18 June 2008

JOHANNESBURG-based businessman Hugh Glenister has today filed for leave to appeal the High Court’s decision to strike his application for an urgent interdict designed to preserve the Directorate of Special Operations (DSO, or “Scorpions”) and for direct access to the Constitutional Court.

In addition to new evidence lodged with today’s application, among the supporting affidavits Glenister’s legal team has filed a letter and presentation from the Society of State Advocates in support of the matter (available on request and on http://rolanddg.co.za/ScorpionDocs/).

In appealing the matter, Glenister’s legal team submits that Section 172 of the Constitution did empower the High Court to make an order concerning the constitutional validity of an Act of Parliament, the Provincial Act or any conduct of a President.  They also argue that the case was sufficiently exceptional for the judiciary to interfere with the right of the executive to initiate legislation or deliberation around legislation. And they claim that the judgment “raises significant matters of public interest and concerns issues that go to the core of the constitutional right relating to matters of national interest and that do not serve a narrow band of individuals within the Republic.”

In applying for direct access to the Court, Glenister’s affidavit reiterates the general thrust of his initial arguments, and offers further evidence of both the intention to “make a U-Turn” to give effect to the resolution made at Polokwane to disestablish the Scorpions without public debate or consultation.

By initiating the legislation to disestablish the DSO, the affidavit argues, the actions by the President, the Minister of Safety and Security and the Minister of Justice and Constitutional Development exceed the limitations imposed on them by the Constitution in seven respects:

1. The legislation is arbitrary since it is not rationally connected to a legitimate governmental purpose, but is motivated by a desire to protect ANC members from current and future corruption investigations (“manifestly illegitimate and impermissible”);
2. That the constitutional rights of Glenister and of the group of people who have signed petitions and voiced their opinions to pollsters and of the public at large would be violated;
3. That the legislation would violate Section 41(1) of the Constitution which provides for all spheres of government to “preserve the peace...of the Republic”;
4. That initiating the legislation would violate Section 198(a) of the Constitution providing for national security;
5. Disestablishing the DSO would violate Section 179(4) of the Constitution requiring that legislation “ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”, where instead the mere threat of this action has negatively affected the ability for the DSO to perform its functions;
6. That the legislation violates the constitutional principle of accountability (Sections 1(d), 41(1)(c), 195(1)(f) and 195(2) of the Constitution);
7. And that the legislation could violate Section 96(2)(b) imploring members of Cabinet not to “expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.”

“It is my sincere hope the Constitutional Court will hear this matter,” said Glenister. “We believe the Executive has acted with disdain for democracy. Snatching the teeth from the jaws of the judiciary undermines our hard-won fight for liberty, equality and a government responsible to its people.”

ISSUED BY:

FDBeachhead
Jennifer Cohen / John Kaninda
(011) 214 2401 / 2414
082 468 6469 / 083 442 0478 HYPERLINK "mailto:jennifer.cohen@fd.com/john.kaninda@fd.com" jennifer.cohen@fd.com/john.kaninda@fd.com

ON BEHALF OF: Hugh Glenister

For more information contact:

Hugh Glenister 083 463 3339

For information about the case:

Advocate David Unterhalter