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[2015] ZAGPPHC 138
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Independent Police Investigative Directorate and Another v Minister of Police and Another (6588/2015) [2015] ZAGPPHC 138 (18 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
HIGH COURT, PRETORIA)
Case
Number: 6588/2015
DATE:
18/3/2015
Not
reportable
Of
interest to other judges
In
the matter between:
THE
INDEPENDENT POLICE
INVESTIGATIVE
DIRECTORATE
...................................................................
FIRST
APPLICANT
ROBERT
MCBRIDE
........................................................................................
SECOND
APPLICANT
And
MINISTER
OF
POLICE
...................................................................................
FIRST
RESPONDENT
MINISTER
FOR PUBLIC SERVICE
AND
ADMINISTRATION
...........................................................................
SECOND
RESPONDENT
JUDGMENT
Fabricius
J,
1.
The
Applicants herein launched an application in the Urgent Court on 13
March 2015 in which they, as per part A thereof, sought
an order
which would interdict and restrain First Respondent from suspending
the Second Applicant from his position as the Executive
Director of
the Independent Police Investigative Directorate. Costs of two
Counsel were also sought. The Respondents were given
one day to file
an Answering Affidavit and the First Respondent did indeed so, but
without dealing with the merits of the factual
allegations made in
the Founding Affidavit, together with its annexures, which almost
comprise of 400 pages. The interim interdict
was sought pending the
final determination of part B of the application in which the
following relief would be sought:
“
It
is declared that the decision of the First Respondent (The Minister
of Police) to initiate a process to suspend the Second
Applicant
from his position as Executive Director of the First Applicant (The
Independent Police Investigative Directorate) is
unlawful and
invalid and the decision is set aside.
It
is declared that the following provisions are unconstitutional and
unlawful to the extent that they purport to authorize the
Minister
of Police to suspend or remove from office the Executive Director of
the Independent Police Investigative Directorate;
2.1
Section 6(6) of the Independent Police
Investigative Directorate Act No 1 of 2011;
2.2
Section 17(1) and section 17(2) of the
Public Service Act, 1994; and
2.3
Paragraph 2.7(2) of Chapter 7 and paragraph
18 of Chapter 8 of the Senior Management Service Handbook, 2003.
A
cost order was also sought.
2.
Second
Applicant alleges that on 11 March 2015 he was given a letter by the
First Respondent as a notice to inform him that the
Minister intended
placing him under precautionary suspension with full pay and benefits
for a period not exceeding 60 calendar
days. Details of the alleged
serious misconduct committed over a course of time were then given,
and it was concluded that: “Because
of the seriousness of these
allegations, given the most senior position you occupy at IPID, the
possible interference with the
investigation and the tempering (sic)
with evidential material, I intend placing you on precautionary
suspension with full pay
for a period not exceeding 60 calendar days,
pending an investigation into the abovementioned allegations and
possible disciplinary
enquiry against you.”
Second
Applicant was given an opportunity to make representations as to why
he should not be suspended and he was given until the
close of
business on 12 March 2015 to do so.
3.
In
the Founding Affidavit Second Applicant said that he appreciated that
the Respondents would have very little time to answer this
application but, if they required such further time, he would be
prepared to accord it on the condition that the Minister would
not
suspend him pending the outcome of the application under part A.
4.
The
Minister had not suspended the Second Applicant at the time the
application was heard, but Applicant’s Counsel, Mr Budlender,
submitted that this was no obstacle to him inasmuch as the
application was launched not only to protect the Second Applicant’s
rights, but also to preserve the independence and effective
functioning of IPID, and to prevent further unlawful ministerial
interference
without delay. It was alleged that IPID was an
indispensible, constitutionally required investigative body, which
was mandated
to investigate police misconduct and offences. Its
investigations extended to the highest offices in South Africa. It
therefore
had to be given substantial protections to carry out its
mandate without political interference. The Executive Director was at
the very heart of IPID’s ability to function effectively to
fulfil its constitutional mandate, and was critical to ensuring
the
proper conduct of investigations by IPID. Should a suspension be
effected, such an act would have immediate deleterious consequences
for the effective functioning of IPID, so it was submitted. This was
especially so in the current political climate, and given
the extent
of ministerial interference in the independent institutions in the
criminal justice sector. I am paraphrasing this allegation
in the
Founding Affidavit, and it is noticeable that no details were given
of what was meant by the “current political climate”
and
what actual facts underlay the submission that the Minister
interfered in the independent institutions in the criminal justice
sector. The following was then said in the Founding Affidavit: “The
suspension of the Executive Director would, in all likelihood,
be
followed by the Minister’s appointment of a new acting
Executive Director, who could fundamentally undermine the effective
functioning of the institution and impede high-profile
investigations. This is demonstrated by the events that followed the
suspension
of the Head of the Directorate for Priority Crime
Investigation (the DPCI or the Hawks) Lieutenant-General Dramat, and
the appointment
of Major-General Ntlemeza as an acting National Head
of the DPCI. Those events are detailed in the Founding Affidavit
filed by
the Helen Suzmann Foundation in the Constitutional Court on
25 January 2015.” This was annexed to the Founding Affidavit.
Those events are all in the public domain, and have been the subject
matter of litigation in this Court. I do not intend dealing
with the
judgments relevant to those proceedings. They speak for themselves.
5.
In
part B of the Founding Affidavit it was alleged that initiation of
the process to suspend Second Applicant was unlawful and
unconstitutional, on the grounds that the Minister did not have the
power to suspend the Executive Director of IPID, as this would
contravene the independence of IPID enshrined under
Section
206 (6) of the Constitution
.
Alternatively, even if the Minister had the power to suspend the
Executive Director, the Minister had exercised his power unlawfully
by creating a reasonable perception that IPID’s independence
was under threat. It further alleged that the Minister’s
decision was vitiated by ulterior purpose or improper motive and bad
faith. It was also said that his decision was irrational and
unreasonable. It was submitted that the review under part B was
brought on the basis of the principle of legality and the
Promotion
of Administrative Justice Act 3 of 2000
(PAJA).
I must say at this stage that
s. 6
(6) of the IPID Act
gives the
Minister the power to remove the Executive Director from office on
account of misconduct. Does this mean that he can
also suspend him in
the interim? His appointment is made by the relevant Parliamentary
Committee upon nomination by the Minister.
Does this mean that only
this Committee can suspend him lawfully? The Act is silent on these
topics.
6.
The
First Respondent said in his Answering Affidavit that he did not
intend dealing with the merits of the application at this stage,
but
would oppose it on the basis that the Second Applicant had not been
suspended and that he had made written representations
which he was
considering, and that in any event he had not met the requirements of
an interim interdict because he had not demonstrated
irreparable harm
if the relief that he sought was not granted on an urgent basis. The
application was therefore premature and ill-conceived.
The First
Respondent also stated that he was aware of the fact that IPID
performs a critical statutory and constitutional function
which
requires stability in order for it to optimally perform its statutory
obligation. It was submitted that Second Applicant
would have
alternative remedies in due course, and if he were to be suspended it
would be with full pay and benefits and only for
the limited time of
60 days. It was also open for Applicant to approach the CCMA or the
relevant Bargaining Council depending on
how he framed his cause of
action. He denied that the balance of convenience favoured the
Applicant at all, inasmuch as particular
sections of the Act that
were sought to be attacked had been in operation for a number of
years, and that the Applicant could not
say that he wished to remain
immune from any steps pertaining to allegations of misconduct against
him whilst he intended challenging
the constitutionality of
legislation which did confer powers of him to play the particular
oversight role. What would happen after
suspension, if it was decided
upon, was currently merely of a speculative nature. As a result, it
was submitted that Applicant
had not made out a case for the relief
sought in part A.
7.
I
do not intend dealing with the likelihood or otherwise of the relief
sought in part B of this application being granted or not.
However,
there is merit in the submission that these type of bodies should be
independent, but at the same time I am also aware
of the fact that
independence is one of degree, depending upon the relevant context of
the legislation applicable.
See:
Van Rooyen vs The State
2002 (5) SA 246
(CC)
Also,
to prevent abuse of power, which is obviously and sadly part of human
nature, someone has to guard the guardian. “Quis
custodiet
ipsos custodes” the Roman poet Juvenal asked in one of his
Satires. He lived in the first century AD.As opposed
to that
realistic view (some call it sceptical), Plato (The Republic) was
overly optimistic when he opined that it was absurd that
city fathers
would require oversight. This was his view some 500 years before
Juvenal expressed his more practical view. I am merely
mentioning
this because I do believe that part B is arguable, and it does have
reasonable prospects of success. That is in my view
one of the
requirements in the present context having regard to the test laid
down in
Airoad Express (Pty) Ltd vs Chairman Local Road
Transportation Board Durban
[1986] ZASCA 6
;
1986 (2) SA 663
(AD).
8.
I
am not convinced that the decision of the First Respondent and the
decision whether to suspend Second Applicant or not, is of
an
administrative law nature. However, Applicants’ Counsel said,
while we briefly debated this issue, that the Minister’s
decision not only affected the Second Applicant, but also the public
at large. See in this particular context
Chirwa vs Transnet Ltd
and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC)
and
Provincial
Commissioner, Gauteng: SAPS vs Nguni
[2013] 2 All SA 262
(SCA) at 269
par. 16.
I do however not need to decide this debate in the
present instance, because it is well established that the lawfulness
of public
power is subject to scrutiny by the Courts. See:
National
Treasury infra at par. 44
, and
Pharmaceutical
Manufacturers Association of South Africa in re Ex Parte President of
the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at par.
17.
9.
The
requirements for an interdict have been set out throughout the
decades of our illustrious common-law history. In
National
Treasury and Others vs Opposition to Urban Tolling Alliance
2012 (6)
SA 223
CC
, Moseneke DCJ again
repeated them, and emphasized that under the test of
Setlogelo
vs Setlogelo
1914 AD 221
as later
refined in
Webster vs Mitchell
1948
(1) SA 1186
(WLD),
a particular
claimant must establish not merely that he has a right to approach a
Court in order to review a decision (administrative
decision), but it
must be a right to which, if not protected by an interdict,
irreparable harm would ensue. Quite apart from the
right to review
and to set aside impugned decisions, an Applicant would have to
demonstrate a
prima facie
right that is threatened by impending or imminent
irreparable
harm
. A right to review an impugned
decision does not require any preservation
pendente
lite
because obviously it does exist.
10.
In
the context of a Minister exercising powers invested in him by a
statute it was said in
Gool vs
Minister of Justice and Another
1955 (2) SA 682
CPD
that in the absence of allegations of
mala
fides
, a Court would not readily grant
such an interdict. A Court would only grant such an interdict in
exceptional circumstances and
when a strong case has been made out
for relief. This is not surprising. Subject to the principle of
legality and the separation
of powers between the executive, the
legislative and the judiciary, a Court must ask itself
not
whether an interim interdict against an authorized State functionary
is competent, but rather whether it is constitutionally appropriate
to grant the interdict. See:
National
Treasury supra at par. 66.
11.
In
the context of the question of the balance of convenience, Mr
Budlender submitted that the stronger the prospects of success
were,
the less the balance of convenience arose. I accept that, but I must
also consider to which extent an order at this stage
would disrupt
legislative functions authorized by law. It is clear that while a
Court has power in this context, it would not readily
exercise it
except when a proper and strong case has been made out for the relief
and then only in the clearest of cases. This
was also emphasized in
the
National Treasury
decision
supra
par.
66.
I may just add that I am also
aware that the
National Treasury
case
is distinguishable from the present facts as a policy decision of the
Government is not attacked, but nevertheless the Court’s
dicta
relating to the requirements for urgent interdicts are of general
application. What is important in the present instance is that
if the
order were to be granted now, pending a likely very lengthy process
under part B, including proceedings before the Constitutional
Court,
the Applicant would in reality be immune from disciplinary steps in
the interim, no matter what further serious evidence
against him
might emerge. I agree with Mr Mokhari SC on behalf of First
Respondent that this cannot be in the interests of justice.
12.
I
have also had the occasion to write a judgment about the requirements
of interim interdicts in
AFRISAKE NPC vs City of Tshwane
Metropolitan Municipality and Others
under case number
74192/2013
dated 14 March 2014 (not reported). I also
emphasized that the proper question would be whether an Applicant in
interdictory proceedings
required an order
now
so as to
protect a right which he would otherwise not be able to protect
at
all
. One does not require an interdict
pendente lite
to
protect a right which one can in any event protect in future by,
amongst others, litigation in due course. It is an absolute
minimum
requirement that irreparable harm must be shown to exist before the
Court can grant such an interdict, and in the present
context the
constitutional desirability of such an interdict weighs heavily on my
mind. A Court is not to disrupt legislative functions
where authority
is exercised within the bands of legislation and the Constitution.
See:
Doctors for Life International vs Speaker of National
Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
CC at par. 69.
13.
The
Second Applicant has not yet been suspended. He has made
representations which the Minister will consider. What the outcome
will be, I do not know.an interdict cannot be aimed at the past.
Ordinarily that would be the end of the matter, accept insofar
as the
Second Applicant alleges that the public at large is also affected by
the decision because of the important oversight role
that the First
Applicant plays. What will happen if he is suspended, in the context
of his temporary successor, I also would not
know and cannot
speculate. I cannot simply accept as a given that such person would
be open to unlawful manipulation or that the
public would perceive
this to be so. Fortunately vigorous debates are held in the press
about such appointments and the background
of such persons. The fact
of the matter is of course that the Applicants do have the right to
approach the Court for the relief
in part B. That right has not been
taken away from them and cannot be taken away from them. It also
requires no interdict in the
interim. I am not satisfied that the
Applicants have shown that they will suffer irreparable harm in the
meantime. If actual harm
does arise on some or other ground, whilst
an application for the main relief is pending, nothing would stop
them from approaching
Court for appropriate relief.
Mr
Budlender has accepted that this is not an ordinary case, and that he
would have to show more than a
prima facie
right, and indeed
would have to make out a very strong case, on analogy of the
dicta
that I have referred to in the
National Treasury
decision
supra
. In that context he submitted that the whole process was
presently unconstitutional and caused harm not only to the Second
Applicant
but to the general public at large. The Second Applicant
was not an ordinary employee, and if the Minister was under the
apprehension
that he could continue to act without lawful statutory
authority, the harm would be on-going. On that basis he was entitled
to
urgent relief and the Applicants had a right which needed to be
protected now. I do not agree for the reasons stated. The Applicants
can exercise all the rights that they rely on in the future in due
course. They do not require an urgent interdict now to safeguard
such
rights. I am aware of the fact that a Court has a power to grant this
relief but that is not the issue in my view at all.
See:
President of South Africa and Others
vs United Democratic Movement and Others
[2002] ZACC 34
;
2003 (1) SA 472
.
It was held therein that the High Court has jurisdiction to grant
interim relief designed to maintain status quo or to prevent
violation of a constitutional right where legislation was alleged to
be unconstitutional and reasonably feared that it might cause
irreparable harm of a serious nature. Such interim relief should be
granted only, it was held, where strictly necessary in the
interest
of justice. In determining the interest of justice in such a context,
the Court had to balance the interests of persons
seeking interim
relief against the interest of others who might affected by the grant
of such relief. Such interim relief should
be strictly tailored to
interfere as little as possible with the operation of legislation.
14.
The
facts do not support the relief sought, nor do the applicable legal
considerations. The application is not urgent.
It
is accordingly struck off the Roll.
15.
In
my view the application in due course under part B is not without
merit, and it is accordingly not appropriate that I make a
cost order
against the Applicants.
See:
Biowatch Trust vs Registrar, Genetic
Resources
2009 (6) SA 232
CC at par. 20 – 22
_____________________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
Case
no.: 6588/15
Counsel
for the Applicants: Adv
S. Budlender
Adv
J. Bleazard
Instructed
by: Adams & Adams Attorneys
Counsel
for the Respondent: Adv W R Mokhari SC
Instructed
by: Hogan Lovells (South Africa)
Heard
on: 13/03/2015
Date
of Judgment: 18/03/2015 at 10:00