Hawks rules must be amended
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”.