Hawks & NPA: Who's responsible for which part of an arrest?
Who investigates, who issues an arrest warrant, and who prosecutes?
JOHANNESBURG - Following reports this week that a warrant of arrest was going to be issued against African National Congress (ANC) secretary-general Ace Magashule, there has been some confusion regarding which law enforcement agency is responsible for this.
Speaking to Eyewitness News, Magashule confirmed that he “heard of” a warrant of arrest that would being signed by a Bloemfontein court relating to millions of rands spent on the failed Estina dairy farm project that left black farmers destitute during his tenure as Free State Premier.
But Magashule revealed that he was yet to be formally served.
The National Prosecuting Authority’s (NPA) Investigative Directorate would also not confirm whether or not Magashule was being investigated over the matter.
“If we were investigating him or if we were going to arrest him, we would have done so in secret. Why would we announce it?” the directorate’s spokesperson Sindisiwe Twala told Eyewitness News.
Twala also refuted claims that an inquiry or questions had been sent from the body to Magashule.
So, who is responsible within our criminal justice system for the issuing of warrants of arrests?
The NPA is responsible for instituting and conducting criminal proceedings on behalf of the State, while the Directorate for Priority Crime Investigation – better known as the Hawks – are responsible for the combatting, investigating and the prevention of “national priority crimes such as serious organised crime, serious commercial crime and serious corruption”.
The Hawks were established as an independent directorate within the South African Police Service in terms of Section 17C of the South African Police Service Act. They replaced the Directorate of Special Operations, the Scorpions, which was disbanded in 2008 by the governing ANC.
According to a 2019 blog post by constitutional law expert Pierre de Vos, the NPA does not normally investigate criminal offences.
“Instead it normally manages the prosecution of individuals with the aim of securing criminal convictions in court. These prosecutions rely on the evidence gathered by the South African Police Service (SAPS) or the Hawks (who is independent from, but also formally part of, the SAPS),” De Vos said.
“Once an investigation is completed, the docket is handed over to the NPA for a decision on whether to proceed with the prosecution or not. The relevant prosecutor may of course refer the matter back to the SAPS or the Hawks and may direct the police investigator to do further investigation to help strengthen the case against the accused. But there is normally very little the NPA and its prosecutors can do, if the SAPS and the Hawks are unwilling or unable to do their job.”
Simply speaking, as soon as a criminal investigation is completed, it’s handed over to the Hawks to execute.
The information required to seek a warrant would come from the Hawks, which passes it on to the NPA to decide whether to proceed with the matter. If the NPA decides to go ahead, they then get a judge to sign off on an arrest warrant.
In the case of the late former national police commissioner Jackie Selebi in 2007, the NPA needed to apply for a warrant of arrest or search warrant from a court of law first.
Additional reporting by Tshidi Madia