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Johannesburg - The Constitutional Court on Thursday dismissed Hugh Glenister application, with costs, for leave to appeal a high court's refusal to declare provisions of the SAPS Amendment Act unconstitutional.
At the same time, the majority judgment granted the Helen Suzman Foundation's application for leave to appeal, but dismissed the appeal against the high court's refusal to declare certain sections unconstitutional, and confirmed the substantial part of the high court’s order.
The court ordered that certain provisions in the amended SA Police Service Act be declared invalid and deleted.
The case stems from 2008, when the Scorpions crime-fighting unit, which fell under the jurisdiction of the National Prosecuting Authority, was dissolved and replaced by the Hawks, or Directorate of Special Operations.
The Hawks are under the SA Police Service's (SAPS) jurisdiction.
Since then, businessman Glenister and the Helen Suzman Foundation have been fighting a court battle 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.
Glenister wanted the order compelling him to pay the costs of former police minister Nathi Mthethwa to be overturned by the Constitutional Court.
Along with the Helen Suzman Foundation, 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 SAPS Amendment 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.
