/ 24 December 2014

Legality of Dramat’s suspension in question

Legality Of Dramat's Suspension In Question

Questions have been raised about whether the head of the Hawks, Anwa Dramat, was suspended legally, raising the possibility that the matter could be headed for court. 

While the Democratic Alliance (DA) has questioned the legality of the suspension, which took place on Tuesday afternoon, the ministry of police says it has acted legally and that the provisions of the police act dealing with the suspension are “new” and “untested”.

A spokesperson for the minister of police, Nathi Nhleko, said the minister sought legal advice before issuing Dramat with notice of his provisional suspension.

Nhleko’s spokesperson, Musa Zondi, said the minister also gave Dramat an opportunity to give reasons why he should not be suspended before provisionally suspending him for 60 days.

Rendition of Zim suspects
Dramat’s suspension is believed to be related to his alleged involvement in the rendition of Zimbabwean suspects, but there are suspicions that it was politically motivated.

The Mail & Guardian understands that Dramat has sought legal counsel on his suspension, but Dramat declined to comment on this on Wednesday. He also would not comment on whether he would challenge his suspension. 

Central to the legality of Dramat’s suspension is a Constitutional Court ruling, handed down on November 27, that set aside provisions in the South African Police Service (SAPS) Ammendment Act, which gave the minister sole discretion on whether or not to suspend the head of the Hawks.

The ruling resulted from a court challenge brought by Hugh Glenister, which sought to challenge whether the SAPS Act gave the Hawks sufficient independence from the executive.

‘Adequate’ independence
The Court stated that the Hawks must have “adequate” independence.

What remains of the relevant section is that the Minister must notify Parliament, and a committee of the National Assembly must consider the pending suspension before the suspension can legally occur.

The gist of the ruling appears to have been to give Parliament a more meaningful role in the suspension of the head of the Hawks. 

Zondi said there had been some discussion among this within the ministry before Dramat was suspended, but the ruling remains “untested”. 

The interpretation of the relevant sections would therefore need to be tested in a court of law, Zondi said. But for now, the minister had been advised that he had acted legally, Zondi added.

Acted illegally
But DA spokesperson on police, Dianne Kohler-Barnard, said on Wednesday that Nhleko had acted illegally.

“The Constitutional Court judgment stated that the Minister may not suspend the head of the Hawks. Section 17 CA was declared ‘inconsistent with the Constitution and are declared invalid and deleted from the date of this order’.

“It is quite obviously a political ploy to remove General Dramat, put an acting head in his position, and instruct that person to fire Lieutenant General Johan Booysen, the KwaZulu-Natal (KZN) head of the Hawks.

“Booysen has been instrumental in conducting various investigations into six MECs and the KZN police commissioner,” Kohler-Barnard said.

The section also requires that a commission of inquiry, headed by a judge or retired judge, must be instituted to consider allegations against the head of the Hawks.

Zondi said this had not yet been instituted and said the minister would decide whether this step was appropriate after considering his own fact-finding mission. This exercise would not amount to an official inquiry, Zondi said.

But he added that Dramat’s suspension was necessary to restore stability to the Hawks because the allegations against Dramat could no longer go uninterrogated. He said Dramat’s suspension did not amount to a finding of guilt.

Grave concern
Meanwhile, the Helen Suzman Foundation (HSF) said it noted the suspension with “grave concern”.

“This comes hot on the heels of the HSF’s recent successful intervention, and the ruling by the Constitutional Court, relating to the independence of the Directorate of Priority Crime Investigation [Hawks].”

The Foundation said the suspension was “troubling” because it could destabilise the administration of justice and the fight against corruption.

“We await further communication from the minister of police and the commissioner of police, and trust that greater clarity will be forthcoming,” said HSF director, Francis Antonie.

Meanwhile, the South African Press Association reported that Major General Berning Ntlemeza will be acting head of the Hawks following Dramat’s suspension, the police ministry confirmed.