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South African Policing Union and Others v Minister of Police and Others (66522/2020) [2021] ZAGPPHC 33 (8 January 2021)

85 Reportability
Administrative Law
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Brief Summary

Administrative Law — Suspension of employees — Applicants sought a declaration that their suspensions were unlawful, alleging breach of section 7(7) of the Intelligence Services Oversight Act, 40 of 1994 — Respondents contended that the National Commissioner had the authority to suspend employees pending an internal investigation into procurement irregularities — Court held that the suspensions did not contravene the provisions of the ISO Act, affirming the National Commissioner’s discretion to act on allegations of misconduct.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter was an urgent application in the Gauteng Division of the High Court, Pretoria, seeking final declaratory relief concerning the lawfulness of precautionary suspensions imposed on senior members of the South African Police Service (“SAPS”) Crime Intelligence Division. The application was heard electronically (via Microsoft Teams) after being enrolled in the urgent court, and urgency was argued at the outset. The court accepted that the matter was urgent and proceeded to determine the merits.


The first applicant was the South African Policing Union, and the second to seventh applicants were senior SAPS officers in the Crime Intelligence Division. The first respondent was the Minister of Police (who abided the court’s decision). The second respondent was the National Commissioner of the South African Police Service, and the third respondent was the Inspector-General of Intelligence (“IGI”); the second and third respondents opposed the application.


The procedural history relevant to the dispute was that the second to seventh applicants were served with notices of intended suspension, made written representations, and were thereafter suspended during December 2020. They sought a final order declaring the suspensions unlawful and, in substance, sought reinstatement from suspension. The challenge was framed as one of statutory legality, with the applicants contending that the suspensions were inconsistent with the oversight and reporting scheme in the Intelligence Services Oversight Act 40 of 1994.


The general subject-matter of the dispute was the intersection between (a) the National Commissioner’s powers and duties to manage discipline within SAPS (including precautionary suspensions under the SAPS Discipline Regulations), and (b) the statutory role of the IGI and the Minister under intelligence oversight legislation, in circumstances where allegations related to procurement irregularities in Crime Intelligence (including purchases of PPE using the Secret Service Account).


2. Material Facts


It was common cause, and accepted by the court as the factual matrix for its determination, that allegations of procurement irregularities were raised in relation to the Crime Intelligence Division, specifically involving the purchase of personal protective equipment (“PPE”) using the Secret Service Account. On or about 27 November 2020, the IGI alerted the National Commissioner to these allegations.


Following the alert, the National Commissioner on 30 November 2020 appointed Lieutenant General Vuma to conduct an internal investigation in terms of the South African Police Service Discipline Regulations 2016. The second to seventh applicants were served with notices of intended suspension and were afforded an opportunity to make written representations as to why they should not be suspended. They submitted such representations, which the National Commissioner considered before deciding to impose suspensions.


A further sequence of undisputed events concerned correspondence between the political executive and SAPS management. On 1 December 2020, the Minister wrote to the National Commissioner asserting that, in terms of section 7 of the Intelligence Services Oversight Act 40 of 1994, the IGI had to submit a report to the Minister and that, until such report was provided, the suspensions should be held in abeyance. The Minister reiterated this stance in correspondence dated 4 December 2020. The National Commissioner responded on 4 December 2020, stating (in summary) that the disciplinary process was separate from the IGI’s reporting obligations, that the National Commissioner was required to act under the SAPS Act and the Discipline Regulations, and that the Public Finance Management Act 1 of 1999 imposed duties on him as accounting officer to act on allegations of financial misconduct.


The suspensions challenged in the proceedings were imposed during the period 8 to 10 December 2020 (as pleaded by the applicants). The applicants’ attorneys requested on 13 December 2020 that the suspensions be uplifted; this request was refused.


On 21 December 2020, the IGI provided comments responding to the Minister’s earlier correspondence (as contained in an annexure to the answering affidavit). The IGI’s stated position was that the statutory scheme did not preclude interaction between the IGI and the National Commissioner, that cooperation was required, and that section 7(7) of the Intelligence Services Oversight Act 40 of 1994 did not fetter the National Commissioner’s authority regarding SAPS discipline. The IGI indicated that an investigation was underway and that a report envisaged in section 7(7)(f) would be submitted once completed.


The court expressly limited the factual enquiry, stating that it was unnecessary to “delve on the merits” of the underlying allegations against the applicants, beyond recognising that the alleged misconduct related to violations within the procurement regulatory framework and that investigations were ongoing.


3. Legal Issues


The central legal question was one of statutory interpretation and legality, namely whether section 7(7) of the Intelligence Services Oversight Act 40 of 1994 imposed a precondition on the National Commissioner’s power to suspend employees in Crime Intelligence, such that the National Commissioner could not lawfully suspend the second to seventh applicants until the IGI had submitted a report to the Minister and the Minister had made or communicated a recommendation or decision regarding suspension.


Closely related to that question was whether, properly construed in context and alongside related provisions (including section 7(11) of the Intelligence Services Oversight Act 40 of 1994, the SAPS Act framework, and the SAPS Discipline Regulations), section 7(7) regulated or constrained day-to-day disciplinary measures like precautionary suspension.


The dispute was predominantly a matter of law, involving the interpretation of legislative texts and the application of those interpretive conclusions to largely common-cause events (the fact of the suspensions, the existence of the oversight investigation, and the statutory sources of power relied upon). To the extent that factual characterisation arose (for example, whether the alleged procurement misconduct related to “intelligence” or “counter-intelligence” functions), the court treated that as premature on the papers given that investigations were incomplete.


4. Court’s Reasoning


The court began by situating the dispute within the statutory architecture of intelligence oversight and SAPS discipline. It identified that section 7(7) of the Intelligence Services Oversight Act 40 of 1994 sets out the functions of the Inspector-General of Intelligence, including monitoring compliance, reviewing intelligence and counter-intelligence activities, receiving and investigating complaints (including complaints of alleged maladministration), and submitting reports to the responsible Minister. It also noted section 7(7A), which provides that such reports must contain the IGI’s findings and recommendations.


However, the court emphasised that section 7(7) is directed at the IGI’s oversight and reporting functions, rather than the National Commissioner’s employment powers. On the court’s reading, the provision did not regulate or prescribe the requirements for the suspension of SAPS members, nor did it create the kind of “preconditions” the applicants sought to imply (namely that an IGI report and a Ministerial step must come first before the employer may suspend).


The court considered the applicants’ argument that section 7(7) should be read harmoniously with other statutes and that the SAPS Act and Discipline Regulations were in pari materia with intelligence oversight legislation. The court accepted as a general interpretive approach that statutes should, where possible, be construed harmoniously and contextually, and it cited interpretive authority to that effect. It nevertheless held that the applicants’ reliance on section 7(7), in the circumstances, was misconceived and premature, because the investigations had not yet established whether the alleged procurement contraventions constituted non-compliance of the kind contemplated by section 7(7)(a) (compliance with “applicable laws and relevant policies on intelligence and counter-intelligence”), or whether they fell within other oversight/reporting provisions such as section 7(11).


In addressing prematurity, the court reasoned that it could not, at that stage, conclude that the alleged violations “can in any way be construed” as relating to intelligence/counter-intelligence compliance under section 7(7)(a), nor as non-compliance with the Constitution under the same subsection. It further considered that where reliance was placed on section 7(7)(cA) (complaints of alleged maladministration and related matters), the subsection’s reference to “alleged” maladministration implied that the IGI would require a thorough investigation before final reporting. The court accepted from the record that the IGI was in fact seized with an investigation and would report “as and when it is completed”.


The court then examined section 7(11) of the Intelligence Services Oversight Act 40 of 1994, which provides for reporting obligations by the “Head of Service” (here, the National Commissioner) and further processes involving the IGI and the Minister. In this context, the court highlighted section 7(11)(b), which requires reporting to the IGI regarding unlawful intelligence activity or significant intelligence failure and any “corrective action” taken or intended. The court observed that “corrective action” might include precautionary suspensions, internal investigations, and ensuing disciplinary processes. This reinforced the court’s view that the statutory scheme did not suspend or displace the National Commissioner’s ordinary disciplinary authority while oversight processes were underway.


Having set out the interpretive framework, the court applied established principles of statutory interpretation, including the approach in Natal Joint Municipal Pension Fund v Endumeni Municipality that interpretation is contextual and purposive, begins with the language of the provision, and avoids meanings that lead to impractical or stultifying consequences. The court held that reading section 7(7) as barring the National Commissioner from suspending employees until an IGI report and Ministerial action would create impractical consequences and impede the broader functioning of the legislative framework, particularly in circumstances involving serious allegations requiring swift action.


The court then situated the National Commissioner’s powers and duties within the constitutional and statutory governance of SAPS. It referred to the Constitution’s provisions concerning the police service and the National Commissioner’s responsibility to control and manage SAPS, and it noted the public administration values in section 195(1), including professional ethics, efficient use of resources, accountability, and good human resource management. It further analysed the SAPS Act provisions empowering the Minister to make regulations (including on discipline and suspension) and section 40 of the SAPS Act which permits disciplinary proceedings to be instituted in the prescribed manner.


On the disciplinary framework itself, the court relied on the SAPS Discipline Regulations 2016, particularly regulation 10, which expressly authorises precautionary suspension (with full remuneration) after affording a reasonable opportunity for written representations, and imposes time-bound requirements for the holding of a disciplinary hearing and continuation or termination of suspension. The court treated these provisions as the direct source for the suspensions, and it recorded that the applicants did not contend that the regulation 10 procedural prerequisites were not met; their case was that additional prerequisites were imposed by the Intelligence Services Oversight Act 40 of 1994. The court rejected that position.


The court also stressed the National Commissioner’s duties as SAPS’s accounting officer under the Public Finance Management Act 1 of 1999, particularly section 51, which requires steps to prevent irregular expenditure and to take effective and appropriate disciplinary steps against employees who contravene the Act or undermine financial management controls. The court reasoned that these duties support the proposition that the National Commissioner is not only empowered but obliged to act promptly when procurement irregularities are alleged, and that the applicants’ proposed sequencing (awaiting completion of IGI reporting and Ministerial action before any suspension) would undermine these obligations.


Finally, the court addressed institutional roles, holding that while the Minister’s role includes determining national policing policy and overall execution of the department’s mandate, the Minister’s role did not extend to day-to-day employment-related disciplinary decisions within SAPS in a manner that would displace the National Commissioner’s prerogative as employer. On the papers, the court accepted that the suspensions were interim measures intended to protect investigations from interference, and it noted that they were with full pay and time-limited under regulation 10.


5. Outcome and Relief


The court dismissed the application in its entirety. It therefore refused the declaratory relief sought that the suspensions were unlawful and did not set them aside.


The court ordered the applicants, jointly and severally, to pay the costs of the application, including the costs of two counsel.


Cases Cited


Independent Institute of Education (Pty) Ltd v Kwa-Zulu Natal Law Society and Others 2020 (2) SA 325 (CC)


Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)


Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC)


Arse v Minister of Home Affairs and Others 2012 (4) SA 544 (SCA)


Petz Products v Commercial Electrical Contractors 1990 (4) SA 196 (C)


Legislation Cited


Constitution of the Republic of South Africa, 1996


Intelligence Services Oversight Act 40 of 1994


South African Police Service Act 68 of 1995


Public Finance Management Act 1 of 1999


National Strategic Intelligence Act 39 of 1994


Secret Service Act 56 of 1978


Prevention and Combating of Corrupt Activities Act, 2004


Rules of Court Cited


No specific rules of court were expressly cited in the judgment.


Held


The court held that section 7(7) of the Intelligence Services Oversight Act 40 of 1994, properly interpreted, concerns the functions and reporting duties of the Inspector-General of Intelligence and does not regulate or impose preconditions on the National Commissioner’s employment and disciplinary powers to impose precautionary suspensions under the SAPS disciplinary framework.


The court further held that the applicants’ reliance on section 7(7) to invalidate the suspensions was premature in the context of ongoing investigations, and that nothing in the intelligence oversight framework prohibited the National Commissioner from acting swiftly to manage discipline and protect the integrity of internal processes, particularly in light of obligations under the SAPS Act and the Public Finance Management Act 1 of 1999.


LEGAL PRINCIPLES


Statutory provisions must be interpreted contextually and purposively, beginning with the language used, read in light of the statute as a whole and the relevant background, and adopting an interpretation that avoids impractical or stultifying consequences, consistent with the interpretive approach articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA).


Statutes dealing with the same subject matter should, where possible, be construed harmoniously and as part of a coherent legal system; however, harmonisation does not justify implying constraints that the text does not support, particularly where doing so would undermine the practical functioning of statutory responsibilities.


A provision defining the oversight and reporting functions of an oversight office-bearer (here, the IGI under section 7(7) of the Intelligence Services Oversight Act 40 of 1994) does not, without clear language, operate to displace or fetter an employer’s express disciplinary powers conferred by other legislation and subordinate regulations (here, discipline under the SAPS Act and the South African Police Service Discipline Regulations 2016).


Precautionary suspension under the SAPS discipline framework is characterised as an interim, precautionary measure, to be implemented after affording an opportunity for written representations, and it is time-bound and procedurally regulated, including decision-making steps tied to the holding and progress of disciplinary hearings.

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[2021] ZAGPPHC 33
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South African Policing Union and Others v Minister of Police and Others (66522/2020) [2021] ZAGPPHC 33 (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;
…”
1.
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.

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