it appeared that the lawyers in question had kept the entire payout.

Chaskalson warned that while the President's referral of these allegations for investigation by the SIU was not constitutionally allowable, the allegations were serious and required immediate attention.

He ordered that the SIU immediately stop investigating the allegations.

"Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our constitution. They undermine the constitutional commitment to human dignity, achievement of equality and the advancement of human rights and freedoms," Chaskalson said in his judgment.

He said there could be "no quarrel" with the purpose of the Special Investigating Units and Special Tribunals Act, or the importance of this purpose.

"If allowed to go unchecked and unpunished (corruption and maladministration) will pose a serious threat to our democratic state," he said.

Heath's leadership of the SIU meant that he, as a judge, was directly involved in the investigation of areas of government corruption and maladministration determined by the president and not by the unit. This was incompatible with the separation of powers between the judiciary and the executive and legislative branches of government required by the constitution.

As a SIU investigator Heath was involved in questioning people, searching premises, gathering evidence and instituting court actions - all functions usually performed by the police, the prosecuting authorities and the state attorney. These were not the correct functions of a judge.

Turning to Mbeki's referral of the RAF matter to the SIU for investigation, Chaskalson said the intrusive quality of the unit's investigation powers, the lack of specificity in the allegations referred for investigation and the fact that once RAF funds reached attorneys' trust fund accounts the money was no longer public money, meant that the referral was constitutionally invalid.

The SIU was established to investigate corruption and maladministration with regard to public money only. - Sapa