Paul Hoffman, for businessman Hugh Glenister, argued that the SA Police Service (Saps) Amendment Act did not offer this level of independence to the Hawks investigative unit, as such an entity.
“Securing [the adequate degree of independence] should be used in such a sense as entrenching or rendering impregnable,” he said.
“The scheme of the 2012 legislation does not achieve a state, a structure or an operational environment in which the Hawks are so ‘secured’. This is unconstitutional. They ‘fall under’ the police hierarchy and are not adequately independent.”
He suggested the legislation should allow for the Hawks to be outside executive control, and to be given independence in the same manner as the judiciary and the National Prosecuting Authority, for example.
The amendment act was drafted in reaction to a previous Constitutional Court victory by Glenister, in which the executive was ordered to change the legislation to provide the Hawks with independence from political interference, among other things.
Glenister brought his suit following the passing of a bill to bring about the dissolution of the Scorpions, an investigative unit under the National Prosecuting Authority, in 2008.
The Scorpions were replaced by the Hawks, which fell under the Saps in 2009.
Hoffman said a key question to ask was whether it was responsible to keep the Hawks within the control of police “under the circumstances”.
Judge Judith Cloete asked what circumstances he was referring to. Hoffman replied it was the extent of corruption in government and state security bodies, as supported by his expert witnesses in affidavits.
“It’s the factual circumstances of the executive, the Saps and the pre-2012 Hawks, the un-turbo-charged Hawks,” he said.
Judge Siraj Desai said it could not be expected for these opinions to be taken as facts.
Glenister and the Helen Suzman Foundation (HSF), a friend of the court, approached the Constitutional Court separately in November to oppose the amendments, arguing they were insufficient.
Direct access to the Constitutional Court was denied and the two parties agreed to appear before a full Bench of high court judges at the same time and present their arguments.
In the Glenister court papers, the respondents are listed as President Jacob Zuma, the ministers of safety and security, justice and constitutional development, the national director of public prosecutions, and the South African government.
In the HSF court papers, the respondents are Zuma, Police Minister Nathi Mthethwa, Hawks head Anwa Dramat and the government.
They seek an order declaring the amendments inconsistent with the Constitution to the extent that they fail to secure adequate independence.