Legislation ‘does not protect Hawks from political interference’
CAPE TOWN — Corruption-combating unit the Hawks is vulnerable to political interference as there are two processes by which its head could be removed: one through the police minister and the second by Parliament, but there is no clarification over which is superior.
This is according to Max du Plessis SC, speaking on behalf of the Helen Suzman Foundation.
Appearing before a full bench of the Western Cape High Court yesterday, Mr du Plessis told Judge Siraj Desai and two other judges the amended South African Police Service Act did not make any mention of which route should be chosen and when the head of the unit should be removed for a particular reason.
“Instead, we have a situation that the minister has very broad criteria to remove the head of the Hawks, while Parliament has very constrained criteria, for which a twothirds majority has to be obtained,” he said.
Argument by Mr du Plessis
The minister has very broad criteria to remove the head of the Hawks, while Parliament has very constrained criteria
marked the end of five days of arguments and Judge Desai reserved judgment to an unspecified date.
The Helen Suzman Foundation is a correspondent to an application brought by businessman Hugh Glenister to have the law struck down on constitutional grounds.
Mr Glenister won a Constitutional Court case in 2011 after arguing that the legislation that caused the disbandment of the Hawks’ predecessor, the Scorpions, did not go far enough in protecting the independence of what should be SA’s prime corruption-combating unit.
Parliament amended the governing act last year.
But Mr Glenister, represented by Paul Hoffman SC of the Institute for Accountability in Southern Africa, contends even the new legislation does not go far enough to protect the independence of the Hawks from executive interference.
Mr Hoffman said the criteria set by the original Constitutional Court judgment were that an anticorruption entity must have security of tenure, meaning that it is not dependent on the executive for its personnel appointments and removals, that it is a specialised unit focusing on corruption investigations, and that its members have the proper training. The unit must also be independent of the executive for the decisions it makes on what cases to investigate, and it must be properly resourced.
Mr du Plessis argued that there was not a proper decision-making process for the Hawks in the cases it investigated. This, he said, meant that there was no proper guarantee that an investigation could not be stopped if the executive wished it.
Renata Williams SC, who appeared on behalf of the Department of Justice and the government, said the minister of police needed to have proper control over the Hawks. She said that legislation made provision for this.
She also said that there were other anticorruption bodies that the public could use to investigate complaints, such as the office of the public protector.
Ms Williams said should citizens decide that the executive was corrupt, they could vote them out at the next general election.