“In practical terms, it is harder to remove the head. He [the police minister] will have an inquiry and results from a judge to contend with,” Kemp J Kemp SC, for President Jacob Zuma, told the court.
Kemp was referring to previous legislation pertaining to the Scorpions, which gave Parliament an opportunity to reverse the dismissal.
When it came to the Hawks, the minister could suspend the head of the unit, pending an inquiry to be chaired by a judge. Were the head to be removed, the minister would need to notify Parliament.
“It seems to me that the minister has powers of dismissal, and must simply report to Parliament,” Kemp said.
Chief Justice Mogoeng Mogoeng said earlier the current legislation seemed to make it easier for the minister to remove the Hawks’ head without involving Parliament.
“It’s an easier process than requiring a two-thirds majority,” Mogoeng said.
Deputy Chief Justice Dikgang Moseneke commented: “I would rest less soundly if the [Hawks] head was in the hands of the minister.”
Kemp said Parliament would be able to step in if it was seen that the police minister was protecting the head of the Hawks.
The applicants in the matter, the Helen Suzman Foundation and businessman Hugh Glenister, were 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 jurisdiction of the National Prosecuting Authority, was dissolved and replaced by the Hawks. The Hawks are under the police’s jurisdiction.
Earlier, Kemp said the applicants had not compared the legislation that had governed the Scorpions and the Hawks. They were similar, with the only major difference being Parliament’s ability to reverse the dismissal of a unit head.
At the time of their existence the Scorpions were seen as an independent body. Kemp said it was necessary that the Hawks and its head required oversight to a degree, to ensure it did not become a law in itself.
Earlier, David Unterhalter, for the Helen Suzman Foundation, said the powers of the police minister to suspend the Hawks head were too broad and open to abuse.
“Grounds of suspension are not specified for,” Unterhalter said.
“An exercise of power without proper review is dangerous.”
He said a process located within Parliament would guarantee a greater degree of oversight.
The application continues.