Glenister v President of the Republic of South Africa and Others [2011] ZACC 6 (17 March 2011)

Application for leave to appeal against a decision of the High Court and an application for direct access in terms of Rule 18 read with section 167(6) regarding the constitutional invalidity of various provisions of the National Prosecuting Authority Amendment Act 56 of 2008 and the South African Police Service Amendment Act 57 of 2008, which created the Directorate for Priority Crime Investigation (DPCI) and disbanded the Directorate of Special Operations. The Court held that the impugned legislation is constitutionally invalid to the extent that it fails to secure an adequate degree of independence for the DPCI. First, it held that the Constitution's scheme, taken as a whole, and the international law agreements which are binding on the state impose a pressing duty on the state to set up a concrete, effective and independent mechanism to prevent and root out corruption. Corruption undermines the rights in the Bill of Rights, and imperils our democracy. Section 7(2) of the Constitution imposes a duty on the state to "respect, protect, promote and fulfil" the rights in the Bill of Rights. When read with section 8(1) (which provides that the rights in the Bill of Rights bind all branches of government), section 39(1)(b) (which provides that Courts must consider international law when interpreting the Bill of Rights) and section 231 (which provides that an international agreement that Parliament approves "binds the Republic"), this provision places an obligation on the state to create an independent corruption-fighting unit. Second, the Court found that the DPCI did not meet the constitutional requirement of adequate independence because it was insufficiently insulated from political influence in its structure and functioning. The Court granted leave to appeal, declared the impugned legislation invalid and suspended the declaration for 18 months. Majority: Moseneke DCJ and Cameron J (Froneman J, Nkabinde J and Skweyiya J concurring). Minority: Ngcobo CJ, (Brand AJ, Mogoeng J and Yacoob J concurring).