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23 Jan 2015 17:09
A Pretoria high court judge said that Police Minister Nathi Nhleko was not entitled to remove the head of the Hawks. (Danielle Karallis, Gallo)
Police Minister Nkosinathi Nhleko will appeal the Pretoria high court ruling that Hawks boss Anwa Dramat’s suspension was invalid, his lawyer said on Friday.
“I have drafted the papers and I’ve sent them to ... [be] signed and certified,” said William Mokhari.
“They should be able to be served today [Friday].”
This after the ministry released a statement earlier in the day confirming that it would not “stop” Dramat from returning to his offices.
Judge Bill Prinsloo on Friday ruled that acting Hawks head Benny Ntlemeza step down and suspended Hawks head Anwa Dramat return to his post.
The judge had agreed with the Helen Suzman Foundation, who brought an urgent application to have Dramat reinstated, that Police Minister Nathi Nhleko was not entitled to remove the head of the Hawks based on a Constitutional Court judgment that struck down a section of the South Africa Police Act (Saps Act).
The minister had argued, among other things, that he was entitled to suspend a national head, who was also an employee of the state, in terms of the Public Service Act and common law, which was rejected by the court.
Dramat’s suspension unleashed a flurry of allegations and counter allegations by Dramat and the state that are still unresolved. In papers before the court, Dramat said that he was being targeted because he has launched an investigation involving President Jacob Zuma’s home Nkandla, while Nhleko in his affidavit alleges that Dramat was involved in the illegal rendition of four Zimbabweans.
Nhleko and the Hawks have denied that there is an investigation into Nkandla.
According to Nhleko, two of the Zimbabweans who were deported were “subsequently murdered by the Zimbabwean police to whom they were handed over unlawfully”.
Dramat was suspended on December 23 2014, apparently pending a probe by the National Prosecuting Authority, based on findings in an Independent Police Investigative Directorate (IPID) report.
The minister of police did not respond to a request for comment.
A four year fight for the Hawks’ independence
Francis Antonie, executive director of the Helen Suzman Foundation, said they had been “greatly concerned” to hear of Dramat’s suspension last year.
The foundation challenged his suspension, saying that the minister had acted unlawfully when he suspended the Hawks head and replaced him with Benny Ntlemeza, a “man of the minister’s own choice”.
“For more than four years the HSF has been involved in attempts to bolster the operational and structural independence of the Hawks, “ said Antonie.
“Our initial involvement was as amicus curiae in the case brought by (businessperson Hugh) Glenister in the Constitutional Court.
“The court ruled that an independent corruption fighting unit was a constitutional requirement.”
In papers before the court Dramat was listed as second respondent, after the minister.
David Unterhalter, for the foundation, told the court that the minister had no power to suspend the head of the Hawks unit.
“The minister has no choice but to follow the parliamentary process and in this case he has not done so.”
Antonie said: “Major General Ntlemesa appears to have issued further suspensions which are affecting the Hawk’s internal operations.”
The foundation said its case would not be affected by any agreement reached between the minister and Dramat – who has suggested early retirement in a letter to the minister – because the application was concerned about the “office not the man”.
Historical contextA week after Dramat’s suspension, the foundation sent a letter to the minister asking for reasons for the suspension and the legislation on which he had relied. No response was received, so they took the matter to court.
The foundation launched an urgent application because they were concerned that “decisions were being taken that Dramat would have difficulty overturning if he was reinstated”, Unterhalter told the court.
Nhleko said in his replying affidavit that he would be “shirking on my constitutional and statutory obligations” were he to turn a blind eye to the allegations, allegedly made in witness statements in the IPID report, which remains unavailable to the public.
The foundation has asked for a copy of the report but was turned down by the minister, who cited as his reason its sensitive and confidential nature.
Dramat challenged his suspension under the SAPS Act, saying the minister had no power to remove him without a decision from Parliament.
Nhleko replied in a letter to Dramat on December 2 that he had read the judgment and “there was nothing in the judgment that precludes me from exercising my powers as your employee”.
The minister later cited the Public Service Act as grounds for the provisional suspension, saying that Dramat was a government employee.
Meanwhile, the head of IPID, Robert McBride, has remained silent on the matter, despite statements from Dramat and suspended head of the Hawks in Gauteng, Shadrack Sibiya – who has been suspended on the same charges – that they had received a letter from IPID saying there was no recommendation for the suspension or prosecution of either man.
Other suspensionsHawks official Leslie Maluleke has also been suspended on the same charges as Dramat. The crime-fighting body announced on Thursday that it had appointed Major General Nhlamvu Elias Dlamini acting head, in place of Sibiya.
Suspended SARS head Ivan Pillay has also alleged that he was investigating Jacob Zuma and his Nkandla home. Pillay has taken his fight to overturn his suspension to the Commission for Conciliation, Mediation and Arbitration (CCMA).
He was suspended on the grounds that he set up a “rogue” unit within the revenue service, which has been performing intelligence functions.
Pillay said the unit had been given the highest clearance. – Mail & Guardian, Sapa
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