The Hawks: HSF Case goes to the Constitutional Court

18 August 2014

Background

In 2010, the HSF joined with businessman Hugh Glenister, as a friend of the Court, to challenge the amendments made to the SAPS Act which saw the abolition of the ‘Scorpions' as an independent investigative unit within the National Prosecuting Authority (NPA). The Constitutional Court (‘‘CC''), in Glenister v President of the Republic of South Africa and Others (‘‘Glenister''), ruled that the relocation of the Scorpions within the police was unconstitutional. The majority found that the Constitution, when read with South Africa's international obligations, required the Government to provide such a unit - that was so vital to the fight against corruption - with adequate independence. 

The CC ordered that Parliament would have to rectify the defect within 18 months. In response to this, Parliament promulgated the South African Police Service Amendment Act 10 of 2012 (‘‘Amendment Act'') which established the ‘Hawks'. This Act was purported to rectify the problems identified by the Constitutional Court. The HSF was of the contrary view and sought to test, before the WCHC, specific issues in the Amendment Act that it believed to be inimical to the Hawk's independent functioning. The WCHC endorsed the arguments presented by the HSF and declared sections 16, 17A, 17CA, 17D, 17DA and 17K (4) to (9) of the Amendment Act unconstitutional and invalid. In terms of the WCHC's order, Parliament was afforded 12 months to remedy the defect. The HSF was also awarded costs in the matter.

However, in terms of sections 167 and 169 of the Constitution, when read with the Constitutional Court Complementary Act, the order must be sent to the CC for confirmation. While a High Court may decide the constitutionality of an Act of Parliament, its order is not operative until such time that its findings are confirmed by the CC. The CC will hear argument in the confirmation proceedings on Tuesday, 19 August 2014.

The High Court Judgment

The judgement handed down was a clear endorsement of the HSF's approach to, and concern with, these issues.

The Court found as follows:

1. Appointment 

The Court agreed with the HSF in holding that the powers conferred upon the Minister are too broadly prescribed and have the effect of undermining both the perceived and actual operational independence of the Hawks. The Court held that the exclusion of Parliament from appointment and oversight mechanisms, as a symptom of an overconcentration of power in the Executive arm of government, was not justifiable.

2. Extension of Tenure

In addition to conferring wide powers of appointment upon the Minister, the Amendment Act also provides for the renewability of tenure at the Minister's behest. The Court held that even though the extension of an incumbent's tenure may be subject to certain conditions, the fact that the renewal is subject to the discretion of the Minister undermines the independence and integrity of the Hawks as a whole. 

3. Suspension and Removal

The Court found that the Amendment Act provided for two possible mechanisms by which the Head of the DPCI could be dismissed. Unlike other staff, the Head is potentially subject to dismissal by the Minister in the exercise of broadly prescribed discretionary powers. The Court found that the powers were not appropriately restrained and allowed for dismissal based on an impermissibly wide range of reasons. This unduly limited the ability of the Head to do his job without fear or prejudice and gave rise to potential abuse.

4. Jurisdiction 

The Court found that the fact that the Act does not ensure that key crimes, such as corruption and organised crime, must be referred to the Hawks was unacceptable as it could allow for unwarranted political interference in investigations. This is compounded by the fact that the Minster is tasked with determining policy guidelines that would determine the investigation of particular offences. The Court held that these guidelines have the potential to constrain the Hawks' work or even to direct the Hawks towards, or away from, particular targets. The fact that Parliament must approve the guidelines by a simple majority does not help the situation as it was not appropriate for a political body to decide which cases the Directorate should or should not pursue. The Hawks' corruption fighting mandate is clearly provided for and is ultimately something that should not be left to politicians to determine.

Leave to Appeal

In addition to filing an application for confirmation of the order, the HSF has launched an appeal for further declarations of invalidity in respect of provisions that were not dealt with in the High Court judgement. The State, meanwhile, seeks to appeal the WCHC's entire decision.

Conclusion

The HSF is confident that the WCHC order will be confirmed and that we shall be successful in our appeal. 

Statement issued by Francis Antonie, Director of the Helen Suzman Foundation, August 18 2014

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