“The only circumstances when a court should do this was if a provision was so harmful, and Parliament had failed to [deal with] it,” Michael Donen SC, for the police minister, told the court.
He was opposing an application by the Helen Suzman Foundation and businessman Hugh Glenister. They are seeking leave to appeal against the high court’s refusal to declare provisions of the SAPS Amendment Act unconstitutional and thus 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.
In December last year, Judge Siraj Desai ruled parts of the legislation governing the Hawks were inconsistent with the Constitution and invalid in terms of ensuring adequate independence. The Hawks are under the police’s jurisdiction.
Donen said what the foundation had done in its argument was take sections it did not agree with, and suggest these needed to go.
However, in doing so and through the order granted by the high court last year, this undermined Parliament’s role in deciding how such sections should be dealt with.
Donen said it was possible that while there might be parts of legislation that negatively affected the Hawks’ independence, other sections of the legislation redeemed it.
Deputy Chief Justice Dikgang Moseneke asked Donen if it was the court’s responsibility to pick the bad sections for Parliament to address, or strike down the whole body of the legislation.
“The court would have to make a value judgment,” Donen replied.
“The court may find a section that is subversive, and find another that balances that out.”
Kemp J Kemp SC, for President Jacob Zuma, earlier told the court the only major difference between legislation that governed the Scorpions and the Hawks was the ability of Parliament to reverse the dismissal of the then-Scorpions head.
In the case of the Hawks, the minister could dismiss the head, pending an inquiry chaired by a judge, and was required to notify Parliament.
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.
Unterhalter told the court the police minister’s ability to suspend was a deep power, with that broadness originating from the vaguely-defined prescripts governing the power to suspend.
“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.
At the moment, with the minister making the decision following the concurrence of Cabinet, such a decision was currently located in the executive.
Moseneke challenged Unterhalter, stating: “I frankly don’t follow the argument at all.”
Unterhalter said the minister’s powers of suspension, “a ministerial whim”, were not specified and the ability to disrupt the office of the Hawks had “huge consequences”.
Even if a suspended Hawks head sought to challenge the suspension, this would take time, which could be advantageous if, for example, that minister was being investigated by the Hawks.
Unterhalter proposed that the minister require a prima facie case, even in matters where urgent suspension was sought, to shield the process from abuse.
The application continues.