More haste, less speed — the search for new SAPS leadership

There is currently a vacancy for the head of the Hawks or, to give them their official title, the Directorate for Priority Crime Investigation (DPCI). In April 2027, the national commissioner of the SA Police Service (SAPS) will retire. The acting minister of police has let it be known that he favours General Nhlanhla Mkhwanazi for the former post, while others feel Mkhwanazi should be destined for the more senior post (one he occupied in an acting capacity while Jacob Zuma was President) that falls vacant upon the retirement of Fannie Masemola only a few months hence.When he marked a full year of receiving evidence, the head of the Madlanga Commission, Justice Mbuyiseli Madlanga, noted that he would make definitive findings only in the final report of the commission. That report will, as envisaged at present, come when the commission winds up its work in January 2027.It does need to be stressed that the findings, and indeed the recommendations of the commission, are not binding and that the government is under no obligation to act on any of the many recommendations the commission is likely to make. The learned justice has suggested that the criminal justice administration has for some time been populated by “malleable, corrupt state functionaries”. Whether Mkhwanazi is one of them is still an open question. The minister of police – currently on prolonged special leave – has still to complete his evidence before the commission. He might yet produce smoking gun evidence against Mkhwanazi, with or without the help of Paul O’Sullivan, who is not a fan of Mkhwanazi.In these circumstances, it is entirely premature to consider Mkhwanazi for any promotion within the SAPS.The law on the topic is clear. Section 195 of the Constitution requires that:Good human resource management and career development practices, to maximise human potential, must be cultivated. A high standard of professional ethics must be promoted and maintained. Efficient, economic and effective use of resources must be promoted.In the last of the Glenister trilogy of appeals to the Constitutional Court, Justice Edwin Cameron wrote a separate judgment on the importance of sound practices in the appointment of leadership in the criminal justice administration. The dissenting judgmentWhile the judgment was a lone dissent, there is much in it to commend itself to an acting minister of police who is pondering the appointment of a new head for the Hawks or DPCI. Justice Cameron wrote:“The appointment of the head of the DSO [Scorpions] differed materially from the process section 17CA [of the SAPS Amendment Act which introduced the second incarnation of the Hawks] now provides. Whereas the Head of the DPCI is appointed by the Executive alone, with only a report to Parliament, the head of the DSO was appointed by the NDPP. It is true, as the main judgment observes, that the NDPP is himself appointed by the President, and that he chose the head of the DSO from a further set of presidential appointees, namely the Deputy National Directors of the NPA. So the appointment of the DSO was hardly immune to presidential influence.“Still, in the case of the DSO that influence was indirect. The President exercised it at one remove. The NDPP – whose independence, once appointed, the Constitution directly guaranteed – made the final selection. In the case of the Head of the DPCI, by contrast, the Executive’s power is unmediated. Hence the need for parliamentary involvement is here more pressing.“What is more, the DSO had several positive features the current DPCI signally lacks. Those may have tipped the balance in Glenister II’s global assessment that the DSO was adequately independent. Put differently, the DSO was adequately independent despite the process for its head’s appointment. But the countervailing factors that justified a conclusion of adequate independence there are absent here.“Most pertinently, the DSO was outside the SAPS. By contrast, the DPCI is lodged firmly within the SAPS. The unit’s location plainly matters. It is true that Glenister II recognised that it was constitutionally permissible to locate the DPCI within the SAPS. But Glenister II found only that the DPCI’s location did not ‘in itself’ make the unit unconstitutional; the DPCI legislation could not be invalidated ‘on that ground alone’. “The implication was that the unit’s independence would be decreased by its location within the SAPS, but that it might nevertheless have other ‘sufficient attributes of independence to fulfil the functions required of it’. One important attribute to offset the DPCI’s location within the SAPS would be an irreproachable process for the appointment of its members – and that is lacking here.“Similar considerations apply to the main judgment’s invocation of the appointment process governing the NPA and its head, the NDPP. In addition, the temptation to appoint an incumbent with an insufficiently robust sense of independence may be greater in the case of the DPCI – whose primary function is to investigate political office-bearers – than in the case of the NDPP, who handles all prosecutions in the country, and only incidentally those of the Executive.“I would therefore confirm the High Court’s order declaring section 17CA constitutionally invalid.”Anti-corruption machinery of stateHaving served as chair of the National Anti-Corruption Advisory Council, the acting minister is familiar with the Glenister litigation and in particular with its requirement of the adequate independence of the single entity anti-corruption machinery of state.Indeed, in Glenister II, the majority held that a body outside executive control to deal effectively with corruption is a requirement of our law. The test of the adequacy of the independence of any leader of any anti-corruption body that complies with the law has to be understood against this background.At this stage, when leadership positions in our limping, if not crippled, criminal justice administration are under consideration, it is prudent to have regard to the wise words of Justice Cameron, quoted above.The acting minister of police would also do well to await the final report of the Madlanga Commission before embarking on new appointments in the leadership of SAPS. He will know that Justice Madlanga graced the bench in the last of the Glenister cases in which the judgment quoted from above was handed down by Justice Cameron in November 2014. Much water has passed under the bridge since then. The adequacy of the Hawks as an anti-corruption entity is highly questionable. The productivity of the Hawks on this front is dire. Its vacancy rates are high and its levels of specialisation are questionable, as is their independence.The Cabinet should seriously consider establishing a dedicated Chapter 9 anti-corruption body. Such an agency would combine top talent from the National Prosecuting Authority, SAPS, Special Investigating Unit and Independent Police Investigative Division into a well-resourced, fully independent unit staffed by trained specialists with secure tenure. Bills on the topic are queuing in Parliament for consideration, debate and adoption. They are long overdue, and critically needed. DM