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[2015] ZAGPPHC 4
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Helen Suzman Foundation v Minister of Police and Others (1054/2015) [2015] ZAGPPHC 4 (23 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION. PRETORIA)
CASE NO: 1054/2015
DATE: 23 JANUARY
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER
BETWEEN
THE HELEN SUZMAN
FOUNDATION
..........................................................................
APPLICANT
AND
THE MINISTER OF
POLICE
..................................................................................
1
ST
RESPONDENT
LIEUTENANT GENERAL
ANWA DRAMAT
......................................................
2
nd
RESPONDENT
MAJOR-GENERAL
BERNING NTLEMEZA
…...................................................
3
rd
RESPONDENT
NATIONAL
COMMISSIONER OF THE
SOUTH AFRICAN POLICE
SERVICE
..................................................................
4
th
RESPONDENT
JUDGMENT
PRINSLOO, J
[1] The applicant
(also, at times, referred to as "HSF") applies for certain
declaratory relief flowing from the suspension
by the first
respondent ("the Minister"), on 23 December 2014, of the
second respondent (without being disrespectful,
but for the sake of
brevity, I will refer to him as "Dramat") from his position
as the National Head of the Directorate
for Priority Crime
Investigation ("DPCI").
The
applicant also applies for ancillary declaratory relief,
inter
alia,
flowing
from the appointment by the Minister of the third respondent as
Acting National Head of the DPCI following the Minister's
suspension
of Dramat.
[2] Before me, Mr
Unterhalter SC, assisted by Mr Du Plessis, appeared for the applicant
and Mr Mokhari SC, assisted by Ms Seboko,
appeared for the first
respondent.
[3] Dramat, although
duly cited by the applicant, did not take an active part in the
proceedings although he did, through his attorney,
file a written
notice to abide on 13 January 2015.
Attached to the
founding papers, there is also a letter from Dramat's attorney, dated
12 December 2014, written to the Minister
in response to the latter's
notice of "contemplated provisional suspension" to Dramat
dated 9 December 2014. In this
letter to the Minister, Dramat's
attorney also challenges the lawfulness of the intended suspension of
his client.
[4] The third and
fourth respondents did not take part in the proceedings.
[5] The matter was
enrolled before me as an urgent application on Thursday 15 January
2015. On that occasion the question of urgency
was challenged on
behalf of the Minister, not because the latter felt that the case was
not urgent, but because of the technical
objection that the case was
enrolled for a Thursday instead of a Tuesday, in terms of the
existing Practice Directive, and insufficient
time was given to the
Minister to file his opposing affidavit and heads of argument.
During an
adjournment, the question of urgency was resolved, and the Minister
was afforded an opportunity to file his opposing papers
and heads of
argument which were given to me over the week-end of 17 and 18
January. The case was postponed until 19 January, when
the merits of
the case were argued before me.
Brief notes on
the chronological sequence of events
[6] On 9 December
2014, the Minister wrote a letter to Dramat under the following
heading:
"Contemplated
Provisional Suspension of the National Head of the Directorate for
Priority Crime Investigation Lieutenant General
Dramat in terms of
section 17DA(2)(a)(i)
and (iv) of the
South African Police Service
Act 68 of 1995
, SAPS Act.
Subject: Rendition
of Zimbabwean nationals in 2010/2011 This serves to advise your
good-self that the Minister of Police is considering
placing you on
provisional suspension in terms of section 17DA(2)(a)(i) and (iv) of
the SAPS Act on the following grounds ..."
For reasons which
will appear later, the repeated reference by the Minister to the
provisions of section 17DA(2) is of some significance.
[7] The notice of 9
December 2014 (evidently only given to Dramat on 10 December) is a
lengthy affair. However, I consider the contents
to be. in
particular, of importance from the point of view of the Minister, so
that it is convenient to quote extracts therefrom:
"The
following Zimbabwean nationals were
renditioned
and/or illegally
deported
by the Directorate for Priority Crime Investigation in 2010 and 2011
following
a joint operation with Zimbabwean police (then follows eight names).
The Zimbabwean
nationals ... were allegedly fugitives for a crime of murder and
robbery committed in Zimbabwe. They were renditioned
from South
Africa to Zimbabwe; it is further alleged that two of them were
eventually killed by Zimbabwean police. ...
The exchange of
criminal suspects between the two law enforcement agencies was
allegedly not done in terms of Southern African Development
Community's Protocol on Extradition; South Africa's Extradition Act
67 of 1962, as well as national legislation on mutual legal
assistance in criminal matters.
According
to the Hansard record of parliament of 13th December 2011, your reply
dated 25 November 2011, you supposedly responded
to a parliamentary
question on these acts of renditions,
wherein
you supposedly misled the
Minister
and parliament by stating that it was the Department of Home Affairs
who
deported the Zimbabwean
nationals;
well-knowing
that
the Zimbabwean nationals were wanted for criminal offences in
Zimbabwe and had been illegally
deported
by Directorate for Priority Crime Investigation (DPCI)
.
There is suggestive
evidence at my disposal that the Zimbabwean nationals were wanted in
Zimbabwe in connection with the murder
of a police colonel...
Therefore, in such an instance, mutual legal assistance on criminal
matters and extradition procedures should
have been instituted.
Evidence
at my disposal, suggest that you probably sanctioned
the
entry of Zimbabwean police to South Africa and
further
sanctioned a joint operation
between
Directorate for Priority Crime Investigation (DPCI) and Zimbabwean
police
to trace the fugitives
.
Furthermore,
there is suggestive evidence that the South African
Department
of
Home Affairs and the Zimbabwean Embassy were not involved
in
the illegal deportation of the Zimbabwean nationals.
In
this regard you are instructed to furnish reasons to the Minister of
Police, within the next five (5) days, as to why you should
not be
provisionally suspended
pending
internal investigations
on
the following acts
of
misconduct
;
(1) undermining the
legislative authority of the Minister of Justice and the South
African judiciary to make a determination and
adjudication on the
extradition of the Zimbabwean nationals wanted in Zimbabwe for the
murder of a police colonel...;
(2)
bringing the international image of the Republic of South Africa into
disrepute by contravening the SADC Protocols on Extradition,
Mutual
and Legal assistance and the United Nations' Convention against the
Torture and Other Cruel Inhuman or Degrading Treatment
or Punishment,
by
allegedly being an accomplice or co-perpetrator on
torture,
murder and renditions of Zimbabwean nationals
;
(3) possibly
misleading the Minister and parliament as to the lawfulness of the
deportations in question and the departments involved;
(4) allegedly
committing the following criminal law offences:
(i) kidnapping;
(ii) defeating the
ends of justice;
(iii) forgery,
fraud;
as an accomplice and
co-perpetrator;
(5) allegedly,
involving the Directorate for Priority Crime Investigation in illegal
renditions activities.
Your co-operation in
the spirit of good governance is appreciated.
Kind regards
N P T Nhleko
Minister of Police
Date; 10/12/2014"
(The underlining is presumably that of the Minister.)
[8] On 12 December
2014 Dramat's attorney wrote a lengthy letter (the contents of which
I will not quote, for the sake of brevity)
to the Minister in
reaction to the 9/10 December notice of Contemplated Provisional
Suspension.
I briefly summarise
some of the features of this letter, which, like the 9/10 December
notice, is an annexure to the founding affidavit:
The attorney has
been acting for Dramat since September 2013 in the matter surrounding
the so-called "Zimbabwean rendition".
Correspondence had
been exchanged between the attorney, the State Attorney, the National
Commissioner and IPID (the Independent
Police Investigation
Directorate to which I will refer as "IPID").
The
attorney, correctly in my view, reminded the Minister that section
17DA(2) was found to be invalid and unconstitutional by the
Constitutional Court on 27 November 2014 and severed, or deleted from
the SAPS Act on that date. The case referred to, which I
will revisit
later, is
Helen
Suzman Foundation v President of the Republic of South Africa and
others
(case
no CCT 07/14) and
Hugh
Glenister v President of the Republic of South Africa and others
(case
no CCT 09/14). The attorney pointed out to the Minister that the
purpose of this constitutional litigation in
Suzman
and
Glenister
was
to ensure that the DPCI is adequately independent and has operational
autonomy. The attorney points out to the Minister, correctly,
that
the main thrust was to forbid improper interference by the Minister
and the National Commissioner with the Head and members
of the DPCI
in the exercise or performance of their powers, duties and functions.
(I will refer to the
Suzman
and
Glenister
cases
as "the 2014 judgment".)
The attorney also
reminded the Minister that he was cited as the second respondent in
the Constitutional Court in the aforesaid
cases, fully represented by
three advocates and that he should be aware of the orders of
constitutional invalidity deleting section
17DA(2) and the "(2)"
in section 17DA(1) from the SAPS Act. The attorney then says the
following to the Minister:
"You would
therefore be in contempt of the Constitutional Court, should you
proceed with the contemplated provisional suspension
of Lieutenant
General Dramat. Clearly your advisors should from time to time look
at the law and recent Constitutional Court judgments
against you."
The attorney then
reminds the Minister that Dramat dealt with the allegations against
him with regard to the so-called Zimbabwean
rendition, in a statement
of 23 October 2013 which is again attached to the attorney's letter
as annexure "A". The attorney
also stated that he finds it
alarming that it had come to the attention of Dramat that certain
witnesses had been told (presumably
by IPID officials) that unless
they incriminate Dramat, they would be of no value to the
investigator. It was also submitted in
the aforesaid statement that
the DPCI was at the time (and still is according to the attorney)
tasked and seized with very sensitive
and high profile investigations
and that the timing of the then IPID investigation and the current
contemplated suspension was
seen as a "smear campaign" to
derail any investigations or arrests that the DPCI is in the process
of conducting. The
attorney, correctly, refrained from listing
details of the sensitive matters and the high profile individuals.
The
attorney then also reminded the Minister that IPID sent an undated
letter to Dramat which contained the same allegations as
those
referred to by the Minister in his Notice of Contemplated Suspension.
Dramat was required to answer certain questions regarding
the
"rendition" of the Zimbabwean nationals which he did in a
statement dated 11 November 2013 which is also attached
to this
letter of the attorney as annexure "B". In the statement it
was specifically pointed out that Dramat never authorised
or
sanctioned co-operation or kidnapping of any of the Zimbabwean
nationals referred to in the IPID correspondence. It was also
pointed
out that Dramat unequivocally denied any knowledge of any action
whatsoever that he authorised or participated in which
was aimed to
defeat the due administration of justice. Fraud and theft allegations
were equally vague and spurious and denied.
The attorney pointed out
to the Minister that the Notice of Contemplated Suspension takes the
matter far beyond the allegations
made by IPID, namely that Dramat
undermined the legislative authority of the Minister of Justice and
the judiciary and that he
is allegedly an accomplice and
co-perpetrator on torture, murder and renditions. It was recorded
that Dramat was reserving his
rights in this regard. It was pointed
out that neither IPID, nor the National Commissioner or the NDPP
complied with the request
of more than a year earlier for concrete
evidence in support of these allegations to be furnished to Dramat.
At all times, Dramat
offered his full co-operation with a
bona
fide
investigation.
Dramat got information that the authorities were trying to get a
warrant for his arrest. It was reiterated by his
attorney that Dramat
would voluntarily appear before a competent court to answer to any
charges. The attorney again recorded that
efforts now to press on
with the alleged Zimbabwean rendition complaint, more than four years
after the event, amounted to nothing
other than slanderous, malicious
conjecture designed to derail sensitive investigations of the DPCI
and/or an attempt to discredit
the reputation and integrity of Dramat
and the DPCI.
The attorney
concludes by reminding the Minister that he does not have the power
to suspend the Head of the DPCI and any efforts
to continue to do so
would be met with an application to this court for urgent relief.
[9] The Minister did
not answer this letter. The statements, "A" and "B"„
attached to the letter, are
broadly summarised in the letter, and the
contents will not be repeated.
[10] On 23 December
2014, the Minister wrote to Dramat informing him that he was placing
Dramat "on precautionary suspension
with full pay and benefits"
with immediate effect.
In the letter, which
is difficult to read because of the quality thereof, the Minister
acknowledges the fact that section 17DA(2)
of the South African
Police Services Act had been struck down. He argues, that he
nevertheless retains the right to suspend Dramat.
He argues that he
is empowered to do so on a certain reading of the 2014 judgment and
that he is also empowered to suspend Dramat
in terms of certain
provisions of the Public Service Act, 1994 ("the Public Service
Act" or "the PSA") which
came into operation on 3 June
1994 as well as the Public Service Handbook.
[11] On 24 December
2014, Dramat responded to the suspension notice in a long letter
written to the Minister under his own hand.
I find it convenient
to quote some of the paragraphs:
"1. I have for
several months reflected very carefully on the issues that have
unfolded in front of me. I have consulted my
legal representatives
and I have been advised of my legal remedies.
2.
I respectfully point out that the tactical 'backpedalling' from the
initial notice and the current reliance on the Public Service
Act and
Public Service Regulations and
SMS
Handbook
is
a clear indication to me that no matter what steps I take to defend
my position, a decision had already been made, from the outset,
to
remove me from my position.
4. Having seen our
country enter into a democratic phase, I felt that I could contribute
in a meaningful way and continue to develop
the principles which I
fought and for which I was imprisoned.
5. My appointment as
the Head of the DPCI, I perceived at the time, was based on my
credentials, my level of expertise and the fact
that I respectfully
believe that I have always acted with integrity in the manner in
which I deal with people and investigations.
6. No doubtedly you
are aware that I have recently called for certain case dockets
involving very influential persons to be brought
or alternatively
centralised under one investigating arm and this has clearly caused
massive resentment towards me.
7. I can
unequivocally point out that I am not willing to compromise the
principles that I have always believed in. I am not willing
to be
'agreeable' or 'compliant' in so far as I would then be acting
contrary to my own moral principles and, also, contrary to
the
position in which I was appointed.
10.1 The so-called
'Zimbabwean rendition investigation' is a smoke-screen. There are no
facts whatsoever that indicate that at any
given time I have acted
illegally or unlawfully ... Most certainly there has never been any
evidence whatsoever that I have, in
any way, interfered with any
potential witnesses or attempted to jeopardise the investigation
against me during the past four years.
10.2 I wish to
reserve my rights to fully vindicate myself against all those who
have sought to tarnish my name and reputation.
I do not wish to
engage with those involved in this correspondence, in so far as that
is reserved for another forum, if necessary.
11. I therefore
deny, with respect that the Notice of Precautionary Suspension is
legal, valid or regular. In fact it is totally
irregular and
constitutionally invalid.
12. I am also aware
that in the next two months there will be a drive to remove certain
investigations that fell under my 'watch',
re-allocate certain cases
and that unfortunately, certain sensitive investigations may even be
closed down. This is something that
I have to live with.
14. I note with
interest that a two month period has been set to hold an 'enquiry'
(s/d). I can honestly say that the investigation
into the 'Zimbabwean
rendition' case, has run for a very lengthy period of time and till
to date there has been no evidence whatsoever.
It is clear that I am
being pushed out.
17. ... After due
consideration, with specific reference to the background alluded to
above, I am willing to submit a request to
vacate office by applying
to the National Commissioner to approve my early retirement in terms
of section 35 of the Act. Quite
clearly there is a pre-condition that
the unlawful precautionary suspension be uplifted without me having
to approach the court
to do so.
18. I therefore
require that we should enter into a joint consensus seeking meeting
as a matter of urgency to prevent any instability
within the DPCI.
Under the above circumstances your reply is eagerly anticipated by no
later than 5 January 2015."
As far as I could
make out no such reply was forthcoming.
[12] On 30 December
2014, the present applicant's attorneys wrote to the Minister as
follows:
" 1. We
represent the Helen Suzman Foundation ('our client').
2. Our client
understands that Lt Gen Dramat has been placed on 'precautionary
suspension’ by you in your capacity as the
Minister of the
Police and that the suspension is for a period of sixty days from 23
December 2014. Our client also understands
that no other disciplinary
processes to remove Lt Gen Dramat have been instituted or followed by
you or any other body at this
stage.
3. As you will know,
as a matter of South African law, it is imperative for the DPCI to be
adequately independent from the National
Executive. The suspension of
the National Head strikes at the very heart of our constitutional
democracy.
4. As you will also
know, our client is (and has been) concerned to ensure that the rule
of law is upheld in all spheres, including
the essential fight
against corruption and organised crime mandated by the Constitution.
5. You will
doubtless agree that, in this context, it is important to ensure that
any suspension of the National Head or any office-bearers
in the DPCI
is constitutionally compliant and lawful. It appears that the
suspension was not grounded in law.
6. To this end, our
client requires you to furnish the following information in writing
by no later than Wednesday, 7 January 2015,
so that it may adequately
protect its rights and the public interest:
6.1 a copy of any
document which evidences or constitutes the purported suspension of
Lt Gen Dramat, including any letter of suspension
issued to Lt Gen
Dramat;
6.2 the effective
date of the suspension;
6.3 the duration of
the suspension;
6.4 whether any of
the facts in paragraph 2 above are incorrect and, if so, which facts
and for what reason;
6.5 a copy of any
documents and information on the basis of which the suspension was
decided by you;
6.6 a copy of any
reports pertaining to Lt Gen Dramat produced by the Independent
Police Investigative Directorate;
6.7 full reasons for
the suspension of the National Head;
6.8 details of what
empowering provision you have used or invoked for the purposes of the
purported suspension of the National Head;
6.9 what
disciplinary steps have been taken by you or any other institution or
body in relation to Lt Gen Dramat that relate in
any way to the
suspension or the grounds for such suspension;
6.10 a copy of any
letter purportedly appointing any other person, including Major
General Beming Ntlemeza, as Acting National Head
of the DPCI.
7. Should you fail
to deliver the above information timeously or should the information
not negate our client's concerns about the
unlawfulness of the
decision to suspend the National Head, our client will have no option
but to assume that there was no lawful
basis for such decision, to
assume that the facts in paragraph 2 are correct and to exercise its
legal rights in its and the public's
interest on an urgent basis.
Yours faithfully"
[13] There was no
answer to this letter, so that the applicant launched its application
on 9 January, two days after the dead-line
it imposed expired. I have
dealt with the procedural development of the case between 15 January,
when it was first enrolled, and
Monday 19 January.
What could be added
to this chronology, is that when the Minister filed his answering
affidavit, the applicant called, in terms
of rule 35(12), for the
opportunity to take copies of certain documents referred to in the
answering affidavit including the "IPID
report", certain
"witness statements", "other relevant documentation",
a "report" and a "file".
In an answer, the
Minister refused to make these copies available claiming that the
applicant was shifting the goal-posts having
based its application on
whether the Minister had the power to suspend the National Head in
the light of the 2014 judgment. The
Minister also claimed that,
according to IPID, the matter was still under investigation and its
report, until the investigation
is completed, is confidential. On
this basis, the Minister offered no evidence whatsoever to show
improper involvement of Dramat
in the "Zimbabwean rendition"
case. Dramat himself, as the only possible role player, before this
court, in the affair,
expressly denies any involvement, as appears
from his two statements, dating back to 2013, furnished to the
Minister by his attorney.
He repeats his denial of any liability in
his 24 December letter to the Minister.
Declaratory
relief sought by the applicant
[14] The relevant
paragraphs of the notice of motion read as follows:
"2. declaring
that the decision of the Minister of Police, the Honourable
MrNkosinathi Nhleko ('the Minister'), of 23 December
2014, to suspend
Lt Gen Anwa Dramat, the National Head of the Directorate for Priority
Crime Investigation ('DPCI') ('the suspension
decision') is unlawful
and setting aside the suspension decision;
3. declaring that
the decision of the Minister to appoint Major-General Berning
Ntlemeza as Acting National Head of the DPCI ('the
appointment
decision') is unlawful and setting aside the appointment decision;
4. declaring
that the Minister is not empowered to suspend the National Head of
the DPCI other than in accordance with sections
17DA(3) and (4), read
with
section 17DA(5)
, of the
South African Police Service Act, 1995
;"
There is also a
prayer for costs against whoever opposes the application.
Section 17DA
and
other provisions of the South African Police Service Act. 1995 ("the
SAPS Act”)
[15] The DPCI (also
popularly known as "the Hawks") is a creature of the SAPS
Act. It is created in terms of section 17
which constitutes Chapter
6A of the SAPS Act. More particularly, it is created by section
17C(1) which provides:
"The
Directorate for Priority Crime Investigation is hereby established as
a Directorate in the Service."
The "Service"
means the South African Police Service established by section 5(1) of
the SAPS Act.
Section
17C(2) provides that the Directorate consists of,
inter
alia,
the
National Head of the Directorate at national level, "who shall
manage and direct the Directorate and who shall be appointed
by the
Minister in concurrence with Cabinet" and subsection (2)(aA)
also provides for a Deputy National Head at national level.
[16] I turn to
section 17DA which goes under the heading "Removal from office
of National Head of Directorate".
Before portions of
this section were struck down as unconstitutional by the
Constitutional Court in the 2014 judgment, and deleted
from the SAPS
Act with effect from the date of the order, which was 27 November
2014, it read as follows:
"(1) The
National Head of the Directorate shall not be suspended or removed
from office except in accordance with the provisions
of subsections
(2), (3) and (4).
(2)
(a) The Minister may provisionally suspend the National Head of the
Directorate from his or her office, pending an inquiry into
his or
her fitness to hold such office
as
the Minister deems fit
and,
subject to the provisions of this subsection, may thereupon remove
him or her from office -
(i) for misconduct;
(ii) on account of
continued ill-health;
(iii) on account of
incapacity to carry out his or her duties of office efficiently; or
(iv) on account
thereof that he or she is no longer a fit and proper person to hold
the office concerned.
(b) The removal of
the National Head of the Directorate, the reasons therefor and the
representations of the National Head of the
Directorate, if any,
shall be communicated in writing to Parliament within fourteen days
after such removal if Parliament is then
in session or, if Parliament
is not then in session, within fourteen days after the commencement
of its next ensuing session.
(c)
The National Head of the Directorate provisionally suspended from
office shall during the period of such suspension be entitled
to such
salary, allowance, privilege or benefit to which he or she is
otherwise entitled,
unless
the Minister determines
otherwise
.
(d) An inquiry
referred to in this subsection -
(i) shall perform
its functions subject to the provisions of the Promotion of
Administrative Justice Act, 2000 (Act 3 of 2000),
in particular to
ensure procedurally fair administrative action; and
(ii) shall be led by
a judge or retired judge: provided that the Minister shall make the
appointment after consultation with the
Minister of Justice and
Constitutional Development and the Chief Justice.
(e) The National
Head of the Directorate shall be informed of any allegations against
him or her and shall be granted an opportunity
to make submissions to
the inquiry upon being informed of such allegations.
(3) (a) The National
Head of the Directorate may be removed from office on the ground of
misconduct, incapacity or incompetence
on a finding to that effect by
a Committee of the National Assembly.
(b) The adoption by
the National Assembly of a resolution calling for that person's
removal from office.
(4) A resolution of
the National Assembly concerning the removal from office of the
National Head of the Directorate shall be adopted
with the supporting
vote of at least two-thirds of the members of the National Assembly.
(5) The Minister -
(a)
may
suspend
the National Head of the Directorate from office at any time after
the start of the proceedings of a Committee of the National
Assembly
for the removal of that person; and
(b)
shall
remove
the National Head of the Directorate from office upon adoption by the
National Assembly of the resolution calling for the
National Head of
the Directorate's removal.
(6) The Minister may
allow the National Head of the Directorate, at his or her request, to
vacate his or her office -
(a) on account of
continued ill-health; or
(b) for any other
reason which the Minister deems sufficient.
(7) The request in
terms of subsection (6) shall be addressed to the Minister at least
six calendar months prior to the date on
which the National Head of
the Directorate wishes to vacate his or her office, unless the
Minister grants a shorter period in a
specific case." (Emphasis
added.)
[17] It is common
cause that the Constitutional Court, in the 2014 judgment, dated 27
November 2014:
(1) declared the
"(2)" in section 17DA(1) inconsistent with the Constitution
and therefore invalid, and deleted it from
the date of the order;
(2) declared section
17DA(2) inconsistent with the Constitution and therefore invalid, and
deleted it from the date of the order.
[18] This means:
(1) that section
17DA(1) now reads (in peremptory language):
"The National
Head of the Directorate shall not be suspended or removed from office
except in accordance with the provisions
of subsections (3) and (4)."
(2) Where section
17DA(2) has now been deleted and declared unconstitutional and
invalid, the Minister no longer has the power,
in terms of that
subsection, to provisionally suspend the National Head and, pending
an inquiry, remove him or her from office
for the reasons mentioned
in the relevant subsection; and
(3) the powers of
the Minister to suspend or remove the National Head are now limited
to the provisions of subsection (5)(a) and
(b) which renders the
Minister's power to suspend and/or remove the National Head subject
to the prior start of the proceedings
of a Committee of the National
Assembly for the removal (subsection (5)(a)) and the passing of a
resolution by the National Assembly
calling for the removal of the
National Head by a two-thirds majority (subsection (5)(b)).
[19] From the
aforegoing, the following remarks are also, in my view, valid:
1. The "Contemplated
Provisional Suspension" notice by the Minister to Dramat of 9/10
December 2014 is invalid because
it purports to base this
contemplated provisional suspension on the provisions of section
17DA(2)(a)(i) and (iv) which, by then,
had already been struck down
as invalid and unconstitutional and deleted from the Act.
2. The remarks by
the Minister in his suspension notice to Dramat of 23 December 2014
that
"The
remaining provisions of the section
(my
note
:
which would include subsections (3), (4) and (5)) deal with the
suspension and removal of the Head when the process for the removal
has been initiated by Parliament. These provisions are not applicable
to the current situation."
are misplaced. It
fails to take into account the peremptory provisions of section 17DA(
1), as it now reads and as it read when
the suspension notice was
given, that "the National Head of the Directorate shall not be
suspended or removed from office
except in accordance with the
provisions of subsections (3) and (4)".
[20] It is common
cause that, when the suspension and provisional suspension notices
were sent to Dramat, there had not been (and
still is not) a "start
of the proceedings of a Committee of the National Assembly for the
removal of that person" or
a resolution by the National Assembly
calling for the National Head to be removed, which are the only two
occurrences which can
trigger the powers of the Minister to suspend
or remove the National Head, depending on the circumstances.
[21] In their
comprehensive and able argument, counsel for the Minister offered
submissions on the interpretation of the 2014 judgment
and the effect
thereof on the striking down of subsection (2) which are not in
harmony with the remarks I have made. I will consider
those
submissions when dealing with the 2014 judgment.
Helen
Suzman Foundation
v
President
of the Republic of South Africa and others; Glenister
v
President
of the Republic of South Africa and others
(CCT
07/14. CCT 09/14) 12014] ZACC
32 of 27 November
2014: "the 2014 judgment"
[22] As I have
already indicated, the Minister contends for a different conclusion
following the deletion by the Constitutional
Court of section 17DA(2)
to the one I attempted to advance.
[23] Correctly, the
Minister says the following:
"33. The
contemplated suspension in section 17DA(5) is triggered by the
process that is initiated by the Committee of the National
Assembly
for the removal from office of the Head of the DPCI on account of
misconduct, incapacity or incompetence. If the Committee
of the
National Assembly makes a finding against the Head of the DPCI,
he/she may be removed from office by the adoption of a resolution
supported by a vote of at least two-thirds of the members of the
National Assembly. The procedure in section 17DA(5) for the
suspension
of the Head of the DPCI is triggered by the commencement
of the proceedings before the Committee of the National Assembly. So,
the section 17DA(5) suspension is parliamentary initiated. That is
the marked difference between the procedure in the repealed section
17DA(2) and the section 17DA(5)."
[24] The Minister
then goes on to submit that, despite the striking down and deletion
of 17DA(2), he nevertheless retains the right
of suspension and
removal of the Head. He does so in the following terms:
"34. In
striking down section 17DA(2) the Constitutional Court did not
explicitly or implicitly say that as the Minister I
cannot suspend
the Head of the DPCI other than in terms of section 17DA(5). To the
contrary, the Constitutional Court affirmed
my power to suspend and
my power to execute an oversight role over the Head of the DPCI. If
the judgment of the Constitutional
Court were to be read to imply
that I cannot suspend the Head of the DPCI other than in terms of
section 17DA(5) then this would
invariably mean that my oversight
role over the Head of the DPCI has been abrogated."
[25] The Minister
then goes on to advance the following interesting and, at first
blush, attractive, argument:
"This would
mean that I would play a meaningless oversight role to hold the Head
of the DPCI accountable to the legislation
applicable to him, but I
cannot initiate an investigation upon receiving information pointing
to serious allegations of misconduct
against him, and I cannot
initiate an inquiry to ascertain the veracity of such allegations nor
to institute a disciplinary inquiry.
This would mean that I can only
fold my arms and be at the mercy of the parliamentary Committee
should it decide to start the proceedings
for the removal of the Head
of the DPCI. It is also not clear how the parliamentary Committee
would initiate the proceedings for
the removal of the Head of the
DPCI without an investigation relating to the alleged conduct."
[26] The Minister
then goes on to advance what he considers to be the correct
interpretation of the judgment in the context of the
Minister's
powers to suspend the Head:
"36.
On a proper reading of the Constitutional Court judgment, it struck
down section 17DA(2) on two grounds: first that the
subsection lacks
clarity meaning that it is convoluted; second, that the words 'as the
Minister deems fit' gives the Minister the
discretion to suspend the
Head of the DPCI without pay which invariably compromises the job
security of the Head of the DPCI and
insulation from political and
executive interference. I fully agree with the Constitutional Court's
ratio decidendi
on
this issue. The Head of the DPCI and the DPCI must be protected from
executive and political interference. He or she must be
independent
and perform his/her duties without fear, favour or prejudice.
37. However, in
finding that section 17DA(2) is inconsistent with the provisions of
job security, independence and that it lacks
clarity, the Court,
however, made it clear that that does not mean that I do not have the
power to suspend the Head of the DPCI
in the context envisaged in
section 17DA(2) save for the offending provisions of the subsection
which I have already dealt with
above."
[27] In support of
his argument, the Minister relies on what was said in paragraph [85]
of the 2014 judgment:
"[85]
But
for 'as the Minister deems fit' and the possibility of a suspension
without
pay and benefits provided for in subsection (2)(c), I can find no
reason
to attack the bases on which this subsection empowers the
Minister
to suspend the National Head. These are specific, objectively
verifiable
and acceptable grounds for suspension and removal.
Suspension
without pay defies the exceedingly important presumption of innocence
until proven guilty or the
audi
alteram partem
rule
and unfairly undermines the National Head's ability to challenge the
validity of the suspension by withholding the salary and
benefits. It
irrefutably presumes wrongdoing. An inquiry may then become a
dishonest process of going through the motions. Presumably,
the
Minister's mind would already have been made up that the National
Head is guilty of what she is accused of. Personal and familial
suffering that could be caused by the exercise of that Draconian
power also cry out against its retention. It is the employer's
duty
to expedite the inquiry to avoid lengthy suspensions on pay."
(I emphasised the
first portion of this paragraph in the judgment because it is also
emphasised by the Minister, if I understand
him correctly, as the
main thrust of his argument as to how to interpret the judgment.)
[28] What the
Minister fails to do, is to also scrutinise the paragraphs in the
2014 judgment following upon paragraph [85]:
"[86] The only
real threat to job security is the Minister's power to remove the
National Head from office in terms of section
17DA(1) and (2). These
provisions are not clearly set out and therefore do not provide even
a modicum of clarity. The removal process
is initiated through the
appointment of a judge by the Minister to head an inquiry into
whether the National Head should be removed
from office on any of the
grounds listed in section 17DA(2)(a). Based on the recommendation of
that judge, the Minister may remove
the Head. Thereafter the fact of
the removal, the reason therefor and the representations of the
National Head, if any, are to
be conveyed to Parliament within
fourteen days of the removal.
[87] Unlike section
12(6) of the NPA Act that empowers Parliament to reverse the removal
of the NDPP or Deputy NDPP by the President,
section 17DA(2)(b) does
not say what it is that Parliament is required to do upon receipt of
the information relating to the Minister's
removal of the National
Head. There is no provision made for Parliament's interference with
that decision. This begs the question,
what purpose does it then
serve to inform Parliament? A proper reading of subsection (2)
indicates that the Minister's removal
of the National Head is,
subject to whatever Court processes that may ensue, final. Parliament
has no meaningful role to play but
merely to note the decision. One
would have thought that the requirements that Parliament be informed
of the removal, be furnished
with reasons for the removal and the
representations by the National Head within fourteen days of removal,
where intended to facilitate
speedy intervention by Parliament before
more, possibly unjustified, damage is done to the life of the
National Head or the functionality
of the DPCI. That intervention
would ordinarily entail an assessment of the propriety of the finding
of wrongdoing and the punishment
meted out to the National Head, if
correctly found guilty of wrongdoing.
[88] But, not only
is the section silent on what Parliament is supposed to do, it is
also silent on how it is to do whatever is
supposed to be done, if
any, and on the time frames within which any action is to be taken.
It is similar to section 17CA(3) which
requires the Minister to
inform Parliament of the appointment of the National Head within
fourteen days of the appointment, but
does not say what, if any.
Parliament is supposed to do with that information. Evidently it is,
as in this instance, merely for
noting. All these are additional
pointers to the lack of clarity that pervades the SAPS Act as
amended. Parliament's power to intervene,
as in the case in terms of
section 12(6) of the NPA Act, cannot be read into this section
without the Court usurping the legislative
role of Parliament. There
is a yawning chasm between the subsection (2) procedure and the role
of Parliament set out in subsections
(3) to (6).
[89]
This subsection (2) removal power is inimical to job security. It
enables the Minister to exercise almost untrammelled power
to axe the
National Head of the anti-corruption entity. The need for job
security was articulated in
Glenister
II
in
these terms:
'At the very least
the lack of specially entrenched employment security is not
calculated to instil confidence in the members of
the DPCI that they
can carry out their investigations vigorously and fearlessly. In our
view, adequate independence requires special
measures entrenching
their employment security to enable them to carry out their duties
vigorously.'
(My
note
:
this is a reference to
Glenister
v President of the Republic of South Africa and others
2011
3 SA 347
(CC) at paragraph [222].)
[90] Subsections (3)
to (6) provide for those special measures that entrench the
employment security of the National Head. They
deal with the
suspension of the National Head by the Minister, flowing from a
possible removal process initiated by a Committee
of the National
Assembly. Although the Minister still has the power to suspend, no
provision is made for suspension without salary,
allowances and
privileges. A recommendation by a Committee of the National Assembly
for the removal of the National Head would
have to enjoy the support
of at least two-thirds of the members of the National Assembly to be
implemented. The removal would then
be carried out by the Minister.
[91]
This suspension by the Minister and removal through a Parliamentary
process guarantees job security and accords with the notion
of
sufficient independence for the anti-corruption entity the State
creates.
That
portion of section 17DA(T) that refers to subsection (2) and
subsection
(2) itself are, however, inconsistent with the constitutional
obligation
to establish an adequately independent corruption-busting
agency.
They must thus be set aside
.
The balance of section 17DA passes constitutional muster and would
thus continue to guide the suspension and removal process of
the
National Head." (Emphasis added.)
[29] The Minister,
in his argument, has placed a particular emphasis on the last
sentence of paragraph [91] which stipulates: "The
balance of
section 17DA passes constitutional muster and would thus continue to
guide the suspension and removal process of the
National Head."
The Minister argues that the use of these words "is quite
telling" and then submits:
"The choice of
the words in these lines is consistent with what the Court had
already found in paragraph [85] that my power
to suspend the Head of
the DPCI do not get abrogated by the deletion of section 17DA(2)."
The Minister appears
to argue that these remaining provisions of section 17DA (including
(3), (4) and (5) dealing with suspension
and/or removal through the
parliamentary process) can be used by the Minister for "guidance"
when he exercises his still
existing powers of suspension in a manner
other than in terms of section 17DA(5).
Astonishingly, the
Minister then says the following about the "guidance" so
available to him:
"The
guidance I received from the remaining provisions of section 17DA is
that a suspension must be with pay
and
the removal if it were to be considered
must
be done through a parliamentary process
."
(Emphasis added.)
It seems to me that
the Minister concedes that the "guidance" is linked to the
suspension or removal through a parliamentary
process. This
concession, if it is one, flies in the face of the Minister's
argument that "... the Court however made it clear
that that
does not mean that I do not have the power to suspend the Head of the
DPCI in the context envisaged in section 17DA(2)..."
[30] I can find no
support whatsoever for the Minister's submissions and for the
interpretation which he seeks to attach to the
2014 judgment:
1. In paragraph [91]
of the 2014 judgment, it is stated unequivocally that the reference
to subsection (2) in 17DA(1) as well as
subsection (2) itself are
inconsistent with the constitutional obligation to establish an
adequately independent corruption-busting
agency and must be set
aside. This was done with effect from the date of the order, on 27
November 2014.
2. This means that
section 17DA(1) now provides, in peremptory terms, that: the National
Head of the Directorate shall not be suspended
or removed from office
except in accordance with the provisions of subsections (3) and (4).
There is no room whatsoever for the
Minister's argument that he can,
somehow, still suspend the Head "in the context envisaged in
section 17DA(2)".
3.
It follows that the "contemplated provisional suspension"
of Dramat, of 9/10 December 2014, which was expressly based
on the
provisions of section 17DA(2), long after this subsection was deleted
by the Constitutional Court, was unlawful as it flew
in the face of
the 2014 judgment and section 17DA(1), and therefore void
ab
initio
("van
die aanvang af nietig" - Hiemstra and Gonin
Trilingual
Legal Dictionary
2
nd
ed page 144).
4.
It follows that the suspension of Dramat by the notice of suspension
of 23 December 2014, which incorporates, by reference, the
contemplated provisional suspension, and which declares the
provisions of section 17DA(3) and (4) to be "not applicable"
and which, like the "contemplated provisional suspension"
was written well after the deletion of the offending provisions
on 27
November 2014, is also unlawful and void
ab
initio
as
it flies in the face of the 2014 judgment and the provisions of
section 17DA(1).
In
Pikoli
v
President of
Republic of South Africa and others
2010
1 SA 400
(GNP) at 408C-E the following is said:
"The purported
exercise of public power that is not authorised by law is invalid
from the outset. A declaration that executive
action is invalid 'is
merely descriptive of a pre-existing state of affairs'. In the
interest of an orderly society, however, such
action is treated as if
it were valid until it is declared invalid. The Court that finds
executive action not authorised by law,
must declare it invalid."
See also sections
1(c) and 2 of the Constitution of the Republic of South Africa, 1996.
Cora
Hoexter
Administrative
Law in South Africa
2
nd
ed p545-546.
Fose
v Minister of Safety & Security
[1997] ZACC 6
;
1997
3 SA 786
(CC) where the learned Judge, still dealing with the interim
Constitution 200 of 1993, says the following at 834F:
"Section 4(1)
makes unconstitutional conduct a nullity, even before Courts have
pronounced it so."
At 8341, the learned
Judge points out that it is not the declaration itself (that
administrative or executive conduct is unconstitutional)
that renders
the conduct unconstitutional. The declaration is merely descriptive
of a pre-existing state of affairs.
Cora
Hoexter, op cit,
also
referred to by the learned Judge in
Pikoli,
puts
it as follows on p545-546 where she deals with remedies in
proceedings for judicial review (more with regard to the
Promotion of
Administrative Justice Act no 3 of 2000
, or "PAJA", but I
am of the view that the same remarks apply to other executive action
not necessarily included in the
definition of "administrative
action" in PAJA. Indeed, in
Pikoli,
the
court was confronted with executive action not included in the
definition of administrative action, and involving the removal
from
office by the President of the National Director of Public
Prosecutions):
"An
administrative action or decision, no matter how blatantly illegal it
may appear to be, continues to have effect until
such time as it is
pronounced invalid by the Court. At that point the decision not only
ceases to have effect but may be treated
as if it never existed.
Invalidity thus operates with retrospective effect, both at common
law and under the Constitution, as a
consequence of constitutional
supremacy and in accordance with the doctrine of objective
invalidity. In administrative law 'setting
aside' is a logical
consequence of declaring the decision to be invalid, and is simply a
way of saying that the decision no longer
stands, or that it is void.
It is one of the remedies provided for in section 8 of the PAJA."
(The learned author
here refers to section 8(1 )(c) of PAJA.) At 547, the learned author
also states: "An invalid act, being
a nullity, cannot be
ratified, 'validated' or amended." I do not refer to all the
authorities listed in the footnotes.
Mr
Mokhari, in his diligent address, and on the subject of the unlawful
act being treated as valid until it is declared unvalid,
also
referred me to the well-known case of
Oudekraal
Estates (Pty) Ltd
v
City of Cape Town
and others
2004
6 SA 222
(SCA) where the following is said at 242B-C:
"The proper
functioning of a modem State would be considerably compromised if all
administrative acts could be given effect
to or ignored depending
upon the view the subject takes of the validity of the act in
question. No doubt it is for this reason
that our law has always
recognised that even an unlawful administrative act is capable of
producing legally valid consequences
for so long as the unlawful act
is not set aside."
It
is clear, as I pointed out, that this principle is recognised both in
Pikoli,
and
by
Cora Hoexter.
However,
where the declaration of invalidity operates with retrospective
effect, and has the effect of the unlawful act being treated
as if it
never existed, it would seem to me that all actions taken by the
Minister following the unlawful suspension will be tainted
and of no
consequence if I were to declare the suspension to be unlawful and
invalid.
[31]
As to the reference by
Cora
Hoexter
to
PAJA, Mr Mokhari also reminded me of the provisions of section 8 of
that Act. If I understood him correctly, he argued that from
the
wording of paragraph 5.1 of the founding affidavit ("to review
and set aside the decisions of the Minister ..."),
it is plain
that this is an application for review in terms of PAJA, so that the
remedy sought falls under section 8(c) of that
Act which reads as
follows:
"(1) The Court
or tribunal, in proceedings for judicial review in terms of section
6(1), may grant any order that is just and
equitable, including
orders -
(a) ...
(b) ...
(c) setting aside
the administrative action and -
(i) remitting the
matter for reconsideration by the administrator, with or without
directions; or
(ii) in exceptional
cases -
(aa) substituting or
varying the administrative action or correcting a defect resulting
from the administrative action; or
(bb) ..."
If I understood the
argument correctly, it is that in the light of these provisions it is
incumbent on this court to remit the matter
for reconsideration by
the Minister unless it is considered to be an exceptional case (which
I understood counsel to argue it is
not) whereupon the court can
substitute or vary the decision of the Minister.
In his replying
address, Mr Unterhalter argued, correctly in my view, that this is
not a review application in terms of PAJA but
an attack on the
legality of the Minister's decision.
It
seems to me that one of the leading cases on the subject is
Fedsure
Life Assurance Ltd and others
v
Greater
Johannesburg Transitional Metropolitan Council and others
1999
1 SA 374
(CC) where the following is said at 400D-F:
"It seems
central to the conception of our constitutional order that the
Legislature and Executive in every sphere are constrained
by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law. At least in this
sense, then,
the principle of legality is implied within the terms of the interim
Constitution. Whether the principle of the rule
of law has greater
content than the principle of legality is not necessary for us to
decide here. We need merely hold that fundamental
to the interim
Constitution is a principle of legality."
In this case, I have
found, that the Minister purported to exercise a power and perform a
function beyond that conferred upon him
by law, following the order
in the 2014 judgment.
Cora
Hoexter
distinguishes
between the application of the principle of legality and the PAJA
route. At 122 she says:
"But
legality also has a wider meaning that goes
beyond
administrative
action, and this is probably the more common usage of the term today.
Here it refers to a broad
constitutional
principle
of legality that governs the use of
all
public
power rather than the narrower realm of administrative action. This
principle of legality (or 'legality and rationality')
is an aspect of
the rule of law, a concept implicit in the interim Constitution and
the founding value of our constitutional order
in terms of section
1(c) of the 1996 Constitution. The fundamental idea it expresses is
that 'the exercise of public power is only
legitimate where lawful'."
For these reasons, I
am of the view that it is appropriate to attack the actions of the
Minister on the strength of the principle
of legality, rather than in
terms of PAJA. It should also be borne in mind that the executive
powers or functions of the National
Executive, or some of them
referred to in the definition of "administrative action" in
PAJA, are excluded from the operation
of that Act. One of the actions
excluded from the PAJA definition is contained in the provisions of
section 92(3) of the Constitution
which reads:
"Members of the
Cabinet must -
(a) act in
accordance with the Constitution ..."
[32] I turn to the
position of the third respondent.
The position of
the third respondent. Major-General Beming Ntlemeza ("the third
respondent")
[33] In the founding
affidavit, the applicant alleges that an Acting National Head (here
purportedly the third respondent) cannot
be appointed if Dramat was
not lawfully suspended. The applicant argues that in the
circumstances the appointment decision of the
third respondent must
suffer the same fate as the suspension decision of Dramat.
[34] This allegation
is not dealt with in the opposing affidavit. The Minister only offers
a blanket denial of everything in the
founding papers inconsistent
with his version in the opposing affidavit.
[35]
I have pointed out that section 17C of the SAPS Act provides for the
establishment of the DPCI and provides that the Directorate
will,
inter alia
,
consist of a Deputy National Head at national level.
[36] The procedure
involving the appointment of the Deputy National Head as Acting
National Head is governed by the provisions of
section 17CA(12). This
subsection reads as follows:
"(12)(a)
Whenever the National Head of the Directorate is absent or unable to
perform his or her functions, the Minister shall
appoint the Deputy
National Head of the Directorate as the Acting National Head of the
Directorate.
(b) Whenever the
office of the National Head of the Directorate is vacant or the
National Head of the Directorate is for any reason
unable to take up
the appointment contemplated in subsection (1), the Minister shall
appoint the Deputy National Head of the Directorate
as the Acting
National Head of the Directorate.
(c) If both the
National Head of the Directorate and the Deputy National Head of the
Directorate are absent the Minister shall appoint
a suitably
qualified and experienced person as the Acting National Head of the
Directorate.
(d) Whenever the
Deputy National Head of the Directorate is absent or unable to
perform his or her functions, the National Head
of the Directorate
shall appoint a suitably qualified and experienced person as the
Acting Deputy National Head of the Directorate.
(e) Whenever the
office of the Deputy National Head of the Directorate is vacant the
Head of the Directorate shall appoint a suitably
qualified person as
the Acting Deputy National Head of the Directorate."
[37] In the
Minister's heads of argument, it is stated that the Minister
appointed the third respondent as Acting National Head
in terms of
subsection (12)(c). It is stated that the Minister could not appoint
the Deputy National Head of the DPCI because the
DPCI does not have a
Deputy National Head currently. Under these circumstances, it is
questionable whether the Minister complied
with the provisions.
Subsection (12)(e) provides that if the office of the Deputy National
Head is vacant (like here) the Head
of the Directorate shall appoint
a suitably qualified person as the Acting Deputy National Head, and
not the Minister. It is also
questionable whether subsection (12)(c)
was applicable because that foreshadows a situation where both the
National Head and the
Deputy National Head "are absent". It
may be arguable that such a state of affairs does not apply to the
present circumstances.
Nevertheless, I make no formal pronouncement
on this, as the issue was not pressed before me.
[38] In prayer 3 of
the notice of motion, the applicant seeks declaratory relief to the
effect that the appointment of the third
respondent by the Minister
as Acting National Head of the DPCI is unlawful and also for the
setting aside of that appointment decision.
[39] It was argued
on behalf of the Minister that the relief sought in prayer 3 would
not necessarily follow even if prayer 2 was
granted. The relief
sought in prayer 2 is a declaration that the decision of the Minister
to suspend Dramat as the National Head
is unlawful and the setting
aside of that suspension decision is also sought.
It was argued on
behalf of the Minister that the granting of prayer 3, following upon
the granting of prayer 2, will only be a foregone
conclusion if
further relief is granted to the applicant to the effect that Dramat
should be reinstated in his position, something
not expressly
requested in the notice of motion.
In
this regard, I was referred by Mr Mokhari to the case of
Transnet
Ltd and others
v
Chirwa
2007
2 SA 198
(SCA) where it is stated that the process by which the
employee was dismissed was tainted through bias, and was correctly
set aside
in terms of section 6(2)(a)(iii) of PAJA. It was held that
where the learned Judge
a
quo
,
having set aside the dismissal by the employer, also granted
retrospective reinstatement, he was wrong in taking the latter step.
It was held that in administrative law the subject is usually
entitled only to have the decision at issue set aside and the matter
remitted for a fresh decision. It is on this basis, if I understood
the argument correctly, that it was argued that reinstatement
of
Dramat will not follow, even upon granting of the relief in prayer 2
namely a declarator to the effect that the suspension was
invalid and
unlawful. It was further argued that, even upon the granting of
prayer 2, and the setting aside of the suspension of
Dramat as
unlawful, the Minister is still obliged "in the absence of the
reinstatement of Dramat" to ensure that the
DPCI has a National
Head, which the Minister did by appointing the third respondent in
compliance with section 17CA(12)(c).
In
his replying address, Mr Unterhalter confirmed that reinstatement of
Dramat was not specifically sought and need not be granted
in those
terms. He argued, correctly, that this was not a PAJA application, as
I have already pointed out so that the
dicta
in
Chirwa
and,
for that matter, the provisions of the Labour Relations Act are not
applicable. This is not a case of Dramat approaching the
court as an
aggrieved employee. The applicant is not acting on behalf of Dramat
but as a non-governmental organisation with the
objective,
inter
alia
,
to defend the values that underpin our liberal constitutional
democracy and to promote respect for human rights. He pointed out
that the applicant approaches the court, firstly, in its own
interest. It is an organisation that is primarily concerned with the
principles of democracy and constitutionalism, as well as the rule of
law. These are all implicated by the unlawful decisions of
the
Minister to suspend Dramat and to appoint the third respondent. It
was argued that, in addition to his unlawful actions, the
Minister
has failed in his constitutional duty to protect the independence of
the DPCI and uphold the rule of law in South Africa.
It was argued,
secondly, that the applicant also approaches the court in the public
interest. All South Africans have an interest
in the rule of law, the
requirements for a properly functioning constitutional democracy and,
in particular, that urgent steps
be taken to root out corruption.
Counsel confirmed, correctly in my view, that this is a challenge
based on the principle of legality,
and not a PAJA application.
[40] I return
briefly to the argument raised in the founding papers (not
specifically challenged in the opposing affidavit) that
the third
respondent cannot be appointed if Dramat was not lawfully suspended
and that the appointment decision of the third respondent
must suffer
the same fate as the suspension decision of Dramat.
In
Seale
v
Van Rooyen NO and
others, Provincial Government
,
North West
Province v Van Rooyen NO and others
2008
4 SA 43
(SCA) the following is said at 50C-D:
"I
think it is clear from
Oudekraal,
and
it must in my view follow, that if the first act is set aside, a
second act that depends for its validity on the first act must
be
invalid as the legal foundation for its performance was
non-existent."
In
commenting on this decision,
Cora
Hoexter,
at
549-550, says, after quoting the relevant passage from
Seale
:
"In
other words, as
Oudekraal
itself
makes clear, the factual existence of an act is capable of supporting
subsequent acts only as long as the first act is not
set aside. In
this instance a decision to grant a servitude had indeed been set
aside, and the subsequent registration of the servitude
was therefore
of no force and effect."
[41] In the
circumstances, I have concluded that the position is as follows, and
I find accordingly:
1.
the purported suspension of Dramat was not authorised by law,
unconstitutional and invalid from the outset -
Pikoli
at
408C-D;
2.
the appointment of the third respondent as Acting National Head
depends for its validity on the suspension of Dramat and is,
consequently, invalid as the legal foundation for such an appointment
was non-existent -
Seale
at
50C-D;
3. where the
suspension of Dramat was invalid and a nullity from the outset, he
was, in law, never suspended, so that there is no
basis for ordering
his reinstatement;
4. where the
appointment of the third respondent as Acting National Head depended
for its validity on the suspension of Dramat,
which was invalid and a
nullity, the appointment of the third respondent is also invalid as
the legal foundation therefor was non-existent.
Such appointment,
therefore, also falls to be declared invalid, and, inasmuch as it may
be necessary, set aside.
Other legislation
and provisions relied upon by the Minister in support of his decision
to suspend Dramat
[42]
In the face of the striking down and deletion by the Constitutional
Court of section 17DA(2) of the SAPS Act, which the Minister
argues,
as I have illustrated, did not deprive him of his powers to suspend
and remove Dramat, the Minister also, in the purported
suspension
notice of 23 December 2014, suggested that he is empowered to suspend
Dramat by the provisions of the Public Service
Act, Proclamation no
103 of 1994, and the so-called
SMS
Handbook,
and
more particularly chapter 7 thereof.
[43] In section 1 of
the Public Service Act ("the PSA") "member of the
services" is defined as meaning a member
of-
"(a) ...
(b) the South
African Police Service appointed, or deemed to have been appointed,
in terms of the South African Police Service Act,
1995 (Act 68 of
1995); or
(c) ..."
Section 2(2) of the
PSA provides:
"(2)
Where members of the services, educators or members of the
Intelligence Services are not excluded from the provisions
of this
Act, those provisions shall, subject to subsection (2A),
apply
only in so far
as
they are not contrary to the laws governing their employment.
"
(Emphasis added.)
The provisions in
subsection (2A) are not applicable for present purposes.
[44] As already
pointed out, chapter 6A of the SAPS Act (containing sections 17A to
17L) deals with the DPCI, which is also established
in terms of
section 17C(1). It also, in section 17CA contains detailed provisions
relating to the appointment, remuneration and
conditions of service
of those comprising the DPCI. I have quoted, at some length, from
some of the provisions of the SAPS Act.
In short, the provisions of
the SAPS Act fully govern the employment of members of the DPCI. This
includes 17DA dealing with the
removal from office of the National
Head of the Directorate. Consequently, any conditions or provisions
in the PSA, not in harmony
with what is enacted in the SAPS Act, will
not apply to Dramat. The argument of the Minister, in this regard,
can therefore not
be upheld.
[45]
It was pointed out by counsel for the applicant, correctly in my
view, that the
Senior
Management Service Handbook
,
published in 2003
("SMS
Handbook")
is
delegated legislation under the PSA and would therefore also not be
applicable to the suspension and/or removal of the Head of
the DPCI
as this is governed, as pointed out, by section 17DA of the SAPS Act.
[46]
In any event, if one has regard to chapter 7 of the
SMS
Handbook,
on
which the Minister relies, the provisions of paragraph 2.3 thereof
under the heading "Scope of application" read as
follows:
"(1)
This Code and Procedure applies to the employer and all members. It
does not, however, apply to the employer and members
covered by a
disciplinary Code and Procedure -
(a)
(b) contained in
legislation or regulations."
The
disciplinary procedure in the present case, specifically the
suspension and/or removal of the National Head of the DPCI, is
covered by the SASP Act so that chapter 7 of the
SMS
Handbook
does
not apply to Dramat.
It
was also argued on behalf of the applicant that the
SMS
Handbook
merely
confirms that which the SAPS Act makes abundantly clear. Section
17DA(1) of the SAPS Act unambiguously provides, as already
mentioned,
that the Head of the DPCI
shall
not be
suspended
or removed from office except in accordance with the provisions of
subsection
(3) and (4)
.
Peremptory language in a statute must, in the absence of strong
indications to the contrary, be interpreted as compulsory and
not
merely directory. Not only are there no such contrary indications,
but all the indications are that it should be interpreted
to exclude
any other mechanisms for suspension. It follows that the Minister's
attempted reliance on any other legislation to justify
his actions is
misplaced.
Other arguments
offered on behalf of the Minister
[47] I have dealt
with most of the arguments presented on behalf of the Minister.
[48]
An argument advanced on behalf of the Minister, which I have not yet
mentioned, was raised for the first time during the proceedings
before me. It has to do with a compromise or
transactio.
In short, it has to
do with Dramat's letter to the Minister of 24 December 2014, extracts
of which I have quoted. The argument seems
to be based on Dramat's
utterance that he is willing to submit a request to vacate his office
by applying for approval of early
retirement but subject to the
precondition that the unlawful precautionary suspension be uplifted
without Dramat having to approach
the court to do so.
[49] The argument,
if I understood it correctly, appears to be that these utterances by
Dramat constitute a compromise or an agreement
not to litigate so
that the applicant is debarred from proceeding with this application.
[50]
I was referred to the case of
Gollach
and Gomperts (1967) (Pty) Ltd
v
Universal Mills
and Produce Co (Pty) Ltd and others
1978
1 SA 914
(A). In the judgment it was stated, at 921B-C that a
transactio
is
an agreement between litigants for the settlement of a matter in
dispute and the purpose thereof is not only to put an end to
existing
litigation but also to prevent or avoid litigation.
Inasmuch
as such a
transactio
may
have been binding on the applicant, which it clearly is not, there is
no evidence whatsoever of such an agreement having been
entered into
between the Minister and Dramat. Indeed, in his opposing affidavit,
dated 14 January 2015, the Minister says that
he is in the process of
arranging a meeting with Dramat.
[51] In any event,
as Mr Unterhalter correctly argued, no agreement between Dramat and
the Minister, if there were to be one, can
act as a bar to the
applicant proceeding with the present application. The applicant, as
stated, litigates in its own interest
and in the public interest in
an effort to uphold the principles of democracy and
constitusionalism, as well as the rule of law.
The application is
aimed at attacking the constitutionality and validity of the
Minister's actions.
[52]
In the circumstances, I see no merit in the Minister's argument based
on the alleged compromise or
transactio.
The
applicant’s
locus
standi
!standing
to launch this application
[53] In the opposing
affidavit, the Minister argues that this relief is sought by the
applicant "on behalf of the second respondent"
in
circumstances where the second respondent has not authorised the
applicant to bring the application on his behalf neither has
he filed
an affidavit supporting the application. It is argued that the
applicant has no right in law to bring an application on
behalf of
the second respondent for his reinstatement or the upliftment of his
suspension when there is no evidence in the founding
papers to the
effect that the second respondent seeks to challenge the suspension
in court. It is argued that the applicant seeks
to be the guardian of
the second respondent when the latter has the ability and capacity to
act on his own behalf and to bring
an application himself, if he so
wishes.
[54]
The applicant's assertion that it brings the application in the
public interest is, so the Minister submits, a red herring
because
the applicant cannot act in the public interest when the aggrieved
party is present and available to act on his own. It
is argued that
the applicant cannot rely on the provisions of section 38 of the
Constitution to establish the necessary
locus
standi
to
launch this application. The applicant is required, so the argument
goes, to demonstrate in the founding papers that Dramat is
unable to
act on his own and for that reason it was in the public interest that
the applicant should so act. Consequently, the
applicant does not
have the necessary legal standing to bring this application.
[55] In response to
this argument, it was pointed out on behalf of the applicant that the
latter does not contend that it seeks
relief "on behalf of the
second respondent". This is not a requirement under the law on
own-interest standing. Nor is
it a requirement that the applicant
must demonstrate that Dramat "supports the application”.
It is irrelevant whether
Dramat is "present and available to act
on his own". This fact is irrelevant to the objective legal
question as to whether
or not the Minister acted in accordance with
the law in his attempts to remove Dramat from office.
[56]
Counsel for the applicant pointed out that their client relies on
own-interest and public interest standing,
inter
alia
as
provided for in sections 38(a) and (d) of the Constitution.
Section 38 reads as
follows:
"38.
Enforcement of
rights.
-
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been
infringed
or threatened, and the court may grant appropriate relief, including
a declaration of rights. The persons who may approach
a court are -
(a)
anyone
acting in their own interest
;
(b) anyone acting on
behalf of another person who cannot act in their own name;
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons;
(d)
anyone
acting in the public interest
,
and
(e) an association
acting in the interest of its members."
(Emphasis added.)
[57]
I was reminded by counsel for the applicant that their client brings
this application, firstly, in its own interest. It was
submitted that
it is trite that our law accords generous rules for standing which
permit applicants to seek relief either on their
own behalf or on
behalf of others. It is also trite, so it was submitted, that
constitutional standing is broader than traditional
common law
standing. See
Giant
Concerts CC
v
Renaldo
Investments (Pty) Ltd and others
2013(3)
BCLR 251 (CC).
It
was further argued that even if the applicant's own interest standing
is questionable (which the applicant denies) this may not
prohibit a
court from hearing the matter, if the interests of justice so demand.
CAMERON J said in
Giant
Concerts,
"There may be
cases where the interests of justice or the public interest might
compel a court to scrutinise action even if
the applicant's standing
is questionable. When public interest cries out for relief, an
applicant should not fail merely for acting
in his or her own
interest."
[58]
Counsel submitted that the applicant has sufficiently demonstrated
that as an organisation which is primarily concerned with
the
principles of democracy and constitutionalism, as well as the rule of
law, its rights and interests are affected by the unlawful
decisions
of the Minister to suspend Dramat and to appoint the third
respondent. This is a matter of such grave importance that
it is
undoubtedly in the interest of justice for the applicant to invoke
section 38(a) of the Constitution. This is particularly
so in the
context of the applicant's involvement in ensuring that the DPCI is
properly insulated from political interference and
safeguarding the
DPCI's independence, through its interventions as an
amicus
curiae
in
Glenister II
and
as an applicant in the 2014 judgment. In neither of those cases the
locus standi
of
the applicant was attacked. It is difficult to see how an objection
to the
locus
standi
can
be upheld in this particular matter under these circumstances. After
all, the present matter flows from the 2014 judgment for
reasons
which have already been explained.
[59]
As to public interest standing, which also involves the 2014
judgment, section 38(d) of the Constitution allows a party to
bring
constitutional challenges "in the public interest". It has
been held repeatedly that the court should adopt a "generous"
or "broad" approach to standing in these matters. CAMERON J
held in
Beukes
v
Krugersdorp
Transitional Local Council
1996
3 SA 467
(W) at 474 that such a generous approach is not limited to
the Constitutional Court, but should be adopted by "all courts
that are called upon to adjudicate constitutional claims" and
the generous nature of the test applies both in respect of who
qualifies as having standing and how that standing may be evidenced.
[60] It was also
argued that the conduct or views of Dramat do not in any way affect
the public interest in upholding the rule of
law and dealing with
blatantly unlawful acts by the National Executive in respect of a key
public institution. In any event, so
it was further argued, it is
clear from Dramat's letter of 24 December 2014 that the offer (of
taking early retirement) was made
under duress and because Dramat is
disillusioned with the Minister's inability to act lawfully and with
attempts to subvert his
office and authority.
[61]
In all the circumstances, I am satisfied that the applicant has made
out a proper case for legal standing and that the attack
on the
applicant's standing is ill-founded. I add, for the sake of clarity,
that I was specifically informed by counsel for the
Minister during
the proceedings that the issue of standing was not raised as a point
in limine
for
immediate decision but that it had to be decided as part of the main
judgment.
Conclusions
[62] I have already
set out my conclusions, particularly when dealing with the position
of the third respondent and other subjects.
[63] For the reasons
mentioned, and because of my finding of unlawful conduct and
unconstitutional conduct on the part of the Minister,
I am satisfied
that a proper case was made out for the relief sought.
Costs
[64] The costs
should follow the result in the normal manner. The costs should also
include the costs of two counsel.
[65] Counsel on both
sides were in agreement before me that the costs flowing from the
proceedings of 15 January 2015 should be
costs in the application.
The order
[66] I make the
following order:
1. It is declared
that the decision of the first respondent (the Minister of Police) of
23 December 2014 to suspend Lieutenant General
Anwa Dramat, the
National Head of the Directorate for Priority Crime Investigation
("the DPCI") is unlawful and invalid
and the decision is
set aside.
2. It is declared
that the decision of the Minister to appoint Major-General Beming
Ntlemeza as Acting National Head of the DPCI
is unlawful and invalid
and the decision is set aside.
3. It is declared
that the Minister is not empowered to suspend the National Head of
the DPCI other than in accordance with sections
17DA(3) and (4), read
with
section 17DA(5)
, of the
South African Police Service Act, 1995
.
4. The Minister is
ordered to pay the costs of the applicant, which will include the
costs of the proceedings of 15 January 2015
and the costs of two
counsel.
W
R C PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
1054/2015
HEARD ON: 15 &
19 JANUARY 2015
FOR THE APPLICANT: D
UNTERHALTER SC ASSISTED BY M DU PLESSIS
INSTRUCTED BY:
WEBBER WENTZEL
FOR THE 1 ST
RESPONDENT: W MOKHARI SC ASSISTED BY Ms T SEBOKO
INSTRUCTED BY: HOGAN
LOVELLS (SOUTH AFRICA) INC AS ROUTLEDGE MODISE INC