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The law must rest on solid foundations

The payout deal brokered between former Hawks boss Anwa Dramat and police commissioner Riah Phiyega for the head of the priority crimes unit to take a settlement package was corrupt.

That is according to the director of the Helen Suzman Foundation, Francis Antonie. 

Dramat had been in limbo since December 2014 when Police Minister Nathi Nhleko purported to “suspend” him over allegations that he was involved in the illegal deportation of Zimbabwean criminal suspects in 2010. 

Antonie made it clear in an interview with Law Report that he was angry and disappointed by Dramat’s decision to accept the settlement. 

Neither he nor Phiyega were empowered legally to make such a deal, he said: “The removal of Dramat, head of a constitutionally independent body, was manifestly unlawful. And I want to go as far as to say that the offering and acceptance of a payout that undermined the institution of the Hawks was corrupt.”

The foundation was fighting to ensure that, in line with a previous Constitutional Court finding, the head of the supposedly independent unit could only be removed if this was instigated by Parliament. In 2014 the court declared invalid a section of the South African Police Service Act, which allowed the police minister to suspend the head of the Hawks.

Phiyega is now fighting for her political survival after the Farlam Commission on the Marikana shootings recommended an inquiry into her fitness to hold office. 

Antonie said the foundation would also be pursuing what it sees as interference by government in the independence of the Independent Police Investigative Directorate and its handling of the investigation into the illegal rendition of Zimbabweans. 

The foundation has objected to the demand by Nhleko for the directorate’s entire docket, saying legislation is clear — the only involvement the minister should have is in being informed that a case has been referred to the National Prosecuting Authority. 

“The foundation will not let these matters go,” said Antonie. “We have been working on protecting these independent investigative bodies for five years.” 

Antonie’s six-year tenure as director of the foundation has seen it increasingly engage in litigation to protect human rights and the promotion of the rule of law. 

“We are largely interested in procedural issues. Not that we have coffers full of money, as some may think,” said the former Standard Bank chief economist and former head of the University of the Witwatersrand’s graduate school of public and development management. 

“Like most independent organisations we are dependent on donor money and that is a constant battle to find so we have to be selective about the battles we choose to fight.”

This is why the foundation frequently partners with civil society, or interested groups, as it did with the ongoing challenges launched against the Protection of State Information Bill, better known as the secrecy Bill. 

In November, the foundation goes to court to ask that the Judicial Service Commission reveal what procedure and decision-making process it uses to nominate judges. 

“We believe the process used for selection should be transparent, so it’s clear what criteria they use to select or, for that matter, reject judges,” he said. 

Antonie graduated from Wits with a bachelor of arts in politics and law, but the large piano with its well-worn keys holding pride of place in the lounge of his Johannesburg home, as well as the four years he spent studying music in Paris and London, raises the question whether that was his first choice. 

“For my father, also Francis, there was no discussion. He said I must get some form of qualification first.” 

His introduction to the practice of law was through Namie Philips, acting judge of the then Transvaal provincial division of the then Supreme Court, whose family he stayed with while studying at Wits. And it was there that he met Helen Suzman. 

“Looking back now as a much older man, I have immense respect for her and all those lonely years she spent in Parliament [as the only Progressive Party representative].” 

In later years he would play the piano for Suzman when she visited his home. “She would tell me to play her some tango. That is what she wanted. She loved dancing,” he said. 

Antonie’s constitutional law lecturer at Wits was Professor Ellison Kahn, who would later become vice-chancellor of the university and the long-standing chairperson of the Constitutional Committee, which assisted the Constitutional Assembly in drafting South Africa’s interim Constitution. His studies and the people he met sparked an interest not only in the law, but also in the role it had to play inprotecting human dignity and human rights. 

After the firebrand politics of Wits, Antonie said his move to the University of Natal’s Pietermaritzburg campus as a lecturer in 1978 introduced him to a new brand of politics, with many of those he met being members of the Liberal Party. 

“It made me aware that there were two streams of political thought at the time about how to address the country’s pressing political problems — some people were not convinced that full economic sanctions was the way to go.” 

Antonie’s growing recognition of the importance of a stable economy  for the new South Africa saw him take up a Helen Suzman Chevening Fellowship through which he studied for his MBA at the University of Exeter in the United Kingdom. 

He returned to lecture economics at Wits while serving as senior economist at Standard Bank. 

Under his leadership the foundation has taken on a variety of issues. It asked to be admitted as a friend of the court in the landmark case of Glenister v President of the Republic of South Africa and Others, the ruling of which is now being used to challenge, among other things, the removal of the head of the Hawks. 

The foundation has spent years challenging the legitimacy of the 2008 National Prosecuting Authority Amendment Act and the Police Service Amendment Bill, an amendment to the earlier contested Police Service Act, on the grounds, among others, that these Acts  continued to place the Hawks under the ambit of the ministry of police and gave government powers that curtail the independence of these bodies. 

The foundation has also submitted comments to the Civilian Secretariat for Police on the forthcoming green paper on policing. 

In addition, it has made submissions to the department of co-operative governance and traditional affairs on the Traditional Affairs Bill, as well as what the foundation regards as improperly constituted traditional councils, the minister’s wide discretionary powers, and the issues of the power afforded to chiefs.

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