Top court rules to amend parts of Police Act pertaining to Hawks
THE CONSTITUTIONAL Court has struck down sections of the SA Police Act that it said limited the Hawks’s independence and had the potential to interfere with the unit’s selection and suspension.
The Helen Suzman Foundation and businessman Hugh Glenister spearheaded the constitutional challenge.
The five-year court battle began with the dissolution and replacement of the Scorpions by the Hawks, otherwise known as the Directorate for Priority Crime Investigation (DPCI).
Since then, Glenister and the foundation pushed for the separation of the Hawks from the South African Police Service, which they claimed had interfered with the unit.
Glenister failed in his prayer to have the entire legislative scheme of the South African Police Service Amendment Act declared constitutionally invalid, but the court ruled that several sections needed to be rectified.
The Constitutional Court con- firmed the unconstitutionality of the provisions relating to the extension of tenure of the national head of the DPCI; undue political interference in the operations of the DPCI through ministerial policy guidelines; and the uncontested power of the Minister of Police to solely remove the head of the DPCI.
Constitutional Court justices found that a sub-section that allowed the extension of the head’s tenure beyond retirement age was against total independence and should be removed.
The sections that allowed the possibility for ministerial policy guidelines to interfere with investigations and a section that forces the Hawks to enforce these guidelines, were also struck down.
Police Minister Nathi Nhleko’s powers to raise concerns over the leader of the Hawks’s performance were confirmed to be constitutional.
But, his ability to suspend or remove the head of the DPCI at will, failed to pass constitutional muster.
Justice Edwin Cameron ruled in a minority judgment that the appointment process could lead to a form of cronyism.
“The head’s susceptibility to political influence is likely to trickle down, affecting the independence of those whom he or she appoints.”
Chief Justice Mogoeng Mogoeng for the majority, wrote: “The need and urgency to put an end to the uncertainty about the particular functions that the DPCI is required to perform, require direct and immediate judicial intervention, without usurping the legislative powers of Parliament.
“Our ability as a nation to eradicate corruption depends on the institutional capacities of the machinery created to that end,” Justice Mogoeng added.