The Unlawful Suspension of the National Head of the Hawks

governance ngos constitution policing
Wednesday, 28 January, 2015 - 12:32

This article focuses on what the Helen Suzman Foundation call ‘unlawful’ suspension of the national head of the Directorate of Priority Crimes by the Police Minister

On 23 January 2015, the judgment was handed down in the Pretoria High Court by Prinsloo J following an urgent application brought by the Helen Suzman Foundation (HSF) in the wake of the suspension of the National Head of the Directorate of Priority Crimes Investigation (‘the National Head’) (‘Hawks’). The HSF is of the view that this suspension is irregular, and that the Minister of Police (‘Minister’) had acted unlawfully.

Background

The Minister issued the National Head with a Notice of Contemplated Provisional Suspension on 10 December 2014. The reasons for issuing such notice related to allegations of involvement in the illegal rendition of Zimbabweans back to Zimbabwe in 2010. The authority used to effect the suspension was section 17DA(2) of the South African Police Service Act, 1995 (‘SAPS Act’). The Minister was alerted, on 12 December 2014, that the very provision upon which he sought to rely had been struck down by the Constitutional Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and others (CCT 07/14, CCT 09/14) [2014] ZACC 32 (27 November 2014) (‘November Judgment’). Despite the order handed down by the Constitutional Court in the November Judgment, and the clear indication in such order that the Minister did not have power to suspend the National Head in the absence of a parliamentary removal process, the Minister proceeded unilaterally to suspend the National Head of the Hawks on 23 December 2014.

HSF Involvement

For more than four years the HSF has been involved in attempts to bolster the operational and structural independence of the Hawks. Our initial involvement was as amicus curiae in the case brought by Glenister. Here our intervention proved to be decisive and the Court ruled that an independent corruption fighting unit was a constitutional requirement. Subsequently, the HSF appeared before the Parliamentary Committee with submissions that the proposed South African Police Service (SAPS) Amendment Bill did not go far enough to ensure the independence of the Hawks. After the President signed the SAPS Amendment Bill into law, the HSF approached a Full Court of the Western Cape Division of the High Court and successfully persuaded that Court that certain provisions of the SAPS Amendment Act were indeed unconstitutional. The HSF then, inter alia, sought confirmation from the Constitutional Court of the Western Cape High Court order of constitutional invalidity. The Constitutional Court which ruled in favour of the HSF in the November Judgment.

The Present Case

The HSF, greatly concerned about the Precautionary Suspension of 23 December 2014 (‘the Suspension’), immediately alerted its database and the media about the unlawful intervention by the Minister. After consultation with its legal team, the HSF sent a letter to the Minister on 30 December 2014. The letter requested that the Minister provide reasons for the suspension as well as the legislation relied on to effect the suspension. No response from the Minister was received by 7 January 2015.

Prior to this deadline, the Minister appointed an Acting National Head - Maj-Gen Berning Ntlemeza (‘Acting Head’) who appears to have issued further suspensions which are affecting the Hawks’ internal operations. Media reports indicated that the Acting Head took possession of certain sensitive dockets.
On 9 January, the HSF approached the Pretoria High Court seeking urgent relief specifically:

  • That the Court review and set aside the Minister’s decision to suspend the National Head;
  • That the Court review and set aside the Minister’s decision to appoint the Acting National Head;
  • That the Court declare that the Minister cannot suspend the National Head of the Hawks other than by way of the mechanism provided in sections 17DA(3) and (4) read with section 17DA(5) of the SAPS Act.

The matter was set down for 15 January 2015.

The Minister opposed the matter and requested a postponement, citing time constraints as being the primary reason. Prinsloo J recognised the extreme urgency associated with this matter, but postponed the matter to Monday, 19 January 2015, to allow the Minister time to depose to an Answering Affidavit and submit Heads of Argument. On the afternoon of 15 January 2015, HSF received the Minister’s Answering Affidavit, deposed to on 14 January 2015.

The Minister’s papers raised the following points:

  • Locus standi

The Minister argued that the HSF did not receive authorisation from the National Head to bring this application on his behalf and furthermore that the HSF took it upon itself to be the National Head’s guardian. The Minister thus argued that the HSF lacked standing to act in its own or in the public interest, as set out in section 38 of the Constitution.

  • Minister’s Power to Suspend the National Head

The November Judgment did not preclude the Minister from acting independently of Parliament;
Furthermore, the Minister may suspend the National Head who is an ‘employee’ of the State under the authority of the Minister in accordance with the SMS Handbook;
The Minister may suspend the National Head who is an ‘employee’ of the State under the authority of the Minister in accordance with the Public Service Act and the common law. 

  • Procedural Irregularity

That the HSF failed to adhere to the Uniform Rules of Court and the Practice Manual in the manner in which it set the matter down.

  • Rendition

That the serious nature of the alleged acts warranted the suspension;

  • Relief

That the relief sought by the HSF would not (and could not) result in the reinstatement of the National Head.

On the matter of the renditions the Minister relied on a report of the Independent Police Investigative Directorate (‘IPID’). The HSF served notice on the Minister requesting that the IPID Report be made available as per the Rules of the Court. The Minister declined this request citing the sensitive and confidential nature of the IPID Report.

The HSF submitted a Short Note in Reply dealing with the issues raised by the Minister in order to bring clarity to the matter. The HSF made the following submissions before the court:

  • Minister’s Answering Affidavit

The HSF argued that the Minister had already on 14 January 2015 deposed to an affidavit, contrary to the representations made by counsel in court on 15 January 2015.

  • Locus Standi

The HSF argued that it did not require the National Head’s authority to act in its own or the public interest. Furthermore, the HSF argued that the law was trite regarding the requirements for locus standi in terms of section 38 of the Constitution. The HSF had met the requirements to bring a matter in its own interest as well as that of the public interest, as it had done for some four and half years.

  • Rendition

The HSF argued that the allegations were irrelevant to the Minister's powers and did not justify the unlawful suspension. It further argued that on the Minister’s own version, the National Head was cleared by the IPID Report.

  • The Meaning of the Legislation and Relevant Case Law

The HSF argued that the Minister’s attempts to tease out words in the November Judgment, and rely on the reasoning in that judgment rather than the clear wording of the order were clearly misguided. The HSF also pointed out that the November Judgment did not, in any event, support the submissions and interpretation advanced by the Minister.  The HSF reiterated that the specific provision upon which the Minister relied to effect the suspension had been deleted by virtue of the order in the November Judgment and that section 17DA(1) of the SAPS Act was peremptory. That section provides that the National Head may only be suspended once proceedings for his removal had commenced in Parliament.

  • Misplaced Reliance on the Public Service Act and SMS Handbook

The HSF argued that the Minister’s incorporation of these defences are equally misplaced and misguided.

  • Declaratory Relief

The HSF argued that the relief sought was not abstract or academic in any way as the relief would have a direct effect on the operations of the Hawks and the future actions of the Minister.

The Judgement

The Court, in its judgment on 23 January 2015, resoundingly upheld the HSF's submissions.  The effect of the judgment is that the National Head's suspension is set aside and the National Head is restored to office.

- Francis Antonie, Director and Chris Pieters, Legal Researcher, Helen Suzman Foundation.

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