Democratic Alliance v President of the Republic of South Africa and Others (17782/15) [2016] ZAWCHC 66; 2016 (8) BCLR 1099 (WCC); [2016] 3 All SA 537 (WCC); 2016 (2) SACR 494 (WCC) (23 May 2016)

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[2016] ZAWCHC 66
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Democratic Alliance v President of the Republic of South Africa and Others (17782/15) [2016] ZAWCHC 66; 2016 (8) BCLR 1099 (WCC); [2016] 3 All SA 537 (WCC); 2016 (2) SACR 494 (WCC) (23 May 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 17782/15
DATE:
23 MAY 2016
In
the matter between:
DEMOCRATIC
ALLIANCE
...................................................................................................
Applicant
And
THE
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
.............................
First
Respondent
THE
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
..............
Second
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
..........................
Third
Respondent
NOMGCOBO
JIBA
..................................................................................................
Fourth
Respondent
GENERAL
COUNCIL OF THE
BAR
........................................................................
Fifth
Respondent
Date
of hearing: 10 – 12 February 2016
Date
of judgment: 23 May 2016
JUDGMENT
DOLAMO, J
INTRODUCTION
[1]
This is an application by the Democratic Alliance (the “DA”),
the official opposition party in the Parliament of
the Republic of
South Africa, seeking to review and to set aside the decision of the
State President not to invoke the provisions
of section 12 (6) (a) of
the National Prosecuting Authority Act
[1]
(the “NPA Act”) to suspend the Deputy National Director
of Public Prosecution (“DNDPP”), Advocate Jiba,
and to
institute an enquiry into her alleged misconduct so as to determine
her fitness to hold office. The DA is also seeking an
order
substituting the decision of the President with one suspending Adv
Jiba pending an enquiry into her fitness to hold office
to be
conducted in terms of section 12 (6) (a) of the NPA Act.
[2]
In terms of section 12 (6)(a) of the NPA Act, the President may
suspend a National Director or Deputy National Director of Public

Prosecution from office pending such enquiry into his/her fitness to
hold office on the ground,
inter alia,
of alleged misconduct. At first blush this appears to be a straight
forward review application into the failure to exercise,
alternatively,
the unlawful exercise by the President of the powers
vested upon him. Beneath this, however, are layers of intrigue
involving allegations
of career sabotage, power struggles and
political interference in the National Prosecuting Authority (the
“NPA”), an
institution supposed to be independent and
which is mandated by the Constitution of the Republic of South Africa
to prosecute without
fear favour or prejudice, in the protection and
advancement of our democracy.
[3]
I shall, however, steer clear of any enquiry into these allegations
of political power plays and struggles and instead charter
a course
which would provide answers to the questions whether the President,
in deciding not to suspend Adv Jiba and hold an inquiry
into her
fitness to hold office, was motivated by ulterior political motives,
as alleged by the DA, or whether he had properly
applied his mind and
concluded that it was best to await the outcome of the application to
Court by the General Council of the
Bar (the “GCB application”)
to have Adv Jiba struck off the roll of Advocates.
THE
PARTIES
[4]
As already stated
supra
the applicant is the DA a duly registered political party which
enjoys representation at National, Provincial, and local levels
of
government. In terms of its federal constitution the DA was
established as a body corporate with perpetual succession and capable

of suing and being sued in its own name. The DA avers that it has a
constitutional duty to challenge the alleged unlawful and
unconstitutional decision by the President and that, in doing so, it
is not only acting in its own interest as a political party
but also
in the interest of its members and the public.
[5] The first
respondent is the President of the Republic of South Africa (the
“President”) who is cited in his official
capacity and as
the member of the executive with the power in terms of section 12 of
the NPA Act to suspend and enquire into the
fitness to hold such
office by the DNDPP. The second respondent is the Minister of Justice
and Correctional Services (the “Minister”)
who is also
cited in his official capacity as the member of the executive
responsible for the NPA in terms of section 179 (6) of
the
Constitution.
[6]
The third respondent is the National Director of Public Prosecution
(the “NDPP”). He is the head of the NPA, and
though no
relief is sought against him, he is cited herein for any interest
which he may have in this matter. At present the incumbent
NDPP is
Adv Shaun Abrahams (“Abrahams”). He was appointed by the
President on 18 June 2015 to replace the former NDPP,
Mr Nxasane, who
resigned on 1 June 2015, before an enquiry into his fitness to hold
office could be held, after it came to light
that he did not disclose
his previous criminal record. Prior to the appointment of Adv
Abrahams or Mr Nxasana, the fourth respondent,
Adv Jiba, served as an
Acting National Director of Public Prosecutions. It was while she was
acting in that capacity that the incidences
which gave rise to this
application took place. She is currently head of the National
Prosecuting Services (the “NPS”).
Although directly
affected in her position as the applicant seeks her suspension and an
enquiry into her fitness to hold office,
no relief is sought against
her. Unless the context indicates the contrary I shall refer to the
President, the Minister and Adv
Abrahams collectively as the
respondents.
[7]
The fifth respondent is the General Council of the Bar (“GCB”),
another party against whom the applicant is seeking
no relief. It is
averred by the applicants that the GCB is cited herein because of its
potential interest in the matter considering
that its pending
application to have Adv Jiba removed from the roll of Advocates was
the sole reason the President had advanced
for not suspending her.
[8]
Before dealing with the vexed question of whether the President acted
irrationally or unlawfully I shall first attend to and
dispose of two
points
in
limine
raised by the respondents which, in my view, should not be a bar to a
full enquiry into the merits of the application
[2]
.
In the enquiry into the merits I shall outline the Constitutional
provisions and the imperative national legislation which was

promulgated to provide for an independent prosecuting authority; the
qualification required to hold office  as a National
or Deputy
National Director of Public Prosecution and the circumstances under
which a NDPP or DNDPP may be removed from office.
I shall thereafter
deal with the circumstances which preceeded and led to the present
application and the DA’s call for the
President to suspend Adv
Jiba. With reference to the applicable legal principles I shall pay
particular attention to the argument
by the DA that the President’s
decision not to suspend Adv Jiba, pending an enquiry into her fitness
to hold office, was
irrational and unlawful. I shall thereafter deal
with the response to the DA’s case by the President, the
Minister and Adv
Abrahams. I shall also deal with Adv Jiba’s
response to the allegations and her position regarding this
application, in so
far as a call for her suspension is concerned.
LACK
OF JURISDICTION
[9]
I now deal with the first point
in
limine
raised by the
respondents, namely, that this Court has no jurisdiction to deal with
this matter since it involved the obligations
of the President under
the Constitution, such jurisdiction being exclusively reserved for
the Constitutional Court in terms of
section 167 (4) (c) of the
Constitution. Section 167(4) (e) provides that:
“
(4)
Only the Constitutional Court may-
(a)
…
(e)
decide that Parliament or the President has failed to fulfil a
constitutional obligation…”
[10]
The question
in
casu
is
whether the alleged failure by the President to employ the provision
of section 12 (6)(a) of the NPA Act can properly be characterised
as
a failure to discharge a constitutional obligation.
[11]
In the interpretation of section 167 (4)(e) our Courts have held that
this phrase “
fulfil
a constitutional obligation
”
must be given a “
narrow
”
meaning. In
Doctors
for Life International v Speaker of the National Assembly and
Others
[3]
the applicant approached the Constitutional Court directly alleging
that it was the only Court that has jurisdiction over the dispute

because it concerned the question whether Parliament has fulfilled
its Constitutional obligations as conferred by section 167 (4)(e)
of
the Constitution. In determining the question whether the Court has
exclusive jurisdiction, the Court focused on the proper
meaning of
the phrase “
constitutional
obligation
”
in section 167 (4)(e), which it found to be difficult to resolve. The
Court, per Ngcobo J (as he then was), however, held
that what all of
this points to was that the phrase “
a
constitutional obligation
”
in section 167 (4)(e) should be given a narrow meaning to avoid it
being in conflict with the powers of the Supreme Court
of Appeal and
the High Courts to make orders concerning the validity of Acts of
Parliament, which are made in pursued of constitutional

obligations.
[4]
[12]
A similar view was expressed in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
(“
SARFU
”).
[5]
In
Van
Abo v President of the Republic of South Africa
[6]
Moseneke DCJ held that it remains a complex question whether a
specific power exercised by the President under the Constitution
or
any other law amounts to a Constitutional obligation which only the
Constitutional Court may decide. The Deputy Chief Justice
was of the
view, however, that it was neither prudent nor pressing to describe
what amounts to a constitutional obligation under
section 167 (4)(e)
of the Constitution but that ready examples of constitutional
obligations specifically entrusted to the President
may be found in
section 84 (2) of the Constitution,
[7]
which rest in him as the Head of State and the Head of the National
Executive.
[13]
The Constitution clearly does not confer on the President an
obligation to suspend or enquire into the fitness of a DNDPP to
hold
office. The Constitution only requires that a national legislation be
promulgated which must ensure that the prosecuting authority

exercised its function without fear or favour. It is in the NPA Act,
which was promulgated pursuant to the mandate given by the

Constitution, where the President is granted the powers to suspend
and enquire into a DNDPP’s fitness to hold office. Since
this
matter involves the question whether the President has exercised his
powers, acquired through the provisions of section 12
(6)(a) of the
NPA Act, rationally and lawfully (and not with whether he has
obligations in terms of the Constitution to enquire
into the fitness
of the NDPP to hold office), this Court will have the necessary
jurisdiction. That a High Court will have jurisdiction
in a matter
which involves the exercise of powers conferred by Statute on the
President was confirmed by the Constitutional Court
in
Daniel
v President of the Republic of South Africa and Another
[8]
w
here
it was held that section 84(2)(f) of the Constitution, which provides
that the President is responsible for appointing Commissions
of
Inquiry, does not impose a duty but confers a power which he may
exercise at his discretion, and accordingly that the President’s

failure to appoint a Commission of Inquiry does not amount to a
failure to fulfil a constitutional obligation. It follows therefore

that the failure to appoint the Commission of Inquiry did not
constitute an issue that falls within the exclusive jurisdiction
of
the Constitutional Court.
[14]
Similarly section 12 (6)(a) does not impose a duty on the President
but confers a power which he may exercise at his discretion.
I am
accordingly satisfied that there is no constitutional impediment to
this Court enquiring into the question whether the President
duly
exercised his powers in term of section 12(6)(a) of the NPA Act. I
accordingly move to deal with the second point
in
limine
raised
by the respondents.
LIS
ALIBI PENDENS
[15]
This point
in
limine
,
pertains to three other matters which are pending before the Courts,
all concerned with the conduct of Adv Jiba. The first one
is the GCB
application in which an order for the removal of the name of Adv Jiba
from the roll of Advocates is sought; the second
one is the
application by Freedom Under Law (FUL) seeking the review and setting
aside of the decision of the President not to
invoke the provisions
of section 12 (6)(a) of the NPA Act to suspend and hold an enquiry
against Adv Jiba. FUL also sought an order
for the reinstatement of
the criminal charges which were brought against Adv Jiba but
withdrawn by Adv Abrahams upon his appointment
as the NDPP. Part A of
the application, in which FUL sought on an urgent basis, an order
preventing Adv Jiba from exercising any
of her powers was dismissed
for lack of urgency by the North Gauteng High Court.
[9]
The third one being in the matter of
Council
for the Advancement of the South African Constitution v President of
the Republic of South Africa
,
where relief is sought to declared section 12 of the NPA Act
unconstitutional and invalid. However, no further details were
furnished
about this case. Then there is this present application in
which an order is also sought for the review and setting aside of the

President’s decision not to act against Adv Jiba.
[16]
The respondents submitted that this application should be stayed
pending the disposal of the other two applications pending
in the
High Court in Pretoria, where issues which overlap significantly with
issues fundamental to this application fall to be
disposed of.
They argued that the striking off in the GCB application, where the
allegations against Adv Jiba and her responses
thereto were
exhaustively canvassed in the papers, would be the appropriate case
to deal with the questions of her fitness to hold
office.
[17]
In motivating for a stay pending the outcome of the GCB application,
in particular, the respondents further submitted that
the DA had not
alleged that an enquiry, under section 12(6)(a) of the NPA Act will
constitute a “
Commission
of Enquiry
”
in terms of the Commissions Act
[10]
and that such an enquiry, in any event does not fall under the
President’s powers to appoint Commissions of Enquiry in terms

of section 84(2)(f) of the Constitution. The respondents accordingly
argued that an enquiry in terms of section 12(6)(a) would
be a
toothless internal body lacking in coercive powers, which would
merely serve to advise the President. They argued that the
GCB
application by contrast, will entail a
quasi
–
inquisitorial procedure allowing for a credible fact-finding exercise
going beyond what is likely to be achieved by a section
12(6)(a)
enquiry.
[18]
As compelling as this argument may be, I deem it unnecessary to
resolve the question whether a section 12(6)(a) enquiry would
have or
not have coercive powers of a Commission of Enquiry nor whether the
GCB application would yield better results in the circumstances.
This
is for the simple reason that this application is not concerned with
the efficacy of the section 12(6)(a) procedure but with
whether the
President properly exercised his powers under the section. I shall,
however, deal with the other string of their argument
being to
enquire whether the requirements for
lis
alibi pendens
have been met.
[19]
There are three requirements for the successful reliance on a plea of
lis
alibi pendens
.
These are that the litigation must be between the same parties; that
the cause of action must be the same; and that the same relief
must
be sought in both matters.
[11]
The respondents are alive to the fact that not all the requirements
of
lis
alibi
pendens
doctrine have been satisfied but argued that Courts in general have a
discretion to stay matters before them, notwithstanding that
not all
of the traditional elements of the defence were met. They, submitted
that the underlying rationale of this doctrine is
to avoid the
undesirable situation in which Courts pronounce differently upon same
issues of law and fact.
[12]
[20]
I am not persuaded that in the present matter the underlying
rationale of the doctrine of
lis
alibi
pendens
would
be applicable. I doubt that this doctrine can be triggered by the
consideration that there are other matters pending in other
Courts
where one or the other kind of relief relating to the future of Adv
Jiba to hold office is concerned. The parties are not
the same in the
three applications referred to. Although the relief sought in the
present application may be similar with the one
in Part B of the FUL
matter before Prinsloo J, the applicant in this matter is the DA
whereas in the matter pending in Gauteng
is FUL.
[13]
In the GCB application, another different party, is seeking a
completely different remedy than that sought by the DA and FUL. As
a
result one of the cardinal requirements for a successful plea, of
lis
alibi pendens
namely that it must be between the same parties is obviously not met.
I find that both the
in
limine
defences are unsustainable and are accordingly dismissed. In the
circumstances, I move to deal with the application on its merits.
THE
LEGAL FRAMEWORK WITHIN WHICH THE NPA REPOSE
[21]
As a starting point it is apposite to take a look at the salient
provisions of the NPA Act, as well as the Code of Conduct
governing
the conduct of prosecutors in the NPA. I do so because the standard
by which a NDPP’s conduct is to be measured
is to be found in
the Act and the code. The Constitution provides in section 179 (1)
that there shall be a single National Prosecuting
Authority
structured in terms of an Act of Parliament which shall have the
power to institute criminal proceedings on behalf of
the State and to
carry out any necessary functions incidental to instituting criminal
proceedings. The section requires that a
National legislation be
promulgated which shall ensure that the NPA exercised it functions
without fear, favour or prejudice. This
legislation is the NPA Act.
Section 9 (1) thereof provides for the qualification required for any
person to serve as a National
Director or Deputy National Director of
Public Prosecution. This section provides that:
“…
any
person to be appointed as a National Director; Deputy National
Director or Director must;
(a) possess legal
qualifications that will entitled him or her to practice in all
courts in the Republic; and
(b)
be a fit and proper person with due regard to his or her experience
conscientiousness and integrity to be entrusted with the

responsibilities of the office concerned”
.
[22] In terms of
section 11 (1) of the NPA Act the President may after consultation
with the  Minister and the National Director
of Public
Prosecutions appoint up to four Deputy National Directors of Public
Prosecutions. The NDPP and the DNDPP shall not be
suspended or
removed from office except in accordance with the provisions of
subsections (6), (7) and (8) of section 12 of the
NPA Act. Section 12
(6) (a) of the NPA Act provides that:
“
(
6)
(a) The President may provisionally suspend the National Director or
a Deputy National Director from his or her office, pending
such
enquiry into his or her fitness to hold such office as the President
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
President may decide whether or not a suspended official may receive
a salary while on suspension.
[23]
If the President resolves to remove the NDPP or the DNDPP from office
he must forward the findings and his reasons to Parliament
within
fourteen (14) days. Parliament must thereafter either uphold or
reject his decision within thirty (30) days and that decision
will be
binding on the President. In terms of section 12 (7) the President
shall remove the NDPP or DNDPP from office if on an
address from each
of the respective Houses of Parliament in the same session pray for
such removal on the same grounds as in section
12 (6)(a). The
President may also allow a NDPP or DNDPP at his or her request to
vacate his or her office on account of continued
ill-health or for
any reason which the President deem sufficient.
[24]
Section 22 (6)(a) of the NPA Act provides for a Code of Conduct which
shall be complied with by all members of the prosecuting
authority.
This code expect  prosecutors to be individuals of integrity
whose conduct is objective, honest and sincere who
must respect,
protect and uphold justice, human dignity and fundamental rights as
entrenched in the Constitution. They must also
strive to be seen to
be consistent, independent and impartial. To achieve this, amongst
other things, the prosecutorial discretion
to institute and stop
criminal proceedings must be exercised independently, in accordance
with the Prosecution Policy and Policy
Directives and be free from
political, public and judicial interference. In order to ensure the
fairness and effectiveness of the
prosecution process prosecutors are
expected to co-operate with the police, the Courts, the legal
profession, defence counsel and
any relevant government agencies.
BACKGROUND
[25]
Having set out the legal framework within which the NDPP discharges
his or her duties, I now proceed to deal with the background
to this
application, the seed of which was planted in the matters relating to
the legal challenges to the withdrawal of charges
against Mr Zuma,
the current President, and the role Adv Jiba played as the then
acting head of the NPA. This has since germinated
to include her role
in other related and unrelated court actions. In April 2009 the then
ANDPP, Adv Mphse, took a decision to withdraw
criminal charges
against Mr Zuma. This decision precipitated and set in motion a
number of applications by,
inter alia,
the DA, FUL, and the Helen Suzman Foundation (“HSF”) to
have Adv. Mphse’s decision reviewed and set aside. These
legal
battles are still continuing in the Courts to this day.
[26]
The NPA, being the body implicated, had its hands full dealing with
these applications. The institution of these applications
also
coincided with the period when Adv Jiba was the ANDPP, after the
appointment of Adv Simelane as the NDPP was set aside by
the
Constitutional Court. She as such had to deal with them. It was in
the context of some of these proceedings that adverse judicial

comments were made against her. Since the DA relied mainly on these
adverse judicial comments as the basis for calling upon the
President
to act against Adv Jiba in terms of section 12 (6)(a) of the NPA Act,
a brief rendition of these comments will accordingly
be appropriate.
[27]
In
Freedom
Under Law v National Director of Public Prosecutions and Others
[14]
(“Mdluli
matter”)
,
a matter in which FUL challenged the withdrawal by the NPA of
criminal charges against Mdluli and sought a mandatory interdict

directing the NPA to reinstate the murder, fraud and corruption
charges against him. This matter came before Murphy J in Pretoria.

Not only did Murphy J grant in full the relief sought by FUL but also
criticized the respondents, and in particular Adv Jiba, for
the
manner in which they delayed the conduct of the litigation. In this
respect he had the following to say:
“
[24]
The reasons for the various delays, and late filing, are sparse and
mostly unconvincing. However, in the interests of justice
I was
persuaded that the matter should proceed without further delay
and condoned the non-compliance with the rules and directives
of the
DJP. Suffice it to say that the conduct of the respondents is
unbecoming of persons of such high rank in the public service,
and
especially worrying in the case of the NDPP, a senior officer of this
court with weighty responsibilities in the proper administration
of
justice. The attitude of the respondents signals a troubling
lack of appreciation of the constitutional ethos and principles

underpinning the offices they hold.”
[28]
I pause to mention that one Adv Breitenbach, who was in the employ of
the NPA at the time, opposed the decision to drop charges
against
Mdluli. She articulated her reasons in a memorandum addressed to Adv
Jiba asking her to exercise her powers in terms of
section 179 (5)(d)
of the Constitution and review the decision not to prosecute. Adv
Jiba did not respond to this memorandum and
subsequently explained
her reasons for not responding on the basis that one memorandum was
not in terms of the regulatory framework.
[15]
This explanation, however, did not find favour with Murphy J who
criticised her for this stance in the following terms:
“
[196]
The dispute that forms the subject-matter of this application
has been ongoing for more than 18 months, since February
2012.
Given its high-profile nature and the outcry about it in the media
and other quarters, there can be no doubt that the NDPP
was aware of
it, and its implications, from the time the charges were withdrawn.
Mdluli's representations were sent to her and
she referred them down
the line; probably rightly so. But she was nonetheless empowered
by s 179 of the Constitution to intervene
in the prosecution process
and to review the prosecutorial decisions mero motu; yet, despite the
public outcry, she remained supine
and would have us accept that her
stance was justified in terms of the Constitution. She has not given
any explanation for her
failure to review the decisions at the
request of Breytenbach, made in April 2012. Her conduct is
inconsistent with the duty imposed
on all public functionaries
by s 195 of the Constitution to be responsive, accountable and
transparent.
[29]
Murphy J concluded that there would have been no point in FUL seeking
to have Adv Jiba review the decision to withdraw the
charges against
Mdluli before approaching the Court because her conduct demonstrated
that her decision was a foregone conclusion.
Murphy J held that:
“
[199]
… the duty to exhaust internal remedies, if one exists, will
seldom be enforced where the complaint is one of illegality,
or, I
would add, one of irrationality, or in cases where the remedy
would be illusory. It is reasonable to infer from the
Acting NDPP's
supine attitude that any referral to her would be a foregone
conclusion and the remedy accordingly of little practical
value or
consequence in this case. Her stance evinces an attitude of approval
of the decisions. Had she genuinely been open to
persuasion in
relation to the merits of the two illegal, irrational and
unreasonable decisions, she would have acted before
now to assess
them, explain her perception, and, if so inclined, to correct them.
And
further held that:
[237]
Counsel for the NDPP has argued in relation to the criminal
charges that they should be referred back to the NDPP for
a
fresh decision instead of the court ordering a prosecution. There may
be polycentric issues around the prosecution in relation
to the
evidence and possible defences, so he contended, which will make the
prosecution difficult… The NDPP and the DPPs
have not
demonstrated exemplary devotion to the independence of their offices,
or the expected capacity to pursue this matter
without fear or
favour. Remittal back to the NDPP, I expect, on the basis of what has
gone before, will be a foregone conclusion,
and further delay will
cause unjustifiable prejudice to the complainant and will not be in
the public interest. The sooner
the job is done, the better for
all concerned. Further prevarication will lead only to public
disquiet and suspicion that those
entrusted with the constitutional
duty to prosecute are not equal to the task.”
[30]
The NPA appealed against the judgment of Murphy J. The NPA was partly
successfully in the SCA in that the order of substitution
made by
Murphy J was set aside and the matter was remitted back to the NPA
for its decision. In setting aside the order of substitution
made by
Murphy J, the SCA agreed with the submission by the NDPP that
mandatory interdicts were inappropriate transgressions of
the
separation-of-powers doctrine. Brand JA held that the doctrine
precludes the Courts from impermissibly assuming the functions
that
fall within the domain of the executive, and that the Court will only
be allowed to interfere with this constitutional scheme
on rare
occasions and for compelling reasons. He, however, could not find any
compelling reasons in that case why the executive
authorities should
not be given the opportunity to perform their constitutional mandates
in a proper way.
[16]
[31]
In
Democratic
Alliance v Acting National Director of Public Prosecutions
[17]
the DA brought an application to review and set aside the decision of
Adv Mphse to drop corruption charges against, Mr Zuma. Mr
Zuma and
the NDPP raised objections to the application mainly in the form of
points
in
limine.
One of the issues raised was whether the NDPP was required to furnish
the record of the decision to drop the charges against Mr
Zuma. The
SCA held that it was obliged to do so and ordered the NDPP to produce
and lodge with the Registrar of the High Court
the records of the
decision. These records were to exclude Mr Zuma’s confidential
representations to the NPA but include
all documents and materials
relevant to the review.
[32]
As a result of this SCA judgment Adv Jiba, in her capacity as the
ANDPP and through the State Attorney, informed the DA that
there were
transcripts of recordings, referred to as the “
Spy
Tapes
”, which Adv Mphse had
relied on when he decided to drop the charges against Mr Zuma and
that these would only be provided
to the DA if Mr Zuma’s legal
team had no objections.  The DA, on the other hand, held the
view that the transcripts,
as well as any internal memorandum
prepared in response, could not be excluded from the record in terms
of the SCA’s order
and demanded the production of such
documents.
[33]
This difference in opinion resulted in an
empasse
which led to the DA bringing an interlocutory application to compel
the NPA to provide the documents and to hold the ADNPP in contempt
of
court of the SCA order. The matter went up to the SCA. In the
judgment of the SCA,
[18]
Navsa
JA held that the ADNPP’s answering affidavit resorted to a
metaphorical shrugging of the shoulders by placing the reason
for its
non-compliance with the order of the Court in the first appeal at the
door of Mr Zuma’s legal representative. As
regards the conduct
of Adv Jiba, Navsa JA did not mince his words in criticising her
conduct. He held that:
“
[41]
One remaining aspect requires to be addressed, albeit briefly. As
recently as April this year, this court in National Director
of
Public Prosecutions v Freedom Under Law
2014
(4) SA 298
(SCA)
criticised the office of the NDPP for being less than candid and
forthcoming. In the present case, the then ANDPP, Ms Jiba,
provided
an ‘opposing’ affidavit in generalised, hearsay and
almost meaningless terms. Affidavits from people who had
first-hand
knowledge of the relevant facts were conspicuously absent.
Furthermore, it is to be decried that an important constitutional

institution such as the office of the NDPP is loath to take an
independent view about confidentiality, or otherwise, of documents

and other materials within its possession, particularly in the face
of an order of this court. Its lack of interest in being of

assistance to either the high court or this court is baffling. It is
equally lamentable that the office of the NDPP took no steps
before
the commencement of litigation in the present case to place the legal
representatives of Mr Zuma on terms in a manner that
would have
ensured either a definitive response by the latter or a decision by
the NPA on the release of the documents and material
sought by the
DA. This conduct is not worthy of the office of the NDPP. Such
conduct undermines the esteem in which the office
of the NDPP ought
to be held by the citizenry of this country.”
[34]
The third matter in which Adv Jiba’s conduct was criticised was
in
Booysen
v Acting National Director of Public Prosecutions and Others.
[19]
In that matter Adv Jiba issued authorisations to charge Booysen, a
General in the South African Police Services (“SAPS”)
and
head of the Serious Crime Unit in KwaZulu Natal (KZN), with
contraventions of the Prevention of Organised Crime Act (POCA)
[20]
relating to racketeering. Booysen responded by bringing an
application to review and set aside those authorisations on the
grounds
that they were irrational. He submitted that the material
before Adv Jiba, when she took a decision to authorise the charges,
did
not include any evidence that he had contravened the relevant
provisions of POCA. The application was opposed by the NPA. In her

answering affidavit Adv Jiba submitted that, in addition to the
contents of several dockets, she relied on what she described as

statements made under oath which she attached to her affidavit.
[35]
In reply Booysen pointed out that one of the documents was dated two
weeks after she took her decision, another was not a sworn
statement
as it was neither signed nor dated, and that not one of the two
documents implicated him in the alleged contravention
of POCA.
Booysen dared Adv Jiba to file an answering affidavit to his
submission that she was mendacious in her assertions that
she had
considered these statements when she issued the authorisation to
charge him. Adv Jiba, however, did not file any further
affidavits
and Gorven J had the following to say about her conduct:
[21]
“
[34]
…the NDPP is, after all, an officer of the court. She must be
taken to know how important it is to ensure that her affidavit
is
entirely accurate. If it is shown to be inaccurate and thus
misleading to the court, she must also know that it is important
to
explain and, if appropriate, correct any inaccuracies. Despite this,
the invitation of Mr Booysen was not taken up by the NDPP
by way of a
request, or application, to deliver a further affidavit. In response
to Mr Booysen’s assertion of mendacity on
her part, there is a
deafening silence. In such circumstances, the court is entitled to
draw an inference adverse to the NDPP.”
[36]
As a result of the criticism against Adv Jiba in the
Booysen
matter, the NPA commissioned an opinion from senior counsel on what
action it should take against her. The NPA was advised to institute

criminal charges of perjury against Adv Jiba; to request the GCB to
seek her removal from the roll of Advocates; and to request
the
President to investigate her in terms of section 12 (6)(a) of the NPA
Act. Subsequently charges of fraud and perjury were instituted

against Adv Jiba for her conduct in the Booysen matter. The
prosecutors who were assigned to pursue Adv Jiba wrote in a
memorandum
laying out in detail why on the evidence available Adv
Jiba should be prosecuted. Upon his appointment as the NDPP, Adv
Abrahams
however, decided to withdraw these charges against her. The
DA argues that Adv Abrahams not only failed to provide any
substantive
reasons to dispute the conclusion that Adv Jiba should be
prosecuted but also failed to disclose this memorandum to the
President
or to the Court in this proceedings.
[37]
According to the DA the adverse judicial comments were not the only
factors and circumstances which should have prompted the
President to
take action against Adv Jiba, as he was enjoined by section 12 (6)(a)
to do, but other corollary developments added
to the call for action.
These were further instances where Adv Jiba’s conduct was
scrutinized and action against her recommended.
A committee
established by the NPA and headed by retired Constitutional Court
Judge, Yacoob J, concluded that there was a
prima
facie
case for prosecuting her. Between
June 2014 and May 2015, Mr Nxasana made repeated requests to the
Minister and the President to
take action against Adv Jiba, to no
avail. The President and Minister were asked in Parliament several
times about the action they
proposed to take against Adv Jiba and if
so, when.
[38]
The NPA also requested the GCB, through one Adv Karen Van
Rensburg,
[22]
to apply for Adv
Jiba’s removal from the roll of Advocates. In its application
to have Adv Jiba struck off the roll of Advocates,
the GCB stated
that Adv Jiba appears to be entirely indifferent to the demands of
the Advocates’ profession and the high
standard required of her
as an Officer of the Court; and that she had fallen well short of her
duty to the Court which requires
absolute honesty and integrity. For
this conclusion the GCB also relied on the 3 judgments referred to
supra
and argued that the conduct of Adv Jiba evidenced a persistent
pattern of behaviour which is inimical to the conduct expected and

required of an Advocate.
[39]
For these reasons, the DA requested the President to act in terms of
section 12 (6)(a) of the NPA Act to suspend and hold an
enquiry
against Adv Jiba. Because of the centrality of the correspondence
that was exchanged between the DA’s legal representative
and
the Office of the President, I quote extensively from this
correspondence. The letter by the DA’s legal representative

read in part as follows:
“…
Three
separate courts, including the Supreme Court of Appeal, and a
committee headed by a retired judge, have found that Adv Jiba
has
acted dishonestly in her conduct before the courts. Criminal charges
have been brought against her for fraud and perjury and
the General
Council of the Bar has sought to have her struck from the roll of
advocates.
In
the NPA’s Annual Report issued in May 2015, the NPA decries
your failure to act against Adv Jiba;
On
27 March 2015, Adv Breytenbach, a member of Parliament, submitted two
parliamentary questions to the Minister asking why he had
not made a
recommendation to you to suspend, amongst others, Adv Jiba, who
continued to bring the NPA into disrepute...
Mr
James Selfe submitted a parliamentary question to you asking whther
the NDPP had requested that you provisionally suspend any
Deputy
NDPP. You replied on 29 May 2015 that you had called on the NDPP to
provide you with “the facts and circumstances
requisite for
such consideration”….
Instead,
since you appointed Mr S Abrahams as the NDPP, criminal charges
against Adv Jiba have been withdrawn and she has been promoted
to
head of the National Prosecuting Services, the mist senior position
in the NPA after the NDPP himself…
Section
12 of the National Prosecuting Autority Act affords you alone the
power to suspend Adv Jiba and to institute an inquiry
to determine
her fitness for office…
We
emphasise that the ongoing application by the General Council of the
Bar to have Adv Jiba removed from the roll of advocates
does not
absolve you of that duty. …
We
are therefore instructed to demand that you take a decision whether
or not to suspend Adv Jiba pending an inquiry into her fitness
to
hold office by 1 September 2015.”
[40]
On 01 September 2015 the President’s office responded as
follows:
“
Advocate
Jiba has held a senior position within the National Prosecuting
Authority (“the NPA”) for a considerable period
of time.
Upon
becoming aware of the allegations of misconduct, the President
directed the Minister of Justice and Correctional Services to
both
appraise him of the matter, coupled with a request that the Minister
engage with the National Director of Public Prosecutions
(“the
NDPP”) with a view to ascertain whether these fact and
circumstances measured in light of Advocate Jiba’s
continued
employment, warranted her suspension.
The
President was subsequently been apprised of the matter by the
Minister and has asked me to draw your attention to the following:
That
he is of the view that none of the jurisprudential grounds exists
which warrant the suspension of Advocate Jiba;
That
the process initiated by the General Council of the Bar of South
Africa (“the GCB”) will result in a definitive
outcome
expressed in a court judgment and ruling, as opposed to the hosting
of a inquiry which culminates in a recommendation to
the President
which then requires further processes to be implemented before a
definitive decision;
That
the GCB in its wisdom has not sought the suspension of Advocate Jiba
in its application, pending the final determination of
the matter.
Whilst this approach is not resolutive on the question of suspension,
it indeed gives a particular insight from a professional
body charged
with the duty of upholding the conduct of advocates in general;
The
President is equally of the view that the judgments of the Supreme
Court of Appeal are replete with instances where the court
has
expressed its approval with the nature of the proceedings as well as
the test to be applied in examining the conduct of legal

professional;
It
must follow that the investigative acumen and processes of the GCB,
matched with the judicial process provides a better guarantee
for
ensuring the constitutional safeguards of all concerned.
In
the circumstances, whilst the President remains concerned by the
seriousness of the allegations, he cannot accede to your request
at
this time. Lastly, the President as Head of the Executive has always
resisted the invitation to comment on decisions taken by
the NDPP
where these are either unhelpful or unwise…”
[41]
Not satisfied with the President’s response, the DA launched
the present application to have his decision reviewed and
set aside.
The DA’s case is that in light of all the serious and repeated
judicial criticism of Advocate Jiba, the decision
by the President
not to suspend her but instead undertake to await the outcome of the
GCB’s application to strike her from
the roll of Advocates was
unlawful, irrational and ought to be reviewed and set aside. The DA
argued that the case against Adv
Jiba is ultimately about the
independence and integrity of the NPA. The DA argued further that the
reason Adv Jiba should be suspended
and investigated is because her
continued occupation of her position will undermine public faith in
the National Prosecuting Authority,
if the allegations against her
are proven to be true and will encroach upon the actual independence
of the NPA.
[42]
The DA admitted that while the risk of suspension is a threat to the
independence of the NPA the failure to suspend officials
who have
demonstrated that they lacked the requisite attributes for the office
was an equal threat to the independence of the institution.
Relying
on the judgment of Yacoob in
Democratic
Alliance v President of the Republic of South Africa and Others
[23]
(Simelane case)
where
it was held that a construction that renders the determination of the
qualification criteria of a NDPP to the President’s
subjective
opinion was not in keeping with the Constitutional guarantee of
prosecutorial independence, argued that to fail to suspend
and
investigate a NDPP, where there are objective grounds to exercise the
power to do so, will undermine the independence of the
NPA.
[43]
The DA further submitted that appearance or perception of
independence plays an independent role in evaluating whether
independence
in fact exists. For this submission the DA relied on the
judgment of the Constitutional Court in
Glenister
v President of the Republic of South Africa and Others
[24]
where it was held that:
“
[207]
…public confidence in mechanisms that are designed to secure
independence is indispensable … [and] if Parliament
fails to
create an institution that appears from the reasonable standpoint of
the public to be independent, it has failed to meet
one of the
objective benchmarks for independence...”
[44]
The President, the Minister and Adv Abrahams are opposing this
application and have each filed answering affidavits. Adv Jiba,
on
the other hand  only opposed the DA’s call for her
suspension pending an investigation but welcomed the call for
an
enquiry in terms of section 12 (6)(a) of the NPA Act while the GCB
elected not to enter the fray but to abide with the outcome.
The
general tenor of the respondents’ opposition of the relief
sought is that the adverse judicial comments against Adv Jiba
do not
warrant a suspension; that if the DA was indeed serious about the
suspension and removal of Adv Jiba it did not have to
come to Court
but could have utilised the provisions of section 12 (7) of the NPA
Act which provides for Parliament to initiate
the removal of a senior
NPA official on the same ground as provided for in section 12 (6)(a)
of the NPA Act; that the allegation
that the  President failed
to take steps against Adv Jiba for ulterior political motives was not
sustainable; and that the
matter should be held in abeyance pending
the disposal of applications which are pending before other
Courts,
[25]
as suggested by
the President, which would be a fair and equitable approach in the
circumstances.
[45]
In his opposing affidavit Adv Abrahams, for his part, though
acknowledging that two Courts have found that Adv Jiba had failed
to
do a full and proper disclosure and that her conduct had lowered the
NPA in the esteem of the public, was nevertheless satisfied
that
there were insufficient grounds for the President to invoke section
12 (6)(a) of the NPA Act and that he had accordingly conveyed
this
sentiments to the Minister. He stated that he came to this conclusion
after careful consideration of the text of the adverse
judgments, Adv
Jiba’s responses thereto, and a variety of other factors such
as the fact that she was not personally responsible
for the filing of
documents but that this was the task of counsel who acted on her
behalf; her prosecutorial experience; and that
calls for her removal
were from within the NPA by people who have long been at logger heads
with Adv Jiba.
[46]
The Minister, on his part, submitted that after the appointment of
Adv Abrahams he instructed him to investigate and report
to him on
the circumstances surrounding the criticism against Adv Jiba. On
receipt of Adv Abrahams’ report and after meeting
with him
several times he apprised the President of the salient facts, as well
as the views of Adv Abrahams, that Adv Jiba’s
conduct had not
been such as to call for her suspension.
[47]
The President deposed to an answering affidavit in which he stated
that following the parliamentary questions by the DA requesting

clarification on the steps he contemplated taking against Adv Jiba,
he requested the Minister to ascertain the relevant facts and

circumstances regarding the matter to enable him to accord proper
consideration to the question whether he should exercise his
powers
in terms of section 12 (6)(a) of the NPA Act. He took the decision
not to invoke section 12 (6)(a) based upon the comprehensive
oral
information and recommendations given to him by the Minister. He
submitted that the decision to apply section 12 (6)(a) of
the NPA Act
would have had significant impact on the functioning of the NPA. As
such he averred that it was a decision which required
serious
consideration, in the light of what he referred to as the
disfunctionality of the NPA prior to Adv Abrahams’ appointment.

He stated further that at the time when he answered Mr Selfe on 30
May 2015, Mr Nxasana was still the NDPP. He however resigned
with
effect from 1 June 2015 and was replaced with Adv Abrahams who was
appointed on 18 June 2015.
[48]
The DA argued that the President’s decision was both
procedurally and substantively irrational. The respondents however

hold a different view. According to the respondents, the question is
not whether the decision not to take steps against Adv Jiba
was
correct, desirable or even reasonable but whether the decision was so
flawed as to vitiate the purpose for which the power
is vested. The
argument advanced by the respondents that there are considerations of
separation of powers which should render a
Court hesitant to
interfere in an area where the President is entrusted with an
important discretion.
[49]
The DA also argued that the decision of the President lacked
rationality because he failed to take into consideration relevant

factors. These relevant factors which the President allegedly
ignored, according to the DA, were the judgments in which Adv Jiba’s

conduct was criticised; the findings of the Yacoob Committee; the
request by Mr Nxasana, the NDPP at the time, that the President
act
against Adv Jiba; the application by the GCB; the opinion by Senior
Counsel that she must be prosecuted and the views of the
prosecutors
who were assigned to prosecute Adv Jiba on the charges of perjury and
fraud against her.
[50]
The question therefore is whether the President’s decision is
unlawful and irrational and thus open to be reviewed as
procedurally
and substantively irrational or whether this is a case which is
pre-imminently within the domain of the executive,
requiring the
Court to be sensitive to and respect the separation of powers. In
seeking answers to this question I shall first
outline the law on
rationality before considering whether the President’s action
was procedurally and substantively irrational,
and, if so, whether it
is open to review. Before dealing with the various parties’
submissions, I however deem it appropriate
at this point, to set out
Adv Jiba’s response to the application by the GCB.
[51]
In addition to denying that she was not a fit and proper person to be
admitted and practice as an Advocate of the High Court,
Adv Jiba
argued that the application was premature, had been brought in
violation of her right to a fair hearing and the relief
sought would
amount to an infringement of the separation of powers doctrine. She
also averred that the application was based entirely
on hearsay
evidence. Contrary to the President’s position, though she
opposed the call for her suspension, Adv Jiba submitted
that she
would welcome an enquiry into her fitness to hold office to be held.
[52]
In respect of her argument that the application was premature, Adv
Jiba submitted that the GCB application raised an important

constitutional issue involving the interpretation of the NPA Act, in
particular, the inter-relationship between section 7 of the
Admission
of Advocates Act
[26]
and
section 12 of the NPA Act. She questioned the appropriateness of the
GCB in bringing an application to strike off a DNDPP.
She also argued
further that the application was not preceded by an internal
disciplinary hearing where evidence could have been
led and where she
would have had the right to cross-examine witnesses. She alleged that
in violation of her right to a fair hearing,
the GCB opted to roll
the two processes into one through an application based on an
affidavit replete with hearsay and innuendo
which was prejudicial to
her. This prejudice, according to her, could have been eliminated if
the normal process in such cases,
of conducting an investigation
followed by a hearing to determine the truthfulness of the
allegations, was followed.
[53]
As pointed out
supra,
Adv Jiba also submitted that a fair hearing could also have been
achieved through the process of section 12 (6)(a) of the NPA Act.

According to her an enquiry envisaged by section 12 (6)(a) would be
in the form of a disciplinary hearing involving, amongst other

things, the leading of oral-evidence and cross examination of
witnesses whereas a possible order by the court in the GCB
application
would undermine the process dedicated for the removal of
a DNDPP from office in section 12 (6), (7) and (8) of the NPA Act.
Here
she differed with the President who is of the view that the best
approach is to await the outcome of the GCB application which would

have allowed for a full enquiry. She also saw no need to rush with
the application as the GCB had received the complaint from the
Office
of the NPA in August 2014 and only brought the application in April
2015. She accordingly sought a stay of that application
pending the
outcome of any steps taken in terms of the NPA Act to remove her from
office.
[54]
As regards the criticism against her in the Mdluli matter, Adv Jiba
stated that the review application was not against her
personally but
was against her in her official capacity as the then ANDPP. She went
on to point out that, as with any application
of this nature, it was
attended to by a Senior State Advocate in the Legal Affairs Division
(“LAD”) Unit of the NPA
and where an external Senior
Counsel (the “first Senior Counsel”) was also briefed.
The Senior Counsel originally instructed
in the matter was briefed to
peruse and study the review application; to file a notice to oppose;
to consult with all the officials
dealing with the two criminal
matters and to study documents relating thereto; to draft opposing
papers; to advise on the preparation
of the Rule 53 record; and to
appear in Court and argue the matter on her behalf as well as the
second respondent in that matter.
She pointed out that the advice on
what should be contained in the record was given by that Senior
Counsel and was accepted as
correct. This was at a time when the
reviewability of prosecutorial decisions was still uncertain and had
not been definitively
pronounced upon by the Courts; and that the
applicants in the Mdluli matter obtained an order compelling the
SAPS, and not her,
to file the requested record.
[55]
She also submitted that she was not personally responsible for the
filing of papers in the Mdluli matter, this role being that
of the
LAD, the State Attorney and the first Senior Counsel. In addition she
went on maternity leave from January 2013 to April
2013, a period
which fell within the time alleged to have constituted the inordinate
delay. When she returned from maternity leave
she found that opposing
papers had not been filed. When it proved difficult to secure a
consultation with the first Senior Counsel,
and being concerned with
the failure to file within the time periods required by the Rules, a
decision was taken to terminate the
services of the first Senior
Counsel as he had failed to act in accordance with their instructions
and not because she did not
agree with the advice he had given.
[56]
A second team, led by another Senior Counsel (“second Senior
Counsel”) was appointed to draft the answering affidavits;
to
consult with members of the NPA; to apply for condonation for the
late filing; to prepare heads of argument; and eventually
to argue
the matter. She submitted that she had never personally handled the
answering affidavit resulting from these instructions,
which was
drafted with her as the deponent. Members of the LAD unit were of the
view, however, that it was best that the answering
affidavit should
be deposed to by the people who took the impugned decisions which
were the subject of the review application.
This difference in
opinion led to a disagreement with the second Senior Counsel as he
was of the view that the ultimate responsibility
lay with Adv Jiba as
the Head of the NPA. She eventually deposed to the answering
affidavit. Supplementary affidavit were also
prepared but were not
accepted by Murphy J as they were filed out of time.
[57]
After the filing of the answering affidavit the second Senior Counsel
and his team withdrew from the matter and undertook to
furnish a
memorandum. The memorandum by the second Senior Counsel only came
almost three months after the judgment of Murphy J
was handed down.
Adv Jiba alleged that the advice by the second Senior Counsel, as set
out in this memorandum was never given to
her orally or discussed
with her before the second Senior Counsel’s withdrawal or at
any time thereafter. She accordingly
disputed the allegation that she
persisted with her opposition of the relief sought by FUL in the
Mdluli matter despite being advised
by Senior Counsel to the
contrary.
[58]
Following the withdrawal from the matter by the second Senior Counsel
another Senior Counsel, (the “third Senior Counsel”)
was
instructed to deal with the applicants’ replying affidavit and
to advise whether a supplementary answering affidavit
was necessary,
and if so, to prepare a condonation application for its late filing.
She pointed out that the applicants’
replying affidavit did not
raise as an issue the filing of the answering affidavit after the
deadline which was set by that divisions’
Deputy Judge
President.
[59]
Adv Jiba did not agree with the approach suggested by the third
Senior Counsel that she must review the decision of the second

respondent in terms of section 22 (2)(c) of the NPA Act, and
thereafter allow the applicants an opportunity to amend their grounds

for relief, if they still disagreed. Such a course, according to her,
was unnecessary as she had already reviewed the decision
to
provisionally withdraw charges against Mdluli, as at the time there
was no evidence which linked him with the offences with
which he was
charged. This decision was in line with the NPA’s Prosecution
Policy.
[27]
She argued that
the decision of the SCA implicitly confirmed that there was nothing
wrong or inherently problematic with withdrawing
charges against
Mdluli for the purposes of further investigation, which had since
occurred.
[60]
She submitted that the entire team of representatives from the NPA
disagreed with the advice by the third Senior Counsel. As
a result
she requested Senior Counsel to provide a memorandum of advice. On
providing this memorandum the third Senior Counsel
indicated that he
would be forced to withdraw from the matter. Ultimately a fourth
Senior Counsel took over and appeared in the
High Court before Murphy
J as well as on appeal in the SCA.
[61]
Adv Jiba also furnished background information to the Breytenbach
memorandum and her stance that it was not in accordance with
internal
regulations. According to her, after the judgment of the SCA in the
Mdluli matter, Adv Breytenbach was appointed to oversee
the further
investigation against Mdluli which she did not do. Breytenbach’s
memorandum, according to Adv Jiba, was delivered
to her office in her
absence while she was on leave, four months after the decision to
provisionally withdraw the case against
Mdluli was taken and two
months after Adv Breytenbach was informed of a decision to suspend
her pending an investigation into allegations
of unprofessional and
unethical conduct. She accordingly denied that she had deliberately
set to mislead the Court by failing to
bring the existence of the
memorandum to the attention of Murphy J.
[62]
Adv Jiba also proffered her version to the complaints against her in
the Booysen matter. She was in particular responding to
the criticism
that she did not file a record or provide the reasons required by
Rule 53 for her decision to authorise that Booysen
be charged with
offences in terms of section 2 (1) of POCA; that she did not respond
to Booysen’s allegations that statements
in her answering
affidavit were mendacious; that the only inference to be drawn
therefrom was that none of the information she
claimed to have relied
on linked Booysen to the offences in question; and that therefore her
statement made under oath was evidently
untruthful.
[63]
In this respect she stated that the information and advice that was
placed before her for purposes of granting authorisations
in terms of
section 2 (4) of POCA were prepared and compiled by two Deputy
Directors of Public Prosecution and the Head of Special
Projects
Division, who were directly involved in the prosecution and liaising
with her respectively. After Booysen brought the
review application
these members of the NPA continued to liaise with her and were
involved in preparing the information necessary
to instruct the
Senior Counsel who was briefed in the matter. According to the view
prevailing at the time and on the advice of
Senior Counsel, the NPA
adopted the stance that the decision to grant the authorisation in
terms of section 2 of POCA was not reviewable
and this was conveyed
in her answering affidavit and set out in Counsel’s heads of
argument.
[64]
Pursuant the standpoint, that the decision to grant the authorisation
was not reviewable Senior Counsel’s advice was
that it was not
necessary to file a Rule 53 record. Furthermore, a member of the
prosecution team was placed in charge of that
matter and instructed
to provide the Senior Counsel, who was briefed on the matter, with
all the facts and evidence in the docket
which were necessary to
prepare an answering affidavit to be deposed to by Adv Jiba on behalf
of the NPA. After the filing of the
answering affidavit and when it
was discovered that Booysen was raising certain issues in his
replying affidavit to which the prosecution
team needed to respond, a
Memorandum to Senior Counsel on brief was prepared and forwarded to
him requesting further guidance.
The latter, in response, advised
that no further action was necessary.
[65]
As regards the unsigned witness’ statement Adv Jiba stated that
this was a statement by a witness who was overseas, had
security
concerns and was unwilling to come to South Africa but willing to
sign it at the South African Embassy pursuant to the
provisions of
sections 2 and 3 of the International Co-operation in Criminal
Matters Act.
[28]
The
prosecution team was confident that the statement would ultimately be
signed through that process, and this formed part of
her briefing,
until the process was brought to an abrupt halt by the then NDPP, Mr
Nxasana. On the advice of the Senior Counsel
in the matter, a
decision was taken to apply for leave to appeal the judgment of
Gorven J, in particular, the finding that Counsel
had conceded that
there was no evidence implicating Booysen. The application for leave
to appeal was prepared but, Mr Nxasana,
who had just been appointed
was  of the view that the decision to appeal was taken to save
the reputations of Adv Jiba and
the Senior Counsel who acted in the
matter, and ordered that the application for leave to appeal be
abandoned.
[66]
Adv Jiba also dealt with the comments by the SCA in the DA matter in
which she was criticised.
[29]
As in the other matters, Adv Jiba pointed out that she was
represented and advised by an experienced legal team, which included

a Senior Counsel, in all the steps she took
[30]
.
Regarding the criticism that she did not take an independent view
about the confidentiality of the spy tapes she submitted that
this
was because she took a cautionary approach in order to ensure that
she did not unwittingly infringe on the rights of either
of the
parties’. In her view this did not amount to conduct which is
less than objective, honest or sincere and did not render
her unfit
to practice as an Advocate. At the time, she was of the view that
ultimately it was in everyone’s interests, including
the NPA’s,
that the SCA order regarding the production of the spy tapes be
clarified.
[67]
Adv Jiba’s response to the report by the Yacoob Committee was
that she had not been provided with any evidence, witness
statements
or annexures upon which the report was based and as such could not
comment on any of the recommendations it made. She
argued that none
of the officials in the hierarchy of the NPA, including the NDPP, has
the power to institute an enquiry against
her through this commission
as such powers are reserved for the President.
[31]
[68]
I have set out in detail Adv Jiba’s response to the application
by the GCB because she had provided a background to the
adverse
judicial comments against her. Her version had assisted in
contextualising these adverse comments. This also assisted in

understanding her stance in this matter, namely that she was not
opposed to an einquiry in terms of section 12 (6)(a) but vehemently

opposed her suspension.
[69]
I need to emphasise that this judgment is not intended as a review of
the judgments in which adverse comments were made against
Adv Jiba
nor to determine the merits of Adv. Jiba’s responses thereto.
Such a course is not open to this Court. Outlining
Adv Jiba’s
response to the various allegations and adverse judicial comments is
merely aimed at painting a full picture of
the facts which were
allegedly presented to and considered by  the President when he
was called upon to act in terms of section
12 (6) (a) of the NPA Act.
These were the facts which were collated by Adv Abrahams and formed
part of his briefing to the Minister
who in turn briefed the
President. These, in my view, ultimately informed the President’s
decision not to act. They become
relevant in determining whether the
decision of the President not to invoke section 12 (6)(a) of the NPA
Act was unlawful and irrational.
[70]
The question is whether the President, equipped with all these
information, and the surrounding circumstance, exercised his
power in
terms of section 12 (6) (a) rationally and lawfully in declining to
suspend Adv Jiba or hold an enquiry into her fitness
to hold office.
[71]
I deal first with the DA’s argument that the President had
relied on the advice of the Minister who was merely relying
on the
advice of Adv Abrahams; that this in essence meant that the President
solely relied on Adv Abrahams’ advice; that
these were new
reasons which were not contained in his letter of 1 September 2014;
and that therefore these reasons fell outside
what was contained in
the Rule 53 record. I digress here to point out that the DA
complained that it was highly irregular for Adv
Abrahams to provide
the primary response to a challenge
to
a decision taken by the
President.
It went on to submit that while it was permissible for Adv Abrahams
to advise the President on the conduct of a DNDPP
it was not
appropriate for him to defend the President’s decision as if it
were his own; that Adv Abrahams is supposed to
be merely an
interested bystander as the Constitution guaranteed his independence
and not overstep the appropriate limits of his
position and offer the
primary defence for a decision he did not take. In my view this
argument, although technically correct is
superfluous. It loses sight
of the fact that while it was the President who took the impugned
decision and the genesis thereof
was the advice Adv Abrahams had
given to the Minister, who in turn advised the President. When
interpreted in context it is obvious
that it was merely to avoid
repetitions that the affidavit of Adv Abrahams be used to convey the
President’s position in
opposing the application.
[72]
Expounding on this submission that the President relied on reasons
which were not part of the Rule 53 record the DA stated
that in the
notice of motion, following Rule 53, the President was required to
dispatch the record of the decision, including memoranda,
reports,
minutes of meetings, recorded deliberation, letters and other
documents which relate to his decision or which were before
him when
his decision was made, together with such reasons as he may desire to
give; that the only documents the President filed
were the DA’s
letter of 26 August 2015 and his response thereto contained in his
letter of 1 September 2015; and that it
was entitled to accept that
these were the only documents he had considered when he took his
decision. As such the DA argued that
it adopted the position that the
only reason the President relied on to justify his decision was the
pending GCB application. This
was the position the DA took in its
supplementary affidavit.
[73]
The DA submitted that there were two basic reasons why the President
cannot advance new reasons in his affidavit which were
not contained
in his Rule 53 record. The first was that these, according to the DA,
were
ex
post facto
justification
and not the true reasons for the decision. Secondly, the DA argued
that it would be unfair to an applicant for judicial
review to be
confronted with new reasons after it had already nailed its sails to
the mast. Although it acknowledged that the rule
that a state
official being reviewed cannot introduce new reasons was not
absolute, the DA argued, relying on
Jicama
17 (Pty) Ltd v West Coast District Municipality
[32]
,
that
it was not open to the President to raise the other defences he
raised for the first time in his answering papers because it
has come
to Court to deal with the reason which was conveyed to it in the Rule
53 record as being the basis on which the decision
had been made. The
DA accordingly submitted that there are good grounds to believe that
the reasons advanced by the President were
not his true reasons and
that the reasons advanced in the answering affidavit were
ex
post facto
justifications developed to respond to the inadequacy of the original
reasons advanced.
[74]
The respondents, on the other hand, argued that the various bases for
the President’s decision which were set out in
detail in the
answering affidavit, could hardly have surprised the DA. They
submitted that when one reads the pre-litigation correspondence
as a
whole and in context, it becomes clear that the DA was on notice as
to the gist of the substantive reasons for the President’s

decision i.e the jurisprudential grounds referred to in the letter
from the President were those invoked by the DA in its letter
of 26
August 2016, being the adverse judicial comments, and what flowed
therefrom.
[75]
As conceded by the DA the rule that a party being reviewed cannot
advance new reasons in his answering affidavit is not absolute
and
Courts have often allowed a decision maker to advance new reasons. In
Van
Zyl and Others v Government of the Republic of South Africa and
Others
[33]
a
matter in which  the appellants argued that the Government of
South Africa was obliged to provide them with diplomatic protection

against the Government of Lesotho, after the latter had cancelled
their mineral rights leases (on the advice of the Minister and
Legal
advisers the President declined to intervene), submitted that the
respondents were not allowed to advance new reasons in
their
answering affidavit which were not covered in correspondence between
the parties prior to the launch of the application.
In this respect,
the appellant argued that the overarching “
Policy
”
consideration not mentioned in correspondence constituted new
reasons.  The SCA, per Harms ADP, drew a distinction
between the
facts of that case and those of
Jicama
on which the appellants relied, and found that an organ of State
would not be entitled to raise new reasons for an administrative

decision in an answering affidavit when the new reasons were an
ex
post facto
reason, and accordingly, not the true reasons for the decision.
[34]
[76]
Recently the question was again authoritatively decided by the SCA,
in the
Minister
of Education, Western Cape and Another v Beauvallon Secondary School
and Others
[35]
.
The
respondent challenged the Minister’s decision to close certain
schools, in accordance with particular government policy

considerations, on the ground that he had failed to disclose his
reasons at the outset and did not adequately set out the nature
and
the substance of the case for those who intended to make
representations. The SCA held that the Minister would have complied

with procedural fairness requirements as long as the gist of his
reasons was conveyed and was thus not obliged to spell out in
great
detail why the particular schools were being considered for closure.
The Court went on to hold that the fact that the Minister’s

ultimate reasons for closure may not have tallied precisely with his
initial reasons does not mean either that his final decision
is
vitiated by procedural unfairness or that additional reasons emerging
during the process prescribed cannot be taken into account
and relied
upon without giving further notice to the schools or public.
[36]
[77]
In the letter to the DA the President made it clear that he was
advised and had formed the view that none of the jurisprudential

grounds which would trigger the application of section 12 (6)(a) were
present. He further conveyed his view that to wait for the
outcome of
the GCB application, instead of instituting an enquiry, was the best
option. This, in my view, communicated to the DA
the gist of the
President’s reasons for not invoking section 12 (6)(a). They
are not different to the reasons he advanced
in his answering
affidavit. In the latter the details are expansive and were not
fundamentally different to what he stated in his
letter of 1
September 2015. There was, in my view, compliance with the
requirement that in fairness the person affected by a decision
be
informed of the gist of the case which he has to answer.
WHETHER
THE PRESIDENT’S ACTION IS EXECUTIVE OR ADMINISTRATIVE
[78]
There were subtle differences between the parties as to whether the
decision of the President was an executive or administrative
action.
I however, do not deem it necessary at any rate to resolve this issue
in the present matter; it is now well established
that even in cases
where PAJA is not of application, the principle of legality may be
relied upon to set aside an executive decision
made not in accordance
with the empowering statute
[37]
.
In fact the DA conceded that it was not necessary for this Court to
determine whether or not the President’s decision amounted
to
administrative action since it was challenging the decision solely on
a rationality and legality basis. I accordingly proceed
to determine
whether the President’s action was unlawful and irrational.
THE
PRINCIPLE OF LEGALITY
[79]
The principle of legality demands that public power may only be
exercised in accordance with the law. The executive, for example,
may
exercise no power or perform no function beyond that which is
conferred upon it by law.
[38]
In
SARFU
[39]
the Constitutional Court held that the principle of legality required
that the President must act personally, in good faith, and
without
misconstruing the nature of his power. The President should not only
exercise his powers in good faith and not arbitrarily,
but such
decision must also be rationally related to the purpose for which the
power was given.
[80]
Any action which fails to pass the threshold of rationality would be
inconsistent with the requirements of the Constitution
and therefore
unlawful. The Constitutional Court in
Pharmaceutical
Manufacturers
[40]
introduced an important injunction on the Courts: the setting of this
standard [however] does not mean that the Courts can or should

substitute their opinions as to what is appropriate for the opinion
of those in whom the power has been vested. As long as the
purpose
sought to be achieved by the exercise of public power is within the
authority of the functionary, and as long as the functionary’s

decision, viewed objectively is rational, a Court cannot interfere
with the decision simply because it disagrees with or considers
that
the power was exercised inappropriately.
[41]
[81]
The principles of legality has been developed jurisprudentially to
require that the exercise of power must not only be objectively

rational but must also be procedurally fair and substantively
reasonable. This expansion of the principle is tempered by a
practical
requirement that in determining what constitutes procedural
fairness in a given case, a court should be slow to impose
obligations
upon government which will inhibit its ability to make
and implement policy effectively.
[42]
[82]
In
Kannaland
Municipality v Minister for Local Government Environmental Affairs
and Development Planning in the Western Cape and Another
[43]
Traverso DJP, in dismissing an application to review and set aside a
MEC of Local Government’s refusal to remove a Municipality

Councillor in terms of item 14 (2) (e) of the Code of Conduct of
Councillors, held that intervening in the exercise of a discretion
of
this nature is narrowly circumscribed; and is limited to such grounds
as mala fide; ulterior motive and/or a failure to apply
one’s
mind; and in the light of a Constitutional right to just
administrative action these requirements now include rationality
and
reasonableness.
[44]
[83]
The principle of legality further requires that both the process by
which the decision is made and the decision itself must
be rational.
In the
Simelane
case, the Constitutional Court held that the requirements of
rationality are concerned in particular with, first, the distinction

between reasonableness and rationality and the relationship between
means and ends; secondly, whether the process as well as the
ultimate
decision were rational. In the third what would be the consequence
for rationality if relevant factors were ignored and,
lastly, the
relation between rationality and the separation of powers.
[45]
[84]
Reasonableness and rationality are two distinct concepts.
Reasonableness is generally concerned with the decision itself, while

rationality has to do with the reason for the decision. It was held
by the Constitutional Court in
Albutt
v Centre for the Study of Violence and Reconciliation and Others
[46]
that:
“
[51]
The executive has a wide discretion in selecting the means to achieve
its constitutionally permissible objectives. Courts may
not interfere
with the means selected simply because they do not like them, or
because there are other more appropriate means that
could have been
selected. But, where the decision is challenged on the grounds of
rationality, courts are obliged to examine the
means selected to
determine whether they are rationally related to the objective sought
to be achieved. What must be stressed is
that the purpose of the
enquiry is to determine not whether there are other means that could
have been used, but whether the means
selected are rationally related
to the objective sought to be achieved. And if objectively speaking
they are not, they fall short
of the standard demanded by the
Constitution. This is true of the exercise of the power to pardon
under section 84(2)(j).”
[85]
A Court must therefore look at the process as a whole and determine
whether the steps in the process were rationally related
to the end
sought to be achieved and, if not, whether the absence of a
connection between a particular step (part of the means)
is so
unrelated to the end as to taint the whole process with
irrationality
[47]
. A
rationality review therefore is really concerned with the evaluation
of a relationship between means and ends. The aim is not
to determine
whether some means will achieve the purpose better than others but
only whether the means employed are rationally
related to the purpose
for which the power was conferred. The decision of the President can
be successfully challenged only if
a step in the process bears no
rational relation to the purpose for which the powers were conferred
and the absence of this connection
will render the process as a
whole, and hence the ultimate decision, irrational.
[48]
[86]
The DA submitted that the only question the President had to ask
himself when called upon to decide whether to apply section
12 (6)(a)
was whether the allegations were serious enough to warrant that she
be suspended and investigated.  I do not agree
with the
simplistic view taken by the DA of the matter. The first problem with
this approach is that no real basis for this drastic
measure was
laid. The DA does not lay a basis for any real apprehension of harm
if Adv Jiba were to remain in office pending the
outcome of the GCB
application. There is no allegation that Adv Jiba is conducting, or a
real apprehension that she will conduct,
herself in a dishonest or
biased manner in the discharge of her duties.
[87]
The DA also does not allege that her presence currently affects the
effective functioning of the NPA. Even the allegations
that public
perception of the NPA is affected by her presence are not supported
by any objective and empirical facts. Similarly
the allegation that
the President failed to suspend her for an ulterior purpose, at best,
is pure speculation. There is no nexus
between the stance she took in
relation to the spy tapes and the allegation that the President has
an interest in retaining her
in her position so that she can continue
to act in the President’s own personal interest.
[88]
As the President correctly pointed out, in my view, has an important
responsibility entrusted upon him by section 12 (6)(a)
of the NPA
Act, which is not only to ensure that the NDPP and the DNDPP are fit
and proper people to lead the NPA but also to ensure
that this
important institution, underpinning our democracy, is allowed to
function properly and without undue interruption which
may be brought
about by unwarranted suspensions of key personnel. Unwarranted
suspension brought about by untested allegations
may disrupt the
smooth running of the institution. While the President is empowered
by section 12 (6)(a) to take swift action when
necessary to allay
concerns about the integrity  of the NPA or when the conduct of
the DNDPP is called into question, he however,
cannot do so without
due consideration for all the relevant factors and circumstances. In
this respect, he would call for, be guided
by and rely on people who
have intimate knowledge of the facts and their surrounding
circumstances. He will be in a better position
to exercise his
discretionary powers on receipt of appropriate advice.
[89]
Relevant factors which the President would consider would include
inter alia,
Adv Jiba’s response to the criticism which had been levelled
against her. Her response certainly brought about a different

perspective to the judicial and other criticism against her. I must
hasten to add that I do not, by any stretch of the imagination,

suggest that her response has lessened the severity of the criticism.
This has merely presented another side which the President
had to
take into consideration, and he said he did, did as in concluding
that it is best to await the outcome of the GCB application.
[90]
The DA argued that the fact that the GCB has launched an application
to have Adv Jiba removed from the roll of Advocates emphasise
the
fact that Adv Jiba’s conduct is so serious as to warrant
immediate suspension pending an investigation and that it should
not
be a reason for the President not to invoke the provisions of section
12 (6)(a). I agree that in certain circumstances that
should be the
immediate reaction: suspend and hold an enquiry. But the
circumstances of this case do not necessarily justify such
cause of
action.
[91]
The judicial criticism of Adv Jiba which is the reason why the DA
acted in order to protect the integrity of the NPA where
made in the
context of what the various Courts were gleaning from the papers
which were filed off record. The President, on the
other hand, was
not only dealing with the record of the various proceedings and the
comments made by the various judges but has
the benefit of Adv Jiba’s
response thereto as well as Adv Abrahams’ input on the state of
affairs in the NPA. All these
may have tipped the scales to the
extent that the President, in his wisdom and in the exercise of the
discretionary powers in terms
of section 12 (6)(a), deemed it
advisable to await judicial interpretation which can be achieved in
the GCB application. This in
my view is not an abdication of
responsibility by the President but a cautious approach dictated by
the circumstances. The circumstances
demanded that the President take
a balanced view.
[92]
It does not follow that immediately after the GCB application was
launched, the President was compelled to suspend Adv Jiba.
The
President must first satisfy himself that the circumstances justify
such a step. When one consider the peculiar circumstances
under which
the GCB came to be involved in the matter one cannot but agree that a
cautious approach is warranted. While the GCB
has been entrusted by
the legislature, in terms of section 7 of the Advocates Act,
[49]
to regulate the standards of the profession, and in my view, has,
indeed over the years fulfilled this role, it is not clear why
it
adopted a wait and see attitude until it was prompted by Adv Van
Rensburg of the NPA to apply for Adv Jiba’s removal from
the
roll of Advocates or why the application was not preceded by an
internal disciplinary hearing.
[50]
[93]
I should not be understood to be casting any aspersions on the GCB’s
decision to wait for months before it applied for
Adv Jiba’s
name to be removed from the roll of Advocates and making the decision
only after the request by Adv Van Rensburg,
when the criticism
against Adv Jiba had been in the public domain for months. All I am
saying is that it is not irrational for
the President, after
consideration of all the facts to resolve to wait for the outcome of
this application. The hesitation to move
for her striking off may be
for various reasons which are not apparent. This may be because Adv
Jiba is not a member of any Bar,
the GCB. This is an august body
which is entrusted with oversight responsibilities to the advocates’
profession and would
not have hesitated had the case for striking off
against Adv Jiba been so strong justifying action without being
prompted by the
NPA. All these, however, is pure speculation. Such
speculation may be removed when the application for her striking off
is finally
argued and the Court has given judgment. A judgment which
no doubt will guide the President as to how to act.
[94]
I therefore do not find it irrational for the President, in the
circumstances, to take the view that it is best to await the
outcome
of the GCB application which would provide a better guarantee for
ensuring the constitutional safeguards for all concerned.
[95]
Even if I am convinced that the President should have decided
otherwise, I am not at liberty to intervene. I can only intervene
if
it can be shown that the President exercised the power bestowed upon
him by section 12 (6)(a) of the NPA Act in a manner manifestly
at
odds with the purpose for which the power was conferred. This has not
been shown to be the case.
[96]
The DA argued further that it was incongruous that Adv Jiba would
demand an enquiry in terms of section 12 (6)(a) while the
President,
on the other hand took the view that it is best to put trust in the
GCB application. This is because, in my conclusion,
the President
took a considered independent decision while Adv Jiba pursued her own
cause which need not necessarily coincide with
that of the President.
Whether Adv Jiba by calling for an enquiry in terms of section 12
(6)(a) holds a different view than that
of the President is not the
issue. The only question is whether the President’s decision
was irrational. It would have been
irrational for example if the
President held a different view to that of Adv Abrahams and/or the
Minister who had furnished him
with the advice which ultimately
informed his decision.
[97]
Even if I am wrong in concluding that the President’s decision
to await the outcome of the GCB application was irrational
and
unlawful it does not follow that I am at liberty to usurp his powers
and order a suspension and the holding of an enquiry.
I am
constrained by the separation of powers doctrine which precludes me
from wading in an announcing my preferences. This doctrine
only
allows the Courts to infer with this constitutional arrangement on
rare occasions. I find that there would have been no compelling

reasons to substitute the President’s decision with this
Court’s order. This however, is only hypothetical as I have

come to the conclusion that the impugned decision was not unlawful or
irrational.
COSTS
[98]
The DA argued that in the event of this Court dismissing the
application it should not be mulcted with costs as this was not
a
spurious application but one brought in pursued of a constitutional
issue involving the principle of legality. It was also submitted
that
the matter was of considerable public interest. As the Constitutional
Court held in
Biowatch
Trust v Registrar, Genetics Resources
[51]
that when it comes to costs the primary consideration in
constitutional litigation must be the way in which a costs order
would
hinder or promote the advancement of constitutional justice.
The general rule in constitutional litigation is that unsuccessful

litigants ought not to be ordered to pay costs to the State. No doubt
this matter has the potential to enhance our constitutional

democracy.
[99]
People should not be discouraged from pursing constitutional claims
against the State for fear of being ordered to pay costs
if they were
to lose. As held by Constitutional Court in
Affordable Medicine
such orders may have an unduly inhibiting or chilling effect on other
potential litigants in this category. The only limitation
to this
general rule the Constitutional Court introduced was that this should
not be seen as a licence for litigants to challenge
the
constitutionality of statutory provisions in the Constitutional Court
no matter how spurious the grounds for doing do may be
or how remote
the possibility of success.
[100]
There is no reason, in my view, why this sound principle regarding
the costs in constitutional litigation should not apply
equally where
the challenge is to the exercise of statutory powers by
functionaries. This however should not be seen as a
carte
blanche
to turn the courts into a
battle field to settle political scores or into an arbiter of
political disputes which should be debated
an settled in the
appropriate forum. A challenge does not gain constitutional
legitimacy merely because it is a challenge to the
incumbent at the
helm of the administration of the country for real or perceived
illegitimacy to be in charge. We live in a democratic
state where the
will of the majority expressed in general election would inevitably
determine who seats at the top of the administration
of the State or
is removed by legitimate means. I am satisfied, however, that this
matter was of considerable public interest as
it involved the
exercise of statutory powers by the Head of State. For this reason I
decline to make a costs order.
[101]
The order of this Court is as follows:
1.
the application is dismissed; and
2.
no order as to costs is made.
M
J DOLAMO
HIGH
COURT JUDGE
[1]
Act
32 of 1998.
[2]
The
two points
in
limine
are
lack of jurisdiction and
lis
alibi pendens
.
[3]
[2006] ZACC 11
;
2006
(6) SA 416
(CC).
[4]
Doctors
for Life
n 3 at para 17.
[5]
2000
(1) SA 1
(CC).
[6]
2009
(5) SA 345
(CC) at para 37.
[7]
Section
84(2) of the Constitution provides: “
(2)
The President is responsible for- (a)   assenting to
and signing Bills; (b)   referring a Bill
back to the
National Assembly for reconsideration of the Bill's
constitutionality; (c)   referring a Bill to the

Constitutional Court for a decision on the Bill's constitutionality;
(d)   summoning the National Assembly, the
National
Council of Provinces or Parliament to an extraordinary sitting to
conduct special business; (e)   making
any
appointments that the Constitution or legislation requires the
President to make, other than as head of the national executive;

(f)   appointing commissions of inquiry;(g)   calling
a national referendum in terms of an Act
of Parliament;
(h)   receiving and recognising foreign diplomatic
and consular representatives; (i)   appointing

ambassadors, plenipotentiaries, and diplomatic and consular
representatives;(j)   pardoning or reprieving
offenders
and remitting any fines, penalties or forfeitures; and
(k)   conferring honours.”
[8]
2013
(11) BCLR 1241
at paras 12 and 14.
[9]
Freedom
Under Law (RF) NPC v National Director of Public Prosecutions and
Others
(89849/2015) [2015] ZAGPPHC 759 (19 November 2015) as per Prinsloo
J. Part B is pending
[10]
Act
8 of 1947.
[11]
See
LTC Harms
Amlers
Precedents of Pleadings
(7
th
ed, 2009) at pp 263-264 and the authorities quoted.
[12]
The
respondents found support for this proposition in the SCA judgment
of Nugent AJA (as he then was) in
Nestlé
(South Africa) Pty Ltd v Mars Inc
2001
(4) SA 542
(SCA) at par 16 when he held that
:
“
The
defence of lis alibi pendens shares features in common with the
defence of res judicata because they have a common underlying

principle, which is that there should be finality in litigation.
Once a suit has been commenced before a tribunal that is competent

to adjudicate upon it, the suit must generally be brought to its
conclusion before that tribunal and should not be replicated
(lis
alibi pendens). By the same token the suit will not be permitted to
be revived once it has been brought to its proper conclusion
(res
judicata). The same suit, between the same parties, should be
brought only once and finally.”
[13]
Freedom
Under Law n 10 above.
[14]
Reported
as
2014 (1) SA 254
(GNP).
[15]
Her
full explanation is set out infra where I deal with her response to
the GCB application.
[16]
See
National
Director of Public Prosecutions and Others v Freedom Under Law
2014
(4) SA 298
(SCA) at para 51.
[17]
Democratic
Alliance and Others v Acting National Director of Public
Prosecutions
2012 (3) SA 486
(SCA).
[18]
Zuma
v Democratic Alliance and Others
[2014]
4 ALL SA 35 (SCA).
[19]
2014
(9) SACR 556
(KZD).
[20]
121
of 1998.
[21]
Booysen
n
19 at para 34.
[22]
In
dealing with the authority of Van Rensburg to establish the Yacoob
Committee, Adv Jiba stated that Adv Van Rensburg occupied
the
position of a Deputy Director of Public Prosecution, appointed in
terms of the NPA Act, to exercise such functions as may
be
determined by the NDPP and was not the Chief Executive Officer (CEO)
though she had designated herself as such. She also submitted
that
Adv Van Rensburg lacked the authority to establish any committee to
investigate her.
[23]
2013
(1) SA 248
(CC).
[24]
2011
(3) SA 347
(CC) at para 207.
[25]
The
GCB application and FUL application as mentioned
supra
.
[26]
74
of 1964.
[27]
Which
requires that the NDPP may review a decision to prosecute or decline
to prosecute after consulting the relevant Director
and taking
representation within the specified period from the accused person,
the complainant and any other person or party
who the NDPP consider
to be relevant.
[28]
Act
75 of 1996.
[29]
DA
case  n 18 above.
[30]
In
the decision of the SCA in
Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another
2011
(1) SA 8
(SCA) recognised that : “
Affidavits
are settled by legal advisers with varying degrees of experience,
skill and diligence and a litigant should not pay
the price for an
adviser’s shortcomings. Judgment on the credibility of the
deponent, absent direct and obvious contradictions,
should be left
open.”
[32]
2006
(1) SA 116
(C) at para 11.
[33]
2008
(3) SA 294
(SCA).
[34]
Van
Zyl
n
32 at para 55.
[35]
2015
(2) SA 154
(SCA).
[36]
Beauvallon
n
34 at paras 19 and 27.
[37]
Beauvallon
n
34 at para 16.
[38]
See
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para 58.
[39]
SARFU
n 5 at paras 148 and 149.
[40]
Pharmaceutical
Manufacturers Association of South Africa and Another: In Re Ex
Parte Parte President of the Republic of South
Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674.
[41]
Pharmaceutical
Manufacturers
n
39.
[42]
See
Premier,
Mpumalanga and Another v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal
1999 (2) SA 91
(CC) at
para
41.
[43]
(20763/13)
[2014] ZAWCHC 42
(24 March 2014).
[44]
Kannaland
n
42 at para 39.
[45]
See
Simelane
n
23 at para 12.
[46]
2010
(3) SA 293
(CC) at para 51.
[47]
See
Simelane n 23 at para 37.
[48]
See
Simelane
n 23 at para 37.
[49]
Act
74 of 1964.
[50]
As
was the case in the
Simelane
matter, for example.
[51]
2009
(6) SA 232
(CC) at para 23.