The high court in Cape Town has told Parliament to fix sections of the SAPS Amendment Act, again.
When the Scorpions were disbanded in 2009, many people feared its replacement, the Hawks, would be politically pliable. As it turned out, the legislation enacted to create the Hawks left the unit vulnerable.
The Constitutional Court in 2011 gave Parliament an opportunity to fix sections of the SAPS Act that rendered the Hawks vulnerable to political interference.
On Friday, the high court in Cape Town found that Parliament's attempts to fix the offending legislation were simply not enough.
In 2011, the Constitutional Court found that section 6A of the South African Police Service Act was unconstitutional and invalid because it failed to give the Hawks and adequate degree of independence.
In essence, the problem with the Act lay with the lack of security of tenure and remuneration of Hawks members, and the degree of accountability and oversight by the ministerial committee (as well as its "untrammelled" power: the Consitutional Court found that the ministerial committee "undermined" Parliament's oversight function).
The declaration of invalidity was suspended for 18 months to give Parliament a chance to rectify the problem. Parliament duly "fixed" the relevant section, and the SAPS Amendment Act of 2012 was enacted.
But the Helen Suzman Foundation and businessperson Hugh Glenister felt Parliament's attempts did not fix the problem, and that the Hawks were still not independent enough or sufficiently protected from political pressures.
The Constitutional Court had already ruled that the location of an anticorruption unit such as the Hawks within the police was not unconstitutional. It was therefore up to the high court in Cape Town to decide whether the Act gave the Hawks sufficient "structural and operational autonomy so as to shield it from undue political influence".
Thus the high court last week appeared careful to avoid "falling into the trap of seeking to satisfy … paranoia" and busied itself with the "objective" nature of the task before it: trying to assess whether the relevant portions of the Act were adequate.
Central to the issue were sections 16 and 17 of the Act. Two of these went to the core of the case before the high court, namely the appointment of the head of the Hawks and the lack of parliamentary oversight on the anti-corruption body.
The applicants argued that the current legislation gave the minister too much discretion in appointing the Hawks' head.
President Jacob Zuma, also a respondent, argued that the courts could limit the power of the minister on review. The high court found this was "misplaced".
As the court stated on Friday: "The imperative of including, in any empowering statute, sufficient guidance to guard against the infringement of rights in the exercise of the power conferred, is not a question of objectivity but rather of the clarity and specificity of the criteria prescribed. This is precisely because … the legislation … must limit the risk of the unconstitutional exercise of the discretionary power conferred. The risk is not limited by the mere ability to test the exercise of that power on an objective basis in a review."
Next was the matter of Parliamentary oversight. The applicants complained to the court that the head of the Hawks is not insulated from political interference because the minister of police, with Cabinet, appoints him or her, without Parliament.
The Constitutional Court previously held public perception of independence was an important criteria when measuring the independence of an organisation such as the Hawks.
The respondents relied on case law (Van Rooyen and others versus the State and others) to argue that the executive was allowed to make appointments on its own. In that case, the Constitutional Court ruled that it was "constitutionally acceptable" for the minister of justice to appoint magistrates.
But the high court on Friday said this comparison was "misplaced". "First, magistrates apply the law. They do not investigate corruption. Second, and more importantly, magistrates, like judges, are constitutionally fully independent."
The high court ruled that section 16, as well as sections 17A, 17CA, 17DA, and 17K(4) to (9) of the SAPS Amendment Act, are unconstitutional.
Parliament has a year to remedy the problem.