Glenister v President of the RSA

The Constitutional Court held that South Africa has a constitutional obligation, arising from its international law commitments and the Constitution, to establish and maintain an independent anti-corruption body with adequate structural and operational safeguards. The Court found that the Directorate for Priority Crime Investigation (the Hawks), which replaced the Scorpions, lacked sufficient independence to fulfill this constitutional duty.

The South African Police Service Amendment Act 2008 and the National Prosecuting Authority Amendment Act 2008 dissolved the Directorate of Special Operations (Scorpions) and established the Directorate for Priority Crime Investigation (Hawks) within the South African Police Service. Hugh Glenister, a private citizen and businessman, challenged the constitutionality of this legislative framework, arguing it failed to create a sufficiently independent body to combat corruption and serious organized crime.

Whether the dissolution of the Scorpions and creation of the Hawks complied with South Africa's constitutional obligation to establish and maintain an adequately independent anti-corruption entity.

The Court held that South Africa has a constitutional duty, informed by international law obligations under the UN Convention Against Corruption and other instruments, to create an independent anti-corruption body. The Hawks legislation was declared unconstitutional for failing to provide adequate structural and operational independence safeguards.

The Constitution, read with South Africa's international law obligations, imposes a duty on the State to establish an anti-corruption entity with sufficient independence, secured through adequate structural and operational safeguards insulating it from political interference in its mandate to combat corruption and organized crime.

The Court found that international treaties ratified by South Africa, particularly the UN Convention Against Corruption and the AU Convention on Preventing and Combating Corruption, impose obligations to maintain independent anti-corruption mechanisms. Section 39(1)(b) of the Constitution requires courts to consider international law when interpreting the Bill of Rights, and sections 1, 41, and the rule of law necessitate effective mechanisms against state corruption. The Hawks' location within the SAPS, subject to the National Commissioner's control and without adequate tenure protections, compromised the requisite independence.

The Court discussed the evolving nature of constitutional obligations in light of international law developments and emphasized that standing requirements should not unduly restrict access to constitutional justice where important constitutional rights and obligations are at stake.

Glenister is a foundational judgment establishing that international anti-corruption commitments create enforceable domestic constitutional duties and that institutional design matters constitutionally. It is essential to teaching separation of powers, international law's role in constitutional interpretation, and structural guarantees for accountability institutions.

Glenister v President of the RSA 2011 (3) SA 347 (CC) [2011] ZACC 6