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[2016] ZAGPPHC 1191
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Helen Suzman Foundation and Another v Minister of Police and Others (23199/16) [2016] ZAGPPHC 1191 (19 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 23199/16
Date:
19/10/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
HELEN
SUZMAN FOUNDATION First
Applicant
FREEDOM
UNDER
LAW Second
Applicant
and
MINISTER
OF POLICE
First
Respondent
MTHANDAZO
BERNING NTLEMEZA Second
Respondent
DIRECTORATE
FOR PRIORITY CRIME
INVESTIGATION Third
Respondent
CABINET
OF THE REPUBLIC OF
SOUTH
AFRICA Fourth
Respondent
JUDGMENT
Tuchten
J
:
1.
The applicants are organisations which strive to promote
constitutional democracy, respect for human rights and the rule of
law. The second respondent is the National Head of the third
respondent (the DPCI), a division within the SA Police Service which
is known as the Hawks.
2.
The DPCI was established
by s 17C of the South African Police Service Act, 68 of 1995 (the
SAPS Act). Section 17C is part of Chapter
6A of the SAPS Act, which
was inserted by amendment into the SAPS Act.
[1]
3.
Section 17B states that in relation to the DPCI the following should
be recognised and taken into account:
(a)
The need to establish a Directorate in the Service to prevent, combat
and Investigate national priority offences, in particular
serious
organised crime, serious commercial crime and serious corruption.
(b)
The need to ensure that the Directorate-
i. implements, where
appropriate, a multi-disciplinary approach and an integrated
methodology involving the co-operation of all
relevant Government
departments and institutions;
ii.
has the necessary independence to perform its functions;
iii.
is equipped with the appropriate human and financial resources to
perform its functions;
iv.
is staffed through the transfer, appointment, or secondment of
personnel whose integrity is beyond reproach.
4.
Section 17C(2) provides for the appointment of a National Head of the
DPCI, a Deputy National Head at national level, Provincial
Heads and
other officers. Section 17C(1) provides in terms that the DPCI must
function through offices at national level and in
each province. This
application concerns the appointment of the second respondent as
National Head. Section 17CA provides for how
the National Head must
be appointed and the characteristics he or she must have in order to
be entrusted with the responsibilities
of this office:
1.
The Minister, with the concurrence of Cabinet, shall appoint a person
who is-
(a)
a South African citizen; and
(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
seven
years
and not exceeding 10 years.
2.
The period referred to in subsection (1) is to be determined
at the time of appointment.
3.
The Minister shell 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.
5.
The Minister referred to in s17CA is the Minister of Police, the
first respondent. It is common cause that the Minister appointed
the
second respondent as the National Head of the NCI on 10 September
2015.
6.
The case for the
applicants is that in appointing the second respondent, the Minister
abused his discretion and failed to take into
account relevant
factors. In addition, the applicants have forthrightly alleged that
the second respondent is a person of bad character
who could, as such
and because of the scheme of the Act which requires that the officers
within the DPCI be persons of irreproachable
integrity,
[2]
not competently be appointed to his office.
7.
The functions of the DPCI
are set out in s 17D. In quoting these provisions I identify by
strikeout in the text matter ins 17D(1)
found by the Constitutional
Court to be inconsistent with the Constitution and invalid:
[3]
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,
(b)
offences referred to in Chapter 2 and section 34 of the Prevention
and Combating of Corrupt Activities Act, 2004 (Act 12 of
2004);
8.
The creation of
the DPCI and the interventions of the Constitutional Court in the
legislative terrain pre-eminently reserved for
Parliament must be
seen against the backdrop of the rampant corruption and abuse of
state resources prevalent in our country.
[4]
The National Head has a most important function. As the
Constitutional Court has said in relation to the selection of this
officer.
[5]
The
overarching requirement for suitability is 'fit and proper' which,
broadly speaking
,
means that the candidate must have the
capacity to do the job well and the character to match the importance
of the office. Experience,
integrity and conscientiousness are all
intended to help determine a possible appointee's suitability 'to be
entrusted with the
responsibilities of the office concerned'.
Similarly, laziness, dishonesty and general disorderliness must of
necessity disqualify
a candidate.
9.
The first applicant wanted
to know on what grounds the Minister had selected the second
respondent for appointment as National Head.
By letter dated 2
November 2015, it wrote to the Minister asking, amongst other things,
for full written reasons why the second
respondent was so appointed
and for evidence that the statutory requirements had been fulfilled.
Correspondence ensued. The Minister
responded substantively to the
requests in the letter of 2 November 2015 in a letter dated 2 March
2016. The 2 March 2016 letter
sets out the full written reasons for
the appointment and records that the documents considered by the
Minister (and the Cabinet)
in making the appointment were the
curriculum vitae
of
the second respondent and a document containing the recommendation to
Cabinet. Neither of these documents was provided to the
first
applicant at that stage. The second respondent however put up his
curriculum vitae
in
his answering papers.
10.
The text of the 2 March 2016 letter reads as follows:
Please
note that [the second respondent] was appointed as the head of the
DPCI effective from 10 September 2015 after the post was
advertised
and he was interviewed along with four other candidates for the
position. The appointment was made in terms of section
17C(a)(i) of
the South African Police Services Act, 1995. The committee that
interviewed [the second respondent] unanimously agreed
that he was
fit and proper person to been trusted with the responsibilities of
the
Head
of DPCI.
The
following credentials count in [the second respondent's] stead:
· He qualifies for
the position of the Head of the DPCI. He Is In possession of BA
Police Science and B Juris degrees,
· He has more than
thirty years' experience in the police
service
in various
capacities,
· During the
interviews, he displayed strength against the required competency
profile and also in comparison with other
candidates who were
interviewed,
· He also
demonstrated an in depth knowledge of the work of the Hawks and a
high level of proficiency to function at the
level of the Head: DPCI,
· He is in
possession of a top secret clearance certificate valid until 2019,
· Personnel
suitability was also checked and answers are reflected in bold:
- criminal record:
None
- pending disciplinary
cases:
None
- financial/asset record
checks:
Yes
- Citizen verification:
Yes
- Qualification/Study
verification (SAQA): Confirmed.
The
appointment of [the second respondent] as the Head of the DPCI was
approved by the Cabinet on 09 September 2015. The document
containing
a cabinet decision in this regard is marked 'top secret' and
therefore cannot be provided as requested.
Also
take note that I could not find any report pertaining to [the second
respondent] that was produced by the Independent Police
Investigation
Directorate.
You
also requested documents and information that was considered in
making the appointment. This will include the Curriculum Vitae
(CV)
of [the second respondent]. Please note that the CV of [the second
respondent] contain his personal information that I am
prohibited the
in terms of
section 34(1)
of the
Promotion of Access to Information
Act, 2000
from disclosing without his consent. In this regard I do
not have consent to disclose any personal information relating to
[the
second respondent].
11.
By notice of motion dated 16 March 2016, the applicants applied for
relief arising from the appointment of the second respondent.
The
applicants seek in the normal course as Part B of the relief to
review and set aside the Minister's decision to appoint the
second
respondent as the National Head of the DPCI. This application is
pending. By Part A of the relief sought, the applicants
apply
urgently to interdict the second respondent, pending the final
determination of the Part B relief, from exercising any power
or
discharging any function or duty as head of the DPCI. The Part A
relief is before me for decision. The Minister and the second
respondent were separately represented. The fourth respondent abides.
12.
The factors
influencing the grant or refusal of an interim interdict pending a
review in the constitutional era were set out by
my brother Fabricius
J in
Afrisake
NPC and Others v City of Tshwane and Others,
a
judgment delivered in this Division on 14 March 2014 under case no
74192/2014. As I cannot materially improve upon the exposition
of
Fabricius J, I shall quote the contents of paragraphs 8-10 of the
judgment:
[6]
These
requirements, which are often referred to as being "trite",
conveniently appear in the Law of South Africa, Second
Edition, Vol
11 at 411, the author being the respected former Judge of Appeal, LTC
Harms. They are also dealt with, and their history,
in the Law and
Practice of Interdicts, CB Prest SC, Juta and Company 1996. As I have
said, these requirements are often regarded
as being ''trite",
but a careful reading of the Case Law will lead one to the conclusion
that they are often misunderstood,
and, as in the case before me, not
applied to the facts correctly. I am not dealing with the
requirements for a final interdict.
One of the most important
considerations is that an interim interdict must be concerned with
the future only. It is not meant to
affect decisions already made.
See:
National
Treasury vs Opposition
to
Urban
Tailing Alliance…
[7]
I
say that this is of the utmost importance because it is interrelated
to the second requirement, and it is in this context in particular
where the misapprehension occurs as to what must actually be shown.
The requisites for the right to claim an interim interdict
are:
(a)
A prime facie right, though open to some doubt;
(b)
A well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually
granted;
(c)
That the balance of convenience favours the granting of an interim
interdict; and
(d)
That the applicant has no other satisfactory remedy. None of these
requisites must be judged in isolation.
See
:
Olympic Passenger Service (pty) Ltd vs Ramlagan
1957 2 SA
382
D at 383.
These
requisites have their origin, so it is often
said,
in
Setlogelo vs
Setlogelo
1914 AD 221
at 227. It is
however clear from that Judgment that the appeal before the Court
concerned the granting of a final interdict, where
the requirements
are different. It was in the context of whether or not an interim
interdict could be obtained even though a clear
right was not shown,
that Innes JA dealt with the need to show irreparable harm as set out
by
Van der Linden, Institutes,
(3, 1, 4, 7). Van der Linden
mentioned this only in the case of where the right relied upon was
not clear, but was only
prima facie
established, if open to
some doubt. In that instance the question would be whether the
continuance of the thing against which an
interdict is sought, would
cause irreparable injury to the applicant. The better course would
be, so it was said, to grant the
relief if the discontinuance of the
act complained of would not involve irreparable Injury to the other
party. The whole topic
was again debated by
Clayden Jin Webster vs
Mitchell
19481 SA1186 W at 1189. The right can be
prlma faci
e
established even if it is open to some doubt. Mere acceptance of the
applicant's allegations is insufficient, but the weighing-up
of the
probabilities of
conflicting
versions is not required. The proper approach is to consider the
facts as set out by the applicant together with any
facts set out by
the respondent which the applicant cannot dispute, and to decide
whether, with regard to the inherent probabilities
and the ultimate
onus, the applicant should on those facts obtain final relief at the
trial. The facts set up in contradiction
by the respondent, should
then be considered, and if they throw serious doubt on the
applicant's case, the latter cannot succeed.
In
Webster
vs Mitchell supra
the
test was actually whether the applicant could obtain final relief on
those facts. The mentioned qualification was introduced
by Goo/
vs
Minister of Justice
1955
2SA
682 Cat 687
to 688. The Full Bench of the Cape Provincial
Division agreed with the relevant analysis of the requirements in
Webster
vs Mitchell supra,
subject
to the qualification that the Court must decide, having applied the
proper approach to the facts that I have mentioned,
whether the
applicant should (not could) obtain final relief at the trial on
those facts. I may add at this stage, because I will
return to that
topic hereafter, that it was also held in that decision (at 689) that
where an interdict was sought against the
exercising of statutory
powers, It will only be exercised in exceptional circumstances, and
when a strong case is made out for
relief. The mentioned
qualification to the Setlogelo-test, if I can call it that, as
subsequently adapted by
Webster
vs Mitchell,
was
held to be "a handy and ready guide to the bench and
practitioners alike in the grants of interdicts in busy magistrates'
courts and high courts." The qualification in
Goo/
was
given approval, and it was also said that the Setlogelo-test had now
to be applied cognisant of the normative scheme and democratic
principles that underpin our Constitution.
[8]
This means in effect that when a Court considers whether to grant an
Interim interdict it must do so in a way that promotes the
objects,
spirit and purport of the Constitution. For instance, if the right
asserted in the claim for an interim interdict is sourced
from the
Constitution it would be redundant to inquire whether that right
exists. As another example, the principle of the separation
of powers
must be applied in appropriate circumstances.
See:
National Treasury vs Opposition to Urban Tolling Alliance
supra
at 236 par. 44.
I
have said that the mentioned requisites are not to be judged in
isolation and that they interact. It is no doubt that for this
reason
Moseneke DCJ in the
National Treasury
decision
supra
held
at 237 par 50 that "under the Setlogelo-test the
prima facie
right a claimant must establish is not merely a right to approach
a Court [in] order to review an administrative decision. It is
a
right to which, if not protected by an interdict, irreparable harm
would ensue. An interdict is meant to prevent future conduct
and not
decisions already made. Quite apart from the right to review and to
set aside impugned decisions, the applicant must demonstrate
a
prima facie
right that is threatened by an impending or imminent
irreparable harm. The right to review the impugned decisions does not
require
any preservation
pendente
lite."
The
second requisite of irreparable harm, must be looked at objectively,
and the question is whether a reasonable person, confronted
by the
facts, would apprehend the probability of harm; actual harm need not
be established upon a balance of probabilities. This
requisite in tum
is closely related to the question of the balance of convenience.
This is the third requisite and It must be shown
that the balance of
convenience favours the grant of the order. In this context the Court
must way the prejudice the applicant
will suffer if the interim
interdict is not granted, against the prejudice the respondent will
suffer if it is.
See:
Harms supra
par 406 and
Prest supra
at 73, where the
learned author said, in my view quite correctly, that a consideration
of the balance of convenience is often the
decisive factor in an
application for an interim interdict. He states that even where all
the requirements for a temporary interdict
appear to be present, it
remains a discretionary remedy and the exercise of the discretion
ordinarily turns on a balance of convenience.
I agree with that
approach and the view of Harms, JA in this context (at par 406), as
well as the dictum in
Olympic Passenger Service (pty) Ltd supra
at
383. The fourth requisite for the granting of an interim interdict is
the absence of another adequate remedy. This element is
also a factor
in the exercise of the Court's general discretion to grant or refuse
an Interim interdict. Before turning to the
relevant facts and
submissions made by the parties, it is said (see
Harms supra
per.
408) that the Court always has a wide discretion to refuse an interim
Interdict even if the requisites have been established.
This means
that the Court is entitled to have regard to a number of disparate
and Incommensurable features in coming to a decision,
and not that
the Court has a free and unfettered discretion. The discretion is a
judicial one, which must be exercised according
to law and upon
established facts. I therefore do not agree with [counsel] that I
have a so called "overriding" discretion.
See:
Knox D'Arcy Ltd vs Jamieson
[1996] ZASCA 58
;
1996 4 SA 348
A at 361 to 362 and
Hix Networking Technologies
CC
vs
System
Publishers(pty)
Ltd19971 SA391 A at 401. The exercise of the
discretion must therefore be related to the requisites for the
interim order sought,
and not to any unrelated features.
13.
I would add that while the right to review a decision made in
the exercise of public power does not require an interdict for its
protection, I do not think that the strength of the case ultimately
to be made on review is irrelevant to an application for an
interdict
pending the review. If the applicant disclosed no prospects of
success on review, then a court would not grant an interim
interdict
pending a review which was doomed to fail. But on the authority of
National Treasury
para 50, the existence of prospects of
success on review is while in my view necessary, not sufficient. An
applicant in these circumstances
must show a right other than the
right to review which requires protection
now.
14.
What are the rights which the applicants seek to protect? The
rights in question, according to the applicants' founding affidavit
are the right to an independent and functioning criminal justice
system, the right to have a National Head appointed who is fit
for
office and the right to have the decision appointing the National
Head made in accordance with the Constitution and s 17CA
of the SAPS
Act.
15.
Although the grounds for the Part B relief are wide ranging, the
applicants' case for the violation of these rights relied upon
at
this stage is rather limited. The applicants submit that the Minister
in considering whether to appoint the second respondent
and the
Cabinet In delivering its concurrence with the Minister's decision to
appoint failed to have regard to findings by a judge
of this Division
in two considered judgments in a case heard in this Division in 2015,
both critical of the character of the second
respondent.
16.
I think it is as well to
get two preliminary matters out of the way. The respondents submit
that the case is not urgent or rather
that the urgency is
self-created. They argue that the applicants were aware of the
appointment shortly after it was made and impermissibly
delayed until
March 2016 to bring their application. The short answer to this
contention is that it would have been irresponsibly
precipitate, and
possibly even premature, to bring these proceedings before the
Minister had been given a fair opportunity to provide
reasons for the
decision. The matter is of great public importance and concerns a
high functionary in a specialised crime fighting
unit within the SA
Police Service. The case for urgency must be considered primarily on
the applicant's case.
[9]
The
second respondent as head of the DPCI makes important decisions every
day with significant implications for the liberty of
persons and the
conduct of investigations. Under s 17D(10)(a), it is in the
discretion of the National Head of the DPCI to decide
which "national
priority offences" should be addressed by the DPCI and, by
implication therefore, which such alleged
offences should not so be
addressed.
[10]
It is
self-evident that the person exercising these powers must be a person
of integrity appointed as such pursuant to a process
which complies
with the law. There is a second basis on which the respondents say
the matter is not urgent: they submit that the
applicants have shown
no irreparable harm. I prefer in the exercise of my discretion to
deal with this second submission when I
consider the merits of the
application.
17.
For these reasons I hold that the matter is urgent within the meaning
of rule 6(12(b) and direct that the matter be enrolled
and heard
before me as an urgent application.
18.
The second such
preliminary matter arises from the submission that the applicant's
case is in substance for the suspension of the
second respondent
pending the determination of the Part B relief, that the power to
suspend is vested in the Minister and not the
court and that the
court should therefore not trespass on the terrain of the executive.
I wholeheartedly agree that the court should
not trespass on the
terrain of the executive. But I think that this submission rests on a
misconception. The case for the applicants
is not that the second
respondent be suspended pending proceedings to have him removed from
office. It is that the second respondent
was never lawfully appointed
in the first place and should be interdicted pending the
determination of that issue from performing
functions which, because
he was not validly appointed, he was never empowered to perform.
Although the consequences for the second
respondent may be similar or
even the same in both situations, in law they are of different
characters. Interim relief in the second
situation is classically
within the province of the courts.
[11]
19.
The way is now cleared for a consideration of the facts. This will
require analysis of the two judgments which I mentioned earlier
(Sibiya)
together with a judgment in another case-decided in
the Duman High Court (Sooysen), the response of the second respondent
to the
criticisms of him made in those judgments and the responses of
the Minister to what was put before him.
20.
These judgments all arise from urgent applications brought in
response to disciplinary proceedings initiated by the second
respondent against high ranking officers within his own unit, the
DPCI. The first set relates to the suspension by the second
respondent
of General Sibiya as a provincial head of the DPCI
pursuant to a notice of indefinite suspension served on Sibiya on 20
January
2015 and the concomitant appointment of an acting provincial
head to perform Sibiya's functions. The reason for the suspension of
Sibiya was said in the notice of suspension by the second respondent
to have been related to certain alleged conduct by Sibiya
on about 5
November 2010, namely the alleged unlawful rendition of certain
foreign nationals to Zimbabwe.
21.
Sibiya applied urgently to this court to set aside his suspension and
the appointment of the acting provincial head made to
fill the gap
caused by his suspension. The application came before my brother
Matojane J. In a judgment handed down on 20 February
2005, the teamed
judge found that no basis for a precautionary suspension such as that
in question had been disclosed on the papers
and that the second
respondent had not even explained what role in the alleged rendition
he sought to ascribe to Sibiya. Matojane
J found that no power to
suspend and no grounds for suspension had been established. The
consequent order was that the suspension
and the appointment of the
acting provincial head were set aside with costs against the present
second respondent in his official
capacity.
22.
In paragraph 31 of this judgment, Matojane J held as follows:
In
my view, there exists no basis in law or fact for [the present second
respondent] to take the drastic measure of placing [Slbiya]
on
precautionary suspension. I agree with
[SibiyaJ that the decision
by [the second 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
[Sibiya's] constitutional right to an
administrative action that is lawful, reasonable and procedurally
fair.
[my
emphasis]
23.
Sibiya claimed in his founding papers that the second
respondent had acted against him out of a desire to punish Sibiya for
having
investigated the conduct of one Lt General Mdluli and having
him charged with murder. But there is no finding in the judgment that
this allegation was found to be established.
24.
The second respondent applied for leave to appeal. Sibiya
counter-applied for an order that the main judgment operate and be
executed until the final determination of all present or future
appeals. Unfortunately the matter then got out of hand. The second
respondent formed the view, entirely erroneously, that Matojane J had
privately engaged with the lawyers for Sibiya in order to
determine a
date for the hearing of the applications. He observed in one of his
affidavits relating to the application to bring
the main judgment
into force pending appeal that it was disturbing that a judge would
do such a thing. Indeed a private conversation
between a judge and
one of the sides in contested litigation might be disturbing,
depending on the facts and the context, but the
real point is that
Matojane J did not privately engage with the lawyers for Sibiya,
there was objectively no basis to think that
he had done so and the
observation was accordingly not called for. In fact the arrangements
were made by the judge's registrar.
25.
The allegations made
against Matojane J distressed the learned judge. On 14 April 2015,
the learned judge delivered a judgment on
the applications
respectively for leave to appeal and to bring the main judgment into
force pending the appeal. He pointed out
in the judgment the serious
consequences that such unfounded allegations had for the proper
administration of justice. He found
that a ground of appeal had been
advanced opportunistically because the second respondent attacked the
finding on question on the
ground that the court had made the finding
in the absence of certain relevant documents when the second
respondent was responsible
for withholding those documents from the
court. The learned judge observed that the second respondent had
failed to take the court
into his confidence and misled the court by
not mentioning the fact that there had been conflicting material on
the strength of
which he should have assessed the case against
Sibiya. The learned judge held:
[12]
In my view, the conduct
of the [second respondent] shows that he is biased and dishonest. To
further show that the [second respondent]
is dishonest and lack
integrity and honour, he made false statements under oath....
26.
Matojane J continued to find that the second respondent had
fabricated evidence in his affidavit resisting the application to put
the main judgment into force pending appeal. The basis for the
fabrication was said to be that while the second respondent said
under oath that one of the persons rendered to Zimbabwe died under
mysterious circumstances, the death certificate of the deceased
person showed that he died of natural causes. The judge proceeded:
Under the circumstances
and having regard to the vindictive and injudicious conduct of the
[second respondent] I am unable to find
that there is a reasonable
prospect of success on appeal on this ground.
27.
It is difficult to understand how the conduct of the second
respondent in relation to the application to put the main judgment
into
force pending appeal could have bearing on the ground of appeal
in question. Be that as it may, Matojane J then refused leave to
appeal and upheld the application to bring the main judgment into
force pending appeal.
28.
The second respondent then petitioned the Supreme Court of
Appeal or the requisite leave. In the second respondent's affidavits
in support of his petition, the second respondent made an allegation
that was incorrect. Sibiya made a point of the incorrect allegation.
The second respondent corrected the mistake and explained how he came
to make it. He said he had corrected a draft given to him
by his
attorney and signed the fair copy when it was returned to him, not
noticing that the attorney had failed to include the
correction.
Counsel for the applicants did not make anything before me of this
aspect.
29.
On 26 May 2015, the SCA dismissed the petition with costs on
the grounds that there was no reasonable prospect of success in an
appeal and there was no other compelling reason why an appeal should
be heard.
30.
General Booysen was appointed provincial head of the DPCI with effect
from 1 March 2010. By notice dated 14 September 2015,
the second
respondent suspended Booysen from duty with immediate effect. By
notice of motion dated 17 September 2015, Booysen brought
an urgent
application in the Durban High Court to set aside the suspension
notice. The second respondent opposed the application.
The Minister,
who was cited as an interested party, elected to abide and played no
part in the proceedings.
31.
The attack on the suspension notice was brought on the grounds that
the decision to suspend him had been taken
ma/a fide
and for
some ulterior purpose and was not one which the second respondent
could reasonably have made if he had actually considered
the relevant
facts, including representations made by Booysen prior to his
suspension. The matter came before Van Zyl J.
32.
There is a potentially worrying context to the way the case was
argued. Apparently Booysen's founding affidavit was replete
with
allegations of ulterior motive, bad faith and the like and, according
to counsel for the second respondent, who had appeared
for him in the
Booysen case, Van Zyl J asked counsel for Booysen how the learned
judge could be expected to decide these disputes
of fact in an urgent
application. To this, according to counsel for the second respondent,
senior counsel for Booysen had responded
on the record that he would
only argue that the decision had been unlawful.
33.
The second respondent
raised this Issue in an affidavit he made in support of an
application to the SCA for leave to appeal (the
petition). A copy of
the papers in the petition was handed to me without objection. I was
told that the petition, while fully pleaded
out was, when the hearing
before me adjourned, still pending before the SCA. However,
subsequently I was sent an electronic copy
of the order of the SCA on
the petition which shows that on 4 April 2016 the application for
leave itself was referred for oral
argument. The point for present
purposes is made out in the founding and answering affidavits in the
petition. The second respondent
said:
[13]
...
[Van Zyl J]
asked
counsel
for [Booysen] ... whether Booysen was persisting with the allegations
of ulterior motive, bad faith and the like and ...
Booysen['s]
counsel confirmed that he was not persisting with that cause of
action but will argue the unlawfulness of the suspension.
34.
Booysen's
response
[14]
was
...
I admit the contents of paragraph 34 and confirm that my counsel
conceded that the case based on a vendetta against me could
not be
decided by the court in view of the dispute of fact on the papers
.
35.
But,
Booysen went on in his affidavit to say,
[15]
the allegation of ulterior motive remained alive. I shall say more on
this topic later.
36.
The suspension notice stated that there were "serious
allegations" against and "possible disciplinary charges"
being preferred against Booysen and went on to say that the second
respondent had considered representations submitted by Booysen
and
was of the view that there was a basis for placing Booysen on
"precautionary suspension", pending finalisation of
the
contemplated investigation.
37.
Booysen's attack on the suspension notice was that the second
respondent would only have been entitled to place him on
precautionary
suspension if the second respondent had reason to
believe both that Booysen had engaged in serious misconduct and also
that there
was some objectively justifiable reason to deny Booysen
access to the workplace while the investigation was in progress.
Booysen
submitted that there was no reason to believe that any
misconduct had been committed at all, let alone by Booysen. On the
postulated
ground that there was no reason to believe that such
misconduct had been committed, Booysen submitted that the second
respondent
had been actuated by an ulterior motive in suspending him.
38.
The alleged misconduct on the strength of which the second respondent
suspended Booysen was that Booysen had during October
2008 made a
fraudulent misrepresentation which had induced the payment of a
monetary reward to himself. Van Zyl J found that the
document upon
which the second respondent relied for drawing the conclusion that
Booysen had recommended himself for the reward
showed that Booysen
had not recommended himself for the award and that the recommendation
had been made by his then superior officer,
Assistant Commissioner
Brown. The learned judge also found that all the evidence supported
this conclusion.
39.
It seems that the second respondent also relied upon the fact that
while the award related to police action in response to the
killing
of one of their number, Superintendent Choncho, on 27 August 2008,
the docket numbers cited in relation to the reward referred
not to
the killing of Supt Choncho but to other police actions. But the
evidence before Van Zyl J (thus the learned judge) demonstrated
that
the recording of the wrong docket number was merely of a
topographical nature and had not demonstrated any fraud at all.
Furthermore, on the evidence of the second respondent himself, Brown
had been approached by the officer investigating the alleged
fraud
and had provided a statement supporting Booysen's version.
40.
The case for the second respondent in response to the allegation that
he was actuated by an ulterior motive was that there was
no basis for
the allegation and was simply conjecture. All he wanted to achieve
(thus the second respondent) was a thorough investigation
into the
serious and
prima facie
allegations of misconduct against
Booysen.
41.
The learned judge analysed the evidence and concluded that there was
insufficient factual basis for drawing the conclusion that
the
recommendation was misleading and that even if it were, there was not
a shred of evidence that Booysen himself had been involved
in
formulating its content and that the second respondent's conclusion
in that regard was at best entirely speculative.
42.
Van Zyl J dealt
with the submission that the second respondent had been actuated by
ulterior motive. The teamed judge found that
there was a strong
suggestion of an ongoing move to unseat Booysen but that there was
insufficient evidence before him to enable
the court to draw firm
conclusions and proceeded:
[16]
What
is however noteworthy is that the [second) respondent had embarked,
for reasons unknown, upon a course of conduct as against
[Booysen]
which was unsustainable upon the evidence at his disposal. When
[Booysen] responded with detailed and motivated submissions
to the
notice of intention to suspend him, the[second] respondent
effectively ignored these and proceeded with the suspension in
any
event. When [Booysen] instituted the present application to set aside
the suspension, the[second] respondent doggedly opposed
the relief
sought.
43.
In
my view, the
Booysen
judgment
concludes that the second respondent was guilty of a stubborn
(dogged) persistence in a course of action which was in no
way
justified. But why the second respondent behaved in this manner was
left undecided. The learned judge was asked to award costs
de
bonis propriis
against
the second respondent. In declining to grant such an order, the judge
expressed himself as follows, after referring to SCA
authority on the
point in relation to officials who behave in a high-handed manner by
seeking to frustrate the enforcement by courts
of litigants'
constitutional rights and the powers of courts to hold such officials
personally liable for costs:
[17]
The
[second] respondent ... may well give serious consideration to the
caveat thus expressed by the supreme court of appeal. However,
I am
not persuaded that, for present purposes, an order for costs de
bonis
propriis against the [second] respondent personally would be
justified. The conduct of the [second] respondent nevertheless
deserves
censure and as a mark of the court's disapproval, I consider
that costs on the scale between attorney and client would be
justified.
44.
Van Zyl J then proceeded to order the second respondent, in his
nominal capacity as national head of the DPCI to pay Booysen's
costs
as between attorney and client.
45.
The Minister does not dispute that he knew about the judgments in
Sibiya.
The second respondent's evidence is that when he
applied for the position as National Head, he disclosed in the
documents supporting
his application the fact of the judgments and
sought to justify his conduct in a memorandum signed by the second
respondent on
1 July 2015. This memorandum and the other documents
submitted by the second respondent were considered by a panel set up
by the
Minister to advise him on the question. There were several
other applicants for the position.
46.
In the memorandum (under
the heading "BRIEF MEMORANDUM"), the second respondent said
the following:
[18]
I
raise an issue which I believe I should bring to the attention of the
panel, because the requirement for the appointment of the
National
Head of the DPCI among others is that the incumbent must be a fit and
proper person. I am currently acting in the position
of National Head
of DPCI since December 2014.
During
January 2015 I initiated a process to suspend Major General Sibiya;
the Provincial Head of DPCI. He challenged his suspension
in the
North Gauteng High Court successfully. I applied for leave to appeal
and General Sibiya applied to have an order of execution
of the
judgment pending appeal. The lawyers of Sibiya set the execution
application down without prior arrangement with my attorneys
and they
addressed a letter to my lawyers that they have arranged the date
with Judge Matojane. My lawyers addressed a letter to
Sibiya's
lawyers objecting to Sibiya's lawyers conduct. In an affidavit
opposing the execution application, I raised the same issue
and I
attached the letter from my attorneys.
To
my surprise, when Judge Matojane delivered his judgment on the leave
to appeal and the execution application, he attacked me
saying that I
have accused him of colluding with Sibiya's attorneys and that I am
dishonest and cannot be trusted. All these allegations
are unfounded
and baseless. Judge Matojane did not even give me an opportunity to
deal with the accusations nor did he give my
legal representatives an
opportunity to address him on the accusations. Judge Matojane made
certain factual findings that Sibiya
was innocent or that he had been
exonerated by IPID from the Zimbabwean rendition when he was not
called upon to decide the merits.
It was on that basis that he said I
am dishonest and I did not inform the Court about the report which
exonerated Sibiya.
I
have since been vindicated because, the Minister appointed Werksmans
attorneys to investigate the conflicting reports. Werksmans
concluded
that there is only one legitimate IPID report of January 2014.
Werksmans also concluded that Sibiya andLt General Dramat
and others
should be criminally charged and that disciplinary proceedings should
be brought against them. Werksmans also found
that Mr Robert McBride
tampered with the report in order to protect Dramat and Sibiya.
Sibiya
has since gone through the disciplinary enquiry and he is awaiting
the outcome from the chairperson. The above mentioned
developments
are a vindication to me and have shown that I had no personal
vendetta against Sibiya that I was doing my work as
I am required to
do in terms of the SAPS Act
During
the disciplinary enquiry of Sibiya, I am told by my legal team that
Sibiya did not make any single allegation against me
in his evidence,
and he never suggested to witnesses that I was acting with ulterior
motive in disciplining him.
I
can confirm to the panel that I am a fit and proper person to be
appointed to the position of National head of the DPCI. The judgment
of Matojane, and my affidavit are available upon request should the
panel wish to peruse them. The transcript of the disciplinary
enquiry
of Sibiya is not yet finalised and it will be made available should
the panel wish to have it.
47.
According to the Minister, the panel unanimously recommended the
second respondent for the post, The Minister says that he approved
...
[the second respondent's] 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.
48.
I mentioned in paragraph 9 above that the Minister said in the 2
March 2016 letter that he considered in making the appointment
the
curriculum vitae
of the second respondent and a document
containing the recommendation to Cabinet. The Minister thus had no
regard to the brief memorandum
of the second respondent or the Sibiya
judgments.
49.
But even if the Minister
had read these documents, that would in my view probably not have
been enough. It seems likely that the
Minister indeed brushed aside
the
Sibiya
judgments
as irrelevant or inconsequential. The Minister explained in his
answering affidavit why he held this view:
[19]
This
entire application is premised upon the remarks made in the Sibiya
Judgment. These 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.
According
to the applicants, the remarks in the Sibiya judgment serve as a bar
in the appointment of the second respondent. The
applicants persist
with this contention despite the fact that there has been no
allegations pertaining to the second respondent
not being a fit and
proper person to hold the office of National Head DPCI. The second
respondent as stated above, has not been
provided any opportunity to
deal with the aspect of his unfitness to hold office as such
allegations do not exist.
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
National Head of DPCI. Consequently, it would be irrational of me to
take a decision on a matter which has not been properly
ventilated. I
cannot rely on remarks made in the course of judgment in the exercise
of my discretion.
...
[S]ection 17CA sets out the process for the appointment of the
National Head of the DPCI and this has been complied with.
Accordingly,
section 17DA deals with his removal from office
including his suspension.
In
the event of any allegations of unfitness or impropriety of any
person appointed to the position of National Head DPCI, then
such
allegations would be dealt with in terms of the process as envisaged
in terms of section 17DA of SAPS Act. The grounds included
therein
include amongst others the incumbent to the position being no longer
a fit and proper person to hold that office. I know
of no allegations
against the second respondent pertaining to his unfitness to hold
office.
50.
I have decided only to make provisional findings in this case. My
reasons are, firstly, that these are proceedings for interim
relief
brought as a matter of urgency and the parties have not had the full
opportunity of getting legal advice and submitting
evidence against a
consideration of the full record as contemplated in rule 53; and,
secondly, because final findings made by me
may inappropriately
intrude into the terrain of the court which will hear the review in
due course.
51.
Section 17CA(1) broadly requires two things: firstly that the
Minister has followed a proper process in evaluating whether to
make
an appointment. All public power must be exercised rationally and for
a proper purpose. So if the decision maker acted capriciously
or for
a wrong motive or did not property apply his mind to the question, eg
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 section
requires that the person who is appointed be
in
fact (ie not
merely in the opinion, reasonable or otherwise, of the decision
maker) 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.
52.
At this level of the
enquiry, all that is in issue before me is the process aspect.
[20]
I think that on the papers as they stand, the applicants have
demonstrated strong prospects of success on the merits of the review.
Whereas here the character of a candidate for appointment to a
position is relevant to the decision, a decision maker such as the
Minister is not free to brush aside a considered opinion of a
superior court which bears upon that very point. This observation
arises not from judicial vanity but from the provisions of the
Constitution. The core business of courts is to decide disputes
which
can be resolved by the application of law.
[21]
In coming to such decisions, courts in this country and elsewhere
have pronounced where they consider it appropriate on the credibility
and character of, amongst others, the litigants and witnesses before
them. The judicial authority of the Republic is vested in
the courts,
which are independent and subject only to the Constitution and the
law which they must apply impartially and without
fear, favour or
prejudice.
[22]
Organs of state
including the Minister must through legislative and other measures
assist and protect the courts to ensure, amongst
other things the
effectiveness of the courts. All spheres of government, which include
the courts and members of the executive,
must respect the functions
of other spheres and assist and support each other.
[23]
53.
Democratic
Alliance v President of the Republic of South Africa and Others
[24]
was a case in which
considerations similar to the present case arose
.
The
issue was whether the President's decision to appoint a Mr Simelane
to the office of Director of Public Prosecutions should
stand. Mr
Simelane had given evidence before a commission which made findings
critical of him and bearing upon his character. The
President did not
take those findings into account. The Constitutional Court found that
the evidence was highly relevant to Mr
Simelane's credibility,
honesty, integrity and conscientiousness and that ignoring it
rendered the ultimate decision irrational.
54.
This is not to say that the decision maker is bound to agree
with the tribunal or court which made the adverse finding. But in
principle,
a decision maker who is aware of such an adverse finding
is obliged to take it seriously and consider the grounds on which the
finding was made as part of the decision making process. I need not
consider whether any finding of any tribunal or any court would
trigger this obligation. Nor need I consider what the position would
be if a relevant finding existed but was not known to the
decision
maker at the time the decision was made. But in the light of what I
have said above, it is in my judgment a necessary
step in the
decision making process that where a decision maker knows that a
judge of the High Court has during the course of a
reasoned judgment
(as opposed, eg, to remarks made during the course of the proceedings
or during argument) pronounced adversely
on the integrity of a
candidate for a position in which integrity is a prerequisite, the
decision maker must investigate the circumstances
under which the
pronouncement was made sufficiently to enable the decision maker to
assess whether the candidate is a person with
the integrity to
discharge the responsibilities of the position. The more important
the position, ie the more public power that
the position will vest in
the candidate, the more stringently must the decision maker
scrutinise the conduct of the candidate which
led to the adverse
finding.
55.
This is not, however, on the papers presently before me a case in
which I need to examine the scrutiny of the decision maker
to
establish whether or not adequate scrutiny was given. By taking the
incorrect view that the findings of Matojane J were irrelevant
to the
decision at hand, the Minister probably disabled himself from making
a rational decision.
56.
Finally on this aspect, I would add that the facts that the
proceedings before Matojane J were not directed at the question
whether the second respondent was fit to be the National Head of the
DPCI or that the question of the second respondent's fitness
was not
"fully ventilated" in those proceedings are of no
significance in the present context. I have said that the Minister
was not entitled to ignore the finding of the court. A decision maker
confronted with such an adverse finding must himself ventilate
the
question, if ventilation is necessary. By this I mean that the
decision maker must himself go sufficiently into the facts underlying
the finding to enable the decision maker to make an informed and
rational evaluation of the force of the criticism and the weight
it
should bear in the decision making process.
57.
I turn to the requirement that the applicants must establish
irreparable harm, which seems to be at the heart of the matter.
58.
I have shown in paragraph 12 above that the question at this level is
whether a reasonable person, confronted by the facts,
would apprehend
the probability of harm and that actual harm need not be established
upon a balance of probabilities. The primary
submission of counsel
for the applicants was that the harm in circumstances such as the
present is the possibility that the second
respondent's appointment
might in the review be found not to have been made in accordance with
the Constitution and thus be invalid.
In such circumstances, so runs
the argument, there is a risk that every decision made by the second
respondent will tum out to
have been made by someone who did not have
the power to make those decisions, in which case the decisions
themselves would not
have been made in accordance with the
Constitution and therefore invalid.
59.
I think that this
argument overlooks the powers of the reviewing court to make orders
which are just and equitable. It is in my
view not a given that
because a reviewing court holds the appointment of the office bearer
was not made in accordance with the
Constitution, it follows that the
reviewing court is bound to hold that all decisions made by the
office bearer invalid or to be
set aside. Indeed, it is similarly not
a given that if the reviewing court finds that the second respondent
was in fact not validly
appointed, the appointment should be set
aside or, if it is set aside, the second respondent might not validly
be appointed by
the Minister on a reconsideration. Just such a
situation arose in
Democratic
Alliance v President of the Republic of South Africa and
Others.
[25]
In that case, the Constitutional Court ordered that decisions made by
Mr Simelane while he purported to hold his office were not
invalid
merely because of the invalidity of his appointment, which meant that
all decisions made by him remained challengeable
on any ground other
than the circumstance that his appointment was invalid.
60.
Not every exercise of
public power affected by a defect such as that under discussion will
inevitably be set aside. In some cases,
the persons affected by a
decision will be content with it. In others, the challenge mounted in
particular circumstances will be
collateral, in which case a
challenge will only be successful if it is the right remedy, sought
by the right person in the right
proceedings.
[26]
In yet other cases
,
the
reviewing court will exercise its just and equitable remedy powers
against setting the decision aside.
61.
The second ground relied upon by counsel for the applicants in
relation to irreparable harm is that the second respondent has
been
held by the courts, so runs the argument, to be a person of bad
character.
62.
As I have said above in a different context, findings in considered
judgments of the High Courts must be taken seriously. Counsel
suggested that I should go further and treat the Judgments in
Sibiya
and
Booysen
on the footing that they constituted binding
authority. I do not think that this can be correct. It is my duty to
evaluate whether
or not irreparable harm has been shown. A factual
finding in another court is part of the material upon which I should
make this
evaluation but I do not think that it would be right for me
to abdicate, as it were, this duty to another judge. My further
difficulty
with this submission is that I have to judge the second
respondent's character solely on findings made in motion proceedings.
In
the evaluation of the character of the officer in
Democratic
Alliance v President of the Republic of South Africa and Others,
the
Constitutional Court had the benefit of a thorough cross-examination
of the officer in the proceedings in which the findings
adverse to
him were made. In the present case, I do not even have the records of
the cases so that I can decide whether I agree
with the evaluations.
63.
In my view, the judgment in
Booysen
does not find that the
second respondent lacks integrity. He was found to be stubborn and
inflexibly determined not to depart from
a course of action on which
he had resolved. I think that in relation to the findings of Van Zyl
J, the second respondent might
with justice qualify as one of the
vexatious litigants contemplated in
In re Alluvial Creek Ltd
1929
CPD 532
at 535:
Now
sometimes such an order is given because of something in the conduct
of a party which the Court considers should be punished,
malice,
misleading the Court and things like that, but I think the order may
also be granted without any reflection upon the party
where the
proceedings are vexatious, and by vexatious I mean where they have
the effect of being vexatious, although the intent
may not have been
that they should be vexatious. There are people who enter into
litigation with the most upright purpose and a
most firm belief in
the justice of their cause, and yet whose proceedings may be regarded
as vexatious when they put the other
side to unnecessary trouble and
expense which the other side ought not to bear.
64.
In both
Sibiya
and
Booysen,
the court was asked to draw
inferences which translated to lack of integrity. In both cases, the
ground advanced was that the second
respondent had taken disciplinary
proceedings against a highly placed officer in the DPCI for an
improper purpose. In both courts,
the underlying logic of the
submission of improper purpose was that the absence of an explanation
for what appeared on the face
of it to be a thoroughly ungrounded
disciplinary proceeding justified the conclusion that the proceeding
had been actuated by a
motive which showed lack of integrity. In
Booysen,
the court was not prepared to go that far on the
material before it; in
Sibiya,
the court was indeed prepared
to draw that inference.
65.
It is trite that motion proceedings are not generally the best
procedural vehicles to resolve this kind of dispute. I do not
think I
would be justified on a conspectus of all the facts in concluding in
these urgent motion proceedings that the court in
Sibiya
was
right when it drew the inference of lack of integrity and the court
in
Booysan
was wrong when it declined to do so.
66.
I do not think that in
Sibiya,
in relation to the application
for leave to appeal and to put the order into operation pending the
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 allegations 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 the 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.
68.
This is not a case in which the applicants can point to a particular
decision likely to be made by the second respondent in
the period
from now until the review is decided in which any character flaws
manifested by the second respondent are likely to
have an impact on
the decision. The high point of the applicants' case at this level,
made out in the papers before me, is that
the second respondent has a
propensity for taking disciplinary proceedings against his highly
placed fellow officers without justification.
There is no suggestion
that any further such proceedings are contemplated.
69.
I am therefore not
persuaded that the evidence before me constitutes a compelling,
exceptionally clear case for an interdict
pendente
lite
preventing
the second respondent from performing his statutory duties. Absent
such a compelling, exceptionally clear case, I must
give effect to
the appointment of the second respondent to his office which
constitutes valid law unless and until the appointment
is set
aside.
[27]
Moreover, I do not
think that the harm postulated by counsel for the applicants is
irreparable. Nothing prevents an attack on an
individual decision in
due course with, if considered appropriate, a request that the
operation of the impugned decision be suspended
pending a review or
other relief sought in the normal course.
70.
There remains the question of costs. Counsel for the Minister did not
ask for costs if the case went his way because of the
Biowatch
principle. Counsel for the second respondent, prompted by remarks
which I made during argument, asked for costs if their clients
were
successful. I think that the dispute between the applicants and the
second respondent ultimately arose because of an alleged
failure by
the Minister to perform his constitutional and statutory
responsibilities. In these circumstances I think that no adverse
costs order should be made.
71.
I accordingly make the following order:
The application for
relief
pendente lite
is dismissed. There will be no order as
to costs.
NB Tuchten
Judge of the High
Court
18
April 2016
[1]
By s 3 of Ad. 57 of 2008
[2]
Section 17B{b)(lv) read with, In the case of the National Head, s
17CA(1):
[3]
See
Helen
Suzman Foundation v President of
the
Republic
of South Africa and Others
2015
2 SA 1
CC para 112.5.
[4]
Helen
Suzman Foundation v President of the Repubic of South Africa
and Others
2015
2 SA 1
CC paras 1-2.
[5]
Helen
Suzman Foundation v President of
the
Republic
of South Africa and Others, supra,
para
63
[6]
Paragraph numbering omitted.
[7]
National
Treasury and Others
,
v
Opposition to Urban Tolling Alliance and Others
,
2012 6 SA 223
CC para 50
[8]
Fabricius J was quoting from and referring to
National
Tmasu,y and
Others
v
Opposition to Urban Tolling Alliance and others
,
supra,
para
45
[9]
Twentieth
Century Fox Film Corporation and Another v Anthony Black Films (Ply)
Ltd
1982
(3) SA 582 (W) 588
[10]
"National priority offences", as defined in s17A,means
organised crime, crime that requires national prevention or
investigation, or crime which requires specialised skills in the
prevention and Investigation thereof.
[11]
Afrodexpress
(Pty) Ltd v Chairman, Local Road Transportation Board, Durban and
Others
1988 2 SA 663
A
[12]
Typed p8 of the judgment
[13]
Para 34 of the founding affidavit
[14]
Para 12(a) of the answering affidavit
[15]
Paragraph 12(b) of the answering affidavit
[16]
Para 64 of the judgment
[17]
Para 71 of the Judgment
[18]
Paragraph numbering omitted
[19]
Paragraph 63. Subparagraph numbers omitted.
[20]
This aspect gave rise to some confusion during oral argument Counsel
for the applicants at one stage told me that her case was
limited to
this process aspect. It is so restricted in relation to the
evaluation of the prospects of success In the review,
which I have
said I need to consider in relation to interim relief. But the
applicants' case was not so limited in relation to
the consideration
of irreparable harm. Any prejudice to the respondents from counsel's
incorrect articulation of the applicants'
case was cured when I gave
counsel for the respondents further opportunities to address me.
[21]
Section 34 of the Bill of Rights
[22]
Sections 165(1) and (2) of the Constitution
[23]
Sections 41(1)(e) and 41(1)(h)(ii) of the Constitution
[24]
20131 SA 248 CC
[25]
Paras 90-93
[26]
Oudekraal
Estates (Ply) Ltd v City of Cape Town
and
Others
2004 6
SA 222
SCA para35
[27]
National
Treasury and Others
v
Opposition to Urban Tolling Alliance and Others supra,
para
71