HSF back in Court over Hawks Amendments

Background

In 2012, the HSF successfully joined litigation against the South African government over its changes to the Directorate for Special Offences (also known as the Scorpions). The Scorpions had disbanded and reconstituted as the Directorate for Priority Crime Investigation (DPCI, otherwise known as the Hawks).

As the amicus in the matter between Bob Glenister and the government, the HSF’s arguments about South Africa’s international obligations found favour with the majority of the Constitutional Court. The obligations require an adequately independent anti-corruption unit to be part of South Africa’s constitutional framework.

The majority of the Justices supported the view that the Constitution itself is the primal source that commands the State to fight corruption – although it does not state that it has to be done via a corruption-fighting unit specifically. However, the scheme as a whole does impose a duty to set up an effective mechanism to prevent corruption from undercutting the gains of our nascent democracy. A failure to do so and allowing corruption to take root would undermine the state’s ability to respect, protect, promote and fulfil its obligations in terms of the Bill of Rights. Whatever the mechanism ultimately looks like, it must be given adequate independence as the Constitution itself so requires.

The Constitutional Court suspended its order of invalidity and gave Parliament 18 months to make appropriate amendments to the SAPS Amendment Act. Parliament has fulfilled this obligation and has passed a new SAPS Amendment Act that directly seeks to answer the issues raised in Glenister.

The new version of the Amendment Act was itself heavily criticized as being an inadequate measure. Of key concern was whether or not the Hawks, under the new Amendment Act have been granted adequate independence. It is on this basis that the Helen Suzman Foundation has now decided to go to court again.

Present Challenge

While it would be inappropriate for the HSF to comment on proceedings at this stage, we eagerly anticipate our court date before the Western Cape High Court on 22nd – 23rd August 2013.

The HSF centres its challenge on the idea that whatever the unit’s design or placement, the unit must be given an adequate measure of independence so that it is operationally and constitutionally able to fulfil its mandate. We are of the firm opinion that the present version of the SAPS Amendment Act is deeply flawed as the amendments made do not go far enough to meet the standards envisaged by the Constitutional Court in its 2012 judgment.

Conclusion

The Court found that corruption has a devastating effect on the furthering of our democratic gains. The HSF believes then that in accordance with our mandate to promote liberal constitutional democracy, taking this matter before the courts is justifiable and necessary.

Kameel Premhid – kameel@hsf.org.za
Intern
Helen Suzman Foundation