Power without proper review is dangerous - HSF
Johannesburg - The police minister's powers to suspend the head of the Hawks are too broad and open to abuse, the Constitutional Court heard on Tuesday.
David Unterhalter, for the Helen Suzman Foundation, told the court the prescripts governing the power to suspend were vaguely defined.
"Grounds of suspension are not specified," Unterhalter said.
"An exercise of power without proper review is dangerous."
He said a process located within Parliament would guarantee a greater degree of oversight.
At the moment, the decision to suspend was located in the executive, because the minister made the decision following the concurrence of Cabinet.
Deputy Chief Justice Dikgang Moseneke challenged Unterhalter, stating: "I frankly don't follow the argument at all."
Moseneke said those suspended could approach the courts beyond the legal framework already in place.
Unterhalter said the minister's powers of suspension were not specified, and a suspension made on "a ministerial whim" could disrupt the office of the Hawks, with "huge consequences".
Even if a Hawks head sought to challenge his or her suspension, it would take time, which could be advantageous if, for example, that minister was being investigated by the Hawks.
Unterhalter proposed that the minister had to show a prima facie case, even when an urgent suspension was sought, to shield the process from abuse.
Judge Johann van der Westhuizen said even if the minister was the subject of a Hawks investigation, he could carry out the suspension anyway, unlawfully, because in the end a court would again be the place of redress.
"There is a certain level of corrupt evil intent that is almost impossible to stop," Van der Westhuizen said.
Unterhalter said the Hawks had to be able to investigate cases according to its own mandate, and not have "turf wars" with other law enforcement bodies.
"One must recognise the mandate of the directorate to pursue crimes for which it was established... particularly around corruption and organised crime," he said.
The foundation and businessman Hugh Glenister are seeking leave to appeal against a high court's refusal to declare certain provisions of the SAPS Amendment Act unconstitutional and secure the independence of the Hawks.
The case stems from 2008, when the Scorpions crime-fighting unit, which fell under the National Prosecuting Authority's jurisdiction, was dissolved and replaced by the Hawks, or Directorate of Special Operations. The Hawks are under the SAPS's jurisdiction.
Since then, Glenister and the foundation have been fighting a court battle to ensure the Hawks are separated from the SAPS, which they claim are corrupt and compromises 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.
Along with the foundation, Glenister is arguing the high court ruling did not go far enough to secure the Hawks sufficient institutional and operational independence.
The State opposes the confirmation of the order of invalidity and is applying for leave to appeal against it.
The State argues that the SAPS Amendment Act creates
sufficient independence for the Hawks and that the doctrine of separation of
powers prevents the courts from being overly prescriptive about the legislative
measures taken by the state to fight corruption.