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[2017] ZAGPPHC 68
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Helen Suzman Foundation and Another v Minister of Police and Others (23199/16) [2017] ZAGPPHC 68; 2017 (1) SACR 683 (GP) (17 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
,
PRETORIA
Reportable:
No
Of
interest to other judges: No
Revised.
CASE
NUMBER: 23199/16
DATE:
17 March 2017
HELEN
SUZMAN
FOUNDATION
F
i
rst
Applicant
FREEDOM
UNDER LAW
NPC
Second
Applicant
v
THE
MINISTER OF
POLICE
First
Respondent
MTHANDAZO
BERNING
NTLEMEZA
Second
Respondent
DIRECTORATE
FOR PRIORITY CRIME INVESTIGATION
Third
Respondent
THE
CABINET OF THE REPUBLIC OF SOUTH AFRICA
Fourth
Respondent
JUDGMENT
MABUSE
J
: (Kollapen J
and Baqwa J concurring)
[1]
These are judicial review proceedings in terms of Rule 53 of the
Uniform Rules of Court in relation to the decision of the Minister
of
Police, the first respondent ("the Minister")
,
of 10 September
2015, to appoint Mr Mthandazo Berning Ntlemeza ("Major General
Ntlemeza") the second respondent, as the
National Head of the
Directorate for Priority Crimes Investigations ("DPCI").
[2]
The first applicant, Helen Suzman Foundation was established in 1993
as a non- governmental organisation with primary objectives
to defend
the values in South Africa that underpin the liberal constitutional
democracy and the promotion of respect for human
rights. The second
respondent is an organisation that is primarily concerned with the
principles of democracy, constitutionalism
and rule of law. The
applicants bring this application in their interest and furthermore
in the interest of the public. The applicants
contend that by
appointing Major General Ntlemeza as he did on 10 September 2015 as
the National Head of DPCI, the Minister has
acted unlawfully and
irrationally and moreover has failed in his constitutional duty to
protect the independence of the DPCI and
to uphold the rule of law in
South Africa.
[3]
The applicants contend that all South African citizens have an
interest in the rule of law, the requirements for a properly
functioning constitutional democracy and in particular the urgent
steps necessary to root out corruption and maladministration
in our
nascent democracy
.
The National Head
Office role and functions mean that his actions have an impact on the
administration of justice, the realisation
of rights and the public
at large. This is a high office which uses enormous power and is
charged
,
as
its co-mandate
,
with
the combating of corruption and other priority offences, which are,
by their very nature, of great public import and central
to the
administration of justice. Incidental to this mandate is the
concomitant requirement that any
-
incumbent
of such office should not only be lawfully appointed and act lawfully
·
but
that the incumbent must also exhibit, and be seen to exhibit, with
utmost independence, integrity and respect for the law
.
The lawfulness of
the appointment of the National Head is thus a facet in which the
public has a special interest and is pre-eminently
a case where the
applicant should, and do, act in the public interest.
[4]
The first respondent is the Minister of Police ("the Minister")
.
He
is cited in his official capacity as a servant of the State
responsible for the administration of the South African Police
Services
Act 68 of 1995 ("the SAPS Act") and as the
official who took the decision to appoint Major General Ntlemeza as
the Nationaf
Head. The second respondent, as already indicated
supra,
is Major General
Ntlemeza
,
who
is cited in this matte
r
both in his personal
and official
capacity
as the National Head of the DPCI.
[5]
The third respondent is the DPCI established as such under s 17C of
the Saps Act and is
cited
for its interest in the matter
.
The fourth
respondent is the cabinet of this country
established as such under s
91 of the Constitution of the Republic of South Africa Act 108 of
1996 ("the
Constitution
"
).
The third respondent is cited for any interest it may have in this
matter. It is important to
point out at this stage that neither of the third and fourth
respondents
has
filed any papers in this matter and accordingly these proceedings
involve only on the one
hand
the first and the second applicants and on the other hand the first
and second
respondents.
The target of this application is the Minister's decision though the
impact
thereof
has consequences for the second respondent.
[6]
In terms of the decision taken on or about 10 September 2015 the
Minister appo
i
nted
Major
General
Ntlemeza as the National Head of the DPCI. The applicants seek an
order in terms
of
which that decision is reviewed and set aside
.
[7]
The decision is challenged mainly on four grounds, namely
:
7.1
whether the
Minister's decision to appoint Major General Ntlemeza as the head of
DPCI
was
lawful
,
rational,
procedurally fair and otherwise constitutional;
7.2
whether the Minister
and the cabinet abused their statutory and constitutional discretion
in respect of the
appointment decis
i
on;
7.3
whether the Minister
and cabinet took into account all the relevant considerations and
facts in arriving at the
appointment decision and whether they took into account
irrelevant considerations
and facts;
7.4
whether the Minister
and the cabinet could lawfully conclude that Major General
Ntlemeza was a fit and
proper person to be appointed as the National Head
.
[8]
This application must be seen against the following background. On or
about 10 September
·
2015
the Minister appointed Major General Ntlemeza as the National Head of
the DPCI. After
his
appointment the first applicant addressed a letter Bated 7 November
2015 to the Minister
in
which it requested to be furnished with full reasons for appointing
Major General Ntlemeza
as
the National Head of the DPCI. Furthermore the first applicant
requested to be furnished
with
:
8.1
evidence that the
statutory requirements for his appointment have been complied with;
8.2
a copy of any
documents and information on the basis of which the appointment of
Major General Ntlemeza was
made by the Minister; and
8.3
all the documents
an.cl inf()rmation considered by the Minister in making the
appointment.
[9]
On 2 March 2016 the first applicant received, in response to its
other letter dated 22 February
2016, a letter from the
Minister which contained full written reasons for the appointment of
Major General Ntlemeza
.
According to the
said letter
,
the
documents that the Minister
considered when Major
General Ntlemeza was appointed were his curriculum vitae (CV) and
the documents containing
the recommendations to cabinet which
,
on the basis of
privacy
,
were not disclosed to the
first applicant. The applicant could not launch this application
without the documents it
had requested in its letter of 7 November 2015. The last paragraph
of the letter dated 2 March
2016 reads as follows
:
"You
also requested documents and information that was considered in
making the
appointment
This will include the curriculum vitae (CV) of General Ntlemeza
.
Please note
that the CV of General
Ntlemeza contains his personal information that are prohibited in
terms
of
section 23(1) of the Promotion of Access to Information 2000 from
disclosing without his
consent. In this regard,
I do not have consent to disclose any personal information relating
to
General
Ntlemeza
.
"
This
paragraph is the only one in the aforementioned letter that related
directly to the
documents
that the first applicant sought from the Minister
,
as the documents
that were
considered
before Major General Ntlemeza was appointed. Quite clearly no
reference to the
judgments
of Matojane J. was made in the said letter.
THE
MATOJANE JUDGMENTS
[10]
It is alleged by the applicants that after he had been appointed as
the Acting National Head of
the
DPCI in December 2014
,
in January 2015
,
Major General
Ntlemeza suspended his
colleague,
a certain Major General Sibiya for his involvement in the alleged
illegal rendition of
Zimbabwean
prisoners in or about 2010. Major General Sibiya was unhappy with his
suspension and did not
leave it lying there
.
He launched an
application in the Gauteng
Division of the High Court
in which he challenged h
i
s
suspension
.
This
application came before and was heard by Matojane J. In a written
judgment handed down on 20 February 2015, he overturned the
suspension of Major General Sibiya by Major General Ntlemeza
.
In h
i
s
judgment (
"
the
main judgment") Matojane J made the following remarks about
Major General Ntlemeza:
"(31)
In my view, there exists no basis in law or a fact for the Third
Respondent to take the drastic measure of placing Applicant
on
precautionary suspension. I agree with the applicant that the
decision by the Third Respondent was taken in bad faith and for
reasons other than those given. It is arbitrary and not rationally
connected to the purpose for which it was taken and accordingly,
it
is unlawful as it violates Applicant's constitutional right to an
administrative action that is lawful, reasonable and procedurally
fair.
"
[11]
Disgruntled by the said findings Major General Ntlemeza sought leave
to appeal against the judgment. On 23 March 2015, Matojane
J handed
down a written judgment relat
i
ng
to Major
General
Ntlemeza's application for leave to appeal. In this judgment ("the
application for
l
eave
to appeal judgment") the Judge made the following further
remarks about Major
General
Ntlemeza
.
"The
third respondent elected to withhold from the Court the /P/D report
and the docket that
was
in its possession which could have enabled the Court to make a proper
assessment of
the
strengths or otheJWise of the case against the applicant. Yet,
on the other hand, the third
respondent argues
opportunistically that the Court cannot ignore the seriousness of the
allegations that are
made against the applicant.
The
third respondent, again, failed to take the Court into his confidence
and thereby misled
the
Court by not mentioning that there are apparently conflicting reports
on the applicant's
alleged
involvement in the illegal renditions
.
He does not
mention the fact that one report
implicates the applicant
and that the other one vindicates the applicant. It is not clear why
he
seeks
to rely on the one implicating applicant and not the latter
especially as the first
respondent has
commissioned a top law firm to investigate the issue arising from the
two
reports
and the investigation is still on going and no finding has yet been
made.
In
my view, the conduct of the third respondent shows that he is biased
and dishonest It
further
shows that the third respondent is dishonest and lacks integrity and
honour, he made
false
statements under oath.
"
For
purposes of convenience, we shall refer to both the main judgment and
the judgment in
the
application for leave to appeal as "the judgments"
[12]
According to the Minister s 17 CA (1) of the SAPS Act empowers him,
with the concurrence of
the
cabinet
,
to
appoint the National Head of the DPCI. It provides that:
"
(1)
The Minister, with
the concurrence of the Cabinet, shall appoint a person
who
is
-
(a)
a South
African citizen
;
(b)
a fit and
proper person, with due regard to his or her experience
,
conscientiousness and
integrity, to be entrusted with the responsibilities of the
office concerned, as the
National Head of the Directorate for a non-renewable
fixed term of not
shorter than 7years and not exceeding 10years.
"
Section
17CA (3) requires him, so his testimony continues, to report to
Parliament on the
appointment
of the National Head of the DPCI. S 17CA (3) stipulates that:
"
The
Minister shall report to Parliament on the appointment of the
National Head of the Directorate
within
14 days of the
appointment if Parliament is then in session or,
if
Parliament is not
then in session,
within
14 days after the
commencement of its next ensuing session."
He
contends that in appointing Ntlemeza he complied with
the
provisions of
section 17CA (1)
and
(3) of the SAPS Act inasmuch as the appointment was done with the
concurrence of the
Cabinet
and having done so
,
he reported to
Parliament.
[13]
In his affidavit the Minister conceded that in his letter dated 2
March 2016 that he had
addressed
to the first applicant's attorneys, he refused to furnish them with
the copies of
certain
documents that they had requested. There were two reasons on the
basis of which he
did
so
.
Those
reasons are firstly that such documents contained personal
information
of
Major
General
Ntlemeza whose permission to disclose them he had not obtained while
the second
reason
was that the cabinet memorandum on the appointment of Major General
Ntlemeza
was
still confidential.
[14]
The Minister states in his answering affidavit dated 25 March 2016 in
which he opposed Part A of this application that the
appointment of
the National Head of the DPCI in terms of s 17CA
(1) is similar to the
procedure for the appointment of the National Director of Public
Prosecutions and other similar institutions
such as Chapter 9
Institutions in the Constitution, in
that there is no obligation
to advertise the post and shortlist and interview the candidates.
Notwithstanding the absence of any
such obligation he decided, for
the
sake
of transparency
and
competitiveness, to advertise the post, shortlist the candidates and
constitute an
Interview
Panel which interviewed the candidates and made recommendations. The
post was
advertised
in a national newspaper and Major General Ntlemeza was one of the
candidates who were shortlisted and interviewed. According
to the
Minister, Major General Ntlemeza had submitted the following
documents before he was interviewed and these are the only
documents
that were placed before the Minister and the Interview Panel:
14.1.
His application form
duly completed and signed by him;
14.2.
Major General
Ntlemeza
'
s
Curriculum Vitae;
14.3.
his formal
qualification documents; and
14.4.
a document signed by
him dealing with his disclosure about the judgments of Matojane
J and the criticisms by the
Judge in which he, Major General Ntlemeza, corrected the
factual issues which
informed the said Judge's criticisms
.
14.5.
The following
further documents, delivered in terms of rule Rule 53 of the Uniform
Rules
of
Court were also some of the documents placed before the Interview
Panel during the
interview
of Major General Ntlemeza
:
14.5.1.
the advertisement
for the position of the National Head;
14.5.2.
typed list of
applicants;
14.5.3.
the CV of Major
General Ntlemeza;
14.5.4.
a two-page
memorandum authored by Major General Ntlemeza which dealt with
limited aspects of the main judgment and his application
for leave to
appeal against the judgment. He testified that in considering Major
General Ntlemeza's application and the submissions
he made in his
documents, including his explanation on the judgments, the interview
committee was unanimous in recommending Major
General Ntlemeza to
the post. The Minister
himself approved his appointment after being
satisfied about his fitness
to hold office, his explanation thereof, his qualifications
'
and experience that
he was the best candidate for the job
.
The cabinet also concurred
with the decision upon its consideration of the
same material. From the
aforegoing it is clear that the judgments were not
placed before the Interview
Panel nor were they placed before the cabinet.
[15]
In h
i
s
answering affidavit to Part B of the proceedings the Minister
testified, among others, as
follows
:
"63
.
1 This entire
application is premised upon the remarks made in the Sibiya judgment.
Those remarks are the basis upon which the applicants
contend that
the second respondent is not a fit and proper person to hold the
office of National Head DPCI.
63.2
According to the
applicants
,
the
remarks in the Sibiya judgment were to serve as a bar in the
appointment of a certain respondent. The applicants persist with
this
contention despite the fact that there has been no allegation
pertaining to the second respondent not being a fit and proper
person
to hold the office of the National Head DPCI. The second respondent,
as stated above
,
has
not been provided any opportunity to deal with the aspect of his
unfitness to office as such a/legations do not exist
63.3
Besides
,
the case of
Sibiya did not deal with the issues pertaining to the fitness and
propriety of the second
respondent to hold office of the National Head of the DPCI.
Consequently it would be
irrational of me as the Minister to take a decision on a matter which
has not been properly ventilated
I cannot rely on remarks made in the
cause of
judgment
and in the exercise of my decision
.
"
[16]
In this answering affidavit the first step that the Minister did was
to try and correct the factual errors that he had made
in the
answering affidavit in respect of Part
'
A
'
of the application
.
In his second
answering affidavit still the Minister does not state that copies of
the judgments were placed before the Interview
Panel although he has
again listed some of the documents that the Interview Panel had
insight into at the relevant time. To this
end we are satisfied that
the interview of Major General Ntlemeza continued without all the
relevant documents having been placed
before the Interview Panel.
[17]
The semblance of the presence of the judg
.
inents
ttiat was
.
placed
before the Interview Panel was, according to the Minister, a signed
memorandum by him (Major General Ntlemeza)
disclosing the adverse
remarks made by the Judge in his judgments in which he criticised
Major General Ntlemeza.
Then the Minister audaciously states that in considering Major
General Ntlemeza's application and the submissions
made in his
documents, including the explanation on the judgments, the Interview
Panel was unanimous in recommending Major General
Ntlemeza to the
post. Bravely he testified furthermore that he approved the
appointment of Major General Ntlemeza after he had
become sat
i
sfied
about his fitness to hold office, his explanation, his qualifications
and experience.
[18]
It is plain that the Minister was content with the explanation that
Major General Ntlemeza
gave
about the Judge's remarks
.
He states that what
transpired from the explanation
provided by Major General
Ntlemeza when interrogated on the remarks by the Judge by the
Interview Panel was that
the remarks were made without him having been afforded an
opportunity by the Judge to
address him in those issues which the Judge was concerned
about. The Minister then
continues and states that these were not matters which were
canvased in the papers, in
other words
,
at
the material time the Judge made those remarks
the Judge was not concerned
with the fitness or propriety of Major General Ntlemeza.
According to him these
remarks came like a bolt from the blue.
[19]
He states it quite explicitly that he and the Interview Panel
afforded Major General Ntlemeza
an opportunity to provide
an explanation. He obliged and they were satisfied that the remarks
made by the Judge were not
findings and were also made in the circumstances where Major
General Ntlemeza was not
afforded an opportunity to provide him with an explanation. Mr.
Mkhari, counsel for the
Minister, advanced an argument that the remarks made by the Judge
in the judgments were not
findings and were therefore not binding. He contended that the
remarks could not
disqualify Major General Ntlemeza from being appointed to the
National
Head
of the DPCI. These Were, according to him, remarks that the Judges
ordinarily make in
writing
judgments. He argued that the remarks did not originate from what the
Judge was
dealing
with at the time he made them
.
·
At that part
i
cular
time the Judge made them when he was dealing with an application for
leave to appeal, so Mr
.
Mkhari submitted in
his argument.
[20]
This argument by Mr
.
Mkhari was
encouraged by the remarks made by Tuchten J
i
n
the course of his unreported judgment in respect of Part A of this
application about Matojane J's comments. Tuchten J remarked
as
follows in paragraph [66] of his judgment:
"
[66]
I do not think that in Sibiya, in relation to the application for
leave to appeal and to put the order in operation pending
appeal, I
would have judged the second respondent as severely as did Matojane
J. I think one must make some allowance for an aggrieved
litigant In
addition the preposterous conclusion to which the second respondent
came regarding the probity of the learned judge
was probably fuelled
by absurd legal advice
.
The second
respondent, and probably one or more of his lawyers, jumped to a
wholly unjustified conclusion. But that, as I see it,
does not
necessarily or even probably prove lack of integrity.
[67]
There were other a/legations in the applicants
'
papers
designed to demonstrate that the second respondent lacked integrity.
As
,
properly
so
,
no
reliance was placed on them
,
I have not
dealt with them at all. I would only express hope that when and if
this dispute goes further, the applicants will either
back up their
assertions with fact or withdraw them from the record of contention.
"
[21]
It
i
s
to be noted that when Tuchten J made the aforegoing remarks he was
not review
i
ng
the
proceedings
,
nor was he sitting
in an appeal against
,
Matojane J
'
s
judgments
.
Any
reference to the remarks by Tuchten J did not
,
even after he had
made them
,
obliterate from the
record
the
criticisms Matojane J had levelled against Major General Ntlemeza. So
the argument by
Mr
Mokhari is unhelpful to the Minister's case
.
Innocuous as these
remarks seem to be, if left
unchallenged they become an
albatross around Major General Ntlemeza's neck
.
The
Minister, and it is our
considered opinion that he was ill-advised, chose to ignore the
remarks
made
in the judgments
.
Instead he chose to
accept and to rely entirely
,
without much ado
,
on
an explanation
,
though inadequate
for the purposes of the duties of the Interview Panel, of
Major General Ntlemeza, and
went on to assail the manner in which the Judge came to make
those remarks.
[22]
It was alleged specifically by the deponent to the founding affidavit
that the decision to appoint
Major General Ntlemeza was
unlawful because the Minister had failed to take into account
the relevant factors such
as the judgments
.
The Minister
acknowledged that he had read the
judgments and that he was
aware of the remarks the court had made in them about the
character of Major General
Ntlemeza. The Minister did not tender any evidence that copies of
the judgments were part of
the documents that were placed before the Interview Panel when
Major Gene
.
ral
Ntlemeza was interv
i
ewed
.
By the 25
th
of March 2016 no mention was made of
copies of the said
judgments.
[23]
It must be stressed that the purpose of the in
t
erview
panel was to determine whether a
candidate was fit and
proper as envisaged by the provisions of s 17CA (1). In order to do
so
it had to have
all the relevant documents before it. The relevant documents in the
circumstances of this case
would have included copies of the judgments in question
.
The
means to determine
objectively whether Major General Ntlemeza was fit and proper must be
rationally related to the objective sought
to be achieved. Such
objective cannot be achieved if not all the relevant documents are
placed before the Interview Panel.
[24]
The question now is whether failure by the Minister to place a copy
of the judgments before
t
he
Interview Panel is rationally related to the objective sought to be
achieved by the Interview Panel which is to recommend the
appointment
of someone who is fit and proper to occupy the
position of a national head
of the DPCI. It was not for the Minister, nor was it enough for the
Minister, to read the said judgments
and formulate his opinion
without placing them before the Interview Panel. Both judgments had
to be placed before the Interview
Panel. This was a
duty that fell equally upon
the Minister's and Ntlemeza's shoulders to place the judgments
b
efore
the panel so that the panel could make an independent and genuine
opinion, without any outside influence, about Major General
Ntlemeza.
It was the duty of the interview panel to determine, through all the
documents placed before it, whether Major General
Ntlemeza was a fit
and proper person. That was the proper approach. The report by Major
General Ntlemeza alone was insufficient
for the purposes of such a
fact finding interview
.
The fitness and
propriety of Ntlemeza was at the centre of the interview
.
[25]
Therefore, failure to put the judgments before the Interview Panel
was to keep it ignorant
r
egarding
information of supreme relevance about Major General Ntlemeza
.
The question
was not whether or not the
Minister had read the judgments but whether or not the Interview
Panel had had insight into
them.
[26]
The Min
i
ster
was required to demonstrate that he had considered the full report of
the
judgments,
considered any countervailing representations
,
properly weighed the
opposing
facts
and reached a rational decision based upon such exercise and had
assessed the merits
and
demerits surrounding Major General Ntlemeza's appointment. In
appropriate
circumstances,
so it was argued by Mr Unterhalter, counsel for the applicants
,
he would have needed
to make further investigations which included obtaining views of
third parties
.
[27]
In paragraph [52] of the case of Democratic Alliance v Pres
i
dent
of the Republic of South
Africa
and Others, 2013 (1) 248 CC, ("the Simelane case")
,
which case is on
point regarding
the
current case and which provides good guidance in this matter, the
Court had the following
to
say about the findings that the
·
Ginwala
Commiss
i
on
had made in its report about
Simelane:
"
52.
These extracts from the report of the Ginwala Commission ought to
have been cause for great concern. Indeed, these comments
represented
brightly flashing red lights warning of impending danger to any
person involved in the process of Mr Simelane's
appointment
to the position of National Director. Any failure to take into
account these comments
,
or an
y
decision to ignore
them and to proceed with Mr Simelane
'
s
appointment without more
,
would not be
rationally related to the purpose of the power, that is
,
to appoint a person
with sufficient conscientiousness and credibility.
"
Our
well-considered view is that the case of Walele v City of Cape Town
and Others 2008(6)
SA
129 CC ("the Walele case") demonstrates the need for a
decision maker to make sure that
none of the disqualifying
factors are present before, like in the present case
,
the appointment
is made. For this reason it
behoved the Minister to make sure that there were no disqualifying
factors that prevented
Major GeneralNtlemeza from beirig appointed. The Walele case dealt
with the provisions of
sections 6 and 7 of Building Standards Act 103 of 1977, which dealt
with the power to approve
building plans. In paragraph [56] at p 158 the Court made it clear
that:
"[56]
Indeed the construction that section 7(1)(b)(ii) requires that the
decision-maker must be
satisfied that none of
the disqualifying factors will be triggered before approving plans
,
was adopted by the High
Court in the instant matter and was supported by the parties
before us. In its
judgment, the High Court said
·
"While
the local authority is entrusted with the power to approve plans, it
must, in a
manner
of speaking
,
act on behalf
of the neighbours by ensuring that the disqualifying
factors mentioned in s
7(1)(b) are not present before appro
v
ing
plans which otherwise
comply
with all applicable laws
.
""
According
to this case
,
the
Minister had a duty to make sure, and it was within his powers to do
so, that nothing disqualified Major General Ntlemeza from
being
appointed. According to
the
court
i
n
Ex Parte Porritt 1991(3) S A 866 NPD, the Minister had to weigh up
all that could
be
said for and against the appointment of Major General Ntlemeza and
decide whether in his
objective
assessment he was worthy of being appointed
.
The Minister
'
s
decision not to take
all
these adverse factors into account amounted to a consent by him to
approve the
appointment
of Major General Ntlemeza under polemic circumstances and was not a
proper
approach.
Accordingly the Minister must get more kicks than halfpence. He could
not have
been
satisfied that Major General Ntlemeza was a fit and proper person to
be appointed as the national head of the DPCI if he did
not consider
all the relevant factors.
ESTABLISHMENT
OF THE OFFICE OF THE DPCI
[28]
The office of the DPCI is established in terms of the provisions of
section 17C (1) of the SAPS
Act.
The SAPS Act provides in section 17C (1)(A) that the DPCI will
consist of a national
office
and offices set up in each province. It is provided in section 17C
(2) of the said Act that
there
will be a National Head who shall manage and direct the
·
directorate
and who shall be
appointed
by the Minister
i
n
concurrence with the cabinet. According to the provisions of s
170 (1) of the SAPS Act the
functions of the DPCI are set out as follows
:
"(1)
The functions of the Directorate are to prevent, combat and
investigate-
(a)
national priority
offences, which in the opinion of the National Head of the
Directorate need to be
addressed by the Directorate; subject to any policy
guidelines issued by the
Minister and approved by Parliament,
·
(aA)
selected offences not limited to offences referred to in Chapter 2
and
section
34 of the Prevention and Combating of Corrupt Activities Act,
2004(Act 12 of 2004)"
[29]
Section 17CA (1) of the SAPS Act prescribes the manner
in
which a national
head of the DPCI must
-
be
appointed and the qualities that he must have. It provides as
follows:
'(1)
The Minister, with the concurrence of the cabinet shall appoint a
person who is
–
(a)
a South African
citizen,
(b)
a fit and
proper person, with due regard to his or her experience,
conscientiousness and
integrity, to be entrusted with the responsibilities of the
office concerned, as the
National Head of the Directory.
"
[30]
One should understand the meaning of the words
("fit
and proper”)
within
the context of section 9 of the National Prosecuting Authority Act 32
of 1998 ("the NPA Act") and the Simelane
case
.
Substantially the
requirements for
the
appointment of the
National Director of Public Prosecutions in terms of the NPA Act are
the same as the requirements for the appointment
of
the
National Head of the
DPCI. Section 9 of the NPA provides that:
'Any
person to be appointed as National Director, Deputy National Director
or Director must-
(a)
possess legal
qualifications that would entitle him or her to practise in all
courts in the
Republic
;
and
(b)
b
e
a fit and proper person
,
with due
regard to his or her experience, conscientiousness
and integrity, to be
entrusted with the responsibilities of the office concerned.
"
[31]
In the Simelane judgment the Court took the view that the appointment
criteria the law maker
has
prescribed are objective; that they constitute essential
jurisdictional facts and that consequently an- appointee to the
·
office
·
of
the National Director of Public Prosecution was
required rationally and
objectively to be fit for such office
.
"[37]
This conclusion addresses the differences that emerged in argument on
whether the
decision
needs to be rational or whether the process resulting in the decision
should
also
have been rational for an executive decision to stand. A related
question, if the
process
is to be rationally related to the purpose for which the power has
been
conferred,
is whether each step in the process must be so rationally related.
"
Referring
to the matter of Albutt v Centre for the State of Violence and
Reconciliation and
Others
2010(3) SA 293 (CC), which was concerned with whether or not giving
the victims or
their
families the opportunity to
·
be heard, was
rationally concerned with the governmental
purpose in issue
,
the Court stated as
follows in paragraph 34:
"[34]
It follows that both the process by which the decision is made and
the decision itself
must
be rational
.
.
.
The means there
were found not to be rationally related to the
purpose because the
procedure by which the decision was taken did not provide an
opportunity for the
victims or the family members to be heard''.
It
continues in paragraph 36 at p
.
271A-C
and states that:
"[36]
The conclusion that the process must also be rational in that it must
be rationally related
to
the achievement of the purpose for which the power is conferred, is
inescapable and
an
inevitable consequence of the understanding that rationality review
is an evaluation
of
the relationship between means and ends
.
The means for
achieving the purpose for
which the power was
conferred must include everything that is done to achieve the
purpose
.
Not only the
decision employed to achieve the purpose, but also everything
done in the process of
taking that decision, constitute means towards the attainment of
the purpose for which
the power was conferred"
One
of the issues that the Constitutional Court had to traverse in the
Simelane case was whether the process as well as the ultimate
decision must be rational. The principle laid down in the Simelane
case by the SCA is that if the process leading to the appo
i
ntment
is flawed, the appointment itself is irrational and invalid.
[32]
It is an essential requirement of section 17CA (1) of the SAPS Act
that the National Head of
the
DPCI be a fit and proper person with due regard to his or her
experience
,
consciousness
and integrity
,
to be entrusted with
the responsibilities of the office concerned as the National
Head of the Directorate
.
The said section
requires that a person who is to be appointed
should be fit and proper
considering the importance of the high office involved
.
The question
becomes whether that person
can be entrusted with the responsibilities of the office. By
analogy certain criteria
must be taken into consideration for instance, the experience,
conscientiousness and
integrity
.
[33]
In the Simelane case
,
the Constitutional
Court accepted the approach of the Supreme Court
of Appeal. In paragraph
[14) of the said case this is what the Constitutional Court had to
say:
"The
Supreme Court
of Appeal concluded that the President's decision was irrational
irrespective of whether
the decision taken by the President was subjective or whether the
criteria for appointment
of the National Director were objective. It nevertheless
concluded, for
the
purpose of giving guidance
,
that the
requirement that the National Director must be a fit
and proper person
constituted a jurisdictional fact capable of objective ascertainment.
"
Accordingly,
even where the relevant decision maker has, in terms of the law, a
discretion
relating
to the person to be appointed, the person who is ultimately appointed
must be a fit
a
nd
proper person
.
Section 17 (C) does
not provide that the candidate must be fit and proper
in the eyes of the
Minister
:
"[22]
Second, and as the Supreme Court of Appeal correctly points out
,
the Act
itself does
not
say that the candidate for appointment as National Director should be
fit and proper
''in
the
President's
view'
'.
The
Legislature could easily have done so 1f the purpose was
to leave it in the
complete discretion of the President. Crucially, as the Supreme Court
o
f
Appeal again pointed out, the section
'
'is
couched in
imperative
terms. The
appointee
'must'
be a fit and proper person
.
"
IS
LIEUTENANT GENERAL NTLEMEZA FIT AND PROPER TO HOLD THE OFFICE OF THE
NATIONAL HEAD OF THE
DPCI
[34]
The SAPS Act empowers the Minister to appoint the Head of the DPCI.
In doing so it
requires
of the Minister to appoint a person who
satisfies objectively the
criterion set forth in the relevant section 17CA (1), in other words,
someone who is fit and proper; someone
who can be entrusted with the
responsibilities
and
duties that accompany the office of a National
Head
.
The purpose of this
is to ensure that the DPCI is in a position to carry out its mandate
.
[35]
To make sure that the relevant Minister appoints the relevant person
,
the legislature
specifically limited the
discretion that the Minister has in terms of section
1
7CA
(1) to appoint
the
National Head. The legislature set out the qualities that such an
appointee must have to
be
appointed as the head of the DPCI. To determine objectively whether a
person
is
fit
and
proper,
this Court would have to weigh
up
the conduct of the
person against the conduct that
is expected of a person
occupying
the
office
of that Head
.
[36]
The judgments are replete with the findings of dishonesty and mala
fides against Major
General
Ntlemeza. These were judicial pronouncements. They therefore
constitute direct
evidence
that Major General Ntlemeza lacks the requisite honesty, integrity
and
conscientiousness
to occupy the position of any public office
,
not to mention an
office as more
important
as that of the National Head of the DPCI, where independence
,
honesty and
integrity are paramount to
qualities. Currently no appeal lies against the findings of
dishonesty
and
impropriety made by the Court in the judgments. Accordingly, such
serious findings of
fact
in relation to Major General Ntlemeza, which go directly to Major
General Ntlemeza
'
s
trustworthiness
,
his honesty and
integrity, are definitive
.
Until such findings
are appealed
against
successfully they shall remain as a lapidary against Lieutenant
General Ntlemeza.
[37]
The judicial pronouncements made in both the main judgment and the
judgment in the
application
for leave to appeal are directly relevant to and in fact dispositive
of the question
whether
Major General Ntlemeza was fit and proper if one considers his
conscientiousness
and
integrity. Absent these requirements Lieutenant General
Ntlemeza
i
s
disqualified from
being
appointed the National Head of the DPCI.
[38]
In paragraph [51) of his unreported judgment that he handed down on
the 181h of April 2016
relating
to part A of his application Tuchten J had the following to say
:
"Section
17CA (1) broadly requires two things
,
·
firstly that the Minister has followed a proper
process in evaluating
w
hether
to make an appointment
.
All public
power must be exercised
rationally and for a
proper purpose
.
So if the
decision maker did not act capriciously or tor a
wrong motive or did not
properly apply his mind to the question e.g
.
ignored
relevant
considerations
,
then in
principle the manner in which the decision was arrived at would be
inconsistent with the
Constitution and therefore invalid Then
,
secondly, the
question requires
that
the person who is appointed be in good (i e. not merely in the
opinion
,
reasonable
.or
otherwise
of the decision maker) a fit and proper person with due regard to his
experience,
conscientiousness
and integrity to be entrusted with the responsibilities of the
office.
"
He
continued in paragraph [52] and states as follows
:
"Whereas
here the character of a candidate for appointment to a position is
relevant to the
decision,
the decision maker such as the Minister is not free to brush aside a
considered
opinion
of a superior court which bears upon the very point. This
observation arises not from
judicial vanity but from
the provisions of the Constitution. The core business of the
Court is to
decide
dispute which can be resolved by application of the law.
"
There
is no room to dispute Matojane J's findings
.
[39]
What has now come out quite clearly following the aforegoing remarks
is that the Minister was
aware
of the remarks made in the judgments. He nevertheless took the view
that they could
b
e
ignored in the e
x
ercise
of his powers
.
The
Minister simply brushed aside a considered
opinion
of a superior court. The question here is not one of discretion but
whether the person
who
has been described by such judicial pronouncement can be appointed in
the face of such
pronouncements.
This was a quintessential example of the Minister completely ignoring
and
brushing
aside remarks by a Court
.
Was the
Minister entitled to ignore such judicial
pronouncement? Once
again one has to refer to the Simelane case. The issue in the
Simelane case related to
the appointment of S
i
melane
as a director of the National Public Prosecution
.
The issue was
whether the President's decision, in terms of which Simelane
had been appointed into the
office the NDPP could stand
.
Simelane had
appeared as a
witness
in the Ginwala Commission. The Commission made unfavourable remarks
about him
.
Those
remarks had a direct impact on his character. In appointing him, the
President had completely
i
gnored
such findings. The Constitutional Court found that those remarks that
Ginwala had made in the Commission constituted evidence
that was of
supreme relevance to Simelane
'
s
credibility
,
honesty
and integrity and conscientiousness
.
It found that
ignoring such remarks nullified the ultimate decision.
[40]
In the same Simelane matter the Constitutional Court stated at
paragraph [6] page 257E
-
F
that
"
the Supreme Court of Appeal SCA considered that the President erred
in four respects
and
that those mistakes rendered the process by which the decision to
appoint Simelane had
been
taken, and, consequently, the decision itself irrational and
invalid."
The
second error
was
stated as follows
:
"
Second,
the President incorrectly reasoned that the absence of evidence
contradicting the idea that Mr Simelane was a fit and proper
person
for appointment justified the conclusion that he was indeed a fit and
proper person
.
The
correct approach, according to the Supreme Court of Appeal, was for
the President to determine positively whether Mr Simelane
was a fit
and proper person. This the
President did not do.
"
In
his answering affidavit the Minister stated that there has been no
allegation pertaining to
the
second respondent not being a fit and proper person to hold the
office of the National
Head
of the DPCI. This was the evidence of the Minister in paragraph 63.3
of his answering
affidavit.
It is not clear what the basis of this statement was because the
judgments depicted the qualities of General Ntlemeza
in a different
light.
[41]
It is contended by the applicants that the Minister, in making a
decision to appoint Ntlemeza
as
the National Head of the Directorate for Priority Crime
Investigation, failed to take into
account all the relevant
factors, most notably the judicial pronouncements in the judgments
that cast a serious doubt
on the fitness and propriety of Major General Ntlemeza to hold
public office. On
that basis it is contended by the applicants that the appointment of
Major
General
Ntlemeza was irrational and unlawful and falls to be set aside. The
applicants
submitted
that the decision to appoint Major General Ntlemeza was irrational
and unlawful on
the
basis that these findings of the Court were ignored or were not
properly considered.
According
to the applicants these judicial announcements establish that Major
General
Ntlemeza:
41.1
acted arbitrarily
and in bad faith;
41.2
refused,
alternatively failed, to take the Court into his confidence and
provided true
reasons
for his decision in relation to Major General Sibiya;
41.3
violated
constitutional rights in the process
;
41.4
was biased,
dishonest, lacked integrity and lacked honour;
41.5
had a contemptuous
attitude towards the rule of law and the principle of legality and
transparency; and
41.6
refused to abide by
or implement orders of Court, which are binding.
The
bedrock of the applicant's case is that none of these findings was
properly scrutinised by
the
Minister or the cabinet and the serious doubts in the relation to the
propriety for office of
Major
General Ntlemeza was thus not addressed
.
[42]
In the applicants' view the remarks by the Judge quite clearly show
that the Major General
Ntlemeza
is
not
fit and proper to hold the office of the National Head. It would
appear that the
Minister
failed to properly evaluate the remarks made in the judgments and to
appreciate the
serious
doubt on his unfitness and impropriety to hold the office of the
National Head of the
DPCI.
[43]
Three of the issues that this Court was called upon to decide were
firstly whether or not the
Minister and the Cabinet
abused their statutory and constitutional discretion in respect of
the appointment decision; secondly,
whether the Minister and the
Cabinet took into account all
the
relevant considerations and facts in arriving at the appointment
decision, and thirdly,
whether
or not they took into account the relevant considerations and facts,
and fourthly,
whether
the Minister and the Cabinet could lawfully conclude that Major
General Ntlemeza
was
a fit and proper person to be appointed as the Nationa
l
Head
.
In order to
determine what
the
role of the Cabinet was in the appointment of the National Head one
merely has to have
regard
to the prov
i
sions
of s 17CA (3)
.
This
section provides that:
'
The
Minister shall report to Parliament on the appointment of the
National Head of the
Directorate within
fourteen days of the appointment if Parliament is then in session or,
if
Parliament
is not in session
,
within
fourteen days after the commencement of its next ensuing
session.
"
As
we indicated earlier, the Cabinet has not filed any papers
.
[44]
From the uncontested evidence of the Minister
i
t
is clear that the cabinet is not involved in the
interview of any candidate.
This duty falls squarely within the funct
i
ons
of the Minister and his
Interview
Panel. The applicants have not produced any evidence to show the
extent of the
Cabinet's
involvement in the appointment of the National Head
.
Tha
t
the Cabinet does not
sit
in
the Interview Panel is evident from s 17CA (3) that require)
.
the
Minister to report to
Parliament.
The Cabinet cannot sit in the interview panel, appoint with the
Minister a National
Head
and thereafter report to Parliament. This is highly unlikely
.
[45]
Secondly, the uncontested evidence of the Minister is that he
submitted the documents that the Interview Panel had before it
when
it interviewed Major General Ntlemeza to Cabinet. It is
highly unlikely that
Cabinet could sit on the Interview Panel and still receive, this time
from the
Minister,
the same documents that they had during the interview of any
candidate. Finally,
there
is no evidence to contradict the evidence of the Minister that he
submitted all the
documents
which the interview pariel had during the interview
bf
Majo
r"
General Ntlemeza to
the Cabinet. The
Minister did not testify that the judgments in question were among
these
documents
The applicants themselves did not produce any evidence that the
Minister
forwarded
copies of the judgments to Cabinet. Finally, the applicants
themselves seek to set
aside
a decision taken by the Minister and not the Cabinet. Accordingly,
there is no merit in
the
accusations levelled against the Cabinet in this application
.
[46]
Finally
,
the
application is granted and the following order is made:
1.
The decision of the
Minister of 10 September 2015 in terms of which Major General
Ntlemeza was appointed the
National Head of the Directorate of Priority Crimes
Investigations is hereby
reviewed and set aside.
2.
The first and second
respondents, in their official capacities
,
are hereby ordered
to pay
the
applicant's costs, including the costs consequent upon the employment
of two
counsel,
the one paying and the other to be absolved.
It
is so ordered
______________________
P.M
.
MABUSE JUDGE OF THE
HIGH COURT
I
agree
_____________________
N.
KOLLAPEN
JUDGE
OF THE HIGH COURT
I
agree
___________________
S.A.M.
BAQWA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the applicant:
Adv. DN Unterhalter (SC)
Adv.
CA Steinberg
Instructed
by
Webber Wentzel
Counsel
for the first respondent:
Adv
.
WR
Mokhari (SC)
Adv.
TB Hutamo
Instructed
by
The State Attorney
Counsel
for the second respondent: Adv
.
P. Seleka
(SC)
Adv.
R Tulk
Instructed
by
Hogan Lovells (South Africa) Inc
.
Date
Heard:
6-7 December 2016
Date
of Judgment:
17 March 2017