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Top Court Trims Executive Power Over Hawks

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Top Court Trims Executive Power Over Hawks Legalbrief | your legal news hub Sunday 26 September 2021 Top court trims executive power over Hawks The Constitutional Court has not only agreed that legislation governing the Hawks does not provide adequate independence for the corruption-busting unit, it has 'deleted' the defective sections, notes Legalbrief. It found parts of the legislation that governs the specialist corruption-busting body unconstitutional, because they did not sufficiently insulate it from potential executive interference. This, notes a Business Day report, is the second time the court has found the legislation governing the Hawks, which replaced the Scorpions, unconstitutional for not being independent enough. The first time, the court sent it back to Parliament to fix. This time the court did the fixing, by cutting out the offending words and sections. The report says the idea behind the surgery on the South African Police Service (SAPS) Act was to ensure it had sufficient structural and operational independence, a constitutional requirement. In a majority judgment, Chief Justice Mogoeng Mogoeng said: 'Our anti-corruption agency is not required to be absolutely independent. It, however, has to be adequately independent. 'And that must be evidenced by both its structural and operational autonomy.' The judgment resolved two cases initially brought separately - one by businessman Hugh Glenister, the other by the Helen Suzman Foundation (HSF), notes Business Day. Because both cases challenged the Hawks legislation on the grounds of independence, the two were joined. Glenister's case - that the Hawks could never be independent while located in the SAPS, which was rife with corruption - was rejected by the court. But the HSF attacked specific provisions. The highest court agreed with some of the foundation's objections. It said the ability of the Police Minister to keep the national head of the Hawks on after turning 60 gave the Minister a 'virtually unfettered' discretion to renew or extend his tenure. 'No holder of this position of high responsibility should be exposed to the temptation to behave herself in anticipation of renewal,' said the Chief Justice. The court also deleted the section of the Act allowing the Minister to suspend and remove the head of the Hawks. Now, the head may be removed only by a two-thirds vote from Parliament. The report notes that in five separate judgments, Justices Johan Froneman, Edwin Cameron, Mbuyiseli Madlanga, Bess Nkabinde and Johann van der Westhuizen disagree with portions of the majority judgment. However, none found the legislation constitutionally compliant. Full Business Day report (subscription needed) The justices were largely scathing of the application by Glenister, and totally rejected all the issues he raised. The Chief Justice described Glenister's evidence as 'reckless and odious political posturing ... which should find no space in a proper court process'. A BDlive report notes the court dismissed Glenister's application, with costs. Full BDlive report The court noted the seriousness of the corruption issue, and emphasised the need for an independent anti-corruption unit, says a Mail & Guardian Online report. 'All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country, and that stringent measures are required to contain this malady before it graduates into something terminal,' read the majority judgment. 'We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. And this in a way is the issue that lies at the heart of this matter. Does the South African Police Service Act 2, as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?' In answering that question, the court's ruling took issue with the undue political interference in the specialised crime-fighting unit's operations, thanks to the Police Ministry's policy. Full Mail & Guardian report The case stems from 2008, when the Scorpions crime-fighting unit, which fell under the jurisdiction of the NPA, was dissolved and replaced by the Hawks, or Directorate of Special Operations. The Hawks are under the SA Police Service's (SAPS) jurisdiction, notes a report on the IoL site. Since then, Glenister and the HSF have been fighting to have the Hawks separated from the SAPS, which they claimed was corrupt and compromised the investigative unit's independence. In December, Western Cape High Court Judge Siraj Desai ruled parts of the legislation governing the Hawks inconsistent with the Constitution and invalid in terms of ensuring adequate independence. However, he found aspects of Glenister's submissions were based on unverified opinion. The Constitutional Court was tasked with confirming Desai's order but Glenister appealed against it. Along with the HSF, Glenister argued the High Court ruling did not go far enough to secure the Hawks sufficient institutional and operational independence. The state opposed the confirmation of the order of invalidity and applied for leave to appeal against the High Court's order. The state argued that the Act created sufficient independence for the Hawks and that the doctrine of separation of powers prevented the courts from being overly prescriptive about legislative measures taken by the state to fight corruption. Full report on the IoL site Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others CCT 07 / 14 and CCT 09/14 Glenister said a good judgment is one where none of the parties can claim victory, according to a Beeld report. 'I would have wanted a better outcome, but I accept the judgment. I hope it is the first step to tackle corruption effectively without political meddling,' he said. Glenister said he agreed with the statement of Judge Johann van der Westhuizen that office bearers with integrity should be appointed. In his minority judgment Van der Westhuizen said closing the loopholes in legislation would not guarantee anything. 'The abstract design of institutions cannot be corrupt. But as we know, people can.' Full Beeld report .
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