SAPS Amendment Act Judgement (The Hawks)

Helen Suzman Foundation | Dec 13, 2013
13 December 2013. The Helen Suzman Foundation ("HSF") notes the unanimous judgment of the Full Bench of the Western Cape Division of the High Court ("the High Court") in 'the matter of the Helen Suzman Foundation v the President of the Republic of South Africa and Others'.

Background

In the landmark decision in Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC), the HSF intervened as a friend of the court in challenging the constitutionality of various sections of the SAPS Act 68 of 1995 ("the SAPS Act") for its failure to secure the independence of the unit charged with investigating and combating corruption and organised crime.  The Constitutional Court found Chapter 6A of the SAPS Act to be inconsistent with the Constitution and invalid to the extent that it failed to secure an adequate degree of structural and operational autonomy for the Directorate of Priority Crime Investigation ("the Hawks").  The issue in this case, therefore, was not the location of the Hawks within the South African Police Service, but whether the SAPS Act ensured sufficient insulation from, among others, undue political interference.

The Constitutional Court found that the Hawks did not enjoy sufficient structural and operational autonomy for the following key reasons:

  • the absence of specially secured conditions of employment;
  • the imposition of oversight by a committee of political executives; and
  • the subordination of the Hawks' power to investigate to the dictates of the national Executive, through the policy guidelines.
     

The Present Case

The HSF argued that the SAPS Amendment Act, 2012 ("the SAPS Amendment Act") failed to address the grounds identified by the Constitutional Court as being inimical to the adequacy of independence of the Hawks, as required by the Constitution.  The High Court was asked to assess objectively whether Chapter 6A of the SAPS Amendment Act now provides the Hawks with an adequate degree of insulation from political influence which threatens imminently to stifle the independent functioning and operations of the Hawks.  

The HSF challenged the following aspects of the SAPS Amendment Act which relate specifically to the structural and operational integrity and independence of the Hawks:

  • Appointment of members of the Hawks;
  • Extension of tenure of the Head of the Hawks;
  • Suspension and removal of the Head of the Hawks;
  • Jurisdiction and political control of the Hawks by the national Executive, including the making of policy guidelines;
  • Integrity testing of members of the Hawks; and
  • Financial control of the Hawks.
     

The HSF maintained, and still maintains, that independent policing and prosecutorial bodies that are sufficiently protected from executive, political and other interference, are indispensable in the fight against corruption and organised crime.

The High Court resoundingly agreed with the submissions made by the HSF and declared sections 16, 17A, 17CA, 17D, 17DA and 17K(4) to (9) inconsistent with the Constitution.  Parliament has been afforded 12 months to remedy the defect.  The matter will now proceed to the Constitutional Court for confirmation.

The HSF welcomes the judgement of the High Court.

READ THE FULL JUDGEMENT HERE
 

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