Khampepe Commission

On 1 April 2005, amid such complaints against the Scorpions, President Mbeki appointed Judge Sisi Khampepe to head a commission of inquiry (known as the Khampepe Commission) to review the mandate and location of the Scorpions.^[3] In June 2006, Mbeki decided, in consultation with Cabinet and the National Security Council, to "accept in principle the recommendations of the Commission."^[32] These recommendations included that:^[3]

• The Scorpions should continue to reside within the NPA;
• The Scorpions' prosecutors should continue to be subject to the authority of the National Director of Public Prosecutions and to the oversight of the Minister of Justice and Constitutional Development;
• The Scorpions should additionally be subject to the oversight of the Minister of Safety and Security on its law enforcement (as opposed to prosecutorial) responsibilities;
• The Scorpions should continue to deal with high-level priority crimes and cases referred to it by the SAPS; and
• The capacity of the police should be enhanced, for example by awarding it the same legal powers as the Scorpions and by co-locating prosecutors within its structures.

The Commission also expressed concern about "the manner in which the DSO publicised the subject matter [of] some of its investigations," which it felt could violate the rights of those being investigated,^[32] and about the poor relationship between the Scorpions and the police.^[33]

Controversially, Mbeki did not release the Khampepe report itself, only a statement summarising its contents. In early 2008, opposition party the Democratic Alliance requested the release of the report in terms of the Promotion of Access to Information Act, though the Presidency claimed that complying with the request would undermine national security.^[34][35] The report was released on 5 May 2008.^[33]

Disbanding

In 2007, in the run-up to the ANC's 52nd National Conference, Zuma ran for the ANC presidency, challenging the incumbent, national President Mbeki. A key part of his campaign platform was the disbanding of the Scorpions.^[9] Zuma won the election comfortably, and the conference resolved that the Scorpions should be disbanded "as a matter of urgency" in order to facilitate the constitutional imperative of a "single police service."^[36] When Parliament reconvened in early 2008, the disbanding of the Scorpions was announced as a legislative priority.^[9] Minister of Safety and Security, Charles Nqakula (who was at that time responsible for the SAPS), said in February that the Scorpions would be dissolved and amalgamated with a new organised crime unit of the SAPS.^[37][38] This was pursued through amendments to the NPA and SAPS Acts,^[39] and the ANC National Executive Committee set a deadline of June 2008 for the passage of the amendments, with a parliamentary committee, chaired by Maggie Sotyu, set up to oversee progress.^[40]

The decision was controversial, and it was opposed by a majority of South Africans^[41] and various interest groups. The Inkatha Freedom Party, the Democratic Alliance (DA), the African Christian Democratic Party, the Independent Democrats, the United Democratic Movement, and the Congress of the People all expressed extreme dismay over the decision,^[8][42] and the DA was prominent in accusing the ANC of making the move in order to subvert investigations into corrupt ANC officials.^[40][43][44] However, because the ANC had a supermajority in Parliament, opposition parties had little legislative recourse to oppose the amendments. Mbeki, still the national President though no longer the ANC President, also reportedly fought to keep the Scorpions intact.^[40]

On 23 October 2008, the National Assembly passed both amendments by a vote of 252 in favour and 63 opposed.^[45][46] President Kgalema Motlanthe (appointed after Mbeki resigned) signed the legislation into law in January 2009.^[47] Prosecutors at the Scorpions were absorbed into other branches of the NPA, while investigators were moved to the new Directorate for Priority Crime Investigation, colloquially known as the Hawks, which the new legislation established under the SAPS.^[9] Controversially, the Hawks subsequently shut down the Scorpions' investigation into Arms Deal corruption,^[48][49] which on some accounts had been at the centre of political opposition to the Scorpions.

Court challenge

In May 2008, while the relevant legislation was before Parliament, the Pretoria High Court heard an application to interdict, on constitutional grounds, the disbanding of the Scorpions. A private citizen, businessman Hugh Glenister, filed the application.^[6] The DA, the African Christian Democratic Party, the Independent Democrats, and the United Democratic Movement all participated in the hearing as friends of the court,^[42] and in a joint submission alleged that the decision to disband the Scorpions had been made not by an organ of state but by the ANC, "in an effort to protect its members from investigation and prosecution for alleged transgressions."^[6][50] The High Court found that it did not have jurisdiction to adjudicate a separation of powers matter, and the case went to the Constitutional Court, where it was heard and dismissed as Glenister v President.^[51]

Once the legislation had been passed into law, Glenister challenged it anew in Glenister v President II. On 17 March 2011, the Constitutional Court ruled – in a narrow five-to-four judgement – that sections of the relevant acts were inconsistent with the Constitution, and that the disbanding of the Scorpions had therefore been constitutionally invalid.^[52] The substance of the dispute was over the autonomy of the Hawks: international norms and the Constitution provide that the state must establish some independent body to investigate corruption, so the legal question was whether the Hawks fulfilled this role. Dissenting judges said that the Hawks did have structural and operational autonomy, while the majority judgement, prepared by Dikgang Moseneke and Edwin Cameron, found otherwise.^[8] Whereas the Scorpions, as a unit of the NPA, had been nominally independent of the executive branch, the activities of the Hawks were effectively directly controlled by the Minister of Safety and Security, who had executive authority over the police, and it was therefore "insufficiently insulated from political interference."^[8]

The Constitutional Court judgement did not disband the Hawks and reinstate the Scorpions – instead, Parliament was given 18 months to make the legislation compliant with the Constitution.^[8][52] Parliament attempted to address the judgement by amending the SAPS Act again, and in 2014 Glenister – who had already paid R3.8 million in legal fees in the preceding court challenge^[8] – again challenged the law in court, arguing that the amendments provided insufficient remedy. The Helen Suzman Foundation also launched its own application.^[53][54] The case ultimately went to the Constitutional Court, which agreed that certain provisions of the Act remained unconstitutional, and struck those provisions aside.^[39][55]

In 2019, Minister of Police Bheki Cele, announced that the SAPS Act would be reviewed and the independence of the Hawks re-examined.^[56] Further amendments to the SAPS Act are currently proposed in the SAPS Amendment Bill of 2020, which SAPS has said responds to the 2014 Constitutional Court judgement^[57] and which would put crime intelligence units under the control of the SAPS National Commissioner, rather than the Minister.^[58]