The battle over the suspension of the head of the Hawks, Anwa Dramat, and by extension the independence of the priority crime fighting unit, is set to heat up this week.
On Thursday, the Helen Suzman Foundation (HSF) will ask the high court in Pretoria to give an order declaring Dramat’s suspension invalid. The foundation filed papers on Friday last week and the matter is set down for Thursday this week.
If the police ministry opposes the application, it will have to disclose information about why Dramat was suspended that it has so far been unwilling to talk about. The ministry will have to either justify the decision with legal gymnastics, or it will have to show its hand by telling the court why it thinks Dramat needs to be away from his post while he is supposedly under investigation.
Dramat was dealt a precautionary suspension on December 23. The case may also bring to light the nature of the investigation into Dramat. So far, it does not seem as if the police minister, Nathi Nhleko, has appointed a panel headed by a judge or retired judge to investigate Dramat’s fitness for office, as legislation requires him to do.
So it will be important to establish whether Nhleko’s investigation exists at all, and whether this justifies taking the precaution of removing Dramat from his post.
Meanwhile, on Thursday last week, the DA filed a Promotion of Access to Information Act (PAIA) application requesting access to a report that supposedly cleared Dramat of the charges that are allegedly behind his suspension.
These relate to a 2010 deportation of four Zimbabwean suspects. Dramat and other senior officials were investigated by the Independent Police Investigative Directorate (Ipid) amid allegations that the deportations were illegal.
The head of the Hawks in Gauteng, Shadrack Sibiya, and one other senior official, were given notices of intention to suspend early last week, also apparently in relation to the deportations. They must now give reasons as to why they should not be suspended.
The DA wants IPID’s final report made public so as to assess whether Dramat’s suspension is in line with what Ipid found. But it is suspected that the final report cleared Dramat.
And in the event that this is so, it will raise questions about why the minister either thought the Ipid investigation was inferior, or whether there have been new developments since the report was finalised. If the Ipid report did not clear Dramat, there will surely be questions about why it took so long for the police ministry to take action against him, given that the Ipid report was completed in early 2014.
Dramat’s suspension will seem particularly odd should it emerge in court that the Ipid investigation cleared him. As the Mail & Guardian reported, there is mounting suspicion that Dramat’s suspension is political, although the ministry of police has denied this.
A key question to be answered in court this week is how the police minister, Nathi Nhleko, went about suspending Dramat. In terms of the South African Police Services (SAPS) Act, the minister no longer has the power to unilaterally suspend the head of the Hawks without a Parliamentary process unfolding first.
This follows a November 2014 Constitutional Court judgment, which struck down certain provisions of the act that it found did not sufficiently secure the independence of the Hawks.
Now the minister will have to tell the court how his legal advisors justified Dramat’s suspension. It would appear that extraordinary circumstances must have pushed Nhleko, who has a background in labour law, to suspend Dramat in a fashion that legal experts say was unconstitutional.
The police ministry believes that the Constitutional Court judgment is untested terrain, which requires interpretation in a test case. Dramat himself appears to believe that his suspension was not based on the rendition allegations. The Mail & Guardian on Friday reported that Dramat had written to Nhleko saying that he believed his suspension was not based on the rendition allegations.
“The so-called Zimbabwean rendition investigation is a smokescreen. There are no facts whatsoever that indicate at any given time I have acted illegally or unlawfully …
“This investigation is already complete and handed to the national director of public prosecutions. It goes without saying that, had there been prima facie evidence against me … I would have been charged and prosecuted,” Dramat told Nhleko.
Dramat has been unwilling to comment publicly. Francis Antonie, director of the HSF, said the court action this week comes off the back of attempts to get the police ministry to explain why Dramat was suspended.
On December 30, the HSF wrote to the minister asking for a copy of Dramat’s suspension letter as well as supporting documentation by January 7.
On Sunday, Antonie told the Mail & Guardian that the minister had not acknowledged receipt of the letter, let alone responded to it.
Meanwhile, the DA says the police ministry has 30 days to respond to its request for the Ipid report. Ipid says it cannot make it available because of an arrangement it has with the National Prosecuting Authority not to publicise such reports.
It is surely in the public interest that the report is made available given the seriousness of the allegations and Dramat’s position. But if Ipid truly cannot make public such reports, it would raise concerns about whether the outcomes of future high-profile Ipid investigations will be made public, for example its probe into the 2012 Marikana killings.
Ipid hands over all its reports to the NPA for a decision to prosecute, but this does not necessarily mean that Ipid recommended that action be taken against Dramat. In any event, the NPA has not come to a decision yet and even if Ipid recommended that Dramat be prosecuted, Ipid’s recommendations are not binding on the NPA.
If the police ministry wants to oppose HSF’s application, it might want to try to justify its decision using the Ipid report, which it would might have to give to the court, making it part of the public record. It will also have to disclose in terms of which act the minister suspended Dramat. Experts are convinced that if the minister suspended Dramat in terms of the SAPS Act, the suspension would be unlawful.
However, there is a somewhat remote possibility that the minister is relying on the public service regulations, or the Labour Relations Act, which talks of a “precautionary suspension” to try to justify the suspension. But whether this route would render Dramat’s suspension legal at all is something the court will have to decide.