Ntlemeza: Did the Police Minister unlawfully interfere with independence of the Hawks?

There is some disagreement amongst lawyers on whether Berning Ntlemeza is still Hawks boss until such time as the SCA decides on the merits of his appeal; or whether the High Court decision that he never was Hawks boss to begin with, has already kicked in on the say-so of the High Court. As I am not a procedural lawyer, I am not sure what the position is. However, if Ntlemeza is still legally the head of the Hawks, there will be limits to what the Minister of Police can do about Ntlemeza without unlawfully interfering with the constitutionally and statutory guaranteed independence of the Hawks.

It is perhaps not surprising that most people are not particularly consistent and tend to change their views on matters of principle depending on the identity of the people involved in a specific controversy. Most of us tend to support or oppose people, finding it difficult to stick to our principles regardless of who would be favoured or disadvantaged when we consistently apply our principles.

Do you support hate speech legislation? Well, for many people it will depend on who is accused of hate speech and what he or she actually said. Do you support the independence of a specific institution? Well, for many people it will depend on who heads that institution and what you think of him or her.

I present as exhibit A for my argument one Mthandazo Berning Ntlemeza.

Several court judgments have now confirmed that alleged Hawks boss Berning Ntlemeza is a thoroughly dishonest man. His disastrous handling of the Pravin Gordhan “criminal” investigation has also confirmed that he is incompetent and ignorant of basic legal principles. It is therefore perhaps understandable that many South Africans would like to see the back of Ntlemeza.

He is clearly not suited to head South Africa’s supposed independent corruption fighting unit as his actions suggest that he protects some corrupt individuals while pursuing some who challenge the authority of those who are corrupt.

No wonder many people have been cheering on the new Police Minister because he seems to be ready to take decisive action against Ntlemeza (or at least, he seems to be talking – and talking, and talking – about taking decisive action against the alleged Hawks boss).

But what if Ntlemeza’s lawyer is correct and he remains the head of the Hawks until such time that the SCA decides his appeal? Then it would clearly not have been permissible for the Minister of Police to rush to the headquarters of the Hawks (as he did yesterday) to try and stop Ntlemeza from going to the office. This is so because the Hawks is independent and the Minister is prohibited from interfering in the operational affairs of that unit.

As an aside, Ntlemeza’s lawyer is arguing that he remains the head of the Hawks despite the fact that the High Court had ordered that his appointment was invalid (in other words, that he was never in fact appointed as head of the Hawks), and (in a second jugdment) that this order was immediately operational regardless of whether Ntlemeza lodged an appeal against the judgment or not.

Usually when a court hands down an order, the operation and execution of that order is suspended as soon as the person affected lodges an application for leave to appeal the judgment. But in this case the court ordered that its order would not be suspended regardless of whether Ntlemeza lodges an appeal. On its face, this means that Ntlemeza is no longer the head of the Hawks no matter whether he lodges an appeal against the High Court judgment.

However, Ntlemeza’s lawyer is invoking section 18(4) of the Superior Court Act which seems to muddy the waters somewhat. This section states that when a court orders that operation of the order should not be suspended (as it did in the Ntlemeza case) the aggrieved party has an automatic right of appeal and “such order will be automatically suspended, pending the outcome of such appeal”.

Ntlemeza’s lawyer is therefore arguing that section 18(4) itself nullifies the order made by the High Court which would have ensured the immediate implementation of the High Court order. If this is correct, Ntlemeza legally remains the head of the Hawks. The Minister would then have no power to remove Ntlemeza from office or to bar him from coming to the office.

The Constitutional Court held in the second Glenister judgment that there was a constitutional duty on the state to create an independent corruption fighting body. While such a body need not enjoy exactly the same level of independence as the judiciary enjoys, the Constitutional Court held that the Hawks had to enjoy adequate structural and operational independence. The majority of the Constitutional Court in the second Glenister held that to ensure independence:

public confidence in mechanisms that are designed to secure independence is indispensable.  Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence.

After Parliament purported to respond to the second Glenister judgment by “strengthening” the independence of the Hawks, the Helen Suzman Foundation again challenged several aspects of that part of the South African Police Services Act which establishes the Hawks. A particularly pertinent aspect of this challenge was to section 17DA of the Act which provides for both the suspension and removal of the Hawks boss from office.

In the second Glenister judgement the Constitutional Court held that adequate independence requires special measures to entrench the employment security of members of the Hawks “to enable them to carry out their duties vigorously”. If the Minister could remove or suspend the head of the Hawks on a whim, the Hawks would not enjoy the adequate amount of independence as required by the Constitution.

In Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others the Constitutional Court, in a majority judgment, therefore declared invalid several parts of section 17DA because it infringed on the independence of the Hawks due to infringing on the job security of its head.

Specifically, the court declared invalid section 17DA(2) of the South African Police Services Act as this provision threatened the job security of the head of the Hawks. This section in part reads as follows:

(a) The Minister may provisionally suspend the National Head of the Directorate from his or her office, pending an inquiry into his or her fitness to hold such office as the Minister deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i) for misconduct; (ii) on account of continued ill-health; (iii) on account of incapacity to carry out his or her duties of office efficiently; or (iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

The Constitutional Court held that this section permitted the Minister to remove the head of the Hawks from office and that this power was final. It thus held that this section was “inimical to job security”. It enabled the Minister “to exercise almost untrammelled power” to axe the national head of the Hawks. The Court therefore invalidated this section in its entirety.

As the Act now stands the Minister is entitled to suspend the Head of the Hawks, but only in very specific circumstances set out in section 17DA(4) of the Act. The Minister also has no power to remove the head of the Hawks from office. This is important to note because if Ntlemeza’s lawyer is correct in asserting that Ntlemeza remains the head of the Hawks until the SCA decides his appeal, the Minister would have to rely on Parliament to take action against Ntlemeza before he could do anything to move against Ntlemeza.

If Ntlemeza’s lawyer is correct, the only way to deal with the fact that the alleged boss of the Hawks is dishonest and incompetent would be for Parliament to start proceedings against him to have him removed from office. Parliament is entitled to remove the head of the Hawks from office on the ground of misconduct, incapacity or incompetence on a finding to that effect by a Committee of the National Assembly. But this is only valid if at least two-thirds of the members of the National Assembly vote in favour of removal.

The Minister may suspend the head of the Hawks from office but only after the start of the proceedings of a Committee of the National Assembly for the removal of the head of the Hawks. Before the National Assembly starts proceedings to remove the head of the Hawks, the Minister has no power to stop the head of the Hawks from going to his office.

The problem here is that the seemingly bizarre provisions of section 18(4) of the Superior Courts Act may (but I am not making a definitive claim about this) have thwarted the attempt by the High Court to have Ntlemeza immediately removed from office – regardless of whether he lodged an appeal. This unfortunate situation arose because the previous Minister of Police (with the concurrence of the cabinet) appointed a dishonest and incompetent person as head of the Hawks.

Once you appoint a dishonest and incompetent person to head an independent body which is supposed to fight corruption because you hope that the person would be so compromised that he would not dare to act independently, you potentially create more problems for yourself down the road. In this case, the new minister of Police is sitting with a self-created problem which he may not have the legal power to fix.

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