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2021
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[2021] ZAGPPHC 99
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Vuma and Others v Executive Director: Independent Police Investigative Directorate and Another (49791/2018) [2021] ZAGPPHC 99 (5 March 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
5 MARCH 2021
CASE
NO: 49791/2018
In
the matter between:
FRANCINAH
NTOMBENHLE VUMA
First
Applicant
LEBEONA
JACOB TSUMANE
Second
Applicant
KHEHLA
JOHN
SITHOLE
Third
Applicant
BONGANI
MBINDWANE
Fourth
Applicant
an
THE
EXECUTIVE DIRECTOR: INDEPENDENT
POLICE
INVESTIGATIVE DIRECTORATE
First
Respondent
THE
MAGISTRATE: PRETORIA
MAGISTRATES
COURT
Second
Respondent
J
U D G M E N T (Leave to appeal)
This
matter has been heard in terms of the Directives of the Judge
President of this Division dated
25
March 2020, 24 April 2020 and 11 May
2020.
The judgment and order are accordingly published and distributed
electronically.
DAVIS,
J
[1]
Introduction
1.1
On 13 January 2021, at the conclusion of a
written judgment, this court granted an order in the following terms:
1.
The subpoenas
issued by the Second Respondent on 21 May 2018 against the applicants
as set out in paragraphs 1.1 – 1.5 of
the applicants’
notice of motion, are hereby reviewed and set aside.
2.
The refusal or
failure of the National Commissioner of Police to declassify the
documents requested by IPID for the purposes of
its investigation in
Brooklyn CAS 565/11/2017 and IPID CCN 2018010527 is hereby reviewed
and set aside.
3.
The National
Commissioner is ordered to immediately take all necessary steps to
have the documents referred to in paragraph 2 above
declassified for
the purpose of IPID’s investigation and any consequent
prosecutions.
4.
It is declared
that the first to third applicants in the main application have
breached their duties under sections 4(2) and 29
(2) of the IPID Act
by failing to furnish IPID with information and documents for
purposes of its investigations.
5.
The costs of the
counter-application are to be paid by the first to third applicants
in their official capacities, which costs shall
include the costs of
senior and junior counsel.
6.
Save as provided for
in paragraph 5 above, there shall be no further costs order
.
1.2
On
3 February 2021, the first, second and third applicants delivered an
application for leave to appeal the aforesaid judgment and
orders.
1.3
The grounds upon which the applicants in the
application for leave to appeal relied were the following:
“
1. The court erred in
declaring that the First to Third Applicants in the main application
have breached
their duties in terms of section 4 (2) and 29 (2) of
the Independent Police Investigative Directive Act, 1 of 2011 by
failing to
furnish IPID with information and documents for the
purposes of its investigation.
2. The court
should have found that:
2.1 Since the subpoenas that
were issued to compel the First to Third Respondents to furnish
information
were unlawfully issued, alternatively were set aside by a
Court of Law, there was no duty on the First to Third Applicants to
furnish
the required information.
2.2 The said information that
the First to Third Applicants were required to furnish was
classified.
The First to Third Applicants do not have any legal
authority to furnish information that was classified until such time
that the
Head of the office of the Department that classified the
said information has declassified it. And further, the Second
and
Third Applicants do not have authority to declassify such
information.
2.3 There was no evidence of
direct request (sic) for the said information by IPID to the First to
Third
Applicants
”
.
1.4
Having regard to the abovequoted grounds, counsel
for the said applicants, Adv. Van der Merwe SC (with Adv Mojapelo),
confirmed
that the only order against which leave to appeal is
sought, is that contained in paragraph 4 of the orders mentioned in
paragraph
1.1 above.
[2]
The jurisdictional requirement
2.1
It is trite that the jurisdictional hurdle which
the applicants have to cross, is the one statutorily imposed by
Section 17(1)
of the
Superior Courts Act, 10 of 2013
, the relevant
portion of which provides that:
“
Leave to appeal may only be given where the
judge or judges concerned are of the opinion that –
(a)(i) the appeal would have a reasonable
prospect of success or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments
on the matter under consideration
”
.
2.2
The applicants relied on
section 17
(1)(a)(i) in
their argument.
[3]
The findings on which the order was based:
3.1
In the judgment in the main application, this
court has found that:
3.1.1
there was no justifiable reason for the
classification of documents relating to the IPID investigations as
constituting “
issues that fall within
the ambit of the
National Strategic Intelligence Act, 39 of 1994
”.
This finding is not attacked in the application for leave to appeal.
3.1.2
the applicants’ persistent refrain in their
papers filed in the main application that the documents in question
need first
to be “declassified” and that this should be
done via a request to the Chairperson of the Joint Standing Committee
on Intelligence, was legally unsound. This finding is also not
attacked in the application for leave to appeal.
3.1.3
Section 4(2) of the IPID Act imposes a duty on
every organ of state (i.e. including the South African Police
Services, of which
the applicants are in its leadership structure) to
assist IPID in performing its functions “effectively” and
that section
29(2) of the said Act imposes a specific duty on each
SAPS member (i.e. including the said applicants) to provide their
“full
cooperation” to IPID by providing “any
information” (in addition to documentation) required for
investigation
purposes. Correctly, the applicants raised no
quibble with these statutory obligations nor their applicability.
3.2
The specific findings in the judgment in the main
application, dealing, in the context of the matter, with the breaches
of duty
by the applicants can be found in paragraph 6.3 thereof,
which reads as follows:
“
In fact, the contents of the affidavits as
described in paragraph 3 above indicate that the applicants made no
effort to comply
with their obligations in terms of sections 4 and 29
of the IPID Act as referred to in paragraph 3.6 and 3.7 above.
They
have neither assisted IPID nor availed themselves for interviews
nor have they furnished any documents relating to the I-View I
investigation. Their claims of justification in respect of
documents requested in relation to the I-View Ⅱ investigation
were clearly unfounded, both in respect of the subsequently aborted
reliance on section 5 (2) of the Oversight Act as well as the
purported protection of national interests. Although the discovery of
or access to documents in respect of I-View Ⅲ did not
form part
of the subpoenas or the counter-application, the applicants’
silence in relation to the seriousness of the allegations
is cause
for concern. One would have legitimately expected SAPS
management, upon hearing of allegations of a three-fold overpricing
of basic equipment such as flak-jackets, to immediately raise a hue
and cry and volunteer any assistance to the investigation of
such a
flagrant example of corruption within its ranks. The failure to
do all of the aforementioned constitute a breach of
the first three
applicants’ obligations, entitling IPID to the declaratory
order sought in this regard as set out hereunder
”.
[4]
Evaluation:
It is against this backdrop (and the case as a whole)
that the applicant’s application for leave to appeal must be
considered:
4.1
In
paragraph 2.1 of the applicant’s application, reference is made
to the subpoenas issued at the instance of IPID in an attempt
to
coerce the applicants to provide information and documentation.
The applicants’ arguments are that, until the subpoenas
were
set aside, they were under no obligation to assist IPID.
Clearly this argument is untenable and ignores the duties imposed
by
law on the applicants. These duties were again referred to
above. These duties of transparency and active assistance
were
in existence at all relevant times, that is, long before the
subpoenas (and during the attempted enforcement of the subpoenas
and
even subsequent to their setting aside). The duties were not
dependent on the subpoenas and in fact, the subpoenas were
resorted
to in frustration by IPID and as a result of the fact that the
applicants were already failing in their duties.
4.2
Adv. van der Merwe SC were at pains to point out
that the applicants have responded to IPID’s initial letter of
request dated
23 January 2018 and that they should not be found in
breach of their duties. This argument exacerbates the
applicants’
position: at best it showed that they sent a simple
response, indicating that some of their dockets had been seized by
the SIU.
They did not furnish any further particulars.
They did not produce any copies of documents. They did not
furnish IPID
with any information, clearly within their knowledge, of
any aspect of the matters under investigations, nor did they “assist”
IPID in any manner or fashion. In fact, when requested to make
themselves available for interviews, rather than comply with
their
statutory duties as police officers willing to contribute to the
investigation of crimes, they sought legal assistance and
on this
basis thwarted IPID’s investigation.
4.3
The applicant’s belated argument that there
exists a reasonable prospect that another court would on appeal find
that “there
was no duty on the First to Third applicants to
furnish the required information” until the subpoenas were set
aside, therefore
holds no water.
4.4
The First to Third Appellants further argue that
they have “no legal authority to furnish information that was
classified”
and therefore they were not in breach of their
duties. This argument does not assist the Third Applicant.
He is vested
with the authority to declassify the documents in
question. In the circumstances where the Inspector General of
Intelligence
has already determined that there was no reason for the
documents to be classified, the failure or refusal of the Third
Applicant
(the National Commissioner) to declassify the documents, in
itself amounts to a breach of his statutory obligations.
Insofar
as it pertains the Second Applicant, he had reported to IPID
that he had requested the documents to be declassified. After
having sent a single letter in this regard, he made no follow-up or
any effort to have the documents indeed declassified.
This
amounts to a further breach of duty.
4.5
In
dealing with the issue of a breach of duty by all three applicants, I
pertinently asked Adv Van der Merwe SC what exactly his
clients have
done in compliance with their obligations to assist IPID (in contrast
with letter-writing, deflection and avoidance
of interviews) and he
was constrained to concede that the record showed no active or
positive steps taken in compliance with any
of their stated duties.
He suggested that the record was incomplete, but it was the
applicants who had brought the application
to court and any purported
deficiencies in the documents could have been cured by themselves.
In fact, in the judgment in
the main application, it was pointed out
that the main application itself, aimed at setting aside IPID’s
attempts at obtaining
co-operation in IPID’s investigations by
way of subpoenas, amounted to conduct aimed at avoiding the duties
imposed on the
applicants by law.
4.6
IPID argued that at all material times the issue
of classification was merely a red herring and, having regard to
IPID’s duties
and the security clearances of IPID’s
investigators, the documents could lawfully have been disclosed to
IPID. The
applicant’s failure to even entertain this
proposition, let alone attempt to arrange access to the documents,
equally amount
to non-compliance with the duties imposed by the IPID
Act.
4.7
In
addition to the abovementioned evaluation, counsel for IPID, in lucid
and structured heads of argument also dismantled the grounds
on which
the applicants rely in their application for leave to appeal, briefly
in the following fashion:
4.7.1
The
first ground misconstrues the duties imposed on the applicants by the
relevant sections of the IPID Act. The duties to
assist exist
irrespective of the timing and manner in which assistance is
requested, be it by way of a letter, an oral request
or by way of a
subpoena.
Any
failure to render assistance or to make
any
disclosure in respect of
any
request,
already constitutes a breach of the statutorily imposed duties.
4.7.2
Regarding the second ground, the National
Commissioner has the requisite authority to declassify the documents,
as noted in paragraph
5.15 of the judgment (and by the Inspector
General of Intelligence) and the reference to “second and third
applicants”
in paragraph 2.2 of the application for leave to
appeal, should read “first and second applicants”.
This follows
on the fact that no leave is sought to appeal against
paragraph 2 and 3 of the order. In any event, declassification
is not
a prerequisite to the rendering of assistance in furnish the
information requested by IPID.
4.7.3
From
a reading of the heads of argument delivered on behalf of IPID, it
appears as if the applicants’ third ground is attacked
on the
basis that it cannot be open for the applicants to deny knowledge of
the particularity of documentation (and information)
sought by IPID.
The various correspondences and contents of the affidavits relied on
for the obtaining of the subpoena were
again referred to. It
seems to me though, as if the applicants’ third ground did not
refer to a lack of knowledge of
the particulars sought, but an
argument that there was no request made by IPID directly to the
applicants and accordingly, there
could not have been any breach of
duty. Both these grounds are, on a conspectus of the evidence,
unfounded. The documents
were clearly identified by way of the
particularity furnished in the correspondence, in the affidavits
referred to in the judgment
which had preceeded the subpoenas and in
the affidavits on which IPID relied for the subpoenas themselves.
The whole process
of litigation for more than two years, in
particular the counter-application was premised on requests for
co-operation and furnishing
of information which were either refused
or frustrated by the applicants. Absolutely no attempt has been
demonstrated by
any of the said applicants to comply with the
provision of the sections of the IPID Act, referred to above.
The classification-issue
was clearly used as a shield or smokescreen
to hide behind from any enquiry, as demonstrated in the judgment.
[5]
Conclusion:
This court has not been furnished with nor been referred
to evidence of any conduct by any of the first, second (save for his
initial
letter requesting declassification dated 31 January 2018) and
third applicants displaying steps taken to ensure that IPID can
perform
its investigative functions in respect of any of the three
I-View investigations “effectively” as required by the
IPID
Act. I find that there is, accordingly, no reasonable
prospect of success that a court could, on appeal, find otherwise.
[6]
Order:
The application for leave to appeal is refused with
costs, including the costs of senior and junior counsel.
N
DAVIS
Judge
of the High Court
Gauteng Division, Pretoria
Date of
Hearing: 26 February 2021
Judgment
delivered: 5 March 2021
APPEARANCES:
For
the Applicants:
Adv. M P van der Merwe SC with
Adv M Mojapelo
Attorney for
Applicants:
Mketsu & Associates Inc., Pretoria
For the First
Respondent:
Adv. S Budlender SC with
Adv. J Bleazard
Attorney for First
Respondent:
Adams & Adams Attorneys, Pretoria
No appearance for
the Second Respondent