Hawks case before ConCourtComment on this story
Johannesburg - The Constitutional Court will on Thursday hear two applications seeking greater independence for the Hawks.
The Helen Suzman Foundation (HSF) and businessman Hugh Glenister approached the Constitutional Court after the High Court in Cape Town ruled in December that some provisions of the SA Police Service Amendment Act were unconstitutional.
Judge Siraj Desai ruled that sections of the act were “inconsistent with the Constitution and invalid to the extent that they failed to secure an adequate degree of independence for the Directorate for Priority Crime Investigation 1/8the Hawks 3/8”.
He suspended the declaration of constitutional invalidity for a year for Parliament to rectify the defects.
The amendments to the act were drafted following a previous Constitutional Court victory by Glenister. The executive was ordered to change the legislation to, among other things, provide the Hawks with independence from political interference.
Glenister brought that suit following the dissolution of the Scorpions in 2008. The Scorpions fell under the jurisdiction of the National Prosecuting Authority.
In the Constitutional Court, Glenister and the HSF argue that the high court's ruling did not go far enough to secure the Hawks sufficient institutional and operational independence.
They are concerned about the possibility that the minister of police could exercise undue political interference through policing policy guidelines in the operations of the Hawks. There were also concerns about security of tenure, dismissal procedures, and appointment criteria.
The HSF seeks leave to appeal against the high court's decision not to declare other aspects to the SAPS Amendment Act unconstitutional.
Glenister seeks leave to appeal against the high court's order in its entirety, on the basis that the entire scheme of the act is unconstitutional. Alternatively, he joins the HSF in seeking confirmation of the high court's order of unconstitutionality of certain provisions.
The State's respondents argue against this, contending that the SAPS Amendment Act creates sufficient independence from undue political interference. They contend that the doctrine of separation of powers prevents the courts from being overly prescriptive about legislative measures created by the State aimed at fighting corruption.