Hawks rules must be amended

Weekend Argus (Saturday Edition) - - NEWS - FA­TIMA SCHROEDER

PAR­LIA­MENT has been given a year to rem­edy de­fects in the SAPS Amend­ment Act, af­ter a Western Cape High Court rul­ing yes­ter­day that said the act failed to give crime- bust­ing unit the Hawks suf­fi­cient in­de­pen­dence.

In a judg­ment handed down yes­ter­day, a full Bench de­clared sec­tions of the amend­ment act un­con­sti­tu­tional and invalid, but sus­pended its dec­la­ra­tion of in­va­lid­ity for a year to give Par­lia­ment an op­por­tu­nity to re­visit the leg­is­la­tion.

In ad­di­tion, the court’s judg­ment has been re­ferred to the Con­sti­tu­tional Court for con­fir­ma­tion.

The judg­ment was the re­sult of ap­pli­ca­tions that busi­ness­man Hugh Glenis­ter and NGO the He­len Suz­man Foun­da­tion (HSF) lodged sep­a­rately, but which were heard si­mul­ta­ne­ously, to chal­lenge sec­tions of the leg­is­la­tion.

The amend­ment act was the gov­ern­ment’s re­sponse to a Con­court judg­ment, in favour of Glenis­ter, that found invalid sec­tions of the leg­is­la­tion that es­tab­lished the Hawks, known as the Direc­torate of Pri­or­ity Crime In­ves­ti­ga­tion (DPCI).

Glenis­ter’s Con­court ap­pli­ca­tion was lodged af­ter the dis­so­lu­tion in 2008 of the Scor­pi­ons, an in­ves­tiga­tive branch that fell un­der the Na­tional Pros­e­cut­ing Au­thor­ity. The Scor­pi­ons were re­placed by the Hawks, which fall un­der the po­lice.

Lawyers rep­re­sent­ing Glenis­ter and the HSF ar­gued in the high court that the amend­ments were not suf­fi­cient to pro­tect the Hawks from po­lit­i­cal in­ter­fer­ence, say­ing they gave the po­lice min­is­ter the power to hire and fire the head of the unit.

In the judg­ment, judges Si­raj De­sai, An­dré le Grange and Ju­dith Cloete found that the sec­tions of the amend­ment act were un­con­sti­tu­tional be­cause:

● The ap­point­ment process of the head of the unit was in con­flict with the stan­dard of in­ter­na­tional best prac­tice, and vested an “un­ac­cept­able de­gree of po­lit­i­cal con­trol in the min­is­ter (of po­lice) and cab­i­net”.

● The power vested in the min­is­ter to ex­tend the ten­ure of the head and deputy head of the unit was “in­trin­si­cally in­im­i­cal to the re­quire­ment of ad­e­quate in­de­pen­dence”.

● The sus­pen­sion and re­moval process vested an “in­ap­pro­pri­ate” de­gree of con­trol in the min­is­ter, and also al­lowed for two sep­a­rate pro­cesses “de­ter­mined on the ba­sis of ar­bi­trary cri­te­ria”.

● There is an “un­ac­cept­able de­gree of po­lit­i­cal over­sight” in the ju­ris­dic­tion of the DPCI.

The court found that the HSF was sub­stan­tially suc­cess­ful, and was there­fore en­ti­tled to costs. How­ever, Glenis­ter was or­dered to bear his own costs af­ter the court said ar­gu­ments pre­sented on his be­half did lit­tle to as­sist, and that he was “lucky to pig­gy­back on the HSF’s well-pre­sented case, and the lu­cid and help­ful ar­gu­ments of its coun­sel”.

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