Glenister - Hawks case before Con Court in quest for independent anti-corruption unit

May 12 2014

On Thursday 15 May, the Constitutional Court will hear argument from the Helen Suzman Foundation (HSF) asking for confirmation of the Cape High Court's judgement and requesting leave to appeal in the ongoing challenge to the South African Police Service Amendment Act.

Francis Antonie, Director of the HSF says, "We maintain that independent anti-corruption units are a vital part of the institutional State apparatus in South Africa. Our objective in pursuing this litigation is to ensure that the Hawks are able to fight the corruption which is corroding the fabric of our democracy. This can only be done if anti-corruption units are truly independent. Independence must extend to security of tenure and appointment, and investigation processes must be sufficiently protected from executive interference."

Introduction

In December 2013, the HSF received a favourable judgement in the case of Helen Suzman Foundation v President of the Republic of South Africa and Others. The case involved the HSF's on-going engagement with the establishment of independent policing and prosecutorial bodies that are sufficiently protected from political interference.

The full bench of the Western Cape High Court found certain sections of the SAPS Amendment Act 2012 (Amendment Act) to be unconstitutional to the extent that they undermine the structural and operational independence of the Directorate of Priority Crime Investigation (DPCI - also known as the Hawks).

Background

The HSF's involvement in this matter dates back to the Foundation's intervention as a Friend of the Court in the landmark case of Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC). In this case, the constitutionality of various sections of the SAPS Act 68 of 1995 (the SAPS Act) were challenged for failing to establish a sufficiently independent unit for the purpose of investigating and combating corruption and organised crime. The Constitutional Court found Chapter 6A of the SAPS Act to be inconsistent with the Constitution and invalid to the extent that it failed to secure an adequate degree of structural and operational autonomy for the DPCI. The declaration of invalidity was suspended for eighteen months in order to give Parliament an opportunity to cure the defective provisions. The SAPS Amendment Act was promulgated in order to give effect to the judgement in Glenister.

Despite legislative attempts to address the deficiencies identified by the Constitutional Court, the HSF is of the view that the Amendment Act failed to ensure the degree of operational autonomy required by our constitutional framework. In the most recent proceedings, the High Court was asked to assess whether Chapter 6A of the Amendment Act now provides the DPCI with an adequate degree of insulation from political influence. The judgement handed down was a clear endorsement of the HSF's approach to these issues. The Court's response to the arguments raised is outlined below.

The Judgement

On Appointment: One of the issues dealt with by the Court was the appointment and accountability mechanisms provided for by the Amendment Act. In terms of the Act, the Head of the DPCI is accountable only to the Executive, with the Minister afforded wide discretionary powers of 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 operational independence DPCI. The concentration of unfettered powers of appointment in the hands of the Executive was found to be inconsistent with the judgement in Glenister and the requirement that the DPCI be allowed to operate independently. The Court held that the exclusion of Parliament from appointment and oversight mechanisms was not justified in light of the nature and purpose the DPCI. It was held that the inclusion of Parliament would help ensure the DPCI remains subject to sufficient scrutiny by a transparent and representative institution.

On 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 Directorate as a whole. The Court held that it is renewability as such, rather than the sufficiency of conditions imposed on renewability, which jeopardises independence.

On 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 discretion. The powers of the Minister were held not to be appropriately restrained and allowed for dismissal based on an impermissibly wide range of reasons. The Minister's powers unduly limited the ability of the Head to do his job with fear or prejudice and gave rise to potential abuse.

On Jurisdiction: The Amendment Act's failure to secure the exclusive and primary jurisdiction of the DPCI to investigate priority offences was found to be inimical to the independent functioning of the Unit. The fact that the Act does not ensure that key crimes, such as corruption and organised crime, must be referred to the DPCI was found to allow unwarranted political interference in investigative affairs. The problems created by this are accentuated by the power of the Minister to draw up policy guidelines for the investigation of priority offences. The court held that these guidelines have the potential to constrain the DPCI's work or even to direct the DPCI 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 DPCI's corruption fighting mandate is clearly provided for and is ultimately something that should not be left to politicians to determine.

Remedy

The combined effect of the findings, outlined above, resulted in the High Court ruling that certain section of the SAPS Amendment Act have failed to comply with the Glenister judgment and are inconsistent with the Constitution. The Court endorsed the arguments presented by the HSF in declaring sections 16, 17A, 17CA, 17D, 17DA and 17K (4) to (9) of the Amendment Act unconstitutional and invalid. Parliament has been afforded 12 months to remedy the defect. The HSF was awarded costs in the matter.

Confirmation and Leave to Appeal

In terms of the Constitutional Court Complementary Act No 13 of 1995, the order must be sent to the Constitutional Court for confirmation. 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 respondents (the President, the Minister of Police and the Government) have appealed the decision of the Western Cape High Court and the HSF is in the process of preparing for the confirmation/appeal proceedings. Directions have been issued by the Constitutional Court and the application for confirmation as well as the appeal will be heard by the on 15 May 2014.

Statement issued by Francis Antonie, Helen Suzman Foundation, May 12 2014

Click here to sign up to receive our free daily headline email newsletter