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[2021] ZAGPPHC 10
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South African Policing Union and Others v Minister of Police and Others (66522/2020) [2021] ZAGPPHC 10 (8 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO.: 66522/2020
In
the
matter between
:
SOUTH
AFRICAN POLICING UNION
First
Applicant
LIEUTENANT
GENERAL: P A
JACOBS
Second Applicant
BRIGADIER:
L.A LOMBARD
Third
Applicant
COLONEL:
I
WALLJEE
Fourth Applicant
COLONEL:
M GOPAL
Fifth
Applicant
MAJOR
GENERAL: M J
LEKALAKALA
Sixth Applicant
COLONEL:
B.W
MATAMELA
Seventh
Applicant
and
MINISTER
OF
POLICE
First Respondent
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICE
Second
Respondent
THE
INSPECTOR GENERAL OF INTELLIGENCE
Third Respondent
JUDGMENT
Minnaar
AJ:
1.
This application was set down in the urgent
court for hearing on Tuesday 5 January 2021. The application was
allocated to be heard
at 11h30 on Wednesday 6 January 2021 via
Microsoft Teams. At the outset I wish to thank all counsel involved
for their comprehensive
heads of argument: it assisted a great deal.
2.
At the commencement of proceedings the
parties were requested to address the court on urgency. Vigorous
argument was presented by
counsel for both parties regarding urgency.
After having considered the submissions made I regard this
application as urgent and
as such no further comment in this regard
is necessary.
3.
The applicants seek a final declaration
that the suspensions dated 8 to 10 December 2020 respectively, are
unlawful. The alleged
illegality is premised on the breach of section
7(7)(f) of the Intelligence Services Oversight Act, 40 of 1994 (“the
IOA”).
The National Commissioner of the South African Police
Services (“National Commissioner”), the second
respondent, and
the Inspector General of Intelligence (“the
IGI”), the third respondent, oppose the application. The
Minister of Police
(“the Minister”), the first
respondent, abides by the decision of this court.
4.
Counsel for the applicants submitted that
it is necessary for this court to determine the correct meaning of
Regulation 10(4) of
the South African Police Service Discipline
Regulations (“the Regulations”) in the interpretation of
the South African
Police Service Act, No. 68 of 1995 (“the SAPS
Act”).
5.
On behalf of the second and third
respondents their counsel submitted that the question to be answered
is whether section 7(7) of
the Intelligence Services Oversight Act,
No. 40 of 1994 (“the ISO Act”) provide that the National
Commissioner, as
the employer, may not suspend employees (the second
to seventh applicants) until the IGI submits a report to the
Minister, and
until the Minister recommends their suspensions.
6.
This court need not delve on the merits of
the allegations or basis of the suspensions of the second to seventh
applicants: save
to state that
the second
to seventh applicants are alleged to have violated a number of
provisions, regulations and instructions provided for
in the
procurement regulatory framework. In this regard, on or about 27
November 2020 the IGI alerted the National Commissioner
of
allegations of procurement irregularities relating to the purchase of
PPE using the Secret Service Account in the Crime Intelligence
Division of the SAPS.
7.
Subsequent to the aforesaid the following
occurred:
7.1
On 30 November 2020, the National Commissioner appointed Lieutenant
General Vuma to conduct
an internal investigation into the
allegations against the second to seventh applicants. This was done
in terms of the Discipline
Regulations of 2016;
7.2
The second to seventh applicants were also served with
notices of intended suspension
and they were invited to make
written submissions on why they should not be suspended
;
7.3
On
1 December 2020, the Minister
addressed correspondence to the National Commissioner stating that in
terms of section 7 of the Intelligence
Services Oversight Act, No. 40
of 1994 (“the ISO Act”) the IGI must submit a report to
him and that, until such time
that a report has been furnished, the
suspensions must be held in abeyance. This was followed by another
letter on 4 December 2020
wherein the Minister reiterated the
position expressed above;
7.4
The National Commissioner responded on 4 December 2020 to the
following effect:
i)
The disciplinary process that was initiated was a separate and
independent
process from the IGI’s duty to submit a report to
the Minister in terms of section 7 of the ISO Act;
ii)
The steps taken were necessary in terms of section 40 of the South
African Police
Service Act, No. 68 of 1995 (“the SAPS Act”)
read with the Discipline Regulations. Further that as the accounting
officer,
the Public Finance Management Act, No.1 of 1999 (“PFMA”)
enjoins him as the National Commissioner to act on allegations
of
financial misconduct;
iii)
These steps were taken because there were reasonable grounds to
suspect that there
has been misconduct requiring an investigation;
and
iv)
Given that all the legal requirements have been met, it was not
within the National
Commissioner’s powers to hold the matter in
abeyance.
7.5
The second to seventh applicants submitted
their written representations explaining why
their
suspensions should
not
be
proceeded with. These were considered by
the National Commissioner and a decision was taken to suspend the
second to seventh applicants;
7.6
On 13 December 2020, the second to seventh’s applicants’
attorney sent a letter
to the National Commissioner requesting that
the suspensions be uplifted. This request was denied;
7.7
On
21 December 2020, the IGI sent comments
on the Minister’s letters of 1 and 4 December 2020. The
comments are set out in detail
in Annexure “AA1” to the
answering affidavit. In essence, the IGI explained that there is
nothing precluding interactions
between the IGI and the National
Commissioner, that cooperation and interaction between their offices
is required, and that section
7(7) of the ISO Act does not fetter the
National Commissioner’s authority in relation to the management
of discipline in
the SAPS.
The
Intelligence Services Oversight Act, No. 40 of 1994 (“the ISO
Act”):
8.
Section 7(7) of the ISO Act reads:
“
The
functions of the Inspector-General are, in relation to the Services-
(a)
to monitor compliance by any Service with the Constitution,
applicable laws and relevant
policies on intelligence and
counter-intelligence;
(b)
to review the intelligence and counter-intelligence activities of any
Service;
(c)
to perform all functions designated to him or her by the President or
any Minister
responsible for a Service;
(cA)
to receive and investigate complaints from members of the public and
members of the Services on alleged
maladministration, abuse of power,
transgressions of the Constitution, laws and policies referred to in
paragraph (a), the commission
of an offences [sic] referred to in
Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the
aforementioned offences)
of Chapter 2 of the
Prevention and Combating
of Corrupt Activities Act, 2004
, and improper enrichment of any
person through an act or omission of any member;
(d)
to submit the certificates contemplated in subsection (11) (c) to the
relevant Ministers;
(e)
to submit reports to the Committee pursuant to
section 3
(1) (f); and
(f)
to submit reports to every Minister responsible for a Service
pursuant to the
performance of functions contemplated in paragraphs
(a), (b), (c) and (cA): Provided that where the Inspector-General
performs
functions designated to him or her by the President, he or
she shall report to the President.”
9.
In terms of the ISO Act 'services' means
the Agency, the Intelligence Division of the National Defence Force
and the Intelligence
Division of the South African Police Service.
10.
The National Commissioner is one of the
Heads of Service as defined in the Act.
11.
Section 7(7A) of this Act provides that the
reports of the IGI contemplated in subsection 7(f) in respect of
monitoring and reviewing
shall contain the findings and
recommendations of the IGI.
12.
The relationship between the IGI and the
National Commissioner (as Head of the Service) is as set out in
section 7(8)(a) of the
IOA. Since the IGI reports to the
Minister in terms of Section 7(7)(f), the IGI is empowered to demand
from the relevant
Head of Service (in this instance the National
Commissioner) and its employees such intelligence, information,
reports and explanations
deemed necessary for the performance of his
functions.
13.
The National Commissioner, as the Head of
service for Crime Intelligence, must in terms of section 7(11)(a) of
the ISO Act, submit
to the Minister a report,
in
respect of every period of 12 months or such lesser period as is
specified by the Minister responsible for that Service,
on
the activities of crime intelligence and copy the IGI.
14.
The National Commissioner is also enjoined
by section 7(11)((b)(i) to report to the IGI regarding any unlawful
intelligence activity
or significant intelligence failure of that
Service and any corrective action that has been taken or is intended
to be taken in
connection with such activity or failure.
Section 7(11)(b)(ii) provides that the National
Commissioner shall submit the report referred to in subparagraph (i)
to the IGI
within a reasonable period after such unlawful
intelligence activity or significant intelligence failure came to his
or her attention.
15.
As soon as practicable after the IGI
receives the report mentioned in section 7(11)(a) the IGI is in turn
enjoined by section 7(11)(c)
to submit to the Minister a certificate
stating the extent to which the IGI is satisfied with the report and
whether anything done
by that service is in the opinion of the IGI
unlawful, or involves an unreasonable or unnecessary exercise of
power by the state.
16.
Further steps as directed by the Act will
then follows which includes submitting the report of the IGI to the
Joint Standing Committee
of Intelligence so that it can carry out its
functions in terms of section 3 of the IOA.
17.
It is the case of the applicants that the
suspensions of the second to seventh applicants contravene section
7(7) of the ISO Act.
In this regard it is the case of the applicants
that:
17.1 The
IGI has certain statutory monitoring and compliance duties, for which
he is directly accountable
to the Minister. This includes
monitoring compliance with applicable laws and relevant policies on,
as in the present case,
alleged maladministration. This is an
express obligation in terms of section 7(7)(cA) read with section
7(7)(a).
17.2 The
outcome of this monitoring and compliance is a report, which must be
submitted to the relevant
Minister. That report must, as
prescribed by section 7(7A), contain findings and recommendations.
The report in turn
is underpinned by information from the Head of
Service, in this case the National Commissioner, that the IGI is
empowered under
section 7(8)(a) to demand for the purposes of
reporting to the Minister;
17.3 The
IGI cannot simply act without restraint, particularly as in this case
where the information that
forms the subject matter of the report is
subject to restriction in terms of any law. Before that
information can be disclosed,
the President or Minister, as
appropriate must be consulted. If it is agreed that the
information in question can be disclosed
such as for example for use
in a hearing involving members of Crime Intelligence, the disclosure
must be subject to restrictions
imposed by the IGI himself and where
it has been established that disclosure is not detrimental to the
national interest;
17.4 The
ISO Act also regulates the relationship of the National Commissioner
to the Minister. The
National Commissioner, in his capacity as
Head of Crime Intelligence, must report to the Minister on its
activities and copy the
IGI. In so doing he is mandated to
report any unlawful intelligence activity or intelligence failure.
On receipt of
the report the IGI submits to the Minister a
certificate stating whether he is satisfied with the report.
The Minister in
turn submits the report to Parliament;
17.5
These provisions exist as a collaborative
whole creating obligations for the Minister, the National
Commissioner, the IGI and Parliament
with the overall aim of giving
effect to the national strategic intelligence agenda as set out in
the
National Strategic Intelligence Act, 39 of 1994
. That aim
is to protect national security against the threats defined in the
Act.
17.6 This
is the framework within which the illegality of the suspension must
be understood, and the Minister’s
request that, before any
further disciplinary action is taken, he is furnished with a report
by the IGI. Regulation 10 and
the powers conferred on the
National Commissioner cannot be interpreted in conflict with the
obligations of the National Commissioner,
the IGI and the Minister
under the ISO Act. Section 24(1) of the SAPS Act (dealing with
regulations that the Minister may
make) and the Disciplinary
Regulations thereto, must be interpreted in harmony with section
7(7).
17.7 It
follows as a matter of rational and proper statutory interpretation
that the SAPS Act, and the Discipline
Regulations promulgated in
terms thereof, must be construed together with these statutes, as
they are
in pari materia.
17.8
Their aim is not to deprive the Minister of his powers under the
Constitution and the SAPS Act, but
rather to regulate somewhat more
onerously the discipline of members of the Service, with good
reason. That reason is rooted
in the protection of national
security against what the definition section to the Strategic
Intelligence Act records as:
'national
security'
includes
the protection of the people of the Republic and the territorial
integrity of the Republic against-
(a) the
threat of use of force or the use of force;
(b) the
following acts:
(i) Hostile
acts of foreign intervention directed at undermining the
constitutional order of the Republic;
(ii) terrorism
or terrorist-related activities;
(iii) espionage;
(iv) exposure
of a state security matter with the intention of undermining the
constitutional order of the Republic;
(v) exposure
of economic, scientific or technological secrets vital to the
Republic;
(vi) sabotage;
and
(vii) serious
violence directed at overthrowing the constitutional order of the
Republic;
(c) acts
directed at undermining the capacity of the Republic to respond to
the use of, or the threat of the use
of, force and carrying out of
the Republic's responsibilities to any foreign country and
international
organisation in
relation to any of the matters referred to in this definition,
whether directed from, or committed within, the Republic
or not, but
does not include lawful political activity, advocacy, protest or
dissent;
17.9
These are the objectives of
collaborative monitoring, compliance and reporting of
maladministration. These powers are fully
intact, but in the
case of Crime Intelligence, fall to be exercised contextually and
purposively to give effect to the national
intelligence agenda.
This is why the ISO Act regulates the relationship between the three
respondents, prescribing for each
their obligations inter se.
It is a statutory covenant that binds them to a single, harmonious
intelligence agenda within
the sphere of their allocated powers;
17.10
It
is not the applicants’ case that the consent of the Minister is
required before the National Commissioner exercises his
powers, but
just that the consultative process called for by section 7(7) of the
ISO Act is given effect to because it exists alongside
the powers of
the National Commissioner.
17.11 In conclusion it is
then the case of the applicants that the failure of the National
Commissioner to wait for the IGI
to furnish the report to the
Minister thus impinged on section 7(7) of the ISO Act, and the
relevant provisions of the Secret Service
Act 56 of 1978 and
National
Strategic Intelligence Act 39 of 1994
, in which framework the
Discipline Regulations fall to be interpreted. For this reason,
the suspensions are unlawful and
should be set aside.
18.
In the recent decision of
Independent
Institute of Education (Pty) Ltd v Kwa-Zulu Natal Law Society and
Others
2020 (2) SA 325
(CC) (relied on
by the applicants) the Constitutional Court was called upon to
interpret the Legal Practice Act in harmony with
the Higher Education
Act, the Court per Theron J expressed the principle as set out below:
“
[38] It
is a well-established canon of statutory construction that “every
part of
a statute should be construed so as to be consistent, so far
as possible, with every other part of that statute, and with every
other unrepealed statute enacted by the Legislature”.
Statutes
dealing with the same subject matter, or which are in pari
materia, should be construed together and harmoniously
.
This
imperative has the effect of harmonising conflicts and differences
between statutes.
The canon derives its force from the presumption that the Legislature
is consistent with itself. In other words, that the
Legislature knows
and has in mind the existing law when it passes new legislation, and
frames new legislation with reference to
the existing law.
Statutes
relating to the same subject matter should be read together because
they should be seen as part of a single harmonious
legal system.
[39]
This
canon of statutory interpretation was expressly recognised and
affirmed by this Court in Shaik. In that case it was held
that
the words “any person”
in
section 28(6) of the National Prosecuting Authority Act, despite
their wide ordinary meaning, should be construed restrictively
to
avoid a clash with a provision in another statute.
[40]
More
recently, this Court in Ruta interpreted provisions of the
Immigration Act together and in harmony with those of
the
Refugees Act. In a unanimous judgment, this Court noted that
“[w]ell-established interpretive doctrine enjoins us to
read
the statutes alongside each other, so as to make sense of their
provisions together.”
[41]
This
canon is consistent with a contextual approach to statutory
interpretation. It is now trite that courts must properly
contextualise statutory provisions when ascribing meaning to the
words used therein.
While
maintaining that words should generally be given their ordinary
grammatical meaning, this Court has long recognised that a
contextual
and purposive approach must be applied to statutory interpretation
.
Courts must have due regard to
the context in which the words appear, even where “the words to
be construed are clear and
unambiguous”.
[42]
This
Court has taken a broad approach to contextualising legislative
provisions having regard to both the internal and external
context in statutory interpretation. A contextual approach requires
that legislative provisions are interpreted in light of the
text of
the legislation as a whole (internal context). This Court has also
recognised that context includes, amongst others, the
mischief which
the legislation aims to address, the social and historical background
of the legislation, and,
most
pertinently for the purposes of this case, other legislation
(external context)
.
That a contextual approach mandates consideration of other
legislation is clearly demonstrated in Shaik. In Shaik,
this Court considered context to be “all-important” in
the interpretative exercise…
19.
From the above it is evident that
every part of a
statute should be construed so as to be consistent, so far as
possible, with every other part of that statute. It
thus follows that
section 7(7) cannot be read in isolation. The applicants referred to
the provisions of section 7(11) and same
must be read in conjunction
with what is provided for in section 7(7).
20.
In terms of section
7(7)(a) the IGI is to monitor compliance with the Constitution,
applicable laws and relevant policies on intelligence
and
counter-intelligence.
21.
In terms of the ISO
Act “intelligence” is defined as the process of
gathering, evaluation, correlation and interpretation
of security
information, including activities related thereto, as performed by
the Services.
22.
“
Counter-intelligence”
means counter-intelligence as defined in
section 1
of the
National
Strategic Intelligence Act, 39 of 1994
. In that Act
‘counter-intelligence’ means measures and activities
conducted, instituted or taken to impede and to neutralise
the
effectiveness of foreign or hostile intelligence operations, to
protect intelligence and any classified information, to conduct
vetting investigations and to counter any threat or potential threat
or potential threat to national security.
23.
This court cannot, at this stage, come to
the conclusion that the violations allegedly conducted by the second
to seventh applicants
can in any way be construed to mean that same
relates to applicable laws and relevant policies on intelligence or
counter-intelligence
as provided for in section 7(7)(a) of the ISO
Act. As such it would be premature to determine whether there was a
duty on the IGI
to monitor compliance as provided for in section
7(7)(a) of the ISO Act.
24.
In the same breath the alleged violations
can also not, at this stage, be construed as being non-compliance
with the Constitution
as provided for in section 7(7)(a) of the ISO
Act.
25.
It would further be premature to determine,
at this stage, whether same applies to the specified complaints
mentioned in section
7(7)(cA) of the ISO Act. In as far as reliance
is placed thereon that the alleged violations are premised on
maladministration
then this subsection makes mention of ‘alleged’
maladministration: it follows that the IGI would not be in a position
to present a report on alleged actions without having concluded a
thorough investigation.
26.
In amplification to the above the same
apply to whether there was a breach of ‘national security’
as defined in the
definition section to the National Strategic
Intelligence Act, 56 of 1978.
27.
In terms of Annexure “AA1” to
the answering affidavit it is evident that the IGI is currently
seized with an investigation
against the second to seventh
applicants. As such it should be accepted that the IGI is currently
acting in terms of the provisions
of section 7(7)(cA) of the ISO Act.
The IGI clearly states in Annexure “AA1” that there are
allegations of procurement
irregularities and that the report
envisaged in section 7(7)(f) will be submitted to the Minister as and
when it is completed.
28.
The applicants’ sole reliance on
section 7(7) is misconstrued as section 7(11) also makes provision
for reports to be submitted
by the National Commissioner to both the
Minister and the IGI.
29.
Section 7(11)(b)(i) provides for a
situation where the National Commissioner (as Head of a Service)
shall report to the IGI regarding
any unlawful intelligence activity
or significant intelligence failure of that Service and any
corrective action that has been
taken or is intended to be taken in
connection with such activity or failure.
30.
In terms of section 7(11)(b)(ii) such
report shall be submitted to the IGI within a reasonable period after
such unlawful intelligence
activity or significant failure came to
his or her attention.
31.
The ‘corrective action’
referred to in section 7(11)(b)ii) might for all purposes include the
precautionary suspensions
of members, the current investigation by
Lieutenant General Vuma and any
disciplinary process (if any) that might follow
.
32.
Regarding the aforesaid it is clear that
there is currently an investigation undergoing and disciplinary
processes are pending.
The second respondent is still at full liberty
to act in terms of the provisions of sections 7(11)(b)(i) and (ii)
and/or the provisions
of section 7(7)(f) (as alluded to in Annexure
“AA1” to the answering affidavit).
33.
Until such time as the investigations by
Lieutenant General Vuma and/or the IGI is
concluded it would be premature to decide whether the alleged
misconduct or violations
relates to intelligence and
counter-intelligence as provided for in section 7(7)(a), or
constitutes maladministration as provided
for in section 7(7)(cA) or
whether same is catered for in terms of section 7(11)(a) and/or (b)
of the ISO Act.
34.
In the premises the applicants are
premature in approaching this court on the provisions of section 7(7)
of the ISO Act.
National Commissioner’s
authority to act:
35.
In terms of the Constitution
of
the Republic of South Africa, 1996 the National Police Service is
provided for in section 205 of the Constitution. The objects
of the
police service are listed in Section 205(3). They are “
to
prevent, combat and investigate crime, to maintain public order, to
protect and secure the inhabitants of the Republic and their
property, and to uphold and enforce the law”
.
Section 205 provides that National legislation must establish the
powers and functions of the police service and must enable the
police
service to discharge its responsibilities effectively.
36.
The person tasked with exercising control
over and managing SAPS is the National Commissioner. According to
section 207(1) of the
Constitution, the National Commissioner is
appointed by the President, and according to section 207(2), the
National Commissioner
“
must
exercise control over and manage the police service.”
This general provision is given more flesh in Schedule 6 Item 24 read
together with Annexure D, which is concerned with the
responsibilities
of the National Commissioner.
37.
The National Commissioner is specifically
made responsible for the maintenance of an impartial, accountable,
transparent and efficient
police service, as well as the recruitment,
appointment, promotion, and transfer of all the members of SAPS.
38.
Also of relevance is the provisions related
to the public services. The police service forms part of the public
service in South
Africa. The Constitution places the public service
within the public administration, and the basic values and principles
governing
public administration would also govern the public service
including the police service. In terms of section 195(1) of the
Constitution
this includes:
i)
the promotion and maintenance of a high standard of professional
ethics;
ii)
the promotion of efficient, economic, and effective use of resources;
iii)
the requirement that public administration must be accountable; and
iv)
the cultivation of “good human resource management and career
development practices”.
39.
In terms of Section 195(2) of the
Constitution, the above principles apply to all organs of state and
in the administration of every
sphere of government.
40.
The
South African Police Service Act 68 of
1995
(“SAPS Act”) is the national legislation
contemplated in section 205(3) of the Constitution. The preamble to
the SAPS
Act is an indication of its purpose. It must combat crime,
uphold, and safeguard the fundamental rights of every person.
41.
Section 24(1) of the SAPS Act, empowers the
Minister to make different regulations (subordinate legislation) in
respect of a variety
of topics, including but not limited to:
i)
the exercising of policing powers and the performance by members of
their
duties and functions;
ii)
the recruitment, appointment, promotion and transfer of members;
iii)
the training, conduct and conditions of service of members;
iv)
the general management, control and maintenance of the service;
returns, registers,
records, documents, forms and correspondence in
the service; labour relations, including matters regarding
suspension, dismissal
and grievances; and
v)
the institution and conduct of disciplinary proceedings or inquiries.
42.
In general, these regulations are aimed at
ensuring the proper functioning of the police service and regulating
the conduct and
discipline of its members.
43.
Section
40 of the SAPS Act states that “
disciplinary
proceedings may be instituted in the prescribed manner against a
member on account of misconduct whether such misconduct
was committed
within or outside the borders of the republic”
.
44.
To
give effect to this section and section 24 of the SAPS Act, the
Minister has enacted the Disciplinary Regulation of 2016.
45.
Discipline within the SAPS is dealt with
under the South African Police Service Discipline Regulations 2016
published by the Minister
in Government Gazette No. 40389 on 1
November 2016 (“the Discipline Regulations”).
46.
The Discipline Regulations, in section
1(d), define “employer” as the National Commissioner or
any person delegated
by the National Commissioner to perform any
function in terms of the Regulations.
47.
The scope of the regulations is set out in
regulation 2. The Regulations apply to the employer and all its
employees including members
of the Senior Management Service of the
Service, excluding the National Commissioner and Provincial
Commissioners.
48.
Regulation 4 is of significance hereto:
Regulation 4 sets
out the principles underpinning disciplinary action. Discipline is
considered corrective and not punitive. It
is to be applied in a
manner that is prompt, fair, consistent and progressive. Disciplinary
action is considered a line management
function.
i)
Regulation 4 also allow for the appointment of an employee who is
impartial and
not in any way connected to the alleged misconduct to
represent the employer at, preside over the disciplinary hearing or
investigate
alleged misconduct against an employee. An employee
appointed to investigate the alleged misconduct must be of equal or
higher
rank than the employee being investigated. The investigation
into an alleged misconduct must be done independently and be separate
from any other investigation.
ii)
Finally, regulation 4 sets out procedural protections for employees
going through
disciplinary action. An employee undergoing
disciplinary proceedings has the right to representation. A person
appointed as a chairperson
is required to act objectively, unbiased
and protect the interest of both parties and at no stage must assume
the role or act on
behalf of any of the parties.
49.
Regulation 5 sets out conduct that warrants
disciplinary action. In particular, regulation 5(3) provides as
follows:
“
(3)
An employee will be guilty of misconduct if he or she
(a)
fails to comply with, or contravenes an Act, regulation or legal
obligation;
(b)
performs any act or fails to perform any act with the intention;
(i)
to cause harm to or prejudice the interests of the Service, be it
financial
or otherwise;
(ii)
to undermine the policy of the Service; or
(iii)
not to comply with his or her duties or responsibilities;
(c)
wilfully or negligently mismanages the finances of the State;
…
(t)
conducts himself or herself in an improper, disgraceful and
unacceptable manner;
…
(v)
incites other employees to unlawful conduct or conduct in conflict
with accepted procedure;
…”
50.
Sub-regulation 5(4) lists conduct which may
warrant the institution of the expeditious procedure as provided for
in regulation 9:
“
…
(f)
Corruption;
…
(x)
Any act of misconduct which detrimentally affects the image of the
Service or brings
the Service into disrepute or which involves an
element of dishonesty;
…”
51.
Regulation 8(1) provides that “
[a]
supervisor must ensure that the investigation into the allegations of
misconduct is completed within thirty (30) calendar days
or as soon
as practically possible thereafter, and if satisfied that the alleged
misconduct is of a serious nature and justifies
the holding of a
disciplinary hearing, refer the outcome of the investigation to the
employer representative within seven (7) working
days to initiate a
disciplinary enquiry. The employee must be informed of the alleged
misconduct and pending investigation.”
52.
Importantly, regulation 10 allows the
National Commissioner to place an employee on suspension as a
precautionary measure. It provides
as follows:
“
(1)
A suspension or temporary transfer is a precautionary measure.
(2)
The National, Provincial or Divisional Commissioner may suspend or
temporarily transfer
an employee, provided that before effecting such
a suspension or transfer such an employee is afforded a reasonable
opportunity
to make written representations.
(3)
The employer may after having afforded an employee a reasonable
opportunity to make written
representations and after consideration
of the representations, suspend with full remuneration, or
temporarily transfer an employee
as a precautionary measure on
conditions, as may be determined.
(4)
After an employee is suspended with full remuneration or temporarily
transferred as a precautionary
measure, the employer must hold a
disciplinary hearing within sixty (60) calendar days from the
commencement of the suspension.
Upon the expiry of the sixty (60)
calendar days the chairperson of the hearing must decide whether the
suspension or temporary
transfer should continue or be terminated and
if the suspension or temporary transfer continues, it should not be
more than thirty
(30) calendar days where after, the suspension or
temporary transfer is automatically uplifted.”
53.
The Public Finance Management Act No.1 of 1999 (“the
PFMA”)
is the national legislation envisaged
in section 216 of the Constitution, and seeks to give effect to,
amongst others, the values
underpinning sections 217 and 195 of the
Constitution. The PFMA was enacted to regulate financial management
in the national government
and provincial governments; to ensure that
all revenue, expenditure, assets and liabilities of those governments
are managed efficiently
and effectively; to provide for the
responsibilities of persons entrusted with financial management in
those governments; and to
provide for matters connected therewith.
54.
Section 36 of the PFMA provides that every
department and every constitutional institution must have an
accounting officer. The
head of a department must be the accounting
officer for the department. The National Commissioner is SAPS’s
accounting officer
as envisaged by section 36.
55.
Section 51 of the PFMA sets out the duties
and responsibilities of accounting officers.
“
(1)
An accounting authority for a public entity—
(a)
must ensure that that public entity has and maintains—
(i)
effective, efficient and transparent systems of financial and risk
management
and internal control;
(ii)
a system of internal audit under the control and direction of an
audit committee
complying with and operating in accordance with
regulations and instructions prescribed in terms of sections 76 and
77; and
(iii)
an appropriate procurement and provisioning system which is fair,
equitable, transparent,
competitive and cost-effective;
(iv)
a system for properly evaluating all major capital projects prior to
a final decision on
the project;
(b)
must take effective and appropriate steps to—
(i)
collect all revenue due to the public entity concerned; and
(ii)
prevent irregular expenditure, fruitless and wasteful expenditure,
losses resulting
from criminal conduct, and expenditure not complying
with the operational policies of the public entity; and
(iii)
manage available working capital efficiently and economically;
(c)
is responsible for the management, including the safeguarding, of the
assets and for
the management of the revenue, expenditure and
liabilities of the public entity;
(d)
must comply with any tax, levy, duty, pension and audit commitments
as required by legislation;
(e)
must take effective and appropriate disciplinary steps against any
employee of the public
entity who—
(i)
contravenes or fails to comply with a provision of this Act;
(ii)
commits an act which undermines the financial management and internal
control system
of the public entity; or
(iii)
makes or permits an irregular expenditure or a fruitless and wasteful
expenditure;
(f)
is responsible for the submission by the public entity of all
reports, returns,
notices and other information to Parliament or the
relevant provincial legislature and to the relevant executive
authority or treasury,
as may be required by this Act;
(g)
must promptly inform the National Treasury on any new entity which
that public entity intends
to establish or in the establishment of
which it takes the initiative, and allow the National Treasury a
reasonable time to submit
its decision prior to formal establishment;
and
(h)
must comply, and ensure compliance by the public entity, with the
provisions of this Act
and any other legislation applicable to the
public entity.”
56.
Failure to comply with this provision
attracts severe consequences for an accounting officer. In this
regard section 86 of the PFMA
applies.
57.
Accounting officers are thus legally
required to act where there has been contravention or failure to
comply with a provision of
the PFMA. The aforesaid includes acts
which undermine the financial management and internal control system
of the public entity,
irregular expenditure or fruitless and wasteful
expenditure.
58.
The IGI derives his mandate from the
Constitution and the ISO Act. This Act provides for the appointment
of Inspectors General of
Intelligence and defines the IGI’s
functions.
59.
As already
mentioned the National Commissioner is the ‘Head of Service’
in terms of the ISO Act.
60.
The National Commissioner is the Head of
the Intelligence Division of SAPS for financial and administrative
accounting. Thus in
matters involving financial and administrative
accounting, the IGI is required to communicate with the National
Commissioner. As
stated, the IGI’s functions are set out in
section 7(7) of the ISO Act.
61.
The law relating to the interpretation of
legislation in this country is well-settled. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012] ZASCA 13
;
2012 (4) SA 593
(SCA). (“
Endumeni
”)
the SCA expounded the principle as follows:
“
[18]
. . . Interpretation is the process of attributing meaning to the
words used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of
the
document as a whole and the circumstances attendant upon its coming
into existence . . . The ‘inevitable point of departure
is the
language of the provision itself’, read in context and having
regard to the purpose of the provision and the background
to the
preparation and production of the document.
…
[26]
. . . in most cases the court is faced with two or more possible
meanings that are to a greater or lesser degree available
on the
language used. Here it is usually said that the language is
ambiguous, although the only ambiguity lies in selecting the
proper
meaning (on which views may legitimately differ). In resolving the
problem, the apparent purpose of the provision and the
context in
which it occurs will be important guides to the correct
interpretation. An interpretation will not be given that leads
to
impractical, unbusinesslike or oppressive consequences or that will
stultify the broader operation of the legislation or contract
under
consideration.”
62.
The
applicants
contend that section 7 of the ISO Act requires the IGI to submit a
report to the Minister and that the Minister must
take a decision on
the veracity of the allegations contained in the report before the
National Commissioner may take any decision
on the question of the
Employees’ suspension.
63.
As a point of departure, section 7(7) deals
with the functions of the IGI. In the main, the IGI’s oversight
role over the
intelligence and counter-intelligence services is
restricted to monitoring their compliance with the Constitution and
other laws.
Section 7(7) creates an oversight mechanism where the IGI
can receive complaints and reports on matters, investigate them and
submit
findings to the Minister.
64.
It is clear from a textual reading of
section 7(7) that the provision does not
regulate the second to seventh
applicants’ suspensions at all, nor does it create the
preconditions sought to be read in by
them. It does not provide that
in the absence of the IGI submitting a report to the Minister, and in
the absence of a decision
by the Minister which is communicated to
the National Commissioner, the National Commissioner will have no
power of suspension.
65.
The interpretation advanced by the
applicants would “
lead to
impractical, consequences or that will stultify the broader operation
of the legislation”
(
Endumeni
at para 28).
66.
It is the National Commissioner’s
prerogative as the employer to initiate investigations and
disciplinary action against the
second to seventh applicants as
employees.
67.
The Minister is responsible for determining
national policing policy (section 206 of the Constitution) and the
overall execution
of the department’s mandate, in relation to
key pieces of legislation.
68.
The National
Commissioner, on the other hand, is the Accounting Officer of the
SAPS. Deputy National Commissioners (under whom the
divisions and
components of the SAPS fall) and provincial commissioners (under whom
the cluster and station commanders fall) report
to the National
Commissioner.
69.
The National
Commissioner has the power to suspend the second to seventh
applicants in accordance with his entitlement to do so
in terms of
section 40 of the SAPS Act read with Regulations 4, 5, 8 and 10 of
the Discipline Regulations. Furthermore, the National
Commissioner is
obliged by section 51 read with section 86 of the PFMA to take
appropriate action in cases of procurement irregularities
and
flouting of Treasury Regulations. For the applicants to allege
otherwise (on the basis that the whole process in terms of section
7(7) of the ISO Act should first be exhausted) would defeat this
whole purpose. Speedy investigations and action is clearly needed
in
instances like these.
70.
In this regard I need
to state that it was conceded by counsel on behalf of the applicants
that the second to seventh applicants
are indeed employees of the
South African Police Service and that, as such, the National
Commissioner has the authority to suspend
them pending investigation
and disciplinary proceedings. The rider was however that they are
members of Crime Intelligence and
as such section 7(7) of the ISO Act
should first be adhered to before such suspensions. Premised on what
has already been found
with regard to the premature reliance on the
provisions of section 7(7) of the ISO Act, and the duties and
obligations of the National
Commissioner, this court cannot align
itself with this rider.
71.
The interpretation
advanced by the applicants further deprives the National Commissioner
of his powers, undermines his prerogative
on matters of discipline in
the employment realm, and undermines his ability to meet his
obligations as set out in the SAPS Act
and the PFMA by suggesting
that disciplinary action can only be taken once the Minister has made
some kind of decision based on
the IGI’s report.
72.
There is nothing in the
ISO Act that prohibits or precludes the National Commissioner from
initiating disciplinary action –
or an internal investigation
for that matter – in the event that he becomes aware of serious
allegations of misconduct committed
by senior officials within the
SAPS. It follows that he needs to act swiftly in execution his
mandate.
73.
In
Ruta
v Minister of Home Affairs
[2018]
ZACC 52
;
2019 (2) SA 329
(CC);
2019 (3) BCLR 383
(CC) (“Ruta
”
)
at paras 41-6
,
the Constitutional Court noted that a
“
[w]ell-established
interpretive doctrine enjoins [the Court] to read the statutes
alongside each other, so as to make sense of their
provisions
together.”
74.
In
Arse
v Minister of Home Affairs & others
2012 (4) SA 544
(SCA) at para 19, the SCA held as follows:
“
[19]
…
In
so far as there may be a conflict between the two provisions
[in different but related statutes]
they
should be reconciled. Where two enactments are not repugnant to each
other, they should be construed as forming one system
and as
re-enforcing one another
.
In Petz Products v Commercial Electrical Contractors
[1]
it was said:
‘
Where
different Acts of Parliament deal with the same or kindred subject-
matter, they should, in a case of uncertainty or
ambiguity,
be
construed in a manner so as to be consonant and inter-dependent, and
the content of the one statutory provision may shed light
upon the
uncertainties of the other
.’”
75.
Read together, the only
interpretation that makes sense and accords with the principles of
interpretation advanced in our jurisprudence
is that advanced by the
National Commissioner and the IGI.
76.
Suspensions of this
nature are at the prerogative of the employer. In this case, the
National Commissioner is the employer of the
second to seventh
applicants. The Minister’s role is circumscribed and does not
extend to the day-to-day employment-related
affairs of the SAPS.
77.
The suspensions are
clearly an interim measure to provide space for a proper
investigation. The National commissioner explains the
necessity of
this step as follows in his answering affidavit:
“
94.1
First,
an investigation
is required to look at the veracity of the allegations, and it needs
to be comprehensive and thorough.
94.2
Second, the Employees are all senior members of the crime
intelligence division, their seniority creates
a likelihood of
interference with the investigation, intimidation of witnesses and
tampering with documents. Their mere presence
during the
investigation could undermine the processes and jeopardize the
investigation by rendering persons with knowledge necessary
for the
investigation reluctant to come forward or be forthcoming. In
order to protect the process, this interim measure
is necessary.
94.3
Third, the suspensions are for a limited time. Regulation 10 provides
for automatic upliftment of the suspensions.
“
Upon
the expiry of the sixty (60) calendar days the chairperson of the
hearing must decide whether the suspension or temporary transfer
should continue or be terminated and if the suspension or temporary
transfer continues, it should not be more than thirty (30)
calendar
days where after, the suspension or temporary transfer is
automatically uplifted.”
94.4
Fourth, the suspensions are with full pay which ameliorates any
prejudice to the Employees.”
78.
From the papers it is
clear that all the legal prescripts have been met for the lawful
suspension of the second to seventh applicants
pending the internal
disciplinary processes. They do not contend otherwise –
instead, their application is premised on the
existence of additional
prescripts in section 7(7) of the ISO Act. For the reasons already
set out, such prescripts are simply
not there.
79.
Section
40 of the SAPS Act provides that the National Commissioner (and
employer) may institute disciplinary action against any
employee who
commits misconduct.
The
prescribed manner is set out in the Discipline Regulations discussed
above.
80.
Furthermore, section
51(1)(c) read with section 86(2) of the PFMA mandates accounting
officers to act where there has been contravention
or failure to
comply with a provision of the PFMA. Failure to act attracts serious
consequences.
81.
It follows that, the
National Commissioner is not only entitled to act against the second
to seventh applicants’ alleged misconduct,
but is obliged to do
so by law, specifically section 51 read with section 86 of the PFMA.
Costs:
82.
The applicants
approached this court to protect their interests and to seek an order
that they be reinstated. Although novel legal
points were raised it
cannot be said that the applicants were not aware of the National
Commissioner and the IGI’s approach
and justification of the
steps taken by them. Same is evident from the letter from the
National Commissioner to the Minister on
4 December 2020 (Annexure
“PJ3” to the founding affidavit) and more prudently from
the letter issued by the IGI to
the National Commissioner on 21
December 2020 (Annexure “AA1” to the answering
affidavit). Despite this the applicants
proceeded with this
application seeking final relief. There is no justification to depart
from the general rule that costs should
not follow the outcome.
83.
Both the applicants and
the second and third respondents employed two counsel.
In
the premises the following order is made:
1) The
application is dismissed;
2) The
applicants, jointly and severally the one paying the other to be
absolved to pay the costs of this application,
such costs to include
the costs in the employment of two counsel.
J MINNAAR
(AJ)
JUDGE OF THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION
DATE OF HEARING
: 06 JANUARY 2021
DATE OF JUDGMENT
: 08 JANUARY 2021
APPEARANCES:
For The
Applicants’
: Advocate R Tulk
Advocate KT Kgole
For
Second and Third Respondent
: Advocate R Itzkin
Advocate T Pooe
[1]
1990 (4) SA 196
(C) at 204H.