About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2017
>>
[2017] ZAWCHC 146
|
|
Heath v President of the Republic of South Africa (14440/2016) [2017] ZAWCHC 146; [2018] 1 All SA 740 (WCC) (6 December 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 14440/2016
In
the matter between:
WILLEM
HENDRIK
HEATH
Applicant
and
THE
PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA
First
Respondent
THE
MINISTER OF JUSTICE AND CONSTITUITIONAL
DEVELOPMENT
Second
Respondent
JUDGMENT
DELIVERED ON WEDNESDAY 6 DECEMBER 2017
GAMBLE,
J:
INTRODUCTION
[1]
Mr. Willem Hendrik Heath was appointed a
judge of the erstwhile Transvaal Provincial Division of the Supreme
Court of South Africa
on 1 March 1988. Very soon thereafter, Mr.
Heath was seconded to the erstwhile Ciskei Supreme Court which sat at
Bisho in the former
Bantustan of Ciskei. It was in that court that he
served his time as a sitting judge. On 29 May 2001 Mr. Heath tendered
his resignation
as a judge of the High Court to the erstwhile
President of the Republic of South Africa, Mr. Thabo Mbeki, and
thereafter pursued
a career in the private sector through a
consultancy known as “
Heath
Executive Consulting CC”.
[2]
On 16 August 2016 Mr. Heath launched the
present application to effectively undo his resignation as a judge
more than 15 years before.
He seeks to do so on the basis of judicial
review at common law and he intentionally eschews the provisions of
the Promotion of
Administrative Justice Act, 3 of 2000 (“PAJA”).
The obvious question that springs to mind is “
Why
now, after all these years?”
To
answer that question, to which I shall return later, it is necessary
to have regard to the factual background to this application.
APPOINTMENT
TO THE SPECIAL INVESTIGATING UNIT
[3]
In June 1995 the erstwhile Premier of the
Eastern Cape, Mr. Mhlaba, appointed Mr. Heath to head up a special
commission of enquiry
into fraud, corruption and maladministration in
that province. It became known colloquially as “
the
Heath Commission”
and Mr. Heath
acquired a high profile in the media as a person dedicated to the
elimination of all forms of State corruption and
maladministration.
[4]
In 1996 Parliament passed the Special
Investigation Units and Tribunals Act, 74 of 1996 (“
the
SIU Act”).
This legislation
envisaged a specialized court (“
a
Tribunal
”) presided over by
sitting judges of the High Court whose function it was to request the
President, from time to time and
as the need arose, to issue
proclamations authorizing investigations to be conducted under the
SIU Act by the Special Investigations
Unit (“
the
SIU”
). Given his track record
with the Heath Commission in the Eastern Cape, Mr. Heath was a
natural choice for the position of head
of the SIU when appointed to
that office by former President Mandela in 1997. Between 1997 and
2000, Mr. Heath successfully conducted
various investigations under
the auspices of the SIU.
[5]
In
2000 Mr. Heath was approached by Ms. Patricia de Lille (then a
sitting Member of Parliament and today the Mayor of the City of
Cape
Town) as a whistle-blower with information regarding allegations of
corruption in relation to the acquisition by the Government
of the
day of large quantities of weaponry for the South African National
Defence Force
[1]
.
Mr. Heath approached President Mbeki and requested a proclamation to
enable the SIU to investigate Ms. de Lille’s complaint.
The
President refused and both parties were unhappy with the situation:
the Head of the SIU believed an investigation of such magnitude
was
pre-eminently a task for his Unit, while the President said that he
was more than happy with the multitude of other investigations
that
were already in place into the Arms Deal.
THE
SAAPIL JUDGMENT
[6]
In March 1999 the SIU was mandated to
investigate the affairs of certain personal injury lawyers who were
accused of fleecing the
public purse in making extravagant claims
against the Road Accident Fund. A group of these lawyers did not take
kindly to any investigation
into their sources of income and formed a
voluntary association known as the “
South
African Association of Personal Injury Lawyers” (“SAAPIL”).
SAAPIL then went on the offensive and
approached first the High Court in Pretoria, and ultimately the
Constitutional Court, for
relief which attacked the very heart of the
SIU. It was claimed that the position of a sitting judge as the head
of the SIU was
inconsistent with the Constitution, in particular
because it undermined the independence of the judiciary and trenched
upon the
separation of powers principle.
[7]
The
erstwhile President of the Constitutional Court, Justice Chaskalson,
delivered the unanimous judgment of the Court on 28 November
2000 and
upheld SAAPIL’S argument.
[2]
The court held,
inter
alia,
that
the functions that the Head of the SIU was required to perform were
executive functions ordinarily performed by the police
and
prosecuting authorities. Accordingly, it found, those functions were
“
far
removed” from the ‘central mission of the Judiciary’
” and
created the potential for a sitting judge to have to take
instructions from the Presidency and the Executive. It is axiomatic
that such a situation would undermine the separation of powers
principle and the complete independence of the Judiciary.
[8]
Mr. Heath says in this application that the
SAAPIL
judgment
was a cause of great personal crisis in his life. The Constitutional
Court had held that the SIU could not be headed by
a judge and gave
the Legislature a year to amend the SIU Act, but until that time, Mr.
Heath could continue in his position as
head of the SIU. Thereafter,
he could no longer serve as head of the SIU and remain a sitting
judge. Mr. Heath could, of course,
retain his judicial office and
return to the High Court Bench but for reasons which I will deal with
later, he decided that that
was not an avenue which he wished to
follow. In the result, Mr. Heath says he decided to explore
relinquishing his judicial office
in order that he could continue
holding his position as Head of the SIU.
JUDGES’
REMUNERATION AND CONDITIONS OF EMPLOYMENT ACT
[9]
Judges
are not employed like ordinary civil servants or private sector
workers. They hold office under a statute known as the Judges’
Remuneration and
Conditions
of Employment Act, 47 of 2001 (“
the
Judges’ Act”)
[3]
,
and
their removal from office is strictly controlled by that statute:
this is one of the cornerstones of the independence of the
Judiciary
and intended to preclude the dismissal of judges from office for
reasons, for example, of political expediency.
[10]
In the circumstances, when judges (other than Constitutional Court
judges) reach what would generally be regarded as the age
of
retirement
[4]
, they are entitled
to be “
discharged”
from active service without more in terms of s3(2) of the current
Judges’ Act
,
while the discharge of Constitutional Court judges is governed by
s3(1) thereof. Under the 1989 Act no distinction was drawn between
the discharge of Constitutional Court judges and other judges, all of
whom qualified for discharge from active service under s3(1)
of that
act.
[11]
S3(1) of the old Judges’ Act (like s3(2) of the current act)
contemplated discharge from judicial office with the sanction
of the
President in 2 discrete scenarios. Firstly, under s3(1)(c) provision
was made for the discharge by the President of a judge
who had become
“
afflicted
with a permanent infirmity of mind or body which [rendered] him
incapable of performing his official duties.”
Secondly,
in terms of s3(1)(d) a judge could
“
at any
time on his request and with the approval of the President be
discharged from active service if there [was] any reason which
the
President [deemed] sufficient.”
[12]
Mr. Heath evidently requested President Mbeki to grant his discharge
from active service in terms of s3(1)(d). Inexplicably,
the request
to the former President (said to have been contained in a letter
dated 3 April 2001) is not included in the papers
before this court.
Nevertheless, the basis therefor appears in broad outline from a
letter written by President Mbeki on 17 May
2001 to Mr. Heath’s
former attorney.
“
Dear Mr.
de Klerk
I have had the opportunity to
consider Judge Heath’s request to be discharged from active
service as a judge in terms of the
provisions of section 3(1)(d) of
the Judges’ Remuneration and Conditions of Employment Act, 88
of 1998 (sic).
The reason advanced by Judge Heath
for this request is that his role as a judge has been compromised by
his appointment as the Head
of the Special Investigating Unit (SIU).
I do not believe that Judge Heath’s
sojourn at the SIU has compromised his standing as a judge. The
decision of the Constitutional
Court you referred to, does not
suggest that Judge Heath should not resume his duties on the bench.
I have taken the liberty of
consulting the President of the Constitutional Court and the Acting
Chief Justice on this matter.
Accordingly, I do not grant Judge
Heath a discharge from active service as a judge.
Yours sincerely,
TM MBEKI”
THE
MOTIVATION FOR REQUESTING A DISCHARGE FROM OFFICE
[13]
In the founding affidavit Mr. Heath gives some background to his
request for discharge made to President Mbeki. Central to
the
request, he says, was the judgment of the Constitutional Court in
SAAPIL.
“
14. The
order of the Constitutional Court declaring that my position as head
of the SIU was inconsistent with the central mission
of the Judiciary
called for some deep reflection on my part. In essence, all the
parties involved had to take steps in order to
ensure that judicial
independence was not undermined. Parliament was given an opportunity
to pass appropriate legislation and the
executive had to ensure that
the position of Head of the SIU was not headed by a member of the
judiciary. I was deeply concerned
about the findings of the
Constitutional Court that I had been appointed to a position that was
inconsistent with my primary duties
as a judge. What these findings
meant was that the work I had done for three years as Head of the SIU
had fundamentally been inconsistent
with my duties as a judge - which
is primarily to uphold judicial independence. I held and still hold
the principle of judicial
independence to be sacrosanct to any
functioning system and rule of law. It is key to the legitimacy of
the (sic) judicial office.
Following deep reflections on the findings
of the Constitutional Court I came to the unhappy conclusion that it
was no longer desirable
for me to remain in active judicial service.
President Mandela’s appointment of me to head the SIU had
eroded my standing
as an independent and impartial judge. I believe
that the judgment and order were binding on me and where it had been
found that
I had acted in a manner that compromised the independence
of the judiciary I (sic) was required that I take steps that would
not
place me in active service….
16. The findings
of the Court required that I take time to consider what was necessary
and important in order to protect judicial
independence. The
implications of the judgment on me as a Judge were far-reaching and
as I consulted widely, it became clear that
a discharge from active
service was the only way I could act in order to protect judicial
independence. A discharge meant that
I was allowed to leave the (sic)
judicial office with my benefits
[5]
.
17. After an
agonising reflection of (sic) my position, I addressed a letter to
the then President Mbeki, in which I set out my
request for discharge
from active service. I attach a copy of my letter to the President as
“WH 2”.
[6]
Before I explain this letter, let me state that, following the
judgment of the Constitutional Court, I had approached the President
and the then Minister of Justice and Constitutional Development for a
solution (sic) the predicament created by the invalidation
of my
appointment to the SIU. I suggested that I could remain the Head of
the SIU and resign my position as a judge. I considered
that this
would be a fitting solution to achieving the objectives of the SIU.
Both the President and the Minister of Justice and
Constitutional
Development did not accept my proposal. It appeared that they wanted
me to return to my judicial office irrespective
of the order and the
findings of the Constitutional Court on my appointment. What made
things worse for me were comments made by
the President about my work
as Head of the SIU that called into question my integrity. The
adverse and extremely damaging remarks
made by the President about me
and the work of the SIU left me with no chance of pursuing my
judicial career with the dignity and
credibility that I had done so
(sic) prior to my appointment to head the SIU.
18. My
assessment of the facts was that I could not return to the bench in
light of the judgment. I considered my benefits as a
judge and
decided that the only option for me was to address a request to the
President for my discharge from active judicial service,
in terms of
the provisions of section 3(1)(d)…
19. Given the
adversarial treatment that I was facing under President Mbeki, I
decided to request my attorneys to address a letter
requesting my
discharge from active judicial service. I expressed the view that the
findings of the Court required that I am (sic)
discharged from active
judicial service. I was also of the view that the President would
consider my request with due regards to
the requirements of judicial
independence, my appointment to head the SIU and my benefits as a
judge. In circumstances where the
executive had compromised me as a
judge, I was convinced that President Mbeki would consider my request
for discharge favourably.
I believed that a decision to discharge me
from active judicial service would be consistent with the
requirements of judicial independence
and that the President was
enjoined to take a decision consonant with that principle. I was
shocked when President Mbeki disagreed
with the judgment of the
Constitutional Court that my appointment to the SIU had compromised
me as a judge. His refusal to discharge
me from active judicial
service forced me to resign. I do not believe that his decision was
done in defence of judicial independence.
I attach a copy of the
President’s letter refusing to approve my application for a
discharge as “WH 3”.
20. The
President disagreed with my reasons for seeking discharge from active
judicial service. With respect to the President, his
reasons for
rejecting my application failed to have regard to the principle of
judicial independence. Had he considered the reasons
for my request,
he would have discharged me from service with the consequence that I
would have received my benefits.
21. In any
event, the decision of the President to reject my request for
discharge was not only unlawful in that it was fundamentally
inconsistent with the duty of the executive to protect judicial
independence in terms of section 165 (5) of the Constitution, it
was
also irrational in that it failed to consider all the facts relevant
to my appointment to the SIU.”
[14]
The thrust of the case in the founding affidavit then is that Mr.
Heath’s independence and integrity as a judge were
compromised
by the judgment in
SAAPIL
and that this precluded him
from returning to the Bench. While there is also mention of the fact
that President Mbeki had publicly
criticized Mr. Heath’s
interest in the Arms Deal while at the SIU during an address on
national television in Jan 2001, this
does not seem to play a major
role in his complaint. In the answering affidavit the respondents
suggest that Mr Heath has taken
the matter unnecessarily personally
and that there is nothing which precluded his return to the Bench in
2001. It is therefore
necessary to consider precisely what the
Constitutional Court held.
[15]
In delivering the judgment in
SAAPIL
,
Justice
Chaskalson was cautious not to cast any aspersions on Mr. Heath which
suggested that his conduct as Head of the SIU was
anything but
bona
fide
and exemplary. The Learned Justice emphasized the need for
legislative interference in the structure of the SIU Act to enable
the
unit to take its place in a constitutional dispensation which
guaranteed the independence of the Judiciary.
“
[24]….
The present case is concerned not with the intrusion of the Executive
into the judicial domain, but with the assignment
to a member of the
Judiciary by the Executive, with the concurrence of the Legislature,
of functions close to the ‘heartland’
of executive power…
[26] The
separation required by the Constitution between the Legislature and
Executive, on the one hand, and the courts, on the
other, must be
upheld, otherwise the role of the courts as an independent arbiter of
issues involving the division of powers between
the various spheres
of government, and the legality of legislative and executive action
measured against the Bill of Rights and
other provisions of the
Constitution, will be undermined. The Constitution recognises this
and imposes a positive obligation on
the State to ensure that this is
done. It provides that courts are independent and subject only to the
Constitution and the law
which they must apply impartially without
fear, favour or prejudice. No organ of State or other person may
interfere with the functioning
of the courts and all organs of State,
through legislative and other measures, must assist and protect the
courts to ensure their
independence, impartiality, dignity,
accessibility and effectiveness….
[35] The fact
that it may be permissible for Judges to perform certain functions
other than their judicial functions does not mean
that any function
can be vested in them by the Legislature. There are limits to what is
permissible. Certain functions are so far
removed from the judicial
function that to permit Judges to perform them would blur the
separation that must be maintained between
the Judiciary and other
branches of government. For instance, under our system a judicial
officer could not be a member of a legislature
or cabinet, or a
functionary in government, such as the commissioner of police. These
functions are not ‘appropriate to the
central mission of the
judiciary’
[7]
.
They are functions central to the mission of the Legislature and
Executive and must be performed by members of those branches
of
government.
[36] The first respondent has not
intruded into the affairs of the Executive at his own instance. The
Legislature made provision
for the appointment in the Act and the
Executive, through the President, requested the first respondent to
accept the appointment.
I have no doubt that in accepting the
appointment the first respondent acted in what he perceived to be the
national interest.
The fact, however, that all involved acted in good
faith and in what they perceived to be the interests of the country
does not
make lawful legislation or conduct that is inconsistent with
separation of powers required by the Constitution….
[38] I accept that it is important
that the head of the SIU should be a person of integrity. But Judges
are not the only persons
with that attribute. The functions that the
head of the SIU has to perform are executive functions that under our
system of government
are ordinarily performed by the police, members
of the staff of the National Prosecuting Authority or the State
Attorney. They
are inconsistent with judicial functions as ordinarily
understood in South Africa…
[45] The functions that the head of
the SIU is required to perform are far removed from ‘the
central mission of the Judiciary’.
They are determined by the
President, who formulates and can amend the allegations to be
investigated. If regard is had to all
the circumstances, including
the intrusive quality of the investigations that are carried out by
the SIU, the inextricable link
between the SIU as investigator and
the SIU as litigator on behalf of the State, and the indefinite
nature of the appointment which
precludes the head of the unit from
performing his judicial functions, the first respondent’s
position as head of the SIU
is, in my view, incompatible with his
judicial office and contrary to the separation of powers required by
Constitution.
[46] Under our Constitution, the
Judiciary has a sensitive and crucial role to play in controlling the
exercise of power and upholding
the Bill of Rights. It is important
that the Judiciary be independent and that it be perceived to be
independent. If it were to
be held that this intrusion of a Judge
into the executive domain is permissible, the way would be open for
Judges to be appointed
for indefinite terms to other executive posts,
or to perform other executive functions which are not appropriate to
the ’central
mission of the Judiciary’. Were this to
happen the public may well come to see the Judiciary as being
functionally associated
with the Executive and consequently unable to
control the Executive’s power with the detachment and
independence required
by the Constitution. This, in turn, would
undermine the separation of powers and the independence of the
judiciary, crucial for
the proper discharge of functions assigned to
the Judiciary by our Constitution. The decision, therefore, has
implications beyond
the facts of the present case and states a
principle that is of fundamental importance to our constitutional
order.”
[16]
I agree with the respondents that the judgment is in no way critical
of Mr. Heath personally. Rather, it seeks to stress the
incompatibility of the position of the Head of the SIU with judicial
independence – the very cornerstone of judicial office
-
and highlights the structural problem arising from the
purposive interpretation of a piece of legislation viewed
in its
constitutional context. In the result I do not believe that it can be
said that Mr. Heath’s standing as a judge was
in any way
compromised by the work he performed as head of the SIU.
[17]
Furthermore, one sees in the letter from President Mbeki refusing the
request for discharge an indication that he had consulted
Justice
Chaskalson and the erstwhile Acting Chief Justice, Judge Hefer, in
relation to the request. While Mr. Heath takes President
Mbeki to
task for consulting the very judge who had authored the
SAAPIL
judgment, I do not think that there was anything improper in
this contact. On the contrary, the fact that the President said that
he had taken the heads of the two apex courts in the Republic into
his confidence prior to making his decision to refuse Mr. Heath’s
discharge makes eminent sense. For, if there was any perception from
the side of the Judiciary that Mr. Heath had somehow been
tainted by
virtue of the office that he had held at the SIU and was not a fit
and proper person to serve on the Bench again, it
is fair to assume
that either (or both) of those erstwhile leaders in the Judiciary
would have expressed their disquiet to the
President and indicated
that such a move was undesirable.
THE
BASIS FOR CHALLENGING THE PRESIDENT’S DECISION
[18]
Adv. Masuku (who appeared with Adv. Long) for Mr. Heath argued that
the decision of President Mbeki to refuse to grant their
client a
discharge from judicial office in terms of s3(1)(d) of the Judges’
Act of 1989 failed to meet the constitutional
principle of legality.
They relied, in the main, on the well-known line of decisions from
the Constitutional Court in this regard
commencing with
Fedsure
and
SARFU.
[8]
Counsel
further submitted that, since the power exercised by President Mbeki
flowed directly from s176(2) the Constitution
[9]
,
his failure to grant the discharge as requested was executive in
nature rather than administrative.
[10]
[19]
The case for Mr. Heath was argued on the basis that the President
exercised his discretion in an unreasonable and irrational
manner and
that it falls to be reviewed on that ground alone. The argument goes
further to suggest that, although Mr. Heath’s
appointment as a
judge was terminated by his own act of resignation, he was left with
little choice to do so after the President
had refused to grant him a
discharge. In suggesting that the President had “
effectively
forced the Applicant off the bench by refusing to give him an early
discharge from active judicial service with all
the associated
benefits”
his
resignation was said to be “
similar
to a constructive dismissal”
in the employment law context. I am not certain that this comparison
is tenable outside of the provisions of the Labour Relations
Act, 66
of 1995 (“
LRA”)
[11]
in the light of the offer by the President that Mr. Heath resume his
duties as a judge and his subsequent informed decision to
resign, but
the issue does not call for determination in this application.
[20]
It is trite that a legality challenge falls outside of the ambit of
PAJA. In
Masethla
,
a matter which related to the
President’s power to terminate the employment of the Director
General of the National Intelligence
Agency, Moseneke DCJ (writing
for the majority) held that the power so exercised was executive in
nature and did not constitute
administrative action. It was
nevertheless subject to judicial review on the limited basis of
legality and rationality.
“
[76]
Section 85(2)(e) of the Constitution, in particular, stipulates that
the President exercises executive authority by performing
‘any
other executive function provided for in the Constitution or in
national legislation’. Furthermore, it is important
to
understand that s1 of PAJA expressly excludes, from the purview of
‘administrative action’, executive powers or
functions of
the President referred to in s85(2)(e). In other words presidential
decisions which constitute the exercise of executive
powers and
functions under s85(2)(e) are clearly not susceptible to
administrative review under the tenets of PAJA even if they
otherwise
constitute administrative action….
[78] This does
not, however, mean that there are no constitutional constraints on
the exercise of executive authority. The authority
considered must be
exercised lawfully, rationally and in a manner consistent with the
Constitution. Procedural fairness is not
a requirement. The authority
in s85(2)(e) of the Constitution is conferred in order to provide
room for the President to fulfill
executive functions and should not
be constrained any more than through the principle of legality and
rationality.”
[21]
I did not understand Adv. Dukada SC (who appeared with Adv. Rakgwale
for the respondents) to take issue with the submission
that the
present application is to be determined as a legality challenge.
Accordingly, it must be instituted in terms of Rule 53
of the Uniform
Rules of Court and the common law principles relevant thereto.
THE
UNREASONABLE DELAY RULE
[22]
As a review which falls outside of the ambit of PAJA, the common-law
delay rule applies in the instant case.
[12]
Accordingly, once the defence of undue delay is put up (as the
respondents have done here) it is incumbent upon an applicant for
review to persuade the court that the application has been brought
within a reasonable time of the impugned decision having been
made.
The court is then obliged to adopt a two phase approach: if it finds
that the delay is reasonable, that is the end of the
enquiry and the
review proceeds. But if it finds that the delay is not
reasonable, it will be required to determine whether
the delay should
be condoned. In
Ntame
Plaskett
J referred to the classic test formulated in this regard in
Wolgrooiers
[13]
.
[16]…..(F)irst, a court must
decide whether the proceedings were brought within a reasonable time
and, secondly, if not,
it must decide whether the unreasonable delay
ought to be condoned, in which event it must exercise a discretion
taking into account
all relevant factors (including, but not limited
to, prejudice to the respondent).”
[23]
In
Merafong
Cameron J explained the rationale for the
delay rule and the applicable test.
“
[73]…Whether
under PAJA, or legality review, [the applicant municipality] was
obliged to institute proceedings to review
the decision without
unreasonable delay. The rule against delay in instituting review
exists for good reason: to curb the potential
prejudice that would
ensue if the lawfulness of the decision remains uncertain. Protracted
delays could give rise to calamitous
effects. Not just for those who
rely upon the decision but also for the efficient functioning of the
decision-making body itself.
Had Merafong instituted a review
application, as it ought, the court hearing it would have had to
consider whether the delay precluded
its challenge.
[74] In
Khumalo
this court…… held that an assessment of a plea of undue
delay involves examining (i) whether the delay is unreasonable
or
undue (a factual enquiry upon which a value judgment is made in the
light of all the relevant circumstances); and if so (ii)
whether the
court’s discretion should be exercised to overlook the delay
and nevertheless entertain the application.”
[14]
[24]
Bearing in mind the importance of the question of prejudice to the
opposing party, as alluded to by the court in
Merafong
,
in
Tasima
[15]
the Constitutional Court urged courts to exercise caution when
considering delay, and the reasonableness thereof.
“
[160]
While a court ‘should be slow to allow procedural obstacles to
prevent it from looking into a challenge to the lawfulness
of the
exercise of public power’, it is equally a feature of the rule
of law that undue delay should not be tolerated. Delay
can prejudice
the respondent, weaken the ability of the court to consider the
merits of a review, and undermine the public interest
in bringing
certainty and finality to administrative action. A court should
therefore exhibit vigilance, consideration and propriety
before
overlooking a late review, reactive or otherwise.”
]25]
As to what constitutes a reasonable time generally for the
institution of review proceedings, one might look to the 180 day
period prescribed in PAJA as providing some notional starting point
since that is what the Legislature has deemed reasonable in
the
context of that act. But a court should not necessarily constrain its
discretion to that extent given that it is enjoined to
a look at a
variety of other factors to assess the reasonableness of going beyond
that period to accommodate an applicant’s
tardiness. As the
court pointed out in
Ntame
[16]
these factors might include
·
Ascertaining the terms and effect of the
decision;
·
Asking for reasons for the decision;
·
The time required to take advice from a
lawyer;
·
Making representations and attempting to
negotiate a compromise so as to avoid litigation;
·
Procuring copies of relevant documents;
·
Consulting with witnesses and obtaining
affidavits;
·
Placing one’s attorney in funds;
·
Preparing the papers and lodging and
serving same.
[26]
In the heads of argument filed on behalf of Mr. Heath, counsel dealt
extensively with the relevant principles in relation to
the delay
rule but the heads are rather opaque as to whether the intention was
to argue that a delay of some 15 years was reasonable.
However, in
argument before us Mr. Masuku quite candidly accepted (as of course
he was obliged to) that the delay was unreasonable.
To that I would
only add, grossly unreasonable, if regard be had to all the relevant
circumstances. After all, this was no ordinary
litigant oblivious to
the niceties of the law: Mr. Heath would have appreciated immediately
upon receipt of President Mbeki’s
letter of 17 May 2001 that he
had to take the matter on review, and then within a reasonable time,
if he wished to challenge the
refusal to grant him a discharge from
office. In
Associated
Institutions
[17]
the court stressed that applicants for review must avoid an attitude
of indifference and are duty bound to take the necessary steps
to
prosecute a review as soon as they become aware of the decision.
[27]
No doubt realizing that he was heading into stormy waters, counsel
changed tack and moved a late application for condonation
of the late
filing of the review papers. Such an application changes the scenario
to the extent that Mr. Heath must then offer
a full and complete
explanation for the delay
[18]
.
Importantly, what the application for condonation in this matter
unequivocally establishes is a concession by Mr. Heath that the
application for review is unquestionably late. It is therefore not
necessary for the court to make the first value judgment contemplated
in the
Wolgroeiers
test. The enquiry is limited to the second leg.
[28]
Since the application for condonation was not accompanied by a
separate affidavit but sought to rely on the papers before us,
we are
bound to have regard to the founding affidavit and establish what the
objectively ascertainable facts reveal. Recently in
Gijima
[19]
the Constitutional Court stressed the importance of a court
considering the reasonableness of delay to exercise its discretion
on
a firm factual footing.
“
[49] From
this, we can see that no discretion can be exercised in the air. If
we are to exercise discretion to overlook the inordinate
delay in
this matter, there must be a basis for us to do so. That basis may be
gleaned from the facts placed before us by the parties
or objectively
available factors.”
Accordingly,
it is to the founding papers that I turn to consider Mr. Heath’s
explanation for the unreasonable delay in instituting
this
application.
EXPLANATION
FOR THE DELAY.
[29]
Having dealt extensively with a host of facts said to be relevant to
the merits of the review, the question of delay is dealt
with by Mr.
Heath towards the end of the founding affidavit, and then almost in
passing.
“
[87] A
pertinent question which may arise is why I have delayed until now to
make this application. The reasons for this delay are
linked to my
view that a judge ought not to engage in matters that bring the
judiciary into political controversy. Following my
resignation, I had
to decide whether to bring an application against the President. This
application would have meant highlighting
issues that I had acquired
in the course of my work confidentially. I could not, having served
for 14 years (more than 13 years
as a judge) bring myself to bringing
an application that had the potential to embarrass the President and
draw into a political
controversy, the then President of the
Constitutional Court and Acting Chief Justice on the basis that
President Mbeki had allegedly
consulted him (sic) prior to denying me
the discharge that I required.
[88] I was alive
to the requirement that I act in a manner fitting a judge by not
launching proceedings that had the potential to
bring the
administration of justice into disrepute. The fact that the President
had acted unlawfully is self-evidence (sic) at
two levels. Firstly,
the alleged consultation with the President of the Constitutional
Court, who had authored the judgment which
had found against my
appointment to head the SIU, was in itself an irregularity. There is
no statutory basis for the President
to have consultant the author of
judgment for purposes of determining whether to discharge me or not.
Secondly, the President was
clearly acting in contravention of
section 85 (2) of the Constitution which requires that the President
‘exercise the executive
authority, together with the other
members of the Cabinet.’ “
[30]
The affidavit goes on to deal with the grounds of complaint against
the improper exercise by President of his executive powers
and then
picks up again with the following explanation in relation to the
delay point.
“
90. Any
litigation on (sic) this matter would have meant that the President
of the Constitutional Court and the President are called
as a
witness, with the possibility of cross examination on the contents of
the alleged meeting which transpired between him and
President Mbeki.
I considered this to be undesirable for the judiciary in South
Africa.
91. As a judge myself I would never
have wanted to embarrass the country’s Chief Justice in this
way and certainly would never
have wanted to be part of something
which could potentially have been damaging to the image and integrity
of the judiciary.
92. When President Mbeki refused my
application to him for the early retirement special discharge (sic),
I was forced to resign
for reasons which will be detailed
hereinafter. As a result of my resignation from the bench, I had lost
all my benefits to which
a retired judge is entitled in terms of the
Act. I therefore did not have the financial means to bring an
application to Court.
I do not wish to detail the financial
difficulties that I have endured as a consequence of the decision of
the former President
Mbeki, but these have had a debilitating effect
on my livelihood and that of my family.
93. I have since then and on a
number of occasions attempted to make representations and submissions
to the President and the former
Minister, but I have no idea whether
such submissions were received by them or whether my submissions were
considered.
94. Subsequent to my removal from
the SIU and forced resignation from the bench, I was appointed as
Special Adviser to the then
Minister of Justice and Constitutional
Development, Mr. Radebe. I raised this issue with the then Minister
but did not wish to
abuse the position of trust that I held with him.
I maintain that my resignation from the bench had been forced upon me
and that
there was a need to resolve the matter.”
Those
5 paragraphs are the sum total of the explanation put up in the
founding affidavit in relation to the question of delay which
Mr.
Heath thought “
may arise”.
In the replying
affidavit there is an attempt to shore up the delay argument but it
is trite that in motion proceedings such as
these, and particularly
where there is a delay of such a substantial time, the case is to be
fully advanced in the founding papers.
I shall accordingly summarise
the reasons put up and comment on the cogency thereof.
[31]
Firstly, it must be observed that, while obviously aware of the right
to review from the outset, there was a conscious decision
by Mr.
Heath not to resort to litigation. The primary explanation for that
decision is said to be that Mr. Heath did not wish to
cause
embarrassment to President Mbeki, Justice Chaskalson or Judge Hefer
by suggesting that they had acted improperly by discussing
the
application for discharge with each other. The explanation can
therefore be categorized as a political decision. With respect,
that
can hardly constitute a reason in light of the fact that when
ultimately lodged, the application for review would perforce
have the
potential to cause just such embarrassment. One might ask
rhetorically, is it being suggested that the application does
not
have the potential to cause embarrassment today to President Mbeki
and Judge Hefer, both of whom are still alive but no longer
active in
their respective offices?
[20]
[32]
Secondly, the suggestion by Mr. Heath that litigation would
necessarily have led to the calling of President Mbeki and Justice
Chaskalson as witnesses, with the prospect of cross examination of
each of them in relation to what was discussed at their alleged
meeting in relation to his application for discharge, evidences a
fundamental misunderstanding of the process of judicial review
conducted in terms of Rule 53, which is by way of application and
where oral evidence is a rarity.
[21]
But, even where oral evidence is sought by one of the parties, it
will only be granted in circumstances where there is a dispute
of
fact which was not anticipated at the outset.
[22]
In the context of the facts at hand, furthermore, it cannot be said
with any degree of certainty that Justice Chaskalson would
have made
an affidavit in a review brought within a reasonable time, or that
such affidavit would necessarily have drawn a dispute
of fact
warranting a referral to oral evidence.
[33]
Thirdly, Mr. Heath says that as a consequence of his resignation he
lost all benefits attaching to judicial office and did
not have the
financial means to bring a review application. He expressly chose,
however, not to take the court into his confidence
and provide any
details regarding his alleged financial difficulties. Importantly,
Mr. Heath does not provide any details of his
remuneration while with
Heath Consulting or as Special Advisor to Minister Radebe. In the
circumstances, it must be said that there
is insufficient evidence to
demonstrate why a delay of 15 years is justified on financial grounds
alone.
[34]
Finally, Mr. Heath refers to the fact that on a number of occasions
he made “
representations
and submissions to the President and former Minister”
[23]
and did not receive any replies thereto. It is not immediately clear
how this fact impacts on the unreasonable delay in lodging
this
review application but the complaint is in any event problematic in
light of a memorandum written to Minister Radebe on 1
December 2009
by the Chief State Law Adviser, Mr. Enver Daniels.
[35]
In that memorandum, which is annexed to Mr. Heath’s replying
affidavit, Mr. Daniels refers to a letter written to President
Zuma
by Mr. Heath dated 4 November 2009 in which he had submitted a
document entitled “
Reapplication: Special Discharge as a
Judge”.
Mr. Daniels explains in some detail to Mr. Radebe
why the “
reapplication”
was unsuccessful in light
of,
inter alia,
the provisions of the Judges’ Act of
2001. Yet in the replying affidavit, while attaching Mr. Daniels’
memorandum,
Mr. Heath implies that he has no knowledge of who
authored the request and says further that the contents of the
memorandum only
came to his attention while preparing the replying
affidavit. Given that the memorandum purports to respond directly to
a request
from Mr. Heath himself and is directed to the Minister to
whom Mr. Heath provided special advisory services, his claim in the
founding
affidavit that he did not know what became of his
“
representations and submissions”
is hard to
follow.
[36]
In the result, I am unable to find any proper explanation for the
failure to lodge the review application within a reasonable
time
after May 2001, nor is there any feasible explanation advanced by Mr.
Heath as to why he delayed for such an extended period
of time
thereafter. Finally, Mr. Heath provides no evidence regarding any
further developments or changed circumstances that occurred
in 2016
which persuaded him that the time was then ripe to lodge the
application. In other words, what it was that persuaded him
to
abandon his earlier political reservations.
[37]
Further, if one has regard to the objective facts that emerge from
the papers, it is evident that there is no basis for this
court to
consider condoning the filing of the application more than 15 years
after the event. For instance, attached to the founding
affidavit is
a letter of recommendation written in support of Mr. Heath by
President Nelson Mandela in 2002. That letter reflects
the
President’s understanding that
“
(i)n June
2001…[Mr. Heath] resigned as head of the [Special
Investigations] Unit and as a judge, so as to go into the private
sector. During the course of a meeting on 4 March 2002, he informed
me concerning his consultancy. One of the major activities
of Heath
Specialist Consultants is to persuade international investors to
invest money into South Africa. Part and parcel of this
operation is
an investigation… into the integrity of local businesses in
order to verify their bona fides and to reassure
the international
business community and potential investors…”
This
letter confirms the respondents’ assertion that Mr. Heath
willingly relinquished a position in public life in favour
of the
private sector and gave up his entitlement to judicial benefits in so
doing.
[38]
The answering affidavit filed on behalf of the respondents was
deposed to by Dr Cassius Lubisi who is described as “
the
Director
-
General
and Secretary of Cabinet of the Republic of South Africa.”
The first point raised by Dr Lubisi in opposition to the review is in
relation to the alleged prescription of the debt which Mr.
Heath
claims in this application.
[24]
It is said that the claim for arrear remuneration has prescribed and,
further, that Mr. Heath has not given the requisite notice
under the
Institution of Legal Proceedings Against Certain Organs of State Act,
40 of 2002
. The relief sought in prayer 5 is therefore said to be
time barred.
[39]
It is further pointed out by the respondents that Mr. Heath has been
remunerated during the past 15 years from various sources,
allegedly
handsomely
[25]
.
While Mr. Heath disputes the extent thereof in the replying
affidavit, it is not in issue that he has had the benefit of other
remuneration in the interim. This is problematic because judges are
precluded from receiving any remuneration other than in terms
of the
Judges’ Act of 2001 without the consent of the Minister of
Justice and Constitutional Development
[26]
.
It is correctly pointed out by the respondents that, whatever the
strength of the prescription argument may be, the provisions
of s2(6)
of the Judges’ Act of 2001 will be contravened if the relief
sought in prayer 5 is granted. Effectively Mr. Heath
will have
received remuneration to which he is not entitled as a judge, if the
primary relief is granted. Or to put it differently
through the use
of the vernacular, he will receive “
double
pay”,
with
the judicial remuneration coming at the expense of the taxpayer
.
[40]
In
Gijima
[27]
the Constitutional Court, with reliance on the
dictum
of
Cameron J in
Merafong
referred
to in [23] above, repeated that “
(t)he
reason for requiring reviews to be instituted without undue delay is
thus to ensure certainty and promote legality: time is
of utmost
importance.”
The
importance of that principle is more than adequately demonstrated in
the present matter. It was incumbent on Mr. Heath to have
approached
this court without undue delay to procure his benefits as a judge
discharged from active service before he embarked
on a new career in
the private sector. Having not done so, it will be well-nigh
impossible to unscramble the omlette at this stage
and separate Mr.
Heath’s legal remuneration from that which is proscribed.
[41]
In concluding his address Mr. Masuku resorted to a plea
ad
miseracordium
urging the court “
on bended knee and with
tears in [his] eyes”
(as he put it) to come to the
assistance of his client. That impassioned request by counsel really
summed up the case for Mr. Heath
in a nutshell – an application
lacking in first principles in which a delay of 15 years has not been
reasonably explained
by the applicant – and precious little
else to warrant its success.
[42]
In the circumstances, I am of the view that there is no factual basis
before us upon which this court can exercise its discretion
to
condone a very, very lengthy delay in the initiation of proceedings.
On the contrary, the granting of the relief sought in this
matter
will be prejudicial to the respondents, the public purse and the
image of the judiciary as a whole. Persons who willingly
tender their
resignation from the Bench, for whatever reason, must be held to
their solemn undertaking to vacate office lest the
public perceive
that different standards apply to those that hold that high public
office.
CONCLUSION
[43]
In the circumstances I would dismiss the application for condonation
and the application for the relief sought in prayers 1
to 5 of the
notice of motion and direct the applicant to pay the costs of both
applications, including the costs of 2 counsel.
__________________
GAMBLE,
J
DLODLO,
J:
THE
FOLLOWING ORDER IS MADE:
1.
The application for condonation is
dismissed.
2.
The relief sought in prayers 1 to 5 of the
notice of motion herein is refused.
3.
The applicant is to bear the costs of the
first and second respondents in both applications, such costs to
include the costs of
2 counsel where so employed.
_____________________
DLODLO,
J
BAARTMAN,
J;
I
agree
_____________________
BAARTMAN, J
[1]
The matter subsequently gained notoriety as “the Arms Deal”.
[2]
SA Association of Personal
Injury Lawyers v Heath and Others
2001
(1) SA 883 (CC)
[3]
The current Judges’ Act came into operation on 22 November
2001 and was preceded by an act of similar title, Act 88 of
1989,
which was in force at the time the events relevant to this matter
occurred.
[4]
The age in question varies depending, in the main, on a judge’s
length of service. It is not less than 65 years of age,
is generally
70, but can be as old as 75..
[5]
Effectively a salary for life (with annual increments where granted)
and, after 15 years’ service, a tax free gratuity
equal to
twice annual remuneration.
[6]
The annexure referred to is Mr Heath’s annotated draft of a
copy of his subsequent letter of resignation date 29 May 2011.
[7]
The phrase is taken from the judgment of Blackmun J in
Mistretta
v United States
[1989] USSC 9
;
488 US
361
(1989) at 388.
“
Congress
may delegate to the judicial branch non-adjudicatory functions that
do not trench upon the prerogative of another branch
and that are
appropriate to the central mission of the Judiciary.”
[8]
Fedsure Life Assurance Ltd
and Others v Greater Johannesburg Transitional Metropolitan Council
and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
2000 (1)
SA 1 (CC).
[9]
“
s176(2) Other judges
hold office until they are discharged from active service in terms
of an Act of Parliament.”
[10]
Masethla v President of the
Republic of South Africa and Another
2008 (1) SA 566 (CC)
[11]
In terms of s186(1)(e) the definition of “
dismissal”
includes the situation
where “
an employee
terminated employment with or without notice because the employer
made continued employment intolerable for the employee”
.
[12]
Ntame v MEC for Social
Development, Eastern Cape
2005 (6) SA 248
(E) at [14] – [17];
Khumalo
and Another v MEC for Education, KwaZulu-Natal
2014 (5) SA 579
(CC) at [94];
Merafong
City v Anglogold Ashanti Ltd
2017 (2) SA 211
(CC) at [73] – [74]
[13]
Wolgroeiers Afslaers (Edms)
Bpk v Munisipaliteit van Kaapstad
1978 (a) SA 13 (A) at 39C-D. See also
Camps
Bay Ratepayers and Residents Association and Others v Minister of
Planning, Culture and Administration, Western Cape and
Others
2001
(4) SA 958
(C) at 629H – 631D.
[14]
Citing with
approval
Gqwetha
v Transkei Development Corporation Ltd and Others
2006 (2) SA 603
(SCA) at [24] and [31]
[15]
Department of Transport v
Tasima (Pty) Ltd
2017(2)
SA 622 (CC) at [160]
[16]
At [17]
[17]
Associated Institutions
Pension Fund and Others v Van Ztl and Others
2005
(2) SA 302
(SCA) at [51]
[18]
Associated Institutions
Pension Fund and Others v Van Zyl and Others
supra
at [48].
[19]
State Information
Technology Agency SOC Ltd v Gijima holdings (Pty) Ltd
[2017] ZACC 40
(14 November 2017) at [49]
[20]
According
to Wikipedia Online Encyclopaedia,
Justice
Chaskalson retired as Chief Justice on 31 May 2005 and died on 1
December 2012, while President Mbeki resigned from office
on 24
September 2008. Volume 2002(6) of the South African Law Reports
records that Judge Hefer retired on 31 December 2002. He
is very
much alive and was recently interviewed on national television in
relation to a matter pending before the Supreme Court
of Appeal.
[21]
Cora Hoexter
Administrative Review in South Africa, 2
nd
ed at 525;
Ackermans Ltd v
Commissioner, South African Revenue Service
2015
(6) SA 364
(GP) at 374B
[22]
Hoexter
op
cit
at 526;
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1161-2
[23]
Although he
doesn’t identify them by name it would appear as if Mr.Heath
is referring to President Mbeki’s successor,
President Zuma,
and Minister Radebe.
[24]
In prayer 5 of the Notice of Motion, an order was sought directing
the Minister of Justice and Constitutional Development to
“
pay
the Applicant in accordance with the provisions of
section 5
of the
Judges’ Remuneration and Conditions of Employment Act 47 of
2001
from the date of his active discharge which is 29 May 2001 and
to implement all the rights pertaining to a Judge and to which a
Judge is entitled to (sic) in terms of the provisions of the said
legislation
. “
[25]
Aside from an allegation that he received a retainer from Heath
Consulting of at least R230 000 per month, it is suggested
by
the respondents that Mr Heath’s firm received “
a
payment of approximately
R18 500 000-00
over a period of three years for his investigations relating to the
late mining mogul, Brett Kebble”.
[26]
S2(6)
of Act 47 of 2001 provides that “
No
Constitutional Court judge or judge may, without the consent of the
Minister, accept, hold or perform any other office of profit
or
receive in respect of any service any fees, emoluments or other
remuneration apart from his or her salary and any amount which
may
be payable to him or her in his or her capacity as such a
Constitutional Court judge or judge."
[27]
At [44]