A Friend of the Court
In 2008 the HSF presented its submission opposing the South African Police Service (“SAPS”) Amendment Act which disbanded the Directorate of Special Operations (“Scorpions”) and created the Directorate for Priority Crime Investigation (“Hawks”). The Bill, however, was passed in law.
In April of 2009, Hugh Glenister (“Mr Glenister”) instituted proceedings challenging the constitutionality of the 2008 Amendment Act. The Western Cape High Court dismissed the application and Mr Glenister, subsequently, appealed to the Constitutional Court.
In 2010 the HSF was granted leave to intervene as amicus curiae in the Constitutional Court proceedings instituted by Mr Glenister. The HSF was of the view that the Amendment Act:
- unjustifiably infringed upon a variety of basic human rights;
- breached the State’s constitutional obligations to promote, protect and fulfil these rights;
- violated the State’s obligations in international law; and
- severely hampered the State’s ability to deal effectively with the scourge of corruption and organised crime.
The matter was heard on 2 September 2010.
On 17 March 2011 the Constitutional Court ruled in favour of Mr Glenister, in no small part as a result of the intervention of the HSF as amicus curiae. The Court held at paragraph 166 that:
“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
The Constitutional Court made two key findings: firstly, that the Constitution imposed a duty on the State to establish and maintain an independent body to combat corruption and organised crime; and secondly, that the creation of the Hawks did not meet the constitutional requirement of adequate independence.
Fighting the Good Fight
On 24 February 2012, Parliament released the SAPS Amendment Bill in response to the Constitutional Court’s decision. Parliament allowed interested parties only 4 weeks to conduct their own intensive reviews and submit written comments to the Portfolio Committee on Police (“PCoP”). The overwhelming majority of the submissions argued that the Amendment Bill did not reflect the changes mandated by the Constitutional Court.
On 27 March the HSF made its written submissions regarding the SAPS Amendment Bill to the PCoP. The HSF believed that the Amendment Bill did not meet the requirements of the CC’s judgment for the following reasons:
- the proposed unit would not be sufficiently independent – structurally and operationally; and
- there were insufficient safeguards to protect the unit from political interference.
On 25 April the HSF made its submission, by way of presentation, to the PCoP.
On 24 May the National Assembly passed the SAPS Amendment Bill with no meaningful adherence to the Constitutional Court’s decision or submissions from the public. It was at this announcement that former Minister of Police Nathi Mthethwa made remarks concerning the calibre of interested parties, who made submissions. These remarks, in a pompous and trivialising tone, are unbecoming of any person in that office. Furthermore, the Minister mistakenly assumed that the Amendment Bill, which was voted upon, was the Bill that had been present at the start of a ten month intervention on the part of all stakeholders. It was not.
On 23 November the HSF filed papers with the Constitutional Court to oppose the SAPS Amendment Act. The matter was redirected to the Western Cape High Court.
The HSF argued its case before a Full Bench of the Western Cape High Court on 22 and 23 August, 16 and 17 September and 14 October 2013. 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.
On 13 December the HSF received a unanimous ruling in its favour regarding the constitutional invalidity of certain provisions of the SAPS Amendment Act. The Western Cape 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 was afforded 12 months to remedy the defects. The matter then proceeded to the Constitutional Court for Confirmation.
Constitutional Confirmation
The HSF applied to the Constitutional Court to grant an order for confirmation, at the same time the application to appeal would be heard. The Court issued directions and the matter was set to proceed on 14 May 2014. The matter, however, was postponed as the President’s Counsel had, as a result of difficulties, been unable to provide their Heads of Argument timeously. The matter was postponed to 19 August.
On 19 August the matter was heard by the Court, late into the night, with judgment being reserved.
On 27 November the Constitutional Court ruled in favour of the HSF (“November Judgment”). The Court held that the SAPS Amendment Act did not ensure adequate independence for the Hawks, as certain sections were found to be unconstitutional to the extent that they did not sufficiently insulate the Hawks from potential executive interference. The November Judgment highlighted:
- Extension of tenure. The Court upheld the HSF’s challenge that sections 17CA(15) and (16) amounted to renewal of the Head’s and the Deputy Head’s terms of office which undermines the operational independence of the Head and Deputy Head of the Hawks;
- Suspension and removal. The Court held that the Minister’s power to remove the Head from office in section 17DA(2) was a threat to job his/her job security;
- Jurisdiction. The Court found that the State’s failure to provide a clear mandate to the Hawks to fight corruption and to provide for a dedicated anti-corruption agency was unacceptable.
The Constitutional Court deleted the offending provisions making any amendments only possible via legislative intervention.
Still Fighting the Good Fight
On 23 December the Minister, relying on the very provisions deleted by the November Judgment less than a month before, announced the suspension of the Head of the Hawks. On 30 December the HSF addressed correspondence to the Minister requesting reasons for the suspension as well as the legislation relied upon by the Minister to suspend the Head.
To date, no answer has been forthcoming from the Minister. The Minister instead chose, in the first days of 2015, to appoint an acting Head who immediately began the restructuring of the Hawks through suspensions and reassignments.
On 9 January the HSF brought an urgent application the Pretoria High Court, seeking the review and setting aside of the unlawful suspension of the Head. The matter was set down to be heard on 15 January. As has become the custom of counsel acting on behalf of the Minister (who receive alarming remuneration from state coffers) they arrived ill equipped and argued for a postponement citing a lack of urgency as the reason they needed more time to adequately address the urgent matter before the Court.
The Pretoria High Court recognised the extreme urgency but postponed the matter to 19 January to allow the Minister time to depose to an Answering Affidavit and submit Heads of Argument. On the afternoon of 15 January the HSF received the Minister’s Answering Affidavit, deposed to on 14 January. When counsel asked for the postponement on the aforementioned grounds they were either, at best, entirely ignorant of the Minister’s affairs or, at worst, malicious in their conduct before the Court.
On 23 January the Pretoria High Court handed down judgment in favour of the HSF. The judgment vindicated the Constitutional Court’s November Judgment and reaffirmed that the Minister is bound by the Constitution.
The Minister applied for leave to appeal, the effect of which would be to stay the order of 23 January. The HSF brought a Rule 49(11) as read with Section 18 application (“Enforcement Order”) that sought to have the order of 23 January made enforceable, subject to the finality of any appeals in the future.
The Applications were to be heard simultaneously on 30 January, but-for, the Minister’s Counsel who arrived ill equipped and unaware of this procedural norm. The leave to appeal was postponed to 2 February, at which point the Minister’s counsel simply wasted time.
On 6 February the Pretoria High Court handed down judgment, in which it, dismissed the application for leave to appeal with costs and granted the Enforcement Order.
The HSF has, and continues to maintain that the promotion of liberal constitutional democracy is maintained by strong constitutional institutions. And strong constitutional institutions require adequate independence and protection to safe guard our rights.
