Judge Willem Heath's career as the state's most high-profile corruption buster appears to be at an end. The Constitutional Court has ruled that his appointment to head the Special Investigating Unit had been unconstitutional.

The judgment on Tuesday may also have sounded the death knell for the unit itself. Commonly known as the Heath Commission, it has recovered about R314-million for the state in its three years of existence, but has also made itself unpopular in some government circles.

The court ruled that Judge Heath could not be an investigator and a judge at the same time, because that blurred the constitutional separation of powers between the executive and the judiciary.

The court gave the government a year to amend the legislation in terms of which he was appointed, and to find a successor. 

'He will have to go back to the bench'

The judgment, delivered on behalf of a unanimous bench by Constitutional Court president Arthur Chaskalson, left open the possibility that Judge Heath may resign from the judiciary to continue his work at the SIU. Both the Democratic Alliance and the PAC on Tuesday urged him to do that. 

But Justice Minister Penuell Maduna indicated that he would not welcome such a step.

Maduna's spokesperson Paul Setsetse said: "In terms of the law, he will have to go back to the bench. That is our position."

Maduna has in the past criticised Judge Heath, saying his unit had grown beyond the purpose originally envisaged by the government. Following public clashes over the issuing of proclamations, without which the unit cannot start an investigation, Maduna said the government intended confining the Heath unit to the Eastern Cape, where it is based.

Setsetse said Maduna had expressed his own concerns about the structure of the Heath unit even before the court's ruling. He added that legislation would be tabled in Parliament early next year to comply with the judgment.

'A serious threat to our democratic state'

Setsetse said the judgment, which came as the SIU was preparing to become involved in an investigation of the controversial multibillion-rand arms deal, would not immediately affect the unit's existing workload. However, he would not speculate on whether proclamations would be issued for new investigations.

"At this stage it is premature to speculate on the unit's future. All the role-players, including the cabinet and the parliamentary portfolio committee on justice, will have to be consulted."

The state had a number of other structures at its disposal to fight corruption, Setsetse added. "It is not as if the war against corruption will come to a standstill."

Sapa reports that SIU spokesperson Naomi Goodley said on Tuesday that the effect of the ruling would be "the deeply felt loss of Judge Heath, who has staunchly led the drive against corruption and maladministration for several years.

"However," she added, "the SIU is blessed with a highly experienced and skilled staff, who are both capable and committed to continue its work under new leadership as determined by Parliament."

According to the judgment, the SIU is currently investigating 221 580 cases involving about 100 organs of state and extending over all nine provinces. About R3-billion was at stake, Chaskalson said. 

He added that Judge Heath could not be faulted for accepting the position as SIU head.

"I have no doubt that, in accepting the appointment, (Heath) acted in what he perceived to be the national interest," he said. The fact that a judge had headed the SIU had not prejudiced those who had been, or who were being, investigated. That meant that investigations already concluded could not now be challenged.

The challenge to Heath was mounted by the SA Association of Personal Injury Lawyers following a proclamation issued by President Thabo Mbeki empowering the SIU to investigate allegations that some attorneys acting for Road Accident Fund claimants were not paying their clients all the compensation due to them. 

The court said Mbeki's proclamation was invalid because, in terms of the law, the SIU could investigate only cases involving public money.

Chaskalson, who ordered that the SIU immediately stop investigating the allegations, warned that while the president's referral of these allegations to the SIU for investigation was not constitutional, the allegations were serious and required immediate attention.

He said there could be "no quarrel" with the essential purpose of the SIUs 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."

With acknowledgement to Robert Brand and the Star.