David Unterhalter, for the foundation, said their concerns related to appointments within the unit and whether political involvement and oversight resulted in insufficient insulation from interference.
“Who is doing the appointing but, equally, what sort of power is being granted to that person and particularly, the over-breadth and discretion that is allowed…?” he asked.
“The executive may be the subject of investigation.”
He argued that while Parliament had oversight in terms of the legislation, it would be limited to receiving a report on an appointment. The foundation seeks an order declaring sections of the SA Police Service Amendment Act inconsistent with the Constitution to the extent that they fail to secure adequate independence for the Hawks.
It wants the court to suspend the declaration of constitutional invalidity for 12 months in order for Parliament to remedy the defect in accordance with the court’s judgment in the matter.
The amendment act was drafted in reaction to a previous Constitutional Court victory by businessman Hugh 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 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.
Glenister and the Helen Suzman Foundation (HSF) approached the Constitutional Court separately in November last year to oppose the amendments, arguing they were still 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.
Unterhalter said the court had the duty to abide by the Constitutional Court’s previous judgment and make sure the amendments were in line with the Constitution.
“This is simply an exercise of constitutional law, taking a constitutional standard and applying it to a piece of legislation,” he said.
“Nothing about the enquiry is fact-determined.”
He was referring to an argument brought by Glenister’s lawyer Paul Hoffman earlier on Thursday. 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 “facts” on 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.
He criticised Hoffman for attempting to “defame” ANC national executive committee member Tony Yengeni and Hawks head Anwa Dramat by alluding to media allegations and who they were connected to, in his heads of argument handed in before the hearing.
“The purpose of the allusion is to show there have been no steps by the Hawks against Yengeni,” Hoffman countered, in reference to allegations that Yengeni signed a R6 million bribe agreement with a bidder during South Africa’s arms deal.
Hoffman said an anti-corruption entity should be impregnable to any external influence or interference.
“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 of executive control, and to be given independence in the same manner as the judiciary and the National Prosecuting Authority, for example.
Arguments continue on Friday.