By Avani Singh and Duncan Wild on 15 May 2014 (updated 19 May 2014 and 18 August 2014)

On 13 December 2013, the Western Cape Division of the High Court, Cape Town (“the High Court”) declared several provisions of the South African Police Service Amendment Act 10 of 2012 (“the SAPS Amendment Act”) constitutionally invalid in two cases, heard together, brought by Mr Hugh Glenister and the Helen Suzman Foundation.

The SAPS Amendment Act relates to the state’s anti-corruption unit, the Directorate for Priority Crime Investigation (commonly referred to as the Hawks, which replaced the disbanded Scorpions). The SAPS Amendment Act was enacted following the Constitutional Court previously declaring chapter 6A of the South African Police Service Act 68 of 1995 unconstitutional and invalid to the extent that it failed to secure an adequate degree of independence for the Hawks (see Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)). The Constitutional Court suspended the declaration of invalidity for 18 months to afford Parliament an opportunity to remedy the constitutional defects.

The SAPS Amendment Act was enacted in purported compliance with this decision of the Constitutional Court. The applicants, however, contend that the SAPS Amendment Act does not cure the defects previously identified by the Constitutional Court, and the crux of the constitutional challenge is that the provisions of the SAPS Amendment Act still fail to secure sufficient institutional and operational independence for the Hawks.

The High Court noted that “[t]he present matter, entirely understandably, is a highly emotive one. It goes to the root of public perception. That is why it is necessary to remind ourselves that, just as we must fulfil our duty to declare invalid laws which fail to pass constitutional muster, we must equally guard against falling into the trap of seeking to satisfy hypersensitivity or paranoia.” In setting the test as being one of “adequate independence”, the High Court upheld the applicants’ challenge in part, and declared certain provisions of the SAPS Amendment Act invalid for the following reasons:

• That the appointment process of the head lacks adequate criteria for such appointment and vests an unacceptable degree of political control in the Minister and Cabinet, which is also in conflict with the standard of international best practice;
• That the power vested in the Minister to extend the tenure of the head and deputy head is intrinsically inimical to the requirement of adequate independence;
• That the suspension and removal process not only vests an inappropriate degree of control in the Minister, but also allows for two separate and distinct processes, determined on the basis of arbitrary criteria, each able to find application without any reference to the other; and
• That there is an unacceptable degree of political oversight in the jurisdiction of the Hawks, and the relevant provisions are themselves so vague that not even those responsible for their implementation are able to agree on how they should be applied.

Following the High Court declaring these provisions of the SAPS Amendment Act to be unconstitutional, the matter was referred to the Constitutional Court for confirmation as is required.

In the upcoming hearing, in addition to seeking confirmation of the High Court’s order, the Helen Suzman Foundation also seeks leave to appeal the High Court’s refusal to declare certain other provisions of the SAPS Amendment Act unconstitutional relating to financial control, integrity testing, conditions of service and co-ordination by Cabinet. Mr Glenister seeks leave to appeal against the whole of the High Court’s order on the basis that the entire scheme of the SAPS Amendment Act is unconstitutional; in the alternative, he aligns himself with the submissions of the Helen Suzman Foundation.

In response, the state argues that the SAPS Amendment Act creates sufficient independence from undue political interference and that the doctrine of separation of powers prevents the courts from being overly prescriptive about the legislative measures taken by the state.

The matter was initially supposed to be heard by the Constitutional Court on 15 May 2014. However, due to the fact that the President’s written argument was not correctly served on the applicants or filed with the Court, the matter had to be postponed, and was rescheduled for 19 August 2014.