How is it possible that after three Constitutional Court judgments (in 2008, 2011 and 2014), aimed at strengthening the Hawks’ autonomy, their independence is still being questioned?
Reports in the media over the past few months raised serious questions about bias and political motives in some Hawks investigations. A notable recent example is the Hawks investigation into the South African Revenue Service’s (SARS’s) so-called ‘rogue unit’, and the 27 questions they addressed to Finance Minister Pravin Gordhan. The African National Congress Secretary-General described these as, ‘a well-calculated destabilisation plan with all the elements of disinformation, falsehoods and exaggerated facts.’
Another relates to the ongoing attempts by the head of the Hawks, Berning Ntlemeza, to get rid of Johan Booysen, the Hawks head in KwaZulu-Natal – in spite of repeated court findings in favour of Booysen.
It’s worth reflecting on the fact that the Hawks were established in February 2009 to replace the Directorate for Special Operations (popularly known as the Scorpions), following a 2008 cabinet decision.
The Scorpions were established in 2001 and to ensure their independence, they were placed firmly within the National Prosecuting Authority (NPA). An elite crime-and-corruption fighting entity completely separate from the SAPS, the Scorpions proved to be particularly successful; as many high-profile criminals, senior government officials and politicians found to their chagrin.
Prominent examples include the arrest and successful prosecution of former national commissioner of police, Jackie Selebi, and an investigation that resulted in 783 criminal charges of corruption, fraud, money laundering and racketeering against then deputy president Jacob Zuma.
Arguably, it was precisely because of their independence and tenacious investigations that powerful individuals involved in corruption decided to close down the Scorpions.
In a minority judgment in the Constitutional Court, the matter between the Helen Suzman Foundation and the Minister of Police and Others, on 27 November 2014, Judge Edwin Cameron summed up the risk for anti-corruption institutions located within government departments.
‘The more the institution’s mandate threatens political office bearers, the greater is the risk of political weight being brought to bear on its appointments. Where the institution’s core mandate is to investigate crime committed by political office bearers, the risk may become severe.’
It is worrying that South Africans cannot trust the cabinet to appoint the best possible person.
An earlier Constitutional Court judgment (Hugh Glenister versus the President of South Africa and Others), on 17 March 2011, led to further amendments of the SAPS Amendment Act of 2008, which provided the regulatory framework for the establishment of the Hawks. The court found sections of the Amendment Act to be inconsistent with the Constitution.
There were essentially two key findings: first, that the Constitution imposes an obligation on the state to establish and maintain an independent body to combat corruption and organised crime; and second, that the Hawks does not meet the constitutional requirement of adequate independence.
The need for the Hawks to be sufficiently independent to tackle corruption effectively was dealt with exhaustively by all the judges in the three Constitutional Court cases. In the main, the two issues that stand out are the location of the Hawks; and the appointment and dismissal of its head.
In the Glenister judgment, it was decided that the Hawks’ location within the SAPS does not ‘in itself’ make the institution unconstitutional. However, as pronounced by Judge Edwin Cameron, in his minority judgment in the Helen Suzman Foundation case in 2014: ‘The implication was that the unit’s independence would be decreased by its location within the SAPS, but that it might nevertheless have other “sufficient attributes of independence to fulfil the functions required of it.” One important attribute to offset the DPCI’s location within the SAPS would be an irreproachable process for the appointment of its members – and that is lacking here [emphasis added].’
This touches on the heart of the matter. Section 17CA of the SAPS Amendment Act, 2012, sets the requirements for the appointment of the national head and other senior members of the Hawks. Among others, crucially, it is required that the head must be ‘a fit and proper person, with due regard to his or her experience, conscientiousness and integrity’ (emphasis added).
This requirement was extensively dealt with by the Constitutional Court in the matter between the Democratic Alliance and the President of the Republic and Others in 2012, in relation to the rationality of the appointment of Menzi Simelane as National Director of Public Prosecutions.
In 2009, the Supreme Court of Appeal unanimously found Zuma’s appointment of Simelane to be irrational given that the latter lied under oath before the Ginwala Commission of Inquiry in 2007.
In the above Constitutional Court judgment on 5 October 2012, Judge Zak Yacoob found that lying under oath is at least a prima facie indication of dishonesty. He found that it requires further investigation, and also said: ‘It does not matter for the purposes of evaluation of credibility whether a person is dishonest and devious to a court, to a commission of enquiry, to an employer or to anyone else for that matter. Dishonesty is dishonesty wherever it occurs. And it is much worse when the person who had been dishonest is a senior government employee who gave evidence under oath.’
In the High Court in Pretoria, in the case of Major General Sibiya and the Minister of Police and Others, on 23 March 2015, Judge Elias Matojane had the following to say about Berning Ntlemeza, the current national head of the Hawks: ‘In my view, the conduct of the third respondent [Ntlemeza] shows that he is biased and dishonest. To further show that the third respondent is dishonest and lack integrity and honour, he made false statements under oath.’
The Hawks’ location within the SAPS does not in itself make the institution unconstitutional
Based on this judgment and other relevant information, the Helen Suzman Foundation, jointly with Freedom Under Law, lodged an application on 6 April 2016 with the High Court to review Ntlemeza’s appointment by the minister of police; and to set the decision aside as unlawful and irrational.
It is, however, concerning that although a finding in this application may also go against the minister, it still leaves intact the process provided for by section 17CA of the SAPS Amendment Act. It may therefore simply lead to another ‘political’ appointment. What needs to change is the law; along with the subsequent appointment process. In the words of Judge Cameron, in his minority judgment in 2014: ‘In my view, consolidating the powers to appoint the Head in the Minister and Cabinet erodes the DPCI’s independence to a constitutionally impermissible degree. I would confirm the High Court’s order declaring section 17CA constitutionally invalid.’
It is even more worrying, whether constitutionally required or not, that South Africans cannot trust the cabinet to appoint the best possible person to head an important crime and corruption unit such as the Hawks. A cabinet that is committed to effectively tackling corruption would ensure that a transparent and competitive process is in place for such an appointment; as is the recommendation for the appointment of the SAPS National Commissioner in the National Development Plan.
That this has not happened, and that someone who has been found to be dishonest in a High Court judgment is appointed to head the Hawks speaks volumes about the profound lack of commitment by the current political elite to ensure that South Africa has the investigative capacity needed to tackle high-level corruption.
This article was first published by the Institute for Security Studies and is republished here with their permission.