In an astonishing interview with City Press on 8 March 2015 Major General Mthandazo Ntlemeza, the unlawfully appointed Acting National Head of the Hawks, made it clear that everything is “in place” at the Hawks. He went on to say that he could now take some leave. The Helen Suzman Foundation disputes this assertion of normality. To us it would appear that at present very little in fact is “in place”.
An Unlawful Suspension is “In Place”
In December 2014, the Minister of Police Nkosinathi Nhleko placed Lieutenant General Anwa Dramat on precautionary suspension for his alleged involvement in the illegal rendition of four or five Zimbabwean nationals in 2010, (the Minister justified his decision by relying on powers he did not have in law and that had been deleted by the Constitutional Court in the case of Helen Suzman Foundation v President of South Africa on 27 November 2014), the Minister then appointed Major General Mthandazo Ntlemeza as the Acting National Head of the Hawks.
The Helen Suzman Foundation instituted urgent legal proceedings to have the Minister’s decision reviewed, declared invalid and set aside. On 23 January 2015, the Pretoria High Court handed down judgment in favour of the Helen Suzman Foundation. The Court held that the Minister of Police acted unlawfully in suspending Dramat and, subsequently, in appointing an acting head in his place.
On 6 February 2015, the Court gave an order to enforce its ruling that Dramat was unlawfully suspended regardless of any future appeal and dismissed the Minister’s application to appeal the decision. As a result, the January Judgment stands until such time as a higher court rules otherwise. Nevertheless, Dramat, the lawful head of the Hawks, remains ‘out of place’.
An Unlawful Appointment Remains "In Place"
Despite the two rulings of the Pretoria High Court in January and February, Ntlemeza has not vacated office. Thus, an unlawful appointment remains “in place”.
An Array of Unlawful Actions Remain “In Place”
As Ntlemeza’s appointment was unlawful, it follows that all activities as acting head of the Hawks are illegal. As a result, these must be set aside. These include:
- the transfer of the Hawks spokesperson Paul Ramaloko to the police's national media centre and the appointment of his replacement, acting spokesperson Brigadier Hangwani Mulaudzi;
- the suspension of the Gauteng Hawks head Major General Shadrack Sibiya;
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the suspension of Constable Paul Radebe, Captain Sipho Nkosi, Warrant Officer Jacob Makoe, and Colonel Leslie Maluleke.
All changes made in a key anti-corruption unit, by an unlawful acting head, are of concern for South Africa’s constitutional democracy. For now, these unlawful decisions “remain in place”, where they violate the basic tenets of the Rule of Law.
Conclusion
In his initial affidavit filed with the Pretoria High Court, the Minister explained that there is nothing unlawful about his actions. On the contrary, he believed that by not suspending Dramat he would be “shirking” on his “constitutional and statutory obligations”. What is more, by unconstitutionally placing Ntlemeza in Dramat’s position he would be defending our constitutional democracy from a present “danger” where the Rule of Law is being “subverted”. The Independent Police Investigative Directorate (“IPID”) Reports, however, which the Minister used to justify Dramat’s unlawful suspension, in fact, would appear exonerate Dramat, and Parliament, despite the Minister referring the matter to it in January, has not instituted any removal proceedings against Dramat.
The overwhelming picture is that despite Ntlemeza assurances of all being “in place” at the Hawks, there is in fact ample evidence to the contrary.
Afterward
The Minister has petitioned the Supreme Court of Appeal to review and set aside the High Court’s judgments, which confirmed the Constitutional Court’s ruling of 27 November 2014.
The Helen Suzman Foundation has responded by writing to the Minister. The letter from our lawyers can be found here.
Francis Antonie – Director - 083 408 7943
Chris Pieters – Legal Researcher- 072 227 2500
Josh Hovsha – Researcher- 084 380 3186
HSF office (011) 482 2872
