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[2021] ZASCA 36
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Helen Suzman Foundation v Robert McBride and Others (1065/2019) [2021] ZASCA 36; [2021] 2 All SA 727 (SCA); 2021 (5) SA 94 (SCA) (7 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1065/2019
In
the matter between:
HELEN
SUZMAN
FOUNDATION
APPELLANT
and
ROBERT
McBRIDE
FIRST RESPONDENT
THE
INDEPENDENT POLICE
INVESTIGATIVE
DIRECTORATE
SECOND RESPONDENT
MINISTER
OF
POLICE
THIRD RESPONDENT
PORTFOLIO
COMMITTEE ON POLICE:
NATIONAL
ASSEMBLY
FOURTH
RESPONDENT
Neutral
citation:
Helen
Suzman Foundation v Robert McBride and Others
(1065/2019)
[2021] ZASCA 36
(7 April 2021)
Coram:
NAVSA
ADP and DAMBUZA, SCHIPPERS and PLASKET JJA and GOOSEN AJA
Heard
:
15 March 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal
representatives by email. It has been published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time
for hand-down is deemed to be 10h00 on 7 April 2021.
Summary:
Amicus curiae persisting in appeal
despite settlement by parties – amicus impermissibly seeking to
expand issue for adjudication
– interpretation of s 6 of the
Independent Police Investigative Directorate Act 1 of 2011 –
renewal of tenure of executive
director of Independent Police
Investigative Directorate not at instance of incumbent but within
remit of Parliamentary Committee
on Policing – events
overtaking settlement agreement – order sought by amicus not
viable.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Hughes J sitting as court of first instance)
The appeal is dismissed.
JUDGMENT
Navsa ADP and Plasket JA
(Dambuza and Schippers JJA and Goosen AJA concurring)
[1]
This is a peculiar appeal. It does not involve as primary
participants the disputants
in the court below. Rather, it is an
appeal by an amicus curiae, after the dispute in the court below was
settled and an agreement
between the litigating parties was made an
order of court. The peculiarity is amplified because of an attempt by
the amicus, before
us, to extend the scope of the initial dispute.
The appeal was pursued on the basis that the court below ought not to
have acceded
to the settlement agreement, as it offended against
applicable legislation and the Constitution and that courts are thus
precluded
from authorising such agreements. The background
culminating in the present appeal, which is before us with the leave
of this court,
is set out hereafter.
Background
[2]
The first respondent, Mr Robert McBride, was the executive director
of the Independent
Police Investigative Directorate (IPID), appointed
to that position on 1 March 2014, in terms of s 6 of the Independent
Police
Investigative Directorate Act 1 of 2011 (the Act). That
section provides for the appointment of the executive director of
IPID,
and for the renewal of the incumbent’s tenure after the
expiry of the first five years in office. Section 6(1), (2), and (3)
of the Act read as follows:
‘
(1)
The
Minister must nominate a suitably qualified person for appointment to
the office of Executive Director to head the Directorate
in
accordance with a procedure to be determined by the Minister.
(2)
The relevant Parliamentary Committee must within a period of 30
parliamentary working days of the nomination in terms of subsection
(1), confirm or reject such nomination.
(3)
In the event of an appointment being confirmed—
(a)
the
successful candidate is appointed to the office of Executive Director
subject to the laws governing the public service with
effect from a
date agreed upon by such person and the Minister; and
(b)
such
appointment is for a term of five years, which is renewable for one
additional term only.’
[3]
Shortly before Mr McBride's five-year term of office ended, he
engaged the Minister
about its renewal. The correspondence referred
to below concerning this issue is important, because it explains how
the dispute
between him, on the one hand, and the Minister and the
Parliamentary Committee on Policing (the PCP), on the other, arose
and explains
why the settlement agreement took the form that it did.
[4]
On 5 September 2018, Mr McBride wrote to the Minister to inform him
that his term
of office was coming to an end that he wanted to know
whether the Minister intended to ‘retain or extend [his]
contract’.
It is not clear what transpired between this date
and 13 November 2018, when Mr McBride wrote to the Minister again. He
recommended
that a process be started to fill his position –
whether by ‘retention, extension or not’ – so that
IPID
could function properly.
[5]
On 16 January 2019, the Minister responded in writing, as follows:
‘
I
hereby inform you that I have decided not to renew or extend your
Employment Contract as Executive Director of IPID. You are hereby
advised that your last official working day will be on Thursday, the
28
th
of February 2019.’
[6]
Mr McBride sought legal advice before he replied to the Minister on
22 January 2019.
He accused the Minister of acting unlawfully and
demanded a retraction of the decision. His letter addressed to the
Minister, after
recording the Minister’s response, commenced by
asserting that ‘[b]y unilaterally determining whether my tenure
. .
. should be renewed or extended, and terminating my holding of
the office, you have acted unlawfully and in violation of the
constitutionally-entrenched
independence of IPID’. He added
that the decision taken by the Minister was ‘not yours to
take’, because it was
‘a decision that vests in the
relevant Parliamentary Committee as the body ultimately responsible
for appointing the Executive
Director’. He demanded, on threat
of an urgent application for the appropriate relief, that the
decision taken by the Minister
be withdrawn and that the matter be
referred to the PCP for its decision.
[7]
On the same day, Mr McBride wrote to the chairperson of the PCP,
attaching a copy
of his letter to the Minister. He was adamant that
it was for the PCP to take the decision as to the renewal of his term
of office,
and not the Minister. He requested the opportunity to
place relevant information before the PCP, concerning his performance
as
executive director of IPID, before any decision was to be taken.
[8]
The Minister then wrote to Mr McBride on 24 January 2019. His
position appeared to
have altered. He said that he wished to place on
record that ‘I do not intend to remove you from office’
and that his
earlier letter had merely been intended to point out to
Mr McBride that his term of office was due to expire on 28 February
2019
and that he could not ‘claim any right or legitimate
expectation to the renewal of your contract’. The Minister
concluded
by saying that his decision ‘not to renew your
employment contract will be forwarded to the relevant Parliamentary
Committee
for consideration’ and that he would be advised, in
due course, of the outcome.
[9]
Mr McBride responded to the Minister on the same day, copying the PCP
and the Speaker
of the National Assembly (the Speaker) into the
correspondence. After noting the Minister’s undertaking to
refer the matter
to the PCP for its consideration, he proceeded to
state:
‘
Until
you have withdrawn your binding decision, it is not clear what you
expect the PCP to do. You communicated to me a final decision
which
you again confirm in your letter under reply. You must either
withdraw or stand by your decision not to withdraw or renew
my term
in office.’
He
put the Minister on terms to withdraw his decision and to request the
PCP to take a decision and repeated his threat to approach
the high
court for relief if the Minister failed to comply with his demand. He
also sought reasons for the decision not to ‘extend
or renew’
his term of office.
[10]
The Minister wrote to the chairperson of the PCP on the same day.
With reference to Mr McBride’s
assertion that the PCP, and not
the Minister, had the power to renew his term of office, the Minister
stated that, in order to
‘avoid protracted litigation between
myself and Mr McBride, it is requested that [the PCP] either confirm
or reject my decision
not to renew the term of office of Mr McBride’.
[11]
Mr McBride’s attorneys wrote to the chairperson of the PCP on
29 January 2019, copying
the Speaker of the National Assembly into
the correspondence, to inform him that the Minister’s refusal
to withdraw his decision
not to renew or extend his contract left Mr
McBride with no choice but to approach the high court for urgent
relief and that an
order would also be sought to direct the PCP to
take a decision on or before 28 February 2019.
[12]
On 4 February 2014 the Speaker wrote to Mr McBride in response to his
letter to the Minister
of 22 January 2019, referred to in para 7
above, and apparently also in response to the copy of the letter she
received from his
attorneys, referred to in para 11 above. She
berated Mr McBride for having written to the chairperson of the PCP
and insisted
that all correspondence intended for a Committee of
Parliament should be addressed to her. The Speaker also wrote
to the
Minister on 4 February 2019, referring to his request that the
PCP ‘either confirm or refuse his decision’ not to extend
or renew Mr McBride’s contract. She informed him that he was
free to make recommendations concerning either the extension
or
non-renewal of Mr McBride’s term of office for onward
transmission to the PCP. The Minister replied to the Speaker on
5
February 2019. The material part of his letter reads as follows:
‘
In
terms of your directive I herewith request that my recommendation not
to renew the contract of employment of Mr McBride be considered
by
the National Assembly.’
[13]
The Minister failed to comply with Mr McBride’s demand to
withdraw his ‘decision’,
which resulted in an urgent
application being launched by him against the Minister and the PCP on
29 January 2019, whilst the abovementioned
correspondence was being
exchanged. The substantive relief that was sought consisted of
orders: (a) declaring that the decision
of the Minister not to renew
Mr McBride’s appointment was ‘unconstitutional, unlawful
and invalid, and that it be set
aside; (b) directing the PCP to take
a decision before 28 February 2019 on whether to renew Mr McBride’s
appointment; and
(c) ‘[t]o the extent necessary’, to
declare s 6(3)
(b)
of the Act to be ‘unconstitutional and
invalid to the extent it confers the power to renew the appointment
of the Executive
Director of IPID on the Minister of Police, rather
than on the [PCP]’.
[14]
In his affidavit in support of the relief sought, Mr McBride
emphasised the important constitutional
role of IPID, as an
independent investigative body, mandated by s 206(6) of the
Constitution to investigate police misconduct and
offences. He noted
that it was important that IPID be perceived and experienced by the
public as an independent entity and that
this was not possible if
critical decisions, such as the appointment of the executive
director, were made by the executive arm
of government, without
oversight. In this regard, Mr McBride relied on the decision of the
Constitutional Court in
McBride
v Minister of Police and Others (Helen Suzman Foundation as amicus
curiae)
[1]
in which, with reference to the legislative and constitutional
scheme, the importance of IPID’s establishment as an
independent
investigative body was recognised and highlighted. Mr
McBride stressed that the executive director should be insulated from
undue
political interference.
[15]
In his founding affidavit Mr McBride accepted unequivocally that he
had no right, automatic or
otherwise, to be re-appointed. His
purpose, in applying to court for relief, so he said, was to ensure
that the proper process
in relation to his possible re-appointment or
the rejection thereof, be followed. He had a right, he said, ‘to
have the decision
regarding renewal taken lawfully by the body
lawfully vested with this power’, and that body, he asserted,
was the PCP and
not the Minister.
[16]
The Minister opposed the application. He did so on the basis that he
had not made a final decision
in relation to Mr McBride’s
re-appointment. He described his decision as ‘preliminary’.
The Minister referred
to his letter of 24 January 2019 in which he
had informed Mr McBride of that decision and that he would be
‘forwarding’
that decision to the PCP for its
consideration and a final decision. He also referred to the letter he
later received from the
Speaker in which she pointed out that the
Minister’s role was simply to make recommendations to the
National Assembly regarding
the renewal or otherwise of Mr McBride's
employment as executive director; and that it was up to the PCP to
make a decision on
whether Mr McBride should be re-appointed. In
opposing the application, the Minister took the view that his
decision was not reviewable
because it was not final and,
consequently, that Mr McBride's application was premature.
[17]
The PCP also opposed Mr McBride's application. Its chairperson
referred to a letter written by
the Speaker to the Minister in which
she pointed out that the decision on Mr McBride’s
re-appointment was within the PCP’s
remit and not the
Minister’s. As was evident from the letter, she had informed
the Minister that he was welcome to make ‘any
recommendations’
he wished for consideration by the PCP. The PCP was willing to abide
the court’s decision, to the
extent that the Minister’s
decision was a reviewable decision, which it denied.
[18]
The PCP opposed Mr McBride’s demand that it had to take a
decision by 28 February 2019.
It contended that there was no basis in
law for the court to compel it to make a decision within a particular
time frame. It pointed
out that IPID could continue functioning and
fulfilling its statutory obligations in the event that the position
of executive director
was not filled before Mr McBride’s first
term of office was completed. The PCP took the view that an order in
the terms sought
would offend against the doctrine of the separation
of powers.
[19]
Enter the amici. Early in February 2020, before the matter was heard
in the court below, the
appellant, the Helen Suzman Foundation (the
HSF), a non-governmental organization, whose objectives are to defend
the values of
our democracy and promote respect for human rights,
applied to the court below to be admitted as an amicus. So too did
Corruption
Watch, also a non-governmental organisation. (It played no
part in this appeal.) At the commencement of the hearing of the
matter
in the court below, Hughes J first heard and decided the
applications of the HSF and Corruption Watch to be admitted as amici.
She granted both applications.
[20]
The terms on which the HSF sought and was granted leave to
participate as an amicus are important.
In its application the HSF
said that the case turned on an interpretation of s 6(3)
(b)
of
the Act and that the HSF would, if admitted as an amicus, show that
neither of the interpretations contended for by Mr McBride,
on the
one hand, and the Minister, on the other, were ‘correct or
constitutionally compliant’. It propounded a third
interpretation which, it said, was one which ‘best vindicates
the constitutional imperatives’. That interpretation
was that
the ‘appointment of the Executive Director of IPID is renewable
at his instance and not at the instance of either
of the
respondents’. It stated that it ‘fully supports’
the relief claimed by Mr McBride in para 2 of the notice
of motion,
namely the setting aside of the Minister’s purported decision.
It will be recalled that Mr McBride insisted that
it was for the PCP
to take the decision and not the Minister.
[21]
For completeness and for the purpose of placing the history of the
matter in proper perspective
and to better assess whether the HSF is
justified in the position adopted in this appeal it is necessary to
quote from the material
parts of Corruption Watch’s affidavit
in support of its application to be admitted as an amicus:
‘
6
CW seeks leave to intervene as an
amicus
curiae
in support of the relief sought by the applicant in which he asks
that the second respondent, the Parliamentary Committee of Police
(“the PCP”) makes a determination on the renewal of his
term of office before his contract expires on 28 February 2019.
It
contends that the PCP is in a position to determine whether the
applicant’s contract should be renewed and further, that
it is
constitutionally obliged to do so.
7
CW submits that the obligation arises squarely from the nature of the
oversight function imposed on the National Assembly, which
it
exercises through the PCP in terms of sections 42(3) and
55(2)(b)(i)-ii) of the Constitution. Section 42(3) of the
Constitution
obliges Parliament to among others “scrutinise and
oversee executive action”, whilst 55(2)(b)(i) and (ii) enjoins
Parliament
to maintain oversight over the exercise of national
executive authority, including the implementation of legislation and
any organ
of state. The manner in which Parliament through the PCP
carries out its oversight function is set out in the 9
th
Edition of the Rules of the National Assembly.’
[22]
After the admission of the amici, Mr McBride, the Minister and the
PCP informed the court that
they had agreed to a settlement which
resolved their dispute. They sought leave to have their agreement
made an order of court.
Essentially, the parties had agreed that the
PCP was the entity, in terms of s 6(3) of the Act, to take the
decision on whether
to re-appoint Mr McBride and the PCP had
undertaken to do this by 28 February 2019.
[23]
The HSF objected to the agreement being made an order of court,
contending that the interpretation
of s 6(3) of the Act by Mr
McBride, now agreed to by the Minister and the PCP, was incorrect.
They contended that the interpretation
was contrary to constitutional
prescripts and thus bad in law. The essence of the HSF’s
objection was that the interpretation
placed the power to renew the
appointment of the executive director of IPID in the hands of
politicians, in the guise of the PCP.
This, according to the HSF, is
constitutionally untenable as it compromises the independence of that
office.
[24]
It was submitted in the court below, on behalf of the HSF,
consistently with its application
for admission as an amicus, that a
constitutionally viable interpretation is that the re-appointment
should be at the instance
of the incumbent. Put differently, what was
argued by the HSF was that the re-appointment should not be subject
to the whims of
any political actor or actors and that the incumbent
had a free and unfettered option to renew his or her contract of
employment.
[25]
Hughes J, in considering the HSF’s objections to the settlement
agreement, had regard to
Eke
v Parsons
,
[2]
in which the Constitutional Court held that a court could only
properly make a settlement agreement an order of court if it related
to the dispute between the parties, was capable of enforcement and
was in harmony with the Constitution, the law and public policy.
[3]
We pause to note that, unlike in this case, the appeal in that case
was at the instance of one of the parties who later considered
that
the terms of the settlement agreement were egregious.
[26]
The court below also took into consideration that a person applies in
terms of rule
16A(6)
(b)
of the Uniform rules to be admitted as an amicus and
that the HSF had indicated in its affidavit in support of its
application to
be admitted as an amicus, that it would advance its
interpretation of s 6(3) of the Act, in contrast to the
interpretation advanced
by the parties. However, Hughes J took the
view that in objecting to the settlement agreement, HSF was venturing
into new territory,
not canvassed in the papers. She accepted the
submission on behalf of the Minister and the PCP that the propriety
of the settlement
agreement was not in issue when the HSF was
admitted as an amicus and in the event of the HSF persisting in its
objection the parties
should be afforded an opportunity to respond to
it. The court below went on to conclude as follows:
‘
As
things stand before me I am satisfied that the terms of the agreement
are legitimate, practically achievable, not against public
policy and
do not infringe either the law or Constitution. In the result the
terms of the agreement between the parties before
me, is made an
order of court.’
[27]
In terms of the agreement between the parties the court below made
the following order:
‘
[1]
It is declared that the decision taken by the First Respondent not to
renew the appointment of the First Applicant as the Executive
Director of the Independent Police Investigative Directorate (IPID)
is a preliminary decision that must still be confirmed or rejected
by
the Second Respondent.
[2]
It is recorded that the Second Respondent intends to take a decision
regarding the renewal of the First Applicant’s appointment
on
or by 28 February 2019.
[3]
The matter is postponed to the urgent role on 26th February and for
that purpose:
3.1
The Second Respondent will report on affidavit by 22 February 2019 on
its progress on taking a decision regarding the renewal
of the First
Applicant’s appointment; and
3.2
All parties will be entitled to make submissions to this Court on
whether any further just and equitable orders should be granted,
including but not limited to whether the Second Respondent should be
given a further period to make a decision on the renewal of
the First
Applicant’s appointment and whether the First Respondent’s
term of office ought to be extended pending the
Second Respondent's
decision.
[4]
There is no order as to costs.’
[28]
The court below refused the HSF leave to appeal against that order.
As stated earlier, the appeal
serves before us with the leave of this
court. It is opposed by the Minister and the PCP. Mr McBride has
taken no part in the appeal.
In its notice of appeal, the HSF seeks
an order in the following terms:
‘
1
The appeal is upheld.
2
The order of the High Court dated 12 February 2019 is set aside and
replaced
with the following:
2.1
declaring unlawful and setting aside the preliminary decision taken
or recommendation
made by the Minister of Police not to renew the
appointment of Robert McBride as the Executive Director of the
Independent Police
Investigative Directorate (“IPID”);
2.2
declaring that Mr McBride’s tenure as the Executive Director of
IPID is renewed
for a five year period from 1 March 2019 to 28
February 2024.
3
The costs of the appeal (including the costs of two counsel) shall be
paid
by the third and fourth respondents, jointly and severally, the
one paying the other to be absolved.’
The
first hearing of the appeal
[29]
When we first heard this appeal on 6 November 2020, we were concerned
that we lacked important
information, potentially relevant in respect
of parties not before us, such as Mr McBride. We were informed, for
instance, that
while Mr McBride took no part in the appeal, he had
launched an application to review the decision taken by the PCP,
pursuant to
the order of Hughes J, not to extend his tenure. We had
no information concerning the state of play of that application. It
appeared
too that Mr McBride may have been appointed to another post
and, if that was so, that may have had a bearing on whether the
appeal
raised a live issue. We did not know whether the post of
executive director at IPID had been filled.
[30]
In order to be apprised of facts relevant to the matter, we postponed
the appeal and requested
the parties before us to facilitate the
obtaining of information as to the current position of Mr McBride. As
a result, Mr McBride
filed an affidavit.
[31]
In his affidavit, Mr McBride confirmed that he had been appointed as
the head of the Foreign
Branch of the State Security Agency, and that
he currently holds that position. His appointment commenced on 1 July
2020 and terminates
on 30 June 2023.
[32]
In respect of the application to review the PCP’s decision, he
reported that ‘[d]ue
to the challenging personal circumstances
I faced, I was unable to instruct my legal representatives to take
any further steps
in this review’. A new executive director of
IPID has now been appointed.
[33]
While Mr McBride stated that his ‘removal’ as the
executive director of IPID had
certain adverse financial implications
for him, he abided the decision in this appeal. He made the point
that Hughes J’s
order was made with his ‘blessing and
agreement’. He stated:
‘
At
this stage, I seek to assure the Court that I will abide by the
decision reached by it and will extend myself in whatever manner
appropriate to ensure the effectiveness of its order. That said, at
this stage I am not able to offer a definitive answer to whether
I
would be prepared to return as Executive Head of IPID. My current
position as the Foreign Branch Head of the State Security Agency
is
one which requires certainty for its continuity and it would be
inimical to my duty to this role, to adopt any definitive position
for hypothetical propositions, especially if those propositions would
require me to jeopardise my employment and livelihood. This
would not
be fair on me or my current employer.’
[34]
It is evident that the outcome of the appeal could have a bearing on
two parties not before us
– Mr McBride who, we believe it is
fair to assume, will not be in a position to resume his duties as
executive director of
IPID if the appeal was to succeed, and who
abides our decision; and his successor as executive director of IPID,
who was never
cited as a party.
The
issues
[35]
During the course of the hearing, the number of issues requiring
decision grew from one to three.
We shall deal with the first two
together and then turn our attention to the issue we consider to be
central to this appeal.
The
absence of guidelines and the Minister’s ‘decision’
[36]
During the course of the hearing, counsel for the HSF raised for the
first time that the PCP’s
decision-making process was irregular
because of the absence of guidelines as to how its discretion was to
be exercised. Although
he assured us that he had raised this point in
the court below, it was not raised in the HSF’s affidavit in
support of its
application for admission as an amicus, or in any
other papers. It does not warrant a mention in the three sets of
heads of argument
filed by the HSF.
[37]
This is a factual issue that had to have been raised on the papers.
If it had been, the PCP and
the Minister could have answered the
challenge. Without the opposing parties having had an opportunity to
explain themselves and
be heard on this issue, it is not properly
before us. In any event, it seems to us that it is misplaced in this
appeal, where the
regularity of the PCP’s decision not to renew
Mr McBride’s tenure was not in issue and is the subject of Mr
McBride’s
review application that is in abeyance and not
expressly abandoned. We pause to note that we were informed from the
bar that the
HSF had that application served on it but chose not to
participate in that litigation. That would have been the proper forum
for
it to raise and fully explore the issues it now seeks to have
ventilated in this appeal on an uninformed basis.
[38]
The HSF also challenges para 1 of the order of Hughes J, which
declared that the Minister’s
‘decision’ not to
renew Mr McBride’s appointment was ‘a preliminary
decision that must still be confirmed
or rejected’ by the PCP.
The HSF argued that Hughes J should not have made this order because
its effect is to undermine
the guaranteed independence of IPID by
giving the Minister a role in the renewal process that amounts to a
jurisdictional precondition
for the exercise of the PCP’s
power.
[39]
A reading of para 1 of the order in the context of the correspondence
that we have referred to
between the principal protagonists leads us
to a different interpretation. It is clear from the correspondence
that after Mr McBride
had put it to the Minister that the decision on
renewal was not his to take, the Minister accepted the correctness of
this assertion.
Instead, he claimed that he could make a
recommendation to the PCP, which the Speaker, the PCP and,
eventually, Mr McBride accepted.
The settlement, and the order
embodying it, was intended to capture this consensus, and none of the
parties to the dispute suggested
that the Minister’s view on
renewal was a jurisdictional precondition for the PCP’s
exercise of power. From the correspondence
between the Speaker and
interested parties the opposite is clear, namely, that it was for the
PCP to make a decision acting independently
but taking into account
Mr McBride’s representations and the Minister’s views as
well as the views of any other interested
parties.
[40]
The parties, perhaps unfortunately and certainly not entirely
accurately, referred in the settlement
to the Minster’s
‘decision’ being a ‘preliminary decision’.
What they meant, and this is clear from
the context, is a
‘recommendation’. That recommendation does not bind the
PCP and, if the PCP blindly followed it without
applying its
collective mind as it is required to, it would commit a reviewable
irregularity: it would have been guilty of having
acted under
dictation.
[4]
And if the Minister refuses to give his view or delays unduly in
doing so, that cannot prevent the PCP from taking a decision.
Given
the Minister’s role as political head of the South African
Police Service, his view on whether the executive director’s
term should be renewed or not, and his reasons for holding that view,
would be relevant considerations for the PCP to take into
account,
along with all other relevant considerations. It will accord the
Minister’s view the weight that is its due. Mr
Ngcukaitobi, who
appeared for both the Minister and the PCP, accepted that the
Minister’s recommendation was not a jurisdictional
precondition
for a valid decision to be taken by the PCP.
[41]
Subject to what is said below concerning the proper interpretation of
s 6(3), we conclude that
para 1 of the order is unobjectionable and
the HSF’s challenge to it must fail. Put differently, subject
to what appears
hereafter, the parties were agreed and, on the face
of it, the applicable legislation accords with their consensus, that
the PCP
was the proper decision-maker. The question ultimately, from
the perspective of the primary disputants, would be whether that
entity
made a valid decision. On what we have before us there is no
way of adjudicating that issue, which accounts for the review
application
by Mr McBride, the details of which are unknown to us.
The
interpretation of s 6(3) of the Act
[42]
This appeal raises one central issue. It is whether s 6(3) of the Act
can be construed in the
way that the HSF contends. It is the third of
three interpretations that have been put forward so far. First, the
Minister claimed
that s 6(3) gave him the power to renew the
executive director of IPID’s term after the initial term had
ended. He backed
down from this position soon enough and accepted, as
did Mr McBride and the PCP, a second interpretation of s 6(3). It was
that
the power to extend the incumbent’s tenure for a second
term was vested in the PCP. Now, the HSF contends that the incumbent
has an unfettered option to continue in office for second term.
[43]
In the first
McBride
case,
[5]
concerning the suspension and disciplining of Mr McBride by the
Minister, the judgment of the Constitutional Court focused on the
independence of IPID as an institution. That independence stemmed
from s 206(6) of the Constitution, which envisages the creation
of
‘an independent police complaints body established by national
legislation’ that is empowered to ‘investigate
any
alleged misconduct of, or offence committed by, a member of the
police service . . .‘. The IPID Act is the legislation
referred
to in the Constitution. Section 4 of the Act provides:
‘
(1)
The Directorate functions independently from the South African Police
Service.
(2)
Each organ of state must assist the Directorate to maintain its
impartiality and to perform its functions effectively.’
[44]
The Constitutional Court affirmed that the Constitution and the Act
required IPID to be an independent
body, and that this requirement
meant that it enjoyed, in the words of Ngcobo CJ in
Glenister
v President of the Republic of South Africa and Others
,
[6]
‘an adequate level of structural and operational autonomy’,
[7]
or ‘sufficient structural and operational autonomy so as to
shield it from undue political influence’.
[8]
The court proceeded to hold:
[9]
‘
On
the other hand, s 6 of the IPID Act gives the Minister enormous
political powers and control over the executive director of IPID.
It
gives the Minister the power to remove the executive director of IPID
from his office
without
parliamentary oversight.
This is antithetical to the entrenched independence of IPID envisaged
by the Constitution, as it is tantamount to impermissible
political
management of IPID by the Minister. To my mind, this state of affairs
creates room for the Minister to invoke partisan
political influence
to appoint someone who is likely to pander to his whims or who is
sympathetic to the Minister’s political
orientation. This might
lead to IPID becoming politicised and being manipulated. Is this
compatible with IPID’s independence
as demanded by the
Constitution and the IPID Act? Certainly not.’
[45]
The court was concerned with the process of removing the executive
director from office. From
the passage cited above it is clear that
what was objectionable was the power of the Minister in this process,
who was able to
remove the executive director ‘without
parliamentary oversight’. That is significant because, on the
interpretation
of s 6(3) that Mr McBride, the Minister and the PCP
agree on, the Minister’s role is limited to making a
recommendation and
the PCP, a select committee of Parliament, makes
the decision whether to renew the executive director’s tenure.
The HSF maintains
that this is objectionable because, in order to
safeguard IPID’s independence and thus make it constitutionally
compatible,
the renewal process must be removed from the remit of any
political actor, including the legislature.
[46]
In our view, this argument is overstated. It postulates a higher
degree of independence than
that required by the Constitutional Court
in
Glenister
, namely adequate or sufficient independence to
enable IPID to fulfil its mandate effectively. Secondly, the
principal threat to
IPID’s independence lies in the executive
having exclusive powers over it without oversight on the part of the
legislature.
As we shall demonstrate, a role played by the
legislature in relation to independent bodies is not inimical to the
independence
of those bodies.
[47]
Glenister
[10]
concerned the independence of the Directorate of Priority Crime
Investigation (the Hawks), an anti-corruption unit that had replaced
the Directorate of Special Operations (the Scorpions). While the
Scorpions had been located within the National Prosecuting Authority,
an independent institution, the Hawks were located within the South
African Police Service (SAPS), an institution whose independence
was
not legislatively secured. The case turned on whether, in these
circumstances, the Hawks were sufficiently independent, as
required
by the Constitution and certain international instruments.
[48]
In the course of arriving at the conclusion that the Hawks were not
sufficiently independent,
Moseneke DCJ and Cameron J, for the
majority, compared the position of the Hawks to that of the
Scorpions. They highlighted that
members of the Hawks, including its
head, enjoyed no employment security, which ‘adequate
independence’ required.
[11]
The head of the Scorpions, on the other hand, being a deputy National
Director of Public Prosecutions (deputy NDPP), enjoyed special
security of tenure that enhanced the independence of the institution.
[49]
He or she could only be removed from office, by the President, on
grounds of misconduct, continued
ill-health or incapacity, or if he
or she was no longer a fit and proper person. But, the court held,
‘Parliament holds a
veto power over the removal of a deputy
NDPP’. The President’s reasons for removing a deputy
NDPP, as well as that
person’s representations ‘must be
communicated to Parliament, which may resolve to restore the deputy
NDPP to office’.
[12]
The significance of these safeguards was spelt out as follows:
[13]
‘
These
protections applied also to investigating directors within the DSO.
The special protection afforded the members of the DSO
served to
reduce the possibility that an individual member could be threatened
— or could feel threatened — with removal
for failing to
yield to pressure in a politically unpopular investigation or
prosecution.’
[50]
Helen
Suzman Foundation v President of the Republic of South Africa and
Others
[14]
concerned the constitutionality of the legislation passed by
Parliament to rectify the defects identified by the Constitutional
Court in
Glenister
.
[15]
When Mogoeng CJ considered the provisions concerning the suspension
and removal of the head of the Hawks, he noted that in terms
of s
17DA(1) and (2), the Minister was granted the power to suspend him or
her, appoint a judge or retired judge to enquire into
the person’s
fitness to continue to hold office, and then to decide on whether or
not to remove the person from office. The
section required that
Parliament be informed of the process, but it had no power to do
anything.
[51]
This state of affairs, Mogoeng CJ held, was ‘inimical to job
security’ and it enabled
the Minister ‘to exercise almost
untrammelled power to axe the National Head of the anti-corruption
entity’.
[16]
He contrasted this with the removal process contemplated by s 17DA(3)
to (6), a removal process initiated by a committee of the
National
Assembly. Although, in that process, the Minister still had the power
to suspend the head of the Hawks, his or her removal
was triggered by
a recommendation to this effect being approved by a two thirds
majority of the members of the National Assembly.
[17]
Mogoeng CJ concluded:
[18]
‘
This
suspension by the minister and removal through a Parliamentary
process guarantee job security and accord with the notion of
sufficient independence for the anticorruption entity the state
creates. That portion of s 17DA(1) that refers to ss (2) and ss
(2)
itself are, however, inconsistent with the constitutional obligation
to establish an adequately independent corruption-busting
agency.
They must thus be set aside. The balance of s 17DA passes
constitutional muster and would thus continue to guide the suspension
and removal process of the national head.’
[52]
In
Justice
Alliance of South Africa v President of the Republic of South Africa
and Others
[19]
the validity of the extension of the tenure of the Chief Justice by
the President was in issue. Section 176(1) of the Constitution
provides that a Constitutional Court judge holds office ‘for a
non-renewable term of 12 years, or until he or she attains
the age of
70, whichever occurs first, except where an Act of Parliament extends
the term of office of a Constitutional Court judge’.
Section
8
(a)
of the
Judges’ Remuneration and Conditions of Employment Act 47
of 2001
vested a power in the President to extend the tenure of the
Chief Justice beyond the time of his or her retirement. The President
had acted in terms of this section to extend the tenure of Ngcobo CJ.
[53]
The Constitutional Court found that
s 8
(a)
of this Act was in conflict with s 176(1) of the Constitution because
that section did not authorise Parliament to delegate the
power to
extend to the President. Instead, it required Parliament itself ‘must
take the legally significant step of extending
the term of active
service of a judge of this Court’.
[20]
It concluded:
[21]
‘
It
is so that s 176(1) of the Constitution creates an exception to the
requirement that a term of a Constitutional Court judge is
fixed.
That authority, however, vests in Parliament and nowhere else. It is
notable that s 176(1) does not merely bestow a legislative
power, but
by doing so also marks out Parliament's significant role in the
separation of powers and protection of judicial independence.
The
nature of this power cannot be overlooked, and the Constitution's
delegation to Parliament must be restrictively construed
to realise
that protection.’
[54]
The cases we have discussed flatly refute the central premise of the
HSF’s argument –
that not only the involvement of the
executive but also that of the legislature interferes with the
independence of an organisation
such as IPID. Indeed, these cases
identify the involvement and oversight of the legislature as an
important element of the protection
of the functional and structural
independence of independent statutory bodies. The legislature, in
other words, is a bulwark against
the erosion of their independence.
[55]
This conclusion means that the foundation of the HSF’s
interpretation of s 6(3) is untenable,
namely that because the PCP
having the power to renew undermines IPID’s independence, it is
necessary to interpret s 6(3)
in a different way that is purportedly
constitutionally compatible. Despite that, we shall deal briefly with
the competing interpretations
of the section.
[56]
Section 6 deals with the method of appointing the executive director
of IPID, the incumbent’s
term of office and its renewal, the
temporary appointment of an acting executive director when the
executive director is temporarily
unable to fulfil his or her duties,
the obligation to fill a vacancy expeditiously and the removal from
office of the executive
director.
[57]
In the section as a whole, covering all of these aspects, only two
role-players are mentioned.
They are the Minister and the PCP. Both
play a part in the appointment process in the sense that while the
Minister nominates a
candidate, the PCP either confirms or rejects
the nomination. If the nomination is confirmed, the successful
candidate is appointed.
Section 6(3) is silent as to who has the
power to renew the tenure of the executive director for a further
term of five years.
It is also silent as to the process that is to be
followed.
[58]
From these features, it appears to us that in relation to the renewal
of the executive- director’s
term of office, the only bodies
that were contemplated in the process were one or both of the
Minister and the PCP. We are of the
view that the PCP has the power
to renew, in the same way as it had the power to appoint. We are
strengthened in our view by the
analogous situation in
Masetlha
v President of the Republic of South Africa and Another
[22]
in which it was held that the power vested in the President to
appoint a person to a position included and incidental power to
remove that person from the position. The court held that this was,
in ‘the absence of constitutional or statutory provisions
to
the contrary’, a ‘sound principle of constitutional and
statutory construction’.
[23]
We have already found that the Minister’s role is a limited
one: he or she may communicate his or her views to the PCP, as
they
would usually be relevant to its deliberations, and no empowerment is
necessary for him or her to do so.
[59]
By contrast, the HSF’s interpretation, that the executive
director has an option to renew
finds no support in the text of the
section. Indeed, when the scheme of s 6 is viewed holistically, it
jars. There is, as we have
pointed out, no need for this type of
interpretation in order to save s 6(3) from constitutional invalidity
because the PCP’s
powers are not in conflict with IPID’s
independence. But even if that was the case, the HSF’s
interpretation would
nonetheless be untenable. There are limits to
reading a statute down in order to save it from invalidity: it is,
the Constitutional
Court said in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
,
[24]
‘limited to what the text is reasonably capable of meaning’.
The HSF’s interpretation of the section fails this
test.
Furthermore, the proffered interpretation is not only illogical but
could have disastrous results. Why, one could rightly
enquire, if it
lies in the hands of an incumbent to decide whether to remain in the
position, is provision made for possible renewal
or extension? The
answer to the question of why there is a renewal process is for the
PCP to assess whether it is in the interests
of the country to have
the incumbent continue in the post, or to decide whether he or she is
indeed the best person for the position
at that moment in time,
taking into account a track-record and the views of all interested
parties. The suggested interpretation
by the HSF might have the
result that someone who had failed miserably at performing the tasks
of an executive director is the
determinative voice in deciding his
or her continued tenure. That would be an absurd result.
[60]
One final point bears mention. It is clear from the above that the
order made by Hughes J was
in accordance with a proper interpretation
of s 6(3) of the Act and that, as a result, the HSF’s appeal
must fail. Even if
it had succeeded, however, it would not have been
entitled to the relief it sought in para 2.2 of the draft order
attached to its
notice of appeal, namely an order ‘declaring
that Mr McBride’s tenure as the Executive Director of IPID is
renewed
for a five-year period, from 1 March 2019 to 28 February
2024’. First, Mr McBride never purported to exercise an option
to
renew in terms of this purported power, as suggested by the HSF.
Second, and no less importantly, there is presently someone else
in
that position. Mr McBride has taken up a new position which he is not
willing to relinquish and the current executive director
has not been
joined as a party and has thus not been heard. The suggestion by the
HSF makes an incumbent a judge in his or her
own cause, which is as
undemocratic as it can get.
Amici
[61]
In
Children’s
Institute v Presiding Officer, Children’s Court, Krugersdorp
and Others
[25]
the Constitutional Court recognised the importance of the role played
by amici. It said the following:
[26]
‘
Thus
the role of an
amicus
envisioned in the Uniform Rules is very closely linked to the
protection of our constitutional values and the rights enshrined
in
the Bill of Rights. Indeed, rule 16A(2) describes an
amicus
as an “interested party in a
constitutional
issue
raised in proceedings”. Therefore, although friends of the
court played a variety of roles at common law, the new Rule was
specifically intended to facilitate the role of
amici
in promoting and protecting the public interest. In these cases
amici
play
an important role first, by ensuring that courts consider a wide
range of options and are well informed: and second, by increasing
access to the courts by creating space for interested non- parties to
provide input on important public interest matters, particularly
those relating to constitutional issues.’
[62]
In
Children’s
Institute
the court held that it was permissible for an amicus to submit
evidence for consideration by a court, where appropriate, in addition
to making submissions to assist a court.
[27]
This will be permitted if it is in the interests of justice to do so.
[63]
Our law reports abound with cases where courts have obtained
assistance from amici. However,
in
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
,
[28]
the Constitutional Court was unsympathetic to the Democratic Alliance
(the DA), a political party, in its attempt be admitted as
an amicus.
The court considered it inappropriate to permit the DA to advance a
sectarian interest under the guise of being an amicus.
In that case
the court also held that the written submission that the DA had filed
did not contain any new insight. It supported
‘in great part’
the attitude already displayed by one of the parties.
[29]
[64]
In
Komape
and Others v Minister of Basic Education
[30]
this court considered an application by a firm of attorneys to be
admitted as an amicus, in terms of rule 16 of the rules of this
court, on the basis that it wanted to be of assistance in developing
the common law. In deciding against admitting the firm as
an amicus,
the court held that the firm was advancing a cause of its own, in
that it had litigated in another matter on behalf
of a client on a
contingency basis and was claiming delictual damages in that matter,
as was the appellant in the appeal before
this court. It was
therefore more a litigant than an amicus. This court concluded that,
in its quest to be admitted as an amicus,
the firm of attorneys was
seeking unfairly to steal a march on the opposing litigant in the
other case. The firm’s financial
interests in the outcome of
the appeal could also not be discounted. A further factor, this court
said, that militated against
the firm’s admission as an amicus
was that it was not supporting the appellants in that case but was
advancing a different
cause of action that had not been pleaded and
in respect of which no evidence had been led, and the issue which it
sought to have
addressed had not been explored in the court below.
[65]
What can be distilled from what is set out above is that our courts
consider it important to
admit amici that will play their rightful
role but also ensure that the participation of amici is kept within
appropriate bounds.
[66]
In the present case the HSF, in its presentation to the court below
of the basis on which it
sought to be admitted, as set out in para 20
above, took the view that the legislation in question was not
specific about who the
responsible authority was for taking the
decision to re-appoint and that its proposal that it be left to the
incumbent to decide
was the only constitutionally viable
interpretation. It did not have regard to the fundamental
difficulties with that perspective
as outlined above. There was no
challenge to the constitutionality of the legislation, in the event
it was only capable of being
read to mean that the power to
re-appoint lay with the PCP. The decisions of the Constitutional
Court referred to earlier about
parliamentary oversight might have
proved to be an insurmountable stumbling block.
[67]
The attempted broadening of the scope of the challenge before us as
to the lack of guidelines
in the processes of the PCP, which was not
foreshadowed at all, either in the application for admission as an
amicus and certainly
not by any of the parties, is impermissible.
There was no evidence on which such an adjudication could take place
and there was
no attempt by the HSF, in the court below, to adduce
such evidence which would then, in turn, have given the opposing
parties a
right to challenge by way of evidence and submissions of
their own. What an amicus should not be permitted to do is to make
out
an entirely new case on appeal without the necessary evidence and
without regard to due process. As pointed out above, events have
overtaken the agreement reached by the parties. The order sought by
the amicus would have Mr McBride re-instated in a post he does
not
intend to return to. At least notionally, it would displace the
present executive- director of IPID and at the very least would
render his appointment questionable, without him or her being heard.
It is at this point that an amicus ceases to be an amicus
and becomes
a litigant. It is thus not unsurprising that Corruption Watch exited
the scene after the settlement agreement between
the primary
disputants.
The
order
[68]
It will be clear from our reasoning that the appeal must fail. No
costs order was made by the
court below when it made the settlement
an order. In dismissing the HSF’s application for leave to
appeal, however, the court
below ordered it to pay costs. When
granting leave to appeal, this court set aside that costs order. In
its place it ordered that
‘the costs of the application for
leave to appeal in this court and the court a quo are costs in the
appeal’. On the
basis of the
Biowatch
principle,
[31]
no order of costs will be made in this appeal.
[69]
The appeal is dismissed.
M
S NAVSA
ACTING
DEPUTY PRESIDENT
C
PLASKET
JUDGE
OF APPEAL
Appearances:
For
appellant:
M
du Plessis SC
Instructed
by:
Webber
Wentzel, Johannesburg
Symington
& De Kok Attorneys, Bloemfontein
For
3
rd
respondent:
T Ngcukaitobi SC, with him J Mitchell
Instructed
by:
State
Attorney, Pretoria
State Attorney, Bloemfontein
For
4
th
respondent:
T
Ngcukaitobi SC, with him K Premhid
Instructed
by:
State Attorney, Pretoria
State
Attorney, Bloemfontein
[1]
McBride
v Minister of Police and Others (Helen Suzman Foundation as Amicus
Curiae)
[2016]
ZACC 30; 2016 (2) SACR 585 (CC); 2016 (11) BCLR 1398 (CC).
[2]
Eke
v Parsons
[2015]
ZACC 30; 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC).
[3]
Paras
25-26.
[4]
That
is a ground of review in terms of
s 6(2)
(e)
(iv)
of the
Promotion of Administrative Justice Act 3 of 2000
, if the
decision to renew is an administrative action. See
Mlokoti
v Amathole District Municipality and Another
2009 (6) SA 354
(E) at 379J-380F;
Tantoush
v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T) para 81. It is also a common law ground of
review if the decision is reviewable in terms of the rule of law’s
principle
of legality. See
Chotobhai
v Union Government (Minister of Justice) and Another
1911 AD 13
at 26;
Hofmeyr
v Minister of Justice and Another
1992 (3) SA 108
(C) at 117F-G and 125D-E.
[5]
Note
1.
[6]
Glenister
v President of the Republic of South Africa and Others
[2011]
ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) paras 125 and
121.
[7]
Para
125.
[8]
Para
121.
[9]
Note 1
para 38. Emphasis added.
[10]
Note
6.
[11]
Para
222.
[12]
Para
225.
[13]
Para
226.
[14]
Helen
Suzman Foundation v President of the Republic of South Africa and
Others
[2014]
ZACC 32
;
2015 (2) SA 1
(CC);
2015 (1) BCLR 1
(CC).
[15]
In
Glenister
,
the court had suspended its declaration of invalidity for 18 months
so that Parliament could rectify chapter 6A of the
South African
Police Service Act 68 of 1995
.
[16]
Para
89.
[17]
Para
90.
[18]
Para
91.
[19]
Justice
Alliance of South Africa v President of the Republic of South Africa
and Others
[2011]
ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC).
[20]
Para
57.
[21]
Para
67.
[22]
Masetlha
v President of the Republic of South Africa and Another
[2007]
ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (CC).
[23]
Para
168.
[24]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999]
ZACC 17
; 2000 (2) 1 (CC)
[1999] ZACC 17
; ;
2000 (1) BCLR 39
(CC) para 24. See too
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) paras
23-24.
[25]
Children’s
Institute v Presiding Officer, Children’s Court, Krugersdorp
and Others
[2012]
ZACC 25; 2013 (2) SA 620 (CC); 2013 (1) BCLR 1 (CC).
[26]
Para
26. Citations omitted.
[27]
P
aras
29-39.
[28]
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2012]
ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC).
[29]
Paras
15 and 16.
[30]
Komape
and Others v Minister of Basic Education
[2019]
ZASCA 192; 2020 (2) SA 347 (SCA).
[31]
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).