Hawks suspension court challenge is in defence of the law

HSF argues that not only did Nathi Nhleko suspend Anwa Dramat unlawfully, but that he also neglected his duty to secure the right degree of independence of the Hawks. (Gallo)

HSF argues that not only did Nathi Nhleko suspend Anwa Dramat unlawfully, but that he also neglected his duty to secure the right degree of independence of the Hawks. (Gallo)

On Thursday, the high court in Pretoria will hear that the suspension of Hawks head Anwa Dramat poses a constitutional question that goes beyond his innocence or guilt.

The Helen Suzman Foundation (HSF) will take Minister of Police Nathi Nhleko to court in an attempt to have Dramat’s suspension declared invalid.

Dramat was suspended on December 23, supposedly pending an investigation into his role in a 2010 deportation case. On January 9, the HSF filed papers at the high court in Pretoria seeking to have his suspension overturned.

By Wednesday afternoon, the police ministry had filed a notice indicating that it intended to oppose the application, but no supporting affidavit indicating on what grounds, or how, it intended to do so.

Constitutional issue
The HSF wants the court to declare unlawful the appointment of Berning Ntlemeza, who is acting in Dramat’s place. And it wants an order stating that the minister can only suspend the head of the Hawks according to the relevant steps set out in the South African Police Service Act. 

The foundation says the minister acted in a manner that ignored a Constitutional Court judgment, handed down in November last year, about a month before Dramat’s suspension, which struck down certain provisions of the Act, including one that previously gave the minister sole discretion over the firing of the Hawks head.

If the order is granted, not only will Dramat need to be reinstated, but the police ministry will finally have the clarity it wants on how to interpret the Constitutional Court judgment.
It previously told the Mail & Guardian that the judgment was untested and needed interpretation by a lower court.

This case is not about the merits of Dramat’s suspension. It is not about whether he should be investigated for his alleged involvement in the alleged rendition of four Zimbabwean suspects in 2010 – a charge of which the Independent Police Investigative Directorate (Ipid) reportedly cleared him.

It is about the legality of the minister’s actions in terms of whether the correct procedures were followed in suspending Dramat.

Unlawful action
As HSF states in its court papers: “This matter is not about a defence of Dramat specifically. This case entails the core constitutional question: Do we live in a society where our government can, by effectively bypassing the requirements laid down by law for the lawful suspension of the national head of the [Hawks], control who is to lead one of South Africa’s most important crime-fighting units? If the answer is no – and it must be no – then the protection of the rule of law requires prompt and clear action from the court.”

In its court papers, HSF argues that not only did the minister suspend Dramat unlawfully, but that Nhleko also neglected his constitutional duty to secure the right degree of independence of the Hawks. The Constitutional Court pointed out that the Hawks should not operate in a manner that was totally independent from the executive, but that it should be sufficiently independent.

Protecting Hawks’ independence
The foundation says it is imperative that the Hawks are not seen to be subject to “undue” interference from the executive. But the HSF goes further, saying the matter is pressing and that Dramat must return to his position “urgently” because of the nature of matters investigated by the Hawks – organised crime, corruption and other high-profile crimes.

Because Dramat heads these investigative units within the Hawks, HSF says his protection from political interference is paramount. The inference is that his removal from his position, which the HSF sees as arbitrary and intrusive, is a threat to his independence. This is largely why the Constitutional Court saw fit to make Parliament more active in the process – to give Parliament a more meaningful role but also to restore some semblance of job security to Dramat’s position.

The foundation’s papers set out a detailed description of what Dramat’s job entails. It says he is integral to the operational and financial decision-making within the Hawks, and this is another reason why the matter is urgent.

“Unlawfully” displacing the head of the Hawks would destabilise the institution and must be “immediately reversed”, says the foundation. “Every day that [Dramat] is out of office poses an unacceptable risk to the work and operation of the [Hawks].”

Suspension of convenience
Dramat, in a leaked letter, told Nhleko that the rendition case was a “smokescreen” and that he was being removed for trying to investigate cases involving politicians, including some cases related to the Nkandla scandal.

It’s clear from the papers that Dramat’s lawyers, Riley Incorporated, told the minister on December 12 that any suspension would be unlawful because of the Constitutional Court decision. Dramat was given notice of the intention to suspend him on December 10 and five days in which to give reasons why he should not be suspended.

The minister responded, effectively agreeing with Dramat’s lawyers, but stating that the Public Service Act and the Senior Management Services Handbook empowered him to place Dramat on precautionary suspension. But the HSF says the minister is bound by the police Act.

The foundation wrote to Nhleko on December 30 seeking reasons for Dramat’s suspension, but received no response.

The HSF says Nhleko’s office knew about the alleged rendition in 2011 and the minister was aware of the outcome of the Ipid investigation early last year.

“If the allegations and findings were so serious as to require the suspension of Dramat now in the last moments of 2014, it is unclear why the ‘investigation’ was not launched earlier by the minister,” the HSF says.

Sarah Evans

Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics.  Read more from Sarah Evans

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