Years after disbanding the Scorpions, courts are still grappling with the consequences. And the highest court seems unamused at the state of play.
After years of complex legal argument and convoluted political manoeuvring, justices in the Constitutional Court had a simple question for lawyers representing the state on Tuesday: where is the dedicated investigative unit tasked with ridding South Africa of corruption? And if the Hawks is supposed to be that unit, why can’t Parliament just come out and say so?
“Why is there not one straight-forward line to say ‘the task is to tackle corruption’?” demanded deputy chief justice Dikgang Moseneke of Kemp J Kemp, the advocate representing President Jacob Zuma – while all but brandishing a copy of the South Africa Police Service Act.
The law, Kemp cautiously allowed, may not always be clear. But Moseneke did not seem mollified.
“We don’t have a dedicated corruption-fighting unit,” Moseneke declared later in proceedings, in reference to a specific section of the law.
In 2011, Moseneke wrote the majority opinion of the Constitutional Court in a landmark judgment on the independence of the Hawks – a judgment that gave Parliament a right proper scolding.
Hawks still not guaranteed freedom
Corruption – the court told the legislature, “threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order” – has an inordinate impact on the poor and the vulnerable, and has to be addressed in a manner commensurate with its danger.
That judgment, on a complaint brought by businessperson and activist Hugh Glenister, demanded that Parliament make the Hawks into a more effective corruption-busting tool, one less subject to being called off by, say, a president or a member of his Cabinet.
Parliament complied, at least in the sense that it amended the law, but on Tuesday the matter was back before the Constitutional Court, with the Helen Suzman Foundation – which has since taken the lead in the ongoing legal battle – arguing that the Hawks are still not guaranteed freedom from political interference.
As the law stands, advocate David Unterhalter told the court on behalf of the foundation, the minister of police has “a very very deep power to suspend without pay and then to dismiss” the head of the Hawks. Or, suggested advocate Izak Smuts on behalf of Glenister, the politically appointed commissioner of police could hypothetically load the Hawks with a large number of nuisance cases if they strayed too close to an important target.
It is even hypothetically possible, said Constitutional Court justice Edwin Cameron, for the minister of police to exclude a certain class of political office bearers from some types of investigations by the Hawks, an assertion to which counsel for the minister agreed. And by law, the Hawks has a plethora of responsibilities, Moseneke said, making for a “diffuse” mandate rather than the laser-like focus it should have.
Yet lawyers for the state argued that there may still be no need for the court to find the law that establishes the Hawks to be unconstitutional, and in some instances no mechanism for the court to fix any flaws that may exist.
‘Struggle to understand’
And, in any event, it is not really necessary. Compare the Hawks to the Scorpions – which was treated as a unit of the National Prosecuting Authority rather than the police and considered sufficiently independent – Kemp told the court, and the former would be shown to be at least as independent as the latter.
Barring that business about the minister’s ability to remove the head of the Hawks, which is necessary.
But the judges were not of a mind to be persuaded. Why, asked justice Johann van der Westhuizen, did Kemp’s papers make reference to the need for the power to discipline a Hawks head who “runs amok”? That kind of language, Van der Westhuizen said, “sounds a bit sinister”, almost as if it speaks to an investigator who treads on toes rather than engages in unlawful activity. And the law authorising the Hawks is not only arguably “vague and embarrassing”, said chief justice Mogoeng Mogoeng, but nearly impenetrable.
“If judges in the highest court in the land struggle to understand how it operates, how are the police going to understand it?” he asked rhetorically.
The Suzman Foundation had asked the Constitutional Court to uphold a previous high court ruling that found parts of the Hawks amendment constitutionally invalid and also to declare other sections of the law unconstitutional.
Judgment was reserved.