“So whether it is the NPA or police, that is a choice Parliament can [make],” David Unterhalter, for the Helen Suzman Foundation, told the court.
Following questions by Judges Chris Jafta and Edwin Cameron, Unterhalter said it was not a question of absolute independence, but rather sufficient independence to ensure it carried out its constitutional role without being undermined by other institutions.
“It is ultimately a question of saying what is necessary for this institution to be independent, as a constitutional requirement. The consideration is around the manifestation of independence.”
The foundation and businessman Hugh Glenister are seeking leave to appeal against a high court’s refusal to declare certain provisions of the SAPS Amendment Act unconstitutional and secure the independence of the Hawks.
The case stems from 2008, when the Scorpions crime-fighting unit, which fell under the NPA’s jurisdiction, was dissolved and replaced by the Hawks, or Directorate of Special Operations. The Hawks are under the SAPS’s jurisdiction.
Since then, Glenister and the foundation have been fighting a court battle to ensure the Hawks are separated from the SAPS, which they claim are corrupt and compromises the investigative unit’s independence.
In December, Western Cape High Court Judge Siraj Desai ruled parts of the legislation governing the Hawks inconsistent with the Constitution and invalid in terms of ensuring adequate independence.
Along with the foundation, Glenister is arguing the high court ruling did not go far enough to secure the Hawks sufficient institutional and operational independence.
The State opposes the confirmation of the order of invalidity and is applying for leave to appeal against it.
The State argues that the SAPS Amendment Act creates sufficient independence for the Hawks and that the doctrine of separation of powers prevents the courts from being overly prescriptive about the legislative measures taken by the state to fight corruption.