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[2018] ZAECMHC 8
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Reformed Presbyterian Church in Southern Africa v Minister of Police and Another (3642/2015) [2018] ZAECMHC 8; [2018] 2 All SA 260 (ECM) (6 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO. 3642/2015
Date
heard: 19 October 2017
Date delivered: 6
February 2018
In
the matter between:
REFORMED
PRESBYTERIAN CHURCH
Applicant
IN
SOUTHERN AFRICA
and
MINISTER
OF
POLICE
1
st
Respondent
STATION
COMMISSIONER,
LIBODE
2
nd
Respondent
JUDGMENT
LAING
AJ:
[1.]
The Applicant has brought an application in respect of the alleged
unlawful conduct of the Respondents with regard to criminal
charges
made in terms of CAS No. 159/01/2015 at the Libode Police Station.
Only the First Respondent has opposed the matter. The
Applicant seeks
the following relief,
inter
alia
:
(a.)
that
the Respondents’ disposal of the police docket, opened at the
Libode Police Station under CAS No. 159/01/2015, and the
subsequent
filing thereof in the police archives be declared unlawful and be set
aside;
(b.)
that
the Respondents’ discontinuation of the investigation into
criminal charges made under CAS No. 159/01/2015 be declared
unlawful
and be set aside;
(c.)
in the
alternative to (b.), that the Respondents’ delay in the
investigation of the above charges be declared unlawful and
be set
aside;
(d.)
that
the Respondents be directed to conduct thorough investigations,
forthwith, into the above charges; and
(e.)
that
the Respondents be directed to advise the Applicant of progress in
the investigations on a regular basis and of the outcome
of such
investigations within 30 days.
Factual
background
[2.]
Previously, several senior members of the Applicant left for the
Uniting Presbyterian Church. The decision resulted in tension
between
the two congregations which culminated in the disruption of the
Applicant’s church services at the Zandukwana outstation.
On 19
November 2014, the Applicant obtained interim relief against the
above erstwhile members in the Libode Magistrates’
Court, which
was made final on 22 January 2015.
[3.]
From the start, the respondents in the Magistrates’ Court
matter displayed a dismissive attitude towards the orders.
When the
sheriff attempted to serve the final order, the respondents refused
to cooperate, compelling him to attach the order to
the doors of
their residences. Shortly afterwards, the respondents allegedly
informed some of the Applicant’s members that
they would ignore
the order and intended to take possession of the Applicant’s
church hall. This led to the Applicant’s
attorneys’
delivering written requests to the Second Respondent in the present
matter to assist.
[4.]
On 25 January 2015, the Applicant’s members telephoned the
Second Respondent and other senior officials in the South
African
Police Services (‘SAPS’), calling for immediate
protection in light of the tensions between the two church
groups. In
response, a SAPS team proceeded to the Zandukwana outstation, where
the officers encountered what can only be described
as a stand-off
between members of the Applicant and members of the Uniting
Presbyterian Church. The SAPS officers allegedly advised
the members
of the Uniting Presbyterian Church to obtain legal advice in relation
to the orders from the Magistrates’ Court.
[5.]
Consequently, but on the same date, members of the Applicant,
including a Mr William Matiwane, went to the Libode Police Station
to
lay charges of contempt of court and malicious injury to property.
This met with no success, constraining the Applicant to instruct
its
attorneys to intervene, whereupon they lodged a complaint with both
the National and Provincial Commissioners. This appeared
to have had
the desired effect and the First Respondent’s legal services
division informed the Applicant that its members
could indeed lay
charges. This was done.
[6.]
The Applicant alleges that its members frequently checked on progress
by telephoning the investigating officer, Constable Lwandile
Bebula,
who would respond that the matter was still under investigation.
Written requests for updates on progress were made to
the Second
Respondent on 19 February and again on 3 March 2015. Subsequently, on
9 March 2015, Const. Bebula contacted the Applicant’s
attorneys
and informed them about some of the difficulties attached to the
investigation, including the unavailability of suspects.
He confirmed
that the police docket had not yet been referred to the senior public
prosecutor. On 29 September 2015, the Applicant’s
attorneys
sent a letter to the senior public prosecutor at the Libode
Magistrates’ Court, enquiring about the status of the
matter.
No response was received.
[7.]
In general, the Applicant asserts that the Second Respondent and
police officials have been unwilling to assist with regard
to any
incident involving members of the Uniting Presbyterian Church. On 21
May 2015, the Applicant obtained an order against the
First and
Second Respondents in the High Court for the return of the keys to
the Zandukwana outstation, which had been confiscated
pending the
resolution of the dispute between the two church groups.
[8.]
The Applicant secured a copy of the police docket on 4 December 2015.
How this was achieved is not explained but is not material
to the
present matter. The investigation diary reveals a set of instructions
previously given to Const. Bebula at the commencement
of the case. In
terms thereof, he was required to: (a.) contact the complainant and
interview him about the case; (b.) collect
and file the returns of
service in respect of the order, as proof that it was served on the
suspects; (c.) obtain statements from
witnesses; (d.) take the matter
to the public prosecutor for a decision; and (e.) present the case to
an officer for inspection.
The Applicant alleges that most of the
instructions were never carried out.
[9.]
Furthermore, the Applicant draws attention to the last entry in the
investigation diary, made on 10 March 2015. This indicates
that the
case was treated as a civil matter and that the civil proceedings
were to be completed before the case could be taken
further. To this
the Applicant avers that no civil proceedings were pending. It argues
that the Second Respondent or officials
under his control closed the
investigation and disposed of the docket on 11 March 2015 without any
basis upon which to do so. Their
conduct was unlawful and in breach
of the Applicant’s constitutional right of access to court and
in breach of the constitutional
duties imposed on the SAPS.
[10.]
In the answering papers, the First Respondent attacks the application
on a number of grounds, arguing,
inter
alia
,
that the relief sought by the Applicant is incompetent and
inappropriate and infringes the doctrine of the separation of powers.
Moreover, the First Respondent points out that the Applicant has
failed to join the National Prosecuting Authority (‘NPA’)
and has failed to make out a case in terms of the provisions of the
Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’).
[11.]
Dealing with the facts, the First Respondent avers that Const. Bebula
obtained copies of the court orders from the Applicant’s
members, together with the sheriff’s returns of service. Const.
Bebula noticed that there had been no personal service of
the orders
on the respondents. Nevertheless, he took warning statements from the
suspects and presented the docket to the public
prosecutor, Mr
Phumelele Myataza.
[12.]
On 10 March 2015, Mr Myataza refused to make a decision on the merits
of the case and directed that the civil proceedings
should be
completed before taking the criminal proceedings any further. He
states in his affidavit that he had made enquiries and
established
that an application for leave to appeal against the final order had
been set down for hearing on the above date. Moreover,
he had
understood at the time that the parties had been attempting to reach
settlement in the matter.
[13.]
Consequently, Const. Bebula contacted Mr Matiwane and informed him
about the above. According to the First Respondent, Mr
Matiwane
confirmed that civil proceedings were still underway and had been
enrolled for hearing on 10 March 2015. He undertook
to notify Const.
Bebula as soon as these had been finalized so that the case could
again be presented to the public prosecutor
for a decision on the
merits. This was never done. The First Respondent avers that the
Applicant has been well aware that the case
was placed into archives
on a temporary basis, pending finalization of the civil proceedings.
To that effect, Const. Bebula confirms
in his affidavit that no
decision was taken to halt the investigations. In any event, the
instruction to await the outcome of the
civil proceedings was given
by Mr Myataza, not by the Respondents or anyone under their control.
The Applicant ought to have joined
the NPA.
[14.]
Moreover, states the First Respondent, the subject of the application
is a complaint about police inefficiency. The matter
should have been
referred to the relevant provincial authority, alternatively the
Independent Police Investigating Directorate
(‘IPID’) for
consideration.
[15.]
It is noted that the Applicant, in reply, avers that an application
for rescission of judgment was pending on 10 March 2015,
rather than
an application for leave to appeal. Be that as it may, it appears to
be common cause that civil proceedings in one
form or another were
underway on the date in question.
Issues
for determination
[16.]
The Applicant seeks substantive relief against both the First and the
Second Respondents. There is a point of contention between
the
parties that arises from the sheriff’s service of the
application at the offices of the State Attorney, rather than at
the
offices of the Second Respondent in Libode. The First Respondent has
argued that this does not constitute service and accordingly
the
Applicant cannot obtain any relief against the Second Respondent.
[17.]
In matters of this nature, where an organ of state or a functionary
thereof has been cited in the proceedings, it is customary
for the
applicant to serve process on the State Attorney. However, the First
Respondent has referred to the rescission application
in this matter,
in terms of which the court held that service on the State Attorney
was insufficient. An applicant was required
to ensure that service
was carried out directly upon the Second Respondent.
[1]
As such, this court is bound by the above finding. To the extent that
may be necessary, this is an aspect that will be discussed
further in
the paragraphs below.
[18.]
For the moment, the issues to be determined are as follows:
(a.)
factually,
whether the Second Respondent’s officials discontinued
investigations and disposed of the police docket;
(b.)
if so,
then whether such conduct was unlawful and must be set aside;
(c.)
if
not, then whether the filing of the police docket in archives was
unlawful and must be set aside;
(d.)
whether
the alleged delay in the investigation of the criminal charges is
unlawful and the consequences of such a finding;
(e.)
whether
the court has authority to direct the Respondents to: (i.) carry out
thorough investigations; and (ii.) inform the Applicant
of progress
on a regular basis and of the outcome of the investigations within 30
days; and
(f.)
liability
for the costs of the application.
[19.]
Some of the issues raise novel arguments that may have a bearing on
the development of our administrative law. In particular,
the
application is pertinent to questions about the nature of
administrative action and an understanding of the separation of
powers. The court may, however, make determinations with regard to
the above issues that render a finding on the finer points of
administrative law unnecessary. The duty of a court is to decide the
dispute placed before it by the litigants. It is not required
to
decide matters of solely academic interest. See
Legal
Aid South Africa v Magidiwana and Others
[2014] 4 All SA 570
(SCA), at [2];
ABSA
Bank Limited v Keet
[2015] 4 All SA 1
(SCA), at [8].
Discontinuation
of investigations and disposal of the docket
[20.]
With the above in mind, the first determination to be made is purely
factual: whether the Second Respondent’s officials
discontinued
investigations and disposed of the docket. The Applicant alleges this
to be so, the First Respondent contends otherwise,
stating
unequivocally that the public prosecutor, Mr Matyaza, merely directed
Const. Bebula to file the docket while civil proceedings
were in
still progress. Only upon the completion thereof could further steps
be contemplated.
[21.]
The firmly established principle in proceedings on notice of motion
is that where disputes of fact have arisen in the affidavits,
a final
order may be granted if those facts averred in the applicant’s
affidavits which have been admitted by the respondent,
together with
the facts alleged by the respondent, justify such an order. See
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A), at 368. There are, of course, exceptions to
the above, which include the situation where the allegations or
denials of the
respondent are so far-fetched or clearly untenable
that the court is justified in merely rejecting them on the
papers.
[2]
[22.]
There is no evidence that the Second Respondent’s officials
disposed of the docket, as contended by the Applicant. On
the
contrary, it is common cause that the remarks entered on the cover of
the docket were to the effect that it was to be filed.
[3]
The ordinary meaning of this is that the docket was to be placed into
a file or it was to be stored for possible future reference
or
action. This is consistent with the averments of both Mr Matyaza and
Const. Bebula to the effect that civil proceedings were
to be
finalized before further steps could be taken in relation to criminal
investigations and prosecution. Such averments are
entirely
plausible. There is nothing at all to indicate that the
investigations were discontinued and that the docket was disposed
of.
Consequently, the question about the lawfulness of the any such
conduct does not arise. The issues under (a.) and (b.), above,
fall
away.
Filing
of police docket in archives
[23.]
The next issue is whether the filing of the docket was unlawful and
must be set aside. To that effect, the Applicant has framed
its
application within the context of the right to just administrative
action, as envisaged under sub-section 33(1) of the Constitution
and
the provisions of the Promotion of Administrative Justice Act 3 of
2000 (‘PAJA’). The underlying premise is that
the filing
of the docket qualifies as administrative action.
[24.]
The definition of administrative action in PAJA is particularly
convoluted and has attracted a considerable amount of criticism.
[4]
The Constitutional Court distilled its meaning to seven elements in
Minister
of Defence and Military Veterans v Motau and Others
2014 (8) BCLR 930
(CC), where, at [33], the court stated:
there
must be (a) a decision of an administrative nature; (b) by an organ
of state or a natural or juristic person; (c) exercising
a public
power or performing a public function; (d) in terms of any
legislation or an empowering provision; (e) that adversely
affects
rights; (f) that has a direct, external legal effect; and (g) that
does not fall under any of the listed exclusions.
[25.]
As a point of departure, the court accepts that the filing of the
docket would not constitute any of the listed exclusions.
Possibly
the most relevant of the listed exclusions to the matter at hand is
the decision to institute or continue a prosecution,
which is clearly
not the case here. The decision taken by the public prosecutor, Mr
Matyaza, to direct Const. Bebula to allow the
civil proceedings to be
completed before taking further steps does not form the subject of
this application. In any event, neither
Mr Matyaza nor the National
Prosecuting Authority has been cited as a party in the papers.
[26.]
In
Grey’s Marine Hout Bay (Pty) Ltd v Others v Minister of
Public Works and Others
[2005] JOL 14415
(SCA), Nugent JA held,
at [24], that:
[w]hether
particular conduct constitutes administrative action depends
primarily on the nature of the power that is being exercised
rather
than upon the identity of the person who does so. Features of
administrative action (conduct of “an administrative
nature”)
that have emerged from the construction that has been placed on
section 33 of the Constitution are that it does
not extend to the
exercise of legislative powers by deliberative elected legislative
bodies, nor to the ordinary exercise of judicial
powers, nor to the
formulation of policy or the initiation of legislation by the
Executive, not to the exercise of original powers
conferred upon the
President as head of State. Administrative action is rather, in
general terms, the conduct of the bureaucracy
(whoever the
bureaucratic functionary might be) in carrying out the daily
functions of the State, which necessarily involves the
application of
policy, usually after its translation into law, with direct and
immediate consequences for individuals or groups
of individuals.
[27.]
Accordingly, the nature of the power, rather than who exercises it,
becomes the focus of an enquiry as to whether conduct
is
administrative in nature. The conduct must represent the state at
work, attending to the myriad of activities that characterise
public
administration and which have an impact on a community and its
members.
[28.]
In relation to the police, a core function of the SAPS is to
investigate crime.
[5]
This
entails decisions to commence and to terminate investigations. It may
also entail decisions to suspend investigations, pending
the
occurrence of a particular event, for purposes of ensuring that
resources are used more effectively. A decision to file a docket,
in
anticipation of the finalization of civil proceedings, amounts to the
suspension of an investigation. On the basis of the approach
of the
court in
Grey’s
Marine
[2005], such conduct is administrative in nature.
[29.]
Furthermore, there can be no difficulty in finding that such conduct
is also composed of the second, third and fourth elements
listed in
Motau
2014. A decision to file a police docket, pending the
finalization of civil proceedings, is part and parcel of the
public
function of investigating crime that SAPS, as an organ of state, is
required to perform in terms of the Constitution.
[6]
[30.]
However, it is far from certain whether the conduct includes the
fifth and sixth elements. To meet the definition of administrative
action under PAJA and thereby create a platform upon which to launch
review proceedings, an applicant must demonstrate that the
conduct in
question adversely affects rights, and has a direct, external legal
effect. For the former, the learned author, Geo
Quinot, has expressed
the view that any impact on rights, whether negative or positive,
will satisfy the fifth element.
[7]
Consequently, the decision to file a docket may well have an impact
on the rights of the complainant and others, although this
will of
course depend on a number of variables, for example: the basis of and
the intention behind the decision, for how long the
investigations
will be suspended, the outcome of the pending civil proceedings, and
so on. In relation to the sixth element, closer
attention is
required.
[31.]
To that effect, Quinot observes:
[t]his
element furthermore confirms the characteristic of finality in the
definition of administrative action... A decision can
be viewed as
final, and thus potentially an administrative action, if it manifests
in a direct and external legal effect. Consequently,
administrative
conduct that is wholly internal to the administration, often as part
of a larger multistage decision-making process,
will not constitute
administrative action on its own, but only as part of the
administrative action that will emerge once a final
decision is taken
that has the requisite external effect.
[8]
[32.]
The court agrees with the learned author, whose argument is supported
by a number of cases that have mentioned the requirement
of
directness or finality.
[9]
[33.]
In
Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd and Another
[2010] JOL 26469
(CC), the Constitutional Court dealt with an
independent investigation commissioned by the City of Cape Town into
allegations of
fronting. The court held, at [38], that:
[d]etecting
a reasonable possibility of a fraudulent misrepresentation of facts,
as in this case, could hardly be said to constitute
an administrative
action. It is what the organ of state decides to do and actually does
with the investigation it has become aware
of which could potentially
trigger the applicability of PAJA. It is unlikely that a decision to
investigate and the process of
investigation, which excludes a
determination of culpability could itself adversely affect the rights
of any person, in a manner
that has a direct and external legal
effect.
[34.]
From the above, it is clear that the court required a decision that
was final in nature. Administrative conduct that depended
on the
occurrence of a particular event or the impact of any other variable
cannot be described as final or direct. It is accepted
that in some
circumstances a decision by the police to suspend investigations may
indeed be regarded as final where such a decision
produces an
immediate change to the nature of the rights or duties attached to an
individual. For example, this may happen where
the individual’s
exercise or performance of a right or duty is time-barred.
[35.]
However, in the present circumstances, this is not the case. The
nature of the Applicant’s rights in relation to the
order
granted against its erstwhile members is not changed by the decision
taken by the Second Respondent’s officials to
file the docket,
pending the finalization of civil proceedings. Depending on the
outcome of the civil proceedings, the Applicant
may still enforce its
rights under the order where the police are satisfied that there is a
basis upon which to resume investigations.
Conversely, if the civil
proceedings go against the Applicant and the order is successfully
appealed or rescinded, as the case
may be, then the Applicant will no
longer have enforceable rights in terms thereof. In either event, the
decision to file the docket
does not produce a final effect on the
Applicant’s exercise of its rights. It cannot be said that the
suspension of the investigation
has a direct and external legal
effect.
[36.]
Accordingly, the sixth element is not present and the decision to
file the docket, pending the finalization of civil proceedings,
does
not constitute administrative action in terms of PAJA.
[37.]
In argument, counsel for the Applicant raised the principle of
legality. This is of course available to a litigant who wishes
to
enforce the constitutional right to just administrative action where
this cannot be achieved under PAJA. At the risk of
over-simplification,
the principle rests on the requirement that the
exercise of power by the state must be done rationally and
lawfully.
[10]
[38.]
Applicant’s counsel referred to the judgment in
Albutt
v Centre for the Study of Violence and Reconciliation and Others
2010 (5) BCLR 391
(CC) as authority upon which to challenge the
alleged decision by the Second Respondent to discontinue the
investigation. Although
a finding has already been made by this court
to the effect that there is no evidence that the investigation was
discontinued and
that the docket was disposed of, the judgment is
useful insofar as it deals with the concept of rationality within the
context
of the state’s exercise of power. To that effect, the
Constitutional Court held that such exercise of power must be
rationally
related to the objective sought to be achieved.
[11]
In other words, to pass the test for rationality in the present case,
there must be a rational connection between the decision
to file the
docket and the purpose of such decision. Here, the purpose was
clearly the effective use of police resources, pending
the
finalization of civil proceedings, and ultimately the successful
prosecution of the perpetrators where the outcome of the civil
proceedings warranted the continuation of the investigation.
[39.]
There is an obvious connection between the Second Respondent’s
decision to suspend the investigation and the objective
of such
decision. This court is satisfied that the connection is rational.
[40.]
With regard to lawfulness, the above decision must be authorised by
an empowering provision. This is a fundamental concept
of
administrative law which has found expression in key judgments such
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC), where the Constitutional Court stated
unequivocally that the exercise of public power is only legitimate
where lawful.
[12]
[41.]
In the present matter, sub-section 205(3) of the Constitution
authorizes the SAPS to prevent, combat and investigate crime.
[13]
Furthermore, the South African Police Services Act 68 of 1995
establishes the powers and functions of the police. Although not
expressly stated as much in the statute, the authority to commence
and terminate the investigation of crime falls comfortably within
the
empowering provisions of sub-section 205(3) of the Constitution.
Similarly, the authority to suspend investigations when there
is a
proper basis for doing so must also come within the ambit of the
above provisions. The prevention and combating of crime would
not be
served in the event that the police were prevented from suspending an
investigation where the underlying basis therefor
was subject to the
influence of an independent variable or dependant on the outcome of a
separate event. Clearly, where charges
of contempt of court have been
laid, as in the present matter, and the order that gives rise to such
charges forms the subject
of an appeal or rescission application, the
SAPS would enjoy authority under the wide empowering provisions of
sub-section 205(3)
to suspend the investigation and not allocate any
further resources thereto until such time as the result of the civil
proceedings
was known.
[42.]
The court is satisfied that the decision taken by the Second
Respondent’s officials to file the docket in the archives
was
both rational and lawful. There is no basis upon which the Applicant
can succeed in having the decision set aside for want
of legality.
That deals with the issue listed as (c.), earlier.
Delay
in the investigations
[43.]
The next issue, (d.), pertains to the alleged delay in the
investigation of the criminal charges. The Applicant has relied
on
section 237 of the Constitution to argue that the First and Second
Respondents are required to perform their constitutional
obligations
diligently and without delay. This is indeed so. In the affidavit of
Const. Bebula, he points out that Mr Matiwane
undertook to inform him
once the civil proceedings had been finalized so that the docket
could again be presented to Mr Matyaza
for a decision on the merits.
This arrangement partly explains the resulting delay but does not,
per
se
,
exonerate the police from any failure to have ensured that the
suspension of the investigations did not last for an unreasonable
length of time. The duty to investigate the alleged crime did not
fall away when the docket was filed. The police remained under
an
obligation to have monitored progress in the civil proceedings and to
have continued with their investigations in the event
this was
justified. Once criminal charges had been laid, the onus lay with the
police rather the Applicant to take further steps.
[44.]
Notwithstanding, counsel for the Respondents argued that the subject
of the present matter is a complaint about police inefficiency.
If
the Applicant had been dissatisfied with the exercise and performance
of the powers and functions of the Respondents and their
officials,
then the correct approach would have been to have reported the matter
to the provincial executive, as envisaged under
sub-sections 206(5)
and (6) of the Constitution.
[45.]
The court agrees with this. In terms of sub-section 206(3), each
province is entitled,
inter
alia
,
to monitor police conduct and to oversee the effectiveness and
efficiency of the police service. For purposes of performing the
above functions, sub-section 206(5) provides that a province may
investigate any complaints of police inefficiency and make
recommendations
to the Cabinet member responsible for policing. On
receipt of a complaint lodged by a provincial executive, sub-section
206(6)
states that an independent police complaints body, established
by national legislation, must investigate any misconduct. The
Independent
Police Investigative Directorate Act 1 of 2011 was
promulgated to give effect to sub-section 206(6) by means of the
establishment
of the IPID and the assigning of functions to it at
both national and provincial levels.
[46.]
There is no evidence that the Applicant made any attempt to avail
itself of the remedies created in terms of sub-section 206(5)
and (6)
of the Constitution after its members had laid criminal charges. The
Respondents’ counsel has intimated that the
Applicant was
required to have exhausted these before approaching the court. The
argument is based on the common law principle
to that effect,
subsequently reinforced by sub-section 7(2)(a) of PAJA, which
prevents a court from reviewing an administrative
action under the
statute in question until an internal remedy has first been
exhausted.
[14]
The immediate
flaw in such argument, for purposes of the present matter, is that
this court has already found that the conduct
that forms the subject
of the dispute does not qualify as administrative action in terms of
PAJA. Accordingly, any direct reliance
on sub-section 7(2)(a) would
be misplaced.
[47.]
In
Koyabe
and Others v Minister for Home Affairs and Others (Lawyers for Human
Rights as amicus curiae)
[2009] JOL 24131
(CC), the Constitutional Court held, at [35], that:
[i]nternal
remedies are designed to provide immediate and cost-effective relief,
giving the executive the opportunity to utilise
its own mechanisms,
rectifying irregularities first, before aggrieved parties resort to
litigation. Although courts play a vital
role in providing litigants
with access to justice, the importance of more readily available and
cost-effective internal remedies
cannot be gainsaid.
[48.]
Without the Applicant’s having brought a complaint about any
delay in the investigations to the attention of the provincial
executive, any judicial pronouncement on the matter would be
premature. Moreover, it would be tantamount to usurping executive
powers and functions. In relation to the issue listed as (d.), above,
the court cannot make a finding in respect of the lawfulness
of any
alleged delay.
Directions
to carry out thorough investigations and to inform Applicant
[49.]
The penultimate issue, (e.), concerns the authority of the court to
direct the Respondents to carry out thorough investigations
and to
inform the Applicant on progress and the outcome of such
investigations within 30 days. This is closely related to the
previous issue and raises questions pertaining to the doctrine of the
separation of powers. Underlying this is the concept of deference,
in
respect of which the learned author, Cora Hoexter, commented as
follows:
…
the
sort of deference we should be aspiring to consists of a judicial
willingness to appreciate the legitimate and
constitutionally-ordained
province of administrative agencies; to
admit the expertise of those agencies in policy-laden or polycentric
issues; to accord
their interpretation of fact and law due respect;
and to be sensitive in general to the interests legitimately pursued
by administrative
bodies and the practical and financial constraints
under which they operate.
[15]
[50.]
The Constitutional Court has preferred to refer to this as the notion
of respect, where it remarked in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC), at para 48, that:
[a]
Court should be careful not to attribute to itself superior wisdom in
relation to matters entrusted to other branches of government.
A
Court should thus give due weight to findings of fact and policy
decisions made by those with special expertise and experience
in the
field… A decision that requires an equilibrium to be struck
between a range of competing interests or considerations
and which is
to be taken by a person or institution with specific expertise in
that area must be shown respect by the Courts. Often
a power will
identify a goal to be achieved, but will not dictate which route
should be followed to achieve that goal. In such
circumstances a
Court should pay due respect to the route selected by the
decision-maker.
[51.]
In other words, a court must be slow to intervene in the exercise and
performance of powers and functions by the police in
relation to the
investigation of crime, especially where the officials involved
possess the experience and expertise to make a
better decision than a
court on how to conduct such an investigation.
[52.]
To the extent that the Applicant is not satisfied that the First and
Second Respondents and their officials have carried out
a
sufficiently thorough investigation, the remedies under sub-section
206(5) and (6) of the Constitution, read with the Independent
Police
Investigative Directorate Act 1 of 2011, must first be exhausted.
Moreover, given the particular facts of this matter, it
is not for
the court to impose a deadline by which the investigation is to be
completed. The court is required to respect the approach
adopted by
the Second Respondent and its officials to await the finalization of
the civil proceedings before taking any further
steps with regard to
criminal investigations.
[53.]
Nevertheless, the Applicant remains entitled to communication about
progress made in the investigation of the alleged crime
to which the
charges pertain. The police cannot simply ignore the Applicant and
refuse to deal with any reasonable queries made.
To that effect, the
Applicant may insist on the provision of proper information and
insofar as this is not forthcoming the Applicant
may utilize the
remedies already discussed. It is incumbent upon the Applicant to
demonstrate that it has pursued such remedies
before seeking relief
of the nature that informs the issue listed as (e.), above.
Legal
costs
[54.]
The only remaining issue, (f.), concerns liability for costs. The
court cannot provide the relief sought by the Applicant.
The First
Respondent has been substantially successful in its opposition to the
application. Accordingly, there is no reason to
depart from the
firmly established principle that costs must follow the result.
Order
[55.]
In the circumstances, the following order is made:
(a.)
the
application is dismissed; and
(b.)
the
Applicant is ordered to pay the First Respondent’s costs.
____________________
JGA
Laing
Acting
Judge of the High Court
Appearances
For
the Applicant: Mr Aron Zono, AS Zono & Associates, Suite 153, 1
st
Floor, ECDC Building, Mthatha
For
the First Respondent: Mr Thokozile Madyibi, Mvuzo Notyesi Inc, 2
nd
Floor, TH Madala Chambers, 14 Durham Street, Mthatha
[1]
See the judgment of Mgxaji AJ in
Minister of Police and Another v
Reformed Presbyterian Church in South Africa, In re Reformed
Presbyterian Church in South Africa
v Minister of Police and Another
(Case No. 3642/2015) Eastern Cape Local Division, Mthatha, handed
down on 24 May 2016.
[2]
Plascon-Evans
[1984], at 368.
[3]
A copy of the docket cover was attached to the founding papers as an
annexure. At the foot of the page appears the following,
in typed
text: ‘Remarks-Opmerkings’. Next to this, in capitalized
manuscript, appears the word ‘FILE’.
[4]
For example, see Hoexter, C
Administrative Law in South Africa
(Juta, 2012), at 195. See, too, Quinot, G
Administrative Justice
in South Africa- An Introduction
(Oxford University Press,
2015), at 76. In
Grey’s Marine Hout Bay (Pty) Ltd v
Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA), Nugent JA
observed, at 21, that the definition ‘serves not so much to
attribute meaning to the term as to limit
its meaning by surrounding
it within a palisade of qualifications.’
[5]
The provisions of sub-section 205(3) of the Constitution state that
the objects of the police service 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.
[6]
See sub-section 205(3) of the Constitution (n 5 above). The powers
and functions of the police are established in detail by the
South
African Police Service Act 68 of 1995
.
[7]
Quinot (2015), at 88. The learned author’s conclusion is drawn
from an analysis of the treatment of the meaning of administrative
action in,
inter alia
,
Grey’s Marine
[2005],
Minister of Home Affairs and Others v Scalabrini Centre and
Others
2013 (6) SA 421
(SCA),
Wessels v Minister for Justice
and Constitutional Development and Others
2010 (1) SA 128
(GNP),
and
Joseph and Others v City of Johannesburg and Others
2010
(4) SA 55
(CC).
[8]
Quinot (2015), at 89.
[9]
For example, see
Registrar of Banks v Regal Treasury Private Bank
Ltd
2004 (3) SA 560
(W), at 567G-I;
Sasol Oil (Pty) Ltd v
Metcalfe NO
2004 (5) SA 161
(W), at 13. See, too, the discussion
in Hoexter (2012), at 232-4, where the above cases are mentioned.
[10]
Hoexter, C ‘The Rule of Law and the Principle of Legality in
South African Administrative Law Today’, in Carnelly,
M and
Hoctor, S (Eds) (2011)
Law, Order and Liberty, Essays in Honour
of Tony Mathews
University of KwaZulu Natal Press: Scottsville
55, quoted in Quinot (2015), at 168.
[11]
Albutt
2010, at [49] to [51].
[12]
Fedsure
1999, at 56.
[13]
See n 5, above.
[14]
In exceptional circumstances, a court may exempt a person from the
obligation to exhaust an internal remedy where the court deems
it to
be in the interests of justice. See sub-section 7(2)(c).
[15]
Hoexter C ‘The Future of Judicial Review in South African
Administrative Law’
SALJ
(2000) 117(3), 501-502.