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[2012] ZASCA 15
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Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others (288/11) [2012] ZASCA 15; 2012 (3) SA 486 (SCA); [2012] 2 All SA 345 (SCA); 2012 (6) BCLR 613 (SCA) (20 March 2012)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 288/11
Reportable
DEMOCRATIC
ALLIANCE
…................................................................................
1
st
Appellant
RICHARD
MICHAEL MOBERLEY YOUNG
….....................................................
2
nd
Appellant
CCII
SYSTEMS (PTY) LTD
…..............................................................................
3
rd
Appellant
and
THE ACTING
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
…........
1
st
Respondent
THE HEAD
OF THE DIRECTORATE OF SPECIAL OPERATIONS
…...........
2
nd
Respondent
JACOB
GEDLEYIHLEKISA ZUMA
…..............................................................
3
rd
Respondent
Neutral
citation:
Democratic Alliance v The Acting National Director
of Public Prosecutions
(288/11)
[2012] ZASCA 15
(20 March 2012)
Bench
MPATI P, NAVSA, BOSIELO and TSHIQI JJA, and PLASKET AJA
Heard
: 15 FEBRUARY 2012
Delivered
: 20 MARCH 2012
Corrected
:
Summary
:
Decision by the office of the National Director of Public
Prosecutions to discontinue prosecution subject to constitutional
review
– the Democratic Alliance, a registered political party,
has locus standi to bring application to review – record of
decision is compellable.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
North Gauteng High Court
(Pretoria) (Ranchod J sitting as court of first instance).
1 In respect of all three issues between the first appellant and the
first and third respondents, the appeal is upheld with costs
and the
first and third respondents are ordered jointly and severally to pay
the first appellant’s costs, including the costs
attendant on
the employment of two counsel.
2 In respect of all the issues between the second and third
appellants and the first and third respondents the appeal is
dismissed
and the second and third appellants are ordered to pay the
first and third respondents’ costs jointly and severally,
including
the costs attendant on the employment of two counsel.
3 The order of the court below in respect of the application to
intervene remains unaltered, but the remainder is substituted as
follows:
'1 The issues raised for separate adjudication by the respondents are
determined as follows:
1.1 The respondents’ objection to the standing of the first
applicant in the review application is dismissed with costs including
the costs attendant on the employment of two counsel.
1.2 The first respondent’s decision of 6 April 2009 to
discontinue the prosecution of the third respondent is held to be
subject to review.
1.3 In the Rule 6(11) application the first respondent is directed to
produce and lodge with the Registrar of this Court the record
of the
decision. Such record shall exclude the written representations made
on behalf of the third respondent and any consequent
memorandum or
report prepared in response thereto or oral representations if the
production thereof would breach any confidentiality
attaching to the
representations (the reduced record). The reduced record shall
consist of the documents and materials relevant
to the review,
including the documents before the first respondent when making the
decision and any documents informing such decision.
1.4 The first and third respondents are ordered to pay the
applicant’s costs jointly and severally including the costs
attendant
on the employment of two counsel.’
4 The substituted order set out in para 1.3 above is to be complied
with within 14 days of date of this judgment.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NAVSA JA (MPATI P, BOSIELO and TSHIQI JJA, and PLASKET AJA
concurring):
Background
[1] This appeal does not concern the merits of a decision taken on 6
April 2009, by the first respondent, Mr Mokotedi Mpshe, the
then
Acting National Director of Public Prosecutions, to discontinue a
prosecution against the third respondent, Mr Jacob Zuma,
who is
presently the President of the Republic of South Africa, on
corruption charges.
1
Instead, it is about the correctness of decisions in relation to two
interlocutory matters and points
in
limine
, raised in
the manner described in successive paragraphs. In
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para
2 this Court described litigation between the National Director of
Public Prosecutions (NDPP) and Mr Zuma as having
had a ‘long
and troubled history’. Harms DP recorded that the law reports
are replete with judgments in that regard.
A brief summary of that
history as well as a description of Mr Mpshe’s initial
decision, in 2007, to indict Mr Zuma and,
of how Mr Zuma became
President of South Africa is set out in paras 3 to 7 of that
judgment. I do not intend to repeat it here.
I now turn to describe
how the present appeal arose.
[2] In April 2009 the Democratic Alliance (DA), a registered
political party and the official opposition in our national
parliament,
approached the North Gauteng High Court, by way of an
application, for an order reviewing, correcting and setting aside the
decision
to discontinue the prosecution, and declaring the decision
to be inconsistent with the Constitution of the Republic of South
Africa.
Thereafter, the DA required the first and second respondents
to deliver to the registrar of the high court, in terms of Rule 53(1)
of the Uniform Rules of Court, the record on which the impugned
decision was based, which included representations made by Mr Zuma
as
to why the prosecution should be discontinued.
[3] The prosecuting authorities refused to deliver the record, on the
basis that it contained the said representations, which had
been made
on a confidential and without prejudice basis. They pointed out that
Mr Zuma had declined to waive the conditions under
which he had
submitted his representations. Furthermore, the office of the NDPP
informed the DA that it intended to contest the
DA’s locus
standi in the review application and that it would assert that a
decision by the national prosecuting authority
to discontinue a
prosecution was not reviewable. The DA was informed that these issues
would be raised
in
limine
.
[4] This led to two interlocutory applications in the high court. In
the first, brought in terms of Uniform Rule 6(11),
2
the DA sought an order directing the first respondent to dispatch the
record of proceedings on which the decision to discontinue
the
prosecution was based, excluding the representations by Mr Zuma. In
addition the DA also sought an order directing that the
prosecution
authorities specify, by written notice, the documents or material
excluded from the record.
[5] In the second application, the second and third appellants, Mr
Richard Young and CCII Systems (Pty) Ltd (CCII), respectively,
brought an application for leave to intervene as second and third
applicants in the review application. CCII had been an unsuccessful
bidder in the arms procurement process. Mr Young is the sole and
managing director of CCII. In his affidavit, in the application
to
intervene, he recorded that the DA’s locus standi had been
challenged by the first and third respondents and stated the
following:
‘
[I]n
order to obviate any possible difficulties in this regard, CCII
Systems and I seek to intervene as Second and Third Applicants.
As
will become apparent from what follows below, there can be no serious
dispute about our standing.’
[6] Mr Young’s complaint was that CCII had lost out on its bid
in the arms procurement process ‘in highly questionable
circumstances’. He claimed that CCII had been ‘deselected’
in the category of acquisition of naval vessels. CCII
is a supplier
of specialised software and computer systems for defence applications
and its systems are intended to be a central
component of the combat
capability of naval vessels. In his affidavit in the application to
intervene Mr Young points out that
CCII was ousted as a bidder in
favour of a company associated with one that the national prosecuting
authority had contemplated
as a co-accused in the corruption case
against Mr Zuma. It appears from Mr Young’s affidavit that he
had complained about
CCII’s deselection to the Special
Investigation Unit, headed by the then Judge Heath. He also
complained to the office of
the Auditor-General and apparently to the
Public Protector. According to Mr Young a multi-agency investigation
of the arms procurement
process was established. That resulted in a
report to Parliament, which, inter alia, upheld his complaints
concerning the conflict
of interest on the part of Mr Chippy Shaik,
who was integral to the arms procurement process. A careful reading
of Mr Young’s
affidavit reveals that there is no direct
accusation involving corruption on the part of Mr Zuma in relation to
the ‘deselection’
of CCII in the arms procurement
process.
[7] In resisting these two interlocutory applications the first and
third respondents filed answering affidavits in which they
contested
the DA’s and the second and third appellants’ locus
standi in the review application. Predictably, issues
that impinge on
the merits of the review application were raised on behalf of the
respondents.
[8] The North Gauteng High Court (Ranchod J) rejected the submission
on behalf of the DA that the points
in limine
should be heard
after all the affidavits had been filed in the review application and
should be decided at the commencement of
that hearing. The high court
conflated the points
in limine
, which ought rightly to have
been heard at the commencement of the hearing of the review
application, with the issues to be decided
in the interlocutory
applications.
[9] Ranchod J accepted the submission, on behalf of the first
respondent, that a political party such as the DA did not have a
direct and substantial interest in the decision to discontinue the
prosecution. Ranchod J reasoned as follows:
‘
It
would be wrong on legal principle to contend that all members of the
public in South Africa have a direct and personal interest
sufficient
to clothe them with standing to seek the review and setting aside of
the NDPP’s decision. I do not think every
member of the public
can demonstrate, on the facts of this case, that the decision to
discontinue the prosecution of President
Zuma has a direct effect on
any of their rights – even in the extended sense in which the
Constitutional Court construed
direct and personal interest in
[
Kruger
v President of the Republic of South Africa & others
[2008] ZACC 17
;
2009
(1) SA 417
(CC) par 22 and 23].’
[10] Much time and effort was wasted in the high court and before us,
on debate about whether a decision to discontinue a prosecution
constititued administrative action in terms of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). The DA contended that
such a decision constituted administrative action in terms of PAJA.
The relevant part of the definition of administrative action
in s 1
reads as follows:
‘”
administrative
action
”
means
any decision taken, or any failure to take a decision, by –
(
a
) an organ of state,
when –
exercising a power in terms of
the Constitution or a provincial constitution; or
exercising a public power or
performing a public function in terms of any legislation; or
(
b
) …
which adversely affects the
rights of any person and which has a direct, external legal effect
but does not include –
(
aa
) …
(
bb
) …
(
cc
) …
(
dd
) …
(
ee
) …
(
ff
) a decision to
institute or continue a prosecution.’ (emphasis added.)
[11] Considering whether the DA had standing under PAJA, Ranchod J
said the following:
‘
PAJA
has not altered the common law requirements for standing to review
administrative action (except to the extent that PAJA has
imposed the
additional requirement that a review applicant must show that its
rights have been materially and adversely affected
by the impugned
administrative action).’
The learned judge concluded that the DA had not met this requirement.
[12] The DA, in asserting its right to bring the review application,
also relied on s 38 of the Constitution which provides
‘
Enforcement
of rights
–
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are–
(
a
) anyone acting in
their own interest;
(
b
) anyone acting on
behalf of another person who cannot act in their own name;
(
c
) anyone acting as a
member of, or in the interest of, a group or class of persons;
(
d
) anyone acting in the
pubic interest; and
(
e
) an association acting
in the interest of its members.’
[13] Turning to the standing of the DA under these provisions of the
Constitution, Ranchod J stated the following:
‘
It is
clear from the provisions of section 38 that it applies only in the
case of an enforcement of fundamental rights in the Bill
of Rights.'
The high court rejected the DA’s reliance on the equality
provision in s 9 of the Constitution,
3
to the effect that if a powerful and influential figure such as Mr
Zuma is shown to have avoided prosecution by reason of such
power and
influence, it undermined the right to equality of all citizens and
that consequently, it had standing in terms of s 38
on this account,
to pursue the application for review. In dealing with that submission
Ranchod J said the following:
‘
The
main application is not concerned with the enforcement of rights but
the review of administrative action on the grounds set
out in section
6 of PAJA, or on the grounds of legality in terms of section 1(
c
)
of the Constitution.’
[14]
Ranchod J also
rejected the submission that the right to just administrative action,
as contemplated in s 33 of the Constitution,
was infringed. This was
based on the judge’s view that a person bringing a review
application must show that he or she is
directly affected by the
impugned decision. Ranchod J took the view that the statement by the
DA, that the review brought into
question whether the decision to
discontinue the prosecution was in compliance with the rule of law,
was insufficient to clothe
it with standing.
[15] In the last part of the dictum referred to at the end of the
para 13 above, Ranchod J had regard to section 1(
c
) of the
Constitution, because of the DA’s alternative ground of review,
namely, the supremacy of the Constitution and the
rule of law.
Section 1(
c
) of the Constitution reads as follows:
‘
1.
Republic
of South Africa
–
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
(
a
) …
(
b
) …
(
c
) Supremacy of the
constitution and the rule of law.’
[16] Turning to the DA’s contention that the decision to
prosecute was liable to be set aside on the basis of a contravention
of the basic tenets of the rule of law, in that the national
prosecuting authority was obliged to follow legal prescripts and to
act strictly in accordance with the law and to treat all criminal
suspects equally, the high court said the following:
‘
For
purposes of standing, the enforcement of section 1(
c
)
of the Constitution is to be treated in the same way as challenges to
the constitutional validity of legislation brought on the
basis that,
as an abstract and objective proposition, the legislation in question
is inconsistent with the Constitution –
as opposed to
challenges based on infringements or threatened infringements of
rights in the Bill of Rights. A person bringing
such a constitutional
challenge has to show that he or she is directly affected by the
unconstitutional legislation. This was confirmed
by Ackermann J and
Chaskalson P in
Ferreira
v Levin and Others
[1996
(1) SA 984
(CC)]. They both concluded that an applicant in such
circumstances has to prove that he or she is directly affected by the
unconstitutional
legislation.’
[17] Based on all the reasoning set out above the high court
concluded that the DA had not provided any sustainable basis for its
contention that it had standing to bring the review application.
[18] In dealing with the application by Mr Young and CCII to
intervene, Ranchod J had regard to Uniform Rule 12, which provides:
‘
Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at
any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make
such order,
including any order as to costs, and give such directions as to
further procedure in the action as to it may seem meet.’
[19] Ranchod J considered submissions on behalf of Mr Young and CCII
that each had a sufficient interest in the decision to discontinue
the prosecution, in addition to the overwhelming public interest in
the outcome of the review application. The learned judge reasoned
that, as was the case with the DA, Mr Young and CCII must show that
they have a direct and substantial legal interest in the outcome
of
the review application in order to succeed with their application to
intervene. Ranchod J concluded that the entity whose interests
might
potentially have been affected in relation to the arms procurement
process was CCII and that Mr Young’s assertion that
he was the
original complainant had to be rejected. Having regard to the factual
assertions referred to in para 6 above and the
prosecution of a
certain Mr Schabir Shaik, the court below said the following:
‘
Except
for making the allegations at this level, there is no allegation
which indicates the manner in which the prosecution of third
respondent would vindicate any rights of Mr Young or CCII, or how it
would directly affect their legal rights. Once this is the
position,
the decision to discontinue the prosecution of third respondent could
not directly affect any of their legal rights.’
[20] Referring to the fact that CCII had reached a settlement with
government agencies in relation to its complaint concerning
its arms
procurement bid, the high court concluded that the result was that
CCII had no interest that could be affected by the
decision to
discontinue the prosecution.
[21] Consequently, Ranchod J dismissed the application to compel
production of the reduced record of the decision to continue the
prosecution as well as the application by Mr Young and CCII to enter
the fray as intervening parties. The DA and the parties seeking
to
intervene were ordered to pay the costs of the litigation including
the costs consequent upon the employment of two counsel.
It is
against those orders and the conclusions referred to above that the
DA and the other two appellants appeal with leave of
the court below.
Conclusions
[22] The issues that arise for determination in this appeal are: the
reviewability of the decision to discontinue Mr Zuma’s
prosecution; whether the first respondent is required to furnish the
record of his decision; the standing of the DA to challenge
the
decision; and whether Mr Young and CCII have standing as a
prerequisite of their application to intervene.
Reviewability
[23] The reviewability of a decision to discontinue a prosecution
lies at the heart of this appeal. It will be recalled that in
correspondence the NDPP’s office indicated that reviewability
of the decision in question and the question of standing were
issues
that it intended to raise at the outset. Furthermore, instead of
having those issues raised and argued in respect of the
main
application – the review application – the court below
enabled the first and third respondents to fuse them with
the issues
raised in the interlocutory applications.
[24] In order to adjudicate the reviewability question it is
necessary at the outset to reproduce part of the first respondent’s
answering affidavit to the DA’s application to compel
production of the record. The relevant parts read as follows:
’
50.
Prosecutorial decisions are not reviewable for rationality under PAJA
or the Constitution.
51. It is correct that under the
Constitution rationality is a minimum threshold requirement for all
exercises of public power.
Prosecutorial decisions involve the
exercise of public power.
52. ….
53. …
54. In the case of prosecutorial
decisions, the legislature has excluded prosecutorial decisions
(including decisions not to prosecute)
from the ambit of PAJA. This
means that such decisions cannot be reviewed on the ground of
rationality under PAJA.
55. It is not permissible or
desirable in the circumstances to go behind the exclusion in PAJA and
to rely on rationality under
the Constitution without challenging the
constitutionality of the exclusion from the ambit of PAJA of
prosecutorial decisions.
PAJA covers the ground and the legislature
has decided to exclude prosecutorial decisions from its ambit,
including decisions not
to continue criminal prosecutions as
submitted above. For the reasons that a PAJA review is unavailable, a
rationality review under
the Constitution is also unavailable. This
will be addressed further in legal argument.
56. There are other reasons why
it would be inappropriate to subject prosecutorial decisions to
judicial review on the ground of
rationality. Rationality review
requires an assessment of the presence or absence of a rational
connection between the decision
and the reasons given for it, as well
as a rational connection between the decision and the material
properly placed before the
decision maker. To conduct the assessment
a judicial officer must see and consider the material that was placed
before the decision
maker. In cases of decisions to discontinue
prosecution after the accused makes representations, such material
would include representations
made on a confidential and without
prejudice basis. But such information is privileged and cannot be
disclosed to a Court and third
parties. A rationality review cannot
be properly conducted in such circumstances. This is a justifiable
limitation under section
36 of the Constitution on the right to have
the exercise of public power reviewed for rationality. It serves an
important governmental
purpose. It facilitates full and frank
discussions and disclosures between the accused person and the
prosecutor in the interests
of the proper administration of justice.’
[25] In para 59 of his answering affidavit, Mr Mpshe stated that a
decision to prosecute or discontinue a prosecution could only
ever be
challenged in court on very narrow grounds, such as bad faith.
[26] It appears that in the court below the first respondent did not
persist in the contention that a decision to discontinue a
prosecution was not reviewable on the basis of a failure to comply
with the fundamental tenets of the rule of law. As indicated
above
Ranchod J dismissed that challenge on the basis that neither the DA
nor Mr Young nor CCII had standing, because they had
failed to show
that they were directly affected by the decision.
[27] Whilst there appears to be some justification for the contention
that the decision to discontinue a prosecution is of the
same genus
as a decision to institute or continue a prosecution, which is
excluded from the definition of administrative action
in terms of s
1(
ff
) of PAJA, it is not necessary to finally decide that
question. Before us it was conceded on behalf of the first and third
respondents
that a decision to discontinue a prosecution was subject
to a rule of law review. That concession in my view was rightly made.
As recently as 1 December 2011, in
Democratic Alliance v President
of the Republic of South Africa & others
2012 (1) SA 417
(SCA) this Court noted that the office of the NDPP was integral to
the rule of law and to our success as a democracy.
4
In that case this Court stated emphatically that the exercise of
public power, even if it does not constitute administrative action,
must comply with the Constitution. The Constitutional Court has
repeatedly emphasised this point.
[28] In
Affordable Medicines Trust & others v Minister of
Health & others
[2005] ZACC 3
;
2006 (3) SA 247
(CC)
(2005 (6) BCLR 529)
the
Constitutional Court, with reference to its earlier decision in
Fedsure Life Assurance Ltd & others v Greater Johannesburg
Transitional Metropolitan Council & others
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
(1998 (12) BCLR 1458)
, stated the following (para 49):
‘
The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law. The doctrine of legality, which is an incident of the
rule of law, is one of the constitutional controls
through which the
exercise of public power is regulated by the Constitution. It entails
that both the Legislature and the Executive
“are constrained by
the principle that they may exercise no power and perform no function
beyond that conferred upon them
by law”. In this sense the
Constitution entrenches the principle of legality and provides the
foundation for the control
of public power.’
[29] A most instructive case concerning constitutional control over
the exercise of public power is the decision of the Constitutional
Court in
Pharmaceutical Manufacturers Association of South Africa
& another: In Re Ex Parte President of the Republic of South
Africa
& others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
(2000 (3) BCLR 241).
It
is necessary to quote rather extensively from that judgment (paras
37-45):
'The exercise of public power
was regulated by the Courts through the judicial review of
legislative and executive action. This
was done by applying
constitutional principles of the common law, including the supremacy
of Parliament and the rule of law. The
latter had a substantive as
well as a procedural content that gave rise to what Courts referred
to as fundamental rights, but because
of the countervailing
constitutional principle of the supremacy of Parliament, the
fundamental rights could be, and frequently
were, eroded or excluded
by legislation.
Judicial review served the
purpose of enabling Courts, whilst recognising the supremacy of
Parliament, to place constraints upon
the exercise of public power.
It was a power asserted by the English courts as part of their
common-law jurisdiction. Our Courts
did the same and the development
of administrative law in South Africa was much influenced by the
developments in England. As a
result our Courts have frequently
sought guidance from English law on this subject.
According to
De
Smith, Woolf and Jowell
:
“
[T]he
standards applied by the courts in judicial review must ultimately be
justified by constitutional principles, which govern
the proper
exercise of public power in any democracy. This is so irrespective of
whether the principles are set out in a formal,
written document. The
sovereignty or supremacy of Parliament is one such principle, which
accords primacy to laws enacted by the
elected Legislature. The rule
of law is another such principle of the greatest importance. It acts
as a constraint upon the exercise
of all power. The scope of the rule
of law is broad. It has managed to justify – albeit not always
explicitly – a great
deal of the specific content of judicial
review, such as the requirements that laws as enacted by Parliament
be faithfully executed
by officials; that orders of court should be
obeyed; that individuals wishing to enforce the law should have
reasonable access
to the courts; that no person should be condemned
unheard and that power should not be arbitrarily exercised. In
addition, the
rule of law embraces some internal qualities of all
public law: that it should be certain, that is ascertainable in
advance so
as to be predictable and not retrospective in its
operation; and that it be applied equally, without unjustifiable
differentiation.
Other constitutional principles
are perhaps less clearly identified but nevertheless involve features
inherent in a democratic State.
These include the requirements of
political participation, equality of treatment and freedom of
expression.
A constitutional principle
achieves practical effect as a constraint upon the exercise of all
public power. Where the principle
is violated it is enforced by the
courts which define and articulate its precise content.”
To the same effect,
Boulle,
Harris and Hoexter
state
that:
“
The
basic justification for judicial review of administrative action
originates in the Constitution. In the constitutional State
there
are, by definition, legal limits to power, and the courts are
bestowed with judicial authority, which incorporates the competence
to determine the legality of various activities, including those of
public authorities."
This method of controlling
public power was not affected by the Constitutions of 1961 and 1983.
The 1961 Constitution provided in
specific terms that Parliament was
supreme and that no court had jurisdiction to enquire into or
pronounce upon the validity of
an Act of Parliament, other than one
relating to the entrenched language rights. The 1983 Constitution
also entrenched the supremacy
of Parliament, though it made provision
for courts to have jurisdiction in respect of questions relating to
the specific requirements
of the Constitution. This, however, has
been fundamentally changed by our new constitutional order. We now
have a detailed written
Constitution. It expressly rejects the
doctrine of the supremacy of Parliament, but incorporates other
common-law constitutional
principles and gives them greater substance
than they previously had. The rule of law is specifically declared to
be one of the
foundational values of the constitutional order,
fundament rights are identified and entrenched, and provision is made
for the
control of public power, including judicial review of all
legislation and conduct inconsistent with the Constitution.
Powers that were previously
regulated by the common law under the prerogative and the principles
developed by the courts to control
the exercise of public power are
now regulated by the Constitution. Thus, in the
President
of the Republic of South African and Another v Hugo
the
power of the President to pardon or reprieve offenders had to be
dealt with under s 82(1) of the interim Constitution, and not
under
the prerogative of the common law. In
Fedsure
,
the question of legality had to be dealt with under the Constitution
and not under the common-law principle of
ultra
vires
.
In
Sarfu 3
the President’s power to
appoint a commission and the exercise of that power had to be dealt
with under s 84(2) of the 1996
Constitution and the doctrine of
legality, and not under the common-law principle of prerogative and
administrative law.
In the
Container
Logistics
case it was
said:
“
No
doubt administrative action which is not in accordance with the
behests of the empowering legislation is unlawful and therefore
unconstitutional, and action which does not meet the requirements of
natural justice is procedurally unfair and therefore equally
unconstitutional. But, although it is difficult to conceive of a case
where the question of
legality
cannot
ultimately be reduced to a question of
constitutionality
,
it does not follow that the common-law grounds for review have ceased
to exist. What is lawful and procedurally fair within the
purview of
s 24 is for the Courts to decide and I have little doubt that, to the
extent that there is no inconsistency with the
Constitution, the
common-law grounds for review were intended to remain intact.”
…
Courts no longer have to claim
space and push boundaries to find means of controlling public power.
That control is vested in them
under the Constitution, which defines
the role of the courts, their powers in relation to other arms of
government and the constraints
subject to which public power has to
be exercised. Whereas previously constitutional law formed part of
and was developed consistently
with the common law, the roles have
been reversed. The written Constitution articulates and gives effect
to the governing principles
of constitutional law. Even if the common
law constitutional principles continue to have application in matters
not expressly dealt
with by the Constitution (and that need not be
decided in this case), the Constitution is the supreme law and the
common law, insofar
as it has any application, must be developed
consistently with it and subject to constitutional control.’
[30] Importantly, the Constitutional Court in
Pharmaceutical
Manufacturers
held that the grounds of review articulated in the
well-known case of
Shidiack v Union Government (Minister of the
Interior)
1912 AD 642
at 651-652 are ‘consistent with the
foundational principle of the rule of law enshrined in our
Constitution’ (para
83) and that the rule of law also requires
rationality as a prerequisite for the validity of the exercise of all
public power (paras
85-86).
[31] Section 1(
c
) of the Constitution proclaims the supremacy
of the Constitution and the concomitant supremacy of the rule of law.
In fulfilling
the constitutional duty of testing the exercise of
public power against the Constitution, courts are protecting the very
essence
of a constitutional democracy.
5
Put simply, it means that each of the arms of government and every
citizen, institution or other recognised legal entity, are all
bound
by and equal before the law. Put differently, it means that none of
us is above the law. It is a concept that we, as a nation,
must
cherish, nurture and protect. We must be intent on ensuring that it
is ingrained in the national psyche. It is our best guarantee
against
tyranny, now and in the future.
[32] The office of the NDPP exercises public power and is subject to
the constraints set out in the authorities referred to above.
Having
made the concession that the decision to discontinue the prosecution
was subject to a rule of law review, it was nevertheless
submitted on
behalf of the first and third respondents that such a review would be
a narrow one, on limited grounds. In light of
the primary concession
made on behalf of the respondents, it is for present purposes not
necessary to debate the extent to which
a decision to discontinue a
prosecution is reviewable. That is a question for the high court -
the court seized with the application
for the review. Counsel for Mr
Zuma rightly conceded, subject to a reservation concerning the
question of standing on the part
of the DA and the intervening
parties, that the arguments made on his behalf in respect of the
reviewability of the impugned decision
were premature. In light of
the concession made by the NDPP on the question of reviewability, it
is difficult to understand why
it persisted in pursuing the appeal on
this aspect. It does not reflect well on the NDPP. I will, in due
course, deal with the
high court’s decision to conflate the
preliminary points with the issues raised in the application to
compel production of
the record and the application to intervene.
Production of the Record
[33] There was debate before us about what the value would be to the
reviewing court of a reduced record, namely, a record without
Mr
Zuma’s representations. Concern was also expressed on behalf of
Mr Zuma that there might be material in the record of
decision, which
might adversely affect his rights and to which he might rightly
object. That concern was met by an undertaking
on behalf of the first
respondent that, in the event of this Court altering the decision of
the court below so as to order the
production of the record of the
decision sought to be reviewed, the NDPP’s office would inform
Mr Zuma of its contents. Questions
involving the extent of the record
of the decision and its value to the court hearing the review
application are speculative and
premature. In the event of an order
compelling production of the record, the office of the NDPP will be
obliged to make available
whatever was before Mr Mpshe when he made
the decision to discontinue the prosecution. It will then fall to the
reviewing court
to assess its value in answering the questions posed
in the review application. If the reduced record provides an
incomplete picture
it might well have the effect of the NDPP being at
risk of not being able to justify the decision. This might be the
result of
Mr Zuma’s decision not to waive the confidentiality
of the representations made by him. On the other hand, a reduced
record
might redound to the benefit of the NDPP and Mr Zuma.
[34] Furthermore, there was debate about the applicability of Uniform
Rule 53, the relevant part of which provides as follows:
‘
(1)
Save where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior court
and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice
of motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer
or chairman of the
court, tribunal or board or to the officer, as the case may be, and
to all other parties affected-
(
a
) calling upon such
persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside, and
(
b
) calling upon the
magistrate, presiding officer, chairman or officer, as the case may
be, to dispatch, within fifteen days after
receipt of the notice of
motion to the registrar the record of such proceedings sought to be
corrected or set aside, together with
such reasons as he is by law
required or desires to give or make, and to notify the applicant that
he has done so.’
[35] In its express wording Uniform Rule 53 appears to be confined to
dealing with decisions of particular institutions and officials
performing certain categorised functions, namely, judicial,
quasi-judicial or administrative functions. It is worth noting that
Uniform Rule 53 was introduced at a time when judicial review was
perhaps the most significant method of controlling the exercise
of
public power. The then Supreme Court developed a body of principles
to control the exercise of public power. In
Johannesburg
Consolidated Investment Co Ltd v Johannesburg Town Council
1903
TS 111
at 115, Innes CJ described the common law power of review as
follows:
‘
Whenever
a public body has a duty imposed upon it by statute, and disregards
important provisions of the statute, or is guilty of
gross
irregularity or clear illegality in the performance of the duty, this
Court may be asked to review the proceedings complained
of and set
aside or correct them. This is no special machinery created by the
Legislature; it is a right inherent in the Court.
. . .’
This statement of the law is still apposite today except that the
Constitution, not inherent jurisdiction, is now the basis for
review.
It has hitherto never been suggested that Uniform Rule 53 applied
only in respect of a narrower form of review.
[36] However, much of the body of principles that was developed by
our courts, exercising their powers of review, came to be called
Administrative Law.
6
In the pre-constitutional era when the now out-dated classification
of functions doctrine was applied there were recognised categories
of
administrative acts such as legislative, judicial, quasi-judicial and
purely administrative acts,
7
which categories are largely repeated in Uniform Rule 53. Within the
administrative law sphere there were recognised public bodies
or
institutions and officers that were subject to administrative review.
That too is mirrored in Uniform Rule 53. Attorneys-General
–
the predecessors of the NDPP – were clearly officers for
purposes of Uniform Rule 53
8
and their decisions would either have been ‘quasi-judicial’
or ‘administrative’.
9
[37] In the constitutional era courts are clearly empowered beyond
the confines of PAJA to scrutinise the exercise of public power
for
compliance with constitutional prescripts. That much is clear from
the Constitutional Court judgments set out above. It can
hardly be
argued that, in an era of greater transparency, accountability and
access to information, a record of decision related
to the exercise
of public power that can be reviewed should not be made available,
whether in terms of Rule 53 or by courts exercising
their inherent
power to regulate their own process.
10
Without the record a court cannot perform its constitutionally
entrenched review function, with the result that a litigant’s
right in terms of s 34 of the Constitution to have a justiciable
dispute decided in a fair public hearing before a court with all
the
issues being ventilated, would be infringed. The DA, in its
application to compel discovery, has merely asked for an order
directing the office of the NDPP to despatch within such time as the
court may prescribe the record of proceedings relating to
the
decision to discontinue the prosecution, excluding the written
representations made on behalf of Mr Zuma to the office of the
NDPP.
Subject to the question of standing which is dealt with next I can
see no bar to such an order being made.
Locus standi
[38] It is necessary at the outset to say something about our law in
relation to the question of standing. During the time of an
oppressive regime lawyers had to fight for space in order to
challenge and limit human rights abuses. At a time when a Parliament
representing the minority of the population was regarded as supreme,
and when there was restricted space within which to assert
the rights
that are now taken for granted, courts were willing to adopt a more
liberal approach to standing when there was a threat
to rights that
even an oppressive government was forced to recognise as fundamental
in a civilised society. In
Wood & others v Ondangwa Tribal
Authority & another
1975 (2) SA 294
(A) this Court, in
dealing with the interdict
de libero homine exhibendo
(the
equivalent of the English writ of habeas corpus) and our law’s
then more restrictive approach to locus standi, said
the following at
310D-H:
‘
Although
the position is that in Roman-Dutch law no private person can proceed
by a popular action as such, it is clear that the
interdict
de
libero
homine exhibendo
is
part of our law, and it only remains to be considered at whose
request a Court will issue the interdict. Basically, the cause
of
action is
sui
generis
because
not only was the right to freedom protected by it but “it is
set in motion as a matter of duty”. In this respect
it would
appear to be distinguishable from any of the other
actiones
populares
.
Voet,
43.29,
says that in the favour shown to freedom the interdict is granted to
anyone among the people (
cuivis
ex populo
).
That indicates, in my view, that he had in mind the
actio
popularis
.
Nevertheless, I think it follows, from what I have said above, that
although the
actiones
populares
generally
have become obsolete in the sense that a person is not entitled “to
protect the rights of the public”, or
“champion the cause
of the people”
it
does not mean that when the liberty of a person is at stake, the
interest of the person who applies for the interdict
de
libero homine exhibendo
should
be narrowly construed. On the contrary, in my view it should be
widely construed because illegal deprivation of liberty is
a threat
to the very foundation of a society based on law and order
.’
(emphasis added.)
[39] It is true that in appropriate circumstances a person was
allowed to act on behalf of a detained person because the latter
could not act for him or herself. However, the liberty of an
individual, was already regarded in Roman times as a right of the
highest value and it is the importance of that issue that motivated
courts to lean towards a more liberal approach to standing.
11
[40] We have come a long way since our troubled history, referred to
in the briefest terms in para 35 above. In
Kruger v President of
Republic of South Africa & others
[2008] ZACC 17
;
2009 (1) SA 417
(CC) the
Constitutional Court held, in relation to the standing of an attorney
to challenge the constitutionality of certain proclamations
(para
25):
‘
As an
attorney in a specialist personal injury legal firm who works
regularly in this field, Mr Kruger has a direct and professional
interest in the validity of the proclamations. A legal practitioner
is an officer of the court. Where the practitioner can establish
both
that a proclamation is of direct and central importance to the field
in which he or she operates, and that it is in the interest
of the
administration of justice that the validity of that proclamation be
determined by a court, that practitioner may approach
a court to
challenge the validity of such a proclamation. In this case Mr Kruger
has shown that he is a personal injury attorney
and that the validity
of the proclamations is of central importance to his field of
practice. Moreover, he has established that
significant legal
uncertainty has arisen because of the contents of the First
Proclamation and the publication of the Second Proclamation.
The
effect of this uncertainty is clearly adverse to the proper
administration of justice. A personal injury attorney must be able
to
understand and engage with the legislative scheme on which he or she
and his or her clients rely in order to seek compensation.
The
uncertainty created by the issue of the two proclamations and their
effect on Mr Kruger’s ability to manage his clients’
affairs are reason enough to grant standing to the applicant.’
[41] In
Kruger
the Constitutional Court left open the question
whether the attorney was acting or could act in the public interest.
12
[42] In
Albutt v Centre for the Study of Violence and
Reconciliation & others
2010 (3) SA 293
(CC), Ngcobo CJ
accepted that the non-governmental organisations that had brought the
challenge to the granting of amnesty to various
prisoners had
standing in their own interest and in the public interest. The court
stated (paras 33-34):
‘
The
concession that the NGOs have standing was properly made. Our
Constitution adopts a broad approach to standing, in particular,
when
it comes to the violation of rights in the Bill of Rights. This is
apparent from the standing accorded to persons who act
in the public
interest. This ground is much broader than the other grounds of
standing contained in s 38. The NGOs have standing
on at least two
grounds.
First, they are litigating in
the public interest under s 38(
d
)
of the Constitution. The NGOs contend that the exclusion of victims
from participation in the special dispensation process violates
the
Constitution, in particular, the rule of law. They submit that, as
civic organisations concerned with victims of political
violence,
they have an interest in ensuring compliance with the Constitution
and the rule of law. Second, they are litigating in
the interest of
the victims under s 38(
c
).
The victims whose interests the NGOs represent were unable to seek
relief themselves because they were unaware that applications
for
pardons affecting them were being considered. The process followed by
the President made no provision for the victims to be
made aware of
the applications for pardons, not to be given the opportunity to make
representations.’
[43] As pointed out earlier in this judgment, the DA is a registered
political party active in the national parliament. Its federal
constitution sets out its political vision, ‘of a prosperous,
open opportunity society that is uniquely South African: in
which
every person is free, secure and equal before the law …’.
The DA’s constitution recognises that:
‘
South
Africa’s constitution is the only foundation on which an Open
Opportunity Society can be built because it recognises
that every
person is equal in dignity and worth and guarantees the freedom of
each individual.
13
The rights enshrined in the
constitution must be defended and promoted in order to protect the
people of South Africa from the concentration
and abuse of power.’
[44] It was accepted on behalf of the third respondent that all
political parties participating in the National Parliament can
be
taken to subscribe to constitutional principles. Section 48 of the
Constitution provides that before members of the National
Assembly
begin to perform their functions they must swear or affirm
faithfulness to the Republic and obedience to the Constitution.
All
political parties participating in parliament must necessarily have
an interest in ensuring that pubic power is exercised in
accordance
with constitutional and legal prescripts and that the rule of law is
upheld. They represent constituents that collectively
make up the
electorate. They effectively represent the public in parliament. It
is in the public interest and of direct concern
to political parties
participating in parliament that an institution such as the National
Prosecuting Authority (NPA), acts in
accordance with constitutional
and legal prescripts. It can hardly be argued that citizenry in
general would be concerned to ensure
that there was no favouritism in
decisions relating to prosecutions. Few members of political parties
or members of the public
have the ability, resources or inclination
to bring a review application of the kind under discussion.
[45] It is of fundamental importance to our democracy that an
institution such as the NPA, which is integral to the rule of law,
acts in a manner consistent with constitutional prescripts and within
its powers, as set out in the
National Prosecuting Authority Act 32
of 1998
. Certainly the membership of the DA can rightly be expected
to hold the party they support to the foundational values espoused in
the DA’s constitution and to expect the DA to do whatever is in
its power, including litigating, to foster and promote the
rule of
law. In this regard see
Justice Alliance of South Africa &
others v President of the Republic of South Africa & others
2011
(5) SA 388
(CC) para 17 and the recent decision of the full court in
Bio Energy Afrika Free State (Edms) Bpk v Freedom Front Plus
and
Freedom Front Plus v Moqhaka Local Municipality & others
2012 (2) SA 88
(FB) paras 15-17. It clearly is in the public interest
that the issues raised in the review application be adjudicated and,
in
my view, on the papers before us, it cannot seriously be contended
that the DA is not acting, genuinely and in good faith, in the
public
interest. See
Freedom Under Law v Acting Chairperson: Judicial
Service Commission & others
2001 (3) SA 549
(SCA) para 21.The
question whether, in making the decision to discontinue the
prosecution of Mr Zuma, the NPA had acted in accordance
with the law
or had wrongly and unlawfully succumbed to political power and
influence, as alleged by the DA, is a matter for decision
in the
review application after all the papers have been filed. Presently,
it follows that the DA has standing to act in its own
interests, as
well as in the public interest, and is entitled to pursue that
application to its conclusion.
[46] Not so with the parties seeking to intervene. It is difficult to
discern with any degree of precision, or at all, the ambit
of their
complaint against Mr Zuma. It is even more difficult to establish
that a complaint, however vague, was lodged with the
NPA itself. We
were not pointed to any part of the record from which it appears
which of the two parties seeking to intervene had
in fact lodged a
complaint with the NPA. There is much force in the submission that,
having regard to the litigation between CCII,
which was a bidding
party, and government agencies and the subsequent monetary
settlement, the basis of which has not been disclosed,
it cannot be
said that there is any protectable interest that CCII could advance
in the review application. The motivation for
entering the fray is in
my view clear from what is stated by Mr Young himself, namely, that
which, in modern terminology, is referred
to as a ‘fall-back
position’ – in the event of the DA being held not to have
locus standi. In my view the conclusion
of the court below in respect
of the standing of the parties seeking to intervene is correct. It
follows that the application to
intervene must fail.
[47] I turn to deal with the submission on behalf of the first and
third respondents that allowing too lenient an approach to standing
would have a disastrous impact on prosecution services, in that it
would lead to a flood of challenges to prosecutorial decisions,
which
would, in turn, cause the NPA to virtually grind to a halt. Courts
are no strangers to floodgates arguments. First, courts
will be
astute to ensure that those asserting a right to challenge
prosecutorial decisions have in fact provided a legally recognised
basis for doing so. Secondly, the floodgates argument is not borne
out by experience but, in any event, it is apposite to call
to mind
what was stated in
Wildlife Society of Southern Africa v Minister
of Environmental Affairs and Tourism of the RSA
1996 (3) SA 1095
(TkS) at 1106D-G:
‘
One of
the principal objections often raised against the adoption of a more
flexible approach to the problem of
locus
standi
is
that the floodgates will thereby be opened, giving rise to an
uncontrollable torrent of litigation. It is well, however, to bear
in
mind a remark made by Mr Justice Kirby, President of the New South
Wales Court of Appeal, in the course of an address at the
Tenth
Anniversary Conference of the Legal Resources Centre, namely that it
may sometimes be necessary to open the floodgates in
order to
irrigate the arid ground below them. I am not persuaded by the
argument that to afford
locus
standi
to
a body such as first applicant in circumstances such as these would
be to open the floodgates to a torrent of frivolous or vexatious
litigation against the State by cranks or busybodies. Neither am I
persuaded, given the exorbitant costs of Supreme Court litigation,
that should the law be so adapted cranks and busybodies would indeed
flood the courts with vexatious or frivolous applications
against the
State. Should they be tempted to do so, I have no doubt that
appropriate order of costs would soon inhibit their litigious
ardour.’
Thirdly, as was pointed out by Budlender, ‘if the cases are
well-founded, there can be no objection to a flood of people
trying
to achieve justice’ (‘The Accessibility of Administrative
Justice’
1993
Acta Juridica
128
at 132).
Hearing the point
in limine
together with the
two interlocutory applications
[48] In
Bader & another v Weston & another
1967 (1) SA
134
(C) Corbett J said the following (at 136E-H):
‘
It
seems to me that, generally speaking, our application procedure
requires a respondent, who wishes to oppose an application on
the
merits, to place his case on the merits before the Court by way of
affidavit within the normal time limits and in accordance
with the
normal procedures prescribed by the Rules of Court. Having done so,
it is also open to him to take the preliminary point
that (in this
case) the petition fails to disclose a cause of action and this will
often be a convenient procedure where material
disputes of fact have
arisen which cannot be resolved without recourse to the hearing of
oral evidence. On the other hand, I do
not think that normally it is
proper for such a respondent not to file opposing affidavits but
merely to take the preliminary point.
I say “normally”
because situations may arise where this procedure is unexceptionable.
For example, a respondent, who
is suddenly and without much notice
confronted with a complex application and who would normally be
entitled to a substantial postponement
to enable him to frame
opposing affidavits, might well be permitted there and then to take
such a preliminary point. Generally
speaking, however, where a
respondent has had adequate time to prepare his affidavits, he should
not omit to prepare and file his
opposing affidavits and merely take
the preliminary objection.’
[49] Generally, courts should be slow to allow parties to engage in
piecemeal litigation, with attendant delays. Put differently,
courts
should be intent on obviating prolonged litigation. This case has
shown precisely how undesirable for the administration
of justice
to-ing and fro-ing between the high court and this Court over a long
period of time, without the merits being finally
adjudicated, can be.
Courts should be circumspect when suggestions are made about the
procedure to be followed on the basis that
it might shorten rather
than lengthen litigation.
Costs
[50] It is necessary to deal with the submission on behalf of the
intervening parties in respect of costs. It was submitted that
since
they had sought to vindicate constitutional rights they were entitled
to be treated differently from commercial litigants
on the basis of
what is set out in the judgment of the Constitutional Court in
Biowatch Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC) and not be ordered as an unsuccessful party to pay the costs of
the other litigants. At para 20 of
Biowatch
the following
appears:
‘
Nevertheless,
even allowing for the invaluable role played by public-interest
groups in our constitutional democracy, courts should
not use costs
awards to indicate their approval or disapproval of the specific work
done by or on behalf of particular parties
claiming their
constitutional rights. It bears repeating that what matters is not
the nature of the parties or the causes they
advance but the
character of the litigation and their conduct in pursuit of it. This
means paying due regard to whether it has
been undertaken to assert
constitutional rights and whether there has been impropriety in the
manner in which the litigation has
been undertaken. Thus, a party
seeking to protect its rights should not be treated unfavourably as a
litigant simply because it
is armed with a large litigation
war-chest, or asserting commercial, property or privacy rights
against poor people or the State.
At the same time public-interest
groups should not be tempted to lower their ethical or professional
standards in pursuit of a
cause. As the judicial oath of office
affirms, judges must administer justice to all alike, without fear,
favour or prejudice.’
[51] Having regard to the description, set out above, of the nature
of and manner in which the parties seeking to intervene entered
the
fray, they are, in my view, not entitled to the protection afforded
litigants by
Biowatch
.
[52] The first and third respondents were agreed that in the event
that we were inclined to compel the production of the record
that it
should be in the terms set out in the order that appears hereafter.
For all the reasons stated above the following order
is made:
1 In respect of all three issues between the first appellant and the
first and third respondents, the appeal is upheld with costs
and the
first and third respondents are ordered jointly and severally to pay
the first appellant’s costs, including the costs
attendant on
the employment of two counsel.
2 In respect of all the issues between the second and third
appellants and the first and third respondents the appeal is
dismissed
and the second and third appellants are ordered to pay the
first and third respondents’ costs jointly and severally,
including
the costs attendant on the employment of two counsel.
3 The order of the court below in respect of the application to
intervene remains unaltered, but the remainder is substituted as
follows:
'1 The issues raised for separate adjudication by the respondents are
determined as follows:
1.1 The respondents’ objection to the standing of the first
applicant in the review application is dismissed with costs including
the costs attendant on the employment of two counsel.
1.2 The first respondent’s decision of 6 April 2009 to
discontinue the prosecution of the third respondent is held to be
subject to review.
1.3 In the
Rule 6(11)
application the first respondent is directed to
produce and lodge with the Registrar of this Court the record of the
decision.
Such record shall exclude the written representations made
on behalf of the third respondent and any consequent memorandum or
report
prepared in response thereto or oral representations if the
production thereof would breach any confidentiality attaching to the
representations (the reduced record). The reduced record shall
consist of the documents and materials relevant to the review,
including the documents before the first respondent when making the
decision and any documents informing such decision.
1.4 The first and third respondents are ordered to pay the
applicant’s costs jointly and severally including the costs
attendant
on the employment of two counsel.’
4 The substituted order set out in para 1.3 above is to be complied
with within 14 days of date of this judgment.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellants:
S P Ronsenberg SC
H J De
Waal
Instructed
by:
Minde
Schapiro & Smith Inc
c/o
Edelstein-Bosman Inc
Pretoria
Symington
& De Kok
Bloemfontein
For
1
st
&
2
nd
Respondents:
P Kennedy SC
N H
Maenetje
Instructed
by:
The
State Attorney
Pretoria
The
State Attorney
Bloemfontein
For 3
rd
Respondent:
K J Kemp SC
T Khuzwayo
L K Olsen
Instructed
by:
Hulley
& Associates Inc
c/o
F Vally Attorneys
Pretoria
Honey
& Partners Inc
Bloemfontein
1
In
essence, Mr Zuma is said to have been accused of providing political
patronage and protection in exchange for financial reward.
2
Rule
6(11)
provides:
‘
Notwithstanding the
aforegoing subrules, interlocutory and other applications incidental
to pending proceedings may be brought
on notice supported by such
affidavits as the case may require and set down at a time assigned
by the registrar or as directed
by a judge.’
3
Section
9(1) of the Constitution provides;
‘
(1) Everyone is equal before
the law and has the right to equal protection and benefit of the
law.’
4
Para
114.
5
See
DA v President of RSA
2012
(1) SA 417
(SCA) para 122.
6
I
n
this regard see Cora Hoexter
Administrative
Law in South Africa
(2 ed) (2012) at
pp 13-15 and the dicta from the
Pharmaceutical
case set out in para 28 above.
7
See
Joubert (ed)
The Law of South Africa
(1st Reissue) Vol 1 paras 59-73.
8
See
Baxter
Administrative Law
(1984) at 333.
9
See
Baxter
op cit
at
344-348.
10
Section
173 of the Constitution reads as follows:
‘
Inherent power
- The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own
process, and to
develop the common law, taking into account the interests of
justice.’
11
See
Wood v Ondangwa
op
cit at 311E-H.
12
See
para 27.
13
Clause
1.2 and also 1.3 of the DA’s Constitution.