The appointment of a head for the Hawks investigative unit relies on objective criteria, President Jacob Zuma’s lawyer told the Western Cape High Court.
“It is the application of an objective standard of what is fit and proper,” Kemp J Kemp said yesterday, arguing that the SA Police Service Amendment Act allowed the Hawks adequate independence.
“Anyone who will heel readily to political manipulation is not fit and proper. Anyone who meets the threshold can be appointed.”
He said the police minister’s discretion only took effect when deciding who he wanted to appoint from those who met the criteria.
The court was hearing applications by businessman Hugh Glenister and the Helen Suzman Foundation (HSF) to declare parts of the amendment act inconsistent with the Constitution, to the extent that they failed to secure adequate independence for the Hawks.
David Unterhalter, for the foundation, on Thursday 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 while Parliament had oversight in terms of the legislation, it would be limited to receiving a report on an appointment.
The foundation argued that since the head of the unit was responsible for appointing other members, if the head was not suitably independent, their independence would also be compromised.
Kemp said the focus should be on the fit and proper aspect rather than the minister’s discretion.
“If the person is one of integrity, it does not matter who is selected and therefore we say that discretion has no effect on the independence issue.
“It may well be sometimes that people without integrity get appointed… but we cannot get everyone to submit to a lie detector test.”
The amendments were 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 dissolution of the Scorpions, an investigative unit under the National Prosecuting Authority, in 2008.
The Scorpions, or the Directorate of Special Operations (DSO), were replaced by the Hawks, which fell under the SAPS.
Kemp argued the public could rely on the Hawks to accept complaints of corruption and thoroughly investigate them.
“How can one say in this case that the Directorate for Priority Crime Investigation [Hawks] as now structured is not a sufficiently capable body in respect of the DSO?”
Lawyers for Glenister and the HSF appeared before a full Bench of high court judges as part of an agreement to have their cases heard at the same time.
They approached the Constitutional Court separately in November to oppose the amendments, arguing they were still insufficient, but were denied direct access to the court.
Arguments would resume on September 16, when all counsel were available.
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