The state is pushing the law to its limit
The government is developing a disturbing trendency to ignore court orders, particularly those of successful challenges by crime and intelligence officials.
Gareth Newham, the head of crime and justice at the Institute of Security Studies, said: “Instead of upholding the rule of law and the Constitution as sacrosanct, government has blatantly disregarded court rulings and taken action despite court decisions.”
High-profile cases include the removal of the head of the Directorate of Special Operations (Hawks), Anwa Dramat, the head of the Gauteng Hawks, Major General Shadrack Sibiya, the head of the KwaZulu-Natal Hawks, Major General Johan Booysen, and the former head of internal audit of the Crime Intelligence Unit, Colonel Kobus Roos.
Despite high court and Labour Court rulings relating to these cases — finding the removal of the officials baseless, illegal or unconstitutional — the state continued to challenge the findings, making use of every avenue at its disposal, Newham said.
The courts set aside the removal of Major General Berning Ntlemeza, who is acting in Dramat’s vacated post, and Major General Elias Dlamini, who replaced Sibiya. Both remain in the posts.
Pierre de Vos, a constitutional law professor at the University of Cape Town, in a recent article in the online Daily Maverick, raises the spectre of political interference.
“The minister of police relied on an unconstitutional and thus deleted [section of the] Police Act to ‘suspend’ the head of the Hawks. This was unlawful. No court in the land would endorse the illegal suspension of Mr Dramat by the minister of police.”
Police Minister Nathi Nhleko argued in court that a Constitutional Court judgment allowed him to suspend Dramat as long as he was suspended on full pay. He also argued that, in any event, he could lawfully suspend Dramat under the Public Service Act, because he was an employee.
Vos questions whether the action was really for the reasons given or if “it became necessary to break the law because members of the dominant faction within the governing party became anxious about investigations into their affairs by the Hawks”.
Martin Schönteich, the director of the national criminal justice reform programme of the Open Society Justice Initiative, has warned that infighting, the removal of senior officials, the ongoing court battles and allegations of political interference are having a negative effect on the police force and the National Prosecuting Authority (NPA). This will also affect the Hawks, an arm of the NPA.
Schönteich said in an article published by the Institute of Security Studies: “As gatekeepers to the criminal justice system, prosecutors are the system’s most powerful officials. Prosecutors decide whether criminal charges should be brought and against whom. In South Africa, prosecutors exercise considerable discretion in making those critical decisions.”
He said there was always the temptation in any government “to interfere in prosecutorial decisions”.
Newham raised the same concerns as Vos. “Appointments to key posts within the NPA and its specialised units are not properly vetted to ensure the fitness of the appointee to hold office, raising the question of whether these are political appointments.”
Newham said that syndicated crime, which required effective crime intelligence, had increased during the past few years, which he attributed to uncertainty in these units.
In the period 2013-2014, business robberies were up by 13%, truck hijackings 5.1% and other vehicle hijackings 12.3%. Bank robberies increased 200%, albeit off a low base. “The agencies that need to be on top of these crimes have been undermined,” he said.
On Monday, the Pretoria high court ruled that the suspension of Sibiya was illegal and that he should return to work. Judge Elias Matojane, in a hard-hitting judgment, refused the state leave to appeal on the grounds that Ntlemeza had behaved dishonestly and vindictively by withholding from the court an Independent Police Investigative Directorate report and docket that were in his possession. Matojane said this had prevented the court from properly assessing the case against Sibiya.
In an earlier judgment, Matojane said decisions to remove officials from an independent body such as the Hawks and to hold a disciplinary hearing should be a last resort.
Sibiya and Dramat were suspended pending a disciplinary hearing over their alleged involvement in the illegal rendition of four Zimbabweans in 2010. Dramat took leave after the Pretoria high court found that the head of the Hawks couldn’t be removed by the minister without a decision by two-thirds of the National Assembly.
“Dramat said in documents that he has been suspended because of his attempt to consolidate and take sensitive cases away from the police because nothing was getting done,” Newham said.
This is unlikely to be the end of the Sibiya matter, if previous actions against crime and intelligence officials are anything to go by.
The legal challenges brought against Booysen for his alleged role in running a death squad in the now defunct Cato Manor serious crimes unit started in August 2010. He was cleared of criminal charges in the Durban high court, his suspension was overturned twice in the Labour Court, and an internal disciplinary hearing into whether he was guilty of failing to hold his staff in the unit to account cleared him.
The state is now appealing the findings of this hearing and has put Booysen on special leave pending the outcome of the appeal.
In December, after the outcome of the inquiry, Booysen successfully approached the court for an interim order against national police commissioner General Riah Phiyega to prevent her from dismissing him or interfering in any way with his functions.
Phiyega’s spokesperson, Solomon Makgale, said: “Whilst we are awaiting the outcome of the appeal, we discussed several options with General Booysen, including the possibility of early retirement. By mutual agreement in court, the offer was set aside.”
Referring to Roos, Makgale said Phiyega believed that she “had complied with the Labour Court” ruling about him. “We paid the money due to him. We placed him in an auditing post in Gauteng internal audit. We argued in the same court last week and are waiting for the court judgment.”
Newham said: “Phiyega has ignored a Labour Court ruling that Roos be reinstated to his previous position.”
Asked whether Dlamini and Ntlemeza would be removed from their acting positions, and for reasons why the state was ignoring court orders, Phiyega’s office referred the questions to the Hawks, who did not respond by the time of going to print.