/ 27 November 2014

Concourt: Hawks not sufficiently independent

The long-running legal battle around the independence of anti-corruption unit the Hawks made a major leap on Thursday when the Constitutional Court granted the Helen Suzman Foundation leave to appeal parts of a high court ruling.

The Constitutional Court agreed with parts of the foundation’s argument that the current legislation governing the unit does not ensure adequate structural and operational independence, the court ruled on Thursday.

Noting that the issue of corruption was a serious one, the court emphasised the need for an independent anti-corruption unit.

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country, and that stringent measures are required to contain this malady before it graduates into something terminal,” read the majority judgment.

“We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption.

“We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. And this in a way is the issue that lies at the heart of this matter. Does the South African Police Service Act 2 (SAPS Act), as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?”

In answering that question, the court’s ruling took issue with the undue political interference in the specialised crime-fighting unit’s operations, thanks to the police ministry’s policy, “the untrammelled power of the minister of police” to remove the head of the unit, as well as the provisions for the tenure of the head of the unit, which it found was unconstitutional.

Scathing criticism of the application
But while the foundation walked away mostly victorious, Constitutional Court justices were largely scathing of the application by businessperson-turned-activist Hugh Glenister, and totally rejected all the issues he raised. Chief Justice Mogoeng Mogoeng said Glenister’s evidence amounted to “reckless and odious political posturing … which should find no space in a proper court process”.

Glenister sought to declare the entire legislative scheme of the SAPS Amendment Act declared unconstitutional but failed. His defeat will be a costly one as the court did not award him costs as he had hoped for.

Thursday’s judgment is part of a battle that began in 2008 with the dissolution of the Scorpions, which got caught up in political infighting in the ruling ANC between former president Thabo Mbeki and his successor Jacob Zuma. 

The Hawks, or the Directorate for Priority Crime Investigations (DPCI), was formed soon after, but was placed under the control of the SAPS while the Scorpions was under the National Prosecuting Authority (NPA).

Glenister has spent over six years and reportedly R3.5-million of his own money fighting the dissolution of the Hawks’ predecessor, the more independent Scorpions, and an additional legal battle against the Hawks being placed under police jurisdiction. The Scorpions was under the NPA.

Glenister failed in his previous legal bid to prevent the dissolution of the unit. He and the foundation then took up a court battle to ensure the Hawks were separated from the police, which they claim is corrupt and compromise the investigative unit’s independence.

Inconsistent with Constitution
In December 2013, the high court in Cape Town ruled that parts of the legislation governing the Hawks were inconsistent with the Constitution, and invalid in terms of ensuring adequate independence, Sapa reported. Judge Siraj Desai however found aspects of Glenister’s submissions were based on unverified opinion.

Along with the foundation, Glenister argued the high court ruling did not go far enough to secure the Hawks sufficient institutional and operational independence. He also tried to get the Constitutional Court to overturn the order compelling him to pay the costs of former police minister Nathi Mthethwa.

The state opposed the confirmation of the order of invalidity, and applied for leave to appeal against the high court’s order. It argued that the Act creates sufficient independence for the Hawks, and that the doctrine of separation of powers prevents the courts from being overly prescriptive about the legislative measures taken by the state to fight corruption.

The Constitutional Court ruling however vindicates concerns about the independence of the Hawks. – Mail & Guardian