Suspension of the National Head of the Hawks

The HSF has approached the High Court in Pretoria to declare invalid the suspension of the National Head of the Hawks and the appointment of an Acting Head.

Jan 09, 2015

The Helen Suzman Foundation ("HSF") has approached the High Court in Pretoria to declare invalid the suspension of the National Head of the Directorate of Priority Crime Investigation ("the Hawks") and the appointment of Major General Berning Ntlemeza as Acting Head.

On the 23rd of December 2014, Nkosinathi Nhleko, the Minister of Police ("the Minister"), suspended the National Head of the Hawks, Lt General Anwa Dramat.  The HSF is of the view that the Minister's exercise of the power to suspend Lt Gen Anwa Dramat is plainly unlawful based on the wording of the South African Police Service Act, 1995 (as amended) ("the SAPS Act"), and the judgment of the Constitutional Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others [2014] ZACC 32 (27 November 2014).    

This suspension comes in the wake of the attempted suspension of the KwaZulu Natal Provincial Head Major General Johan Booysen by the National Commissioner of the South African Police Service. An urgent application saw the suspension being interdicted by the KwaZulu Natal High Court on 18 December 2014, pending the further hearing of the matter on 23 March 2015.  The Court precluded the Minister from interfering with Booysen's return to work. 

Moreover, on the 5th of January 2015, Major General Ntlemeza (as the New Acting Head of the Hawks) notified the Provincial Head of the Hawks in Gauteng, Major General Shadrack Sibiya, and senior Gauteng Hawks official Colonel Leslie Maluleke, of his intention to suspend them.  On the 9th of January 2015, Hawks spokesperson Paul Ramaloko was transferred out of the Hawks to the SAPS's national media centre.  

The independence of the Hawks is crucial for the fight against corruption.  Accordingly, the HSF requested information in respect of the suspension and appointment of the Acting National Head from the Minister in a letter on the 30th of December 2014.  In view of the importance of the matter, the Minister was asked to reply by the 7th of January.  The information requested included the following:

1. The letter of suspension issued to Lt Gen Dramat;
2. A copy of any documents and information on the basis of which the suspension was decided;
3. A copy of any reports pertaining to Lt Gen Dramat produced by the Independent Police Investigative Directorate;
4. Full reasons for the suspension of the National Head;
5. Details of the empowering provision that the Minister used or invoked for the purposes of the purported suspension of the National Head; 
6. What disciplinary steps have been taken by the Minister or any other institution or body in relation to Lt Gen Dramat that relate in any way to the suspension or the grounds for such suspension; and
7. A copy of any letter purportedly appointing any other person, including Major General Berning Ntlemeza, as Acting National Head of the Hawks.

The Minister did not reply to the letter. Accordingly, the HSF has filed an application in the High Court on 9 January 2015, asking the Court to review and set aside the action of the Minister in suspending the National Head of the Hawks and appointing an Acting National Head; and to declare that the National Head may not be suspended except in circumstances contemplated in sections 17DA(3) and (4), read with section 17DA(5), of the SAPS Act.

The HSF points out:

1. In the matter of the November 2014 judgment, the Constitutional Court ruled on the scope of the Ministerial power to suspend and remove the National Head ("November judgment"). The Court held that, for the legislation to be constitutionally compliant, it was imperative for the Hawks to be adequately independent from the National Executive.  In the circumstances, the power to suspend or remove had to be carefully circumscribed. 
2. The Court held that section 17DA(2) as it then stood failed to meet the constitutional standard as it gave the Minister untrammelled power to remove the National Head of the Hawks. The Court deleted this section and all reference to it from the Act. The Court reaffirmed that Parliamentary processes had to be adhered to when suspending the National Head of the Hawks.
3. As a result of the November 2014 judgment, the Minister may only suspend the National Head once a Committee of the National Assembly has initiated investigations.  No such investigations preceded the Minister's action.

Central to the mandate of the HSF is to seek to uphold the rule of law. The rule of law is most vividly and rigorously tested in circumstances where the State's ability to fight and root out high level corruption is at stake and the integrity of the institutions designed to serve and protect the public is threatened. The HSF is of the view that the Minister's decisions violate fundamental constitutional principles espoused in the November 2014 judgment and strike at the heart of our constitutional democracy.  

Francis Antonie - Director
Charles Simkins - Senior Researcher 
Chris Pieters - Researcher 

Statement issued by the Helen Suzman Foundation, January 9 2015

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