Pikoli v President and Others (8550/09) [2009] ZAGPPHC 99; 2010 (1) SA 400 (GNP) (11 August 2009)

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[2009] ZAGPPHC 99
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Pikoli v President and Others (8550/09) [2009] ZAGPPHC 99; 2010 (1) SA 400 (GNP) (11 August 2009)

IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
Case
No: 8550/09
Date
heard: 06/08/2009
Date of judgment:
11/08/2009
In the matter
between:
Pikoli, Vusumzi
Patrick
…………………………………
Applicant
and
The President
…………………………………………..
1
st
Respondent
The Speaker of the
National Assembly
………………
2
nd
Respondent
The Chair of the National
Council of Provinces
……..
3
rd
Respondent
and
Freedom Under Law
……………………………………
as
amicus curiae
JUDGMENT
DU PLESSIS J:
In terms
of section 179(1)(a) of the Constitution of the Republic of South
Africa, 1996 the head of the national prosecuting authority
is the
National Director of Public Prosecutions (NDPP). In terms of the same
subsection the NDPP is appointed by the President,
as head of the
national executive. The relevant provision of the Constitution is
mirrored by section 10 of the National Prosecuting
Authority Act, 32
of 1998 ("the Act") in the following terms: 'The President
must, in accordance with section 179 of
the Constitution, appoint the
National Director."
In
February 2005 President Mbeki, who was then the President of the
Republic, appointed the applicant as NDPP. Section 12(1) of
the Act
provides that the NDPP shall, subject to a presently irrelevant age
restriction, "hold office for a non-renewable
term of 10 years".
It follows that the applicant's term of office was to expire in 2015.
On 8 December 2008, however, President
Motlanthe, who had by then
succeeded President Mbeki, purported to remove the applicant from
office. I say purported because the
applicant disputes the lawfulness
and the validity of the President's decision to remove him.
As is
required by section 12(6)(b) of the Act, the President referred his
decision to remove the applicant from office to Parliament.
The
National Assembly resolved on 12 February 2009 and the National
Council of Provinces resolved on 17 February 2009 not to recommend

the applicant's restoration to office.
1
On 18
February 2009 the applicant launched an application in this court
seeking an order to review and set aside the President's
decision to
remove him from office. That application, in which the lawfulness and
validity of the applicant's purported removal
from office is at
issue, is scheduled to be heard by this court in November of this
year. I shall refer to it as "the main
application".
On 15
July 2009 President Zuma, who succeeded President Motlanthe, notified
the applicant that he intends to appoint a new NDPP.
Before this
court now is an urgent application for an interim interdict to
restrain the President, pending the main application,
from making a
permanent appointment of a new NDPP.
The
requirements for an interim interdict are well established
2
and I shall in due course deal with each of them. More in general,
one of the aims of an interim interdict is to preserve the status
quo
pending the final determination of the rights of the parties to
pending litigation. The interim interdict does not involve
a final
determination of the parties' rights and it does not affect such
final determination.
3
When considering whether to grant or refuse an interim interdict, the
court seeks to protect the integrity of the proceedings in
the main
case. The court seeks to ensure, as far as is reasonably possible,
that the party who is ultimately successful will receive
adequate and
effective relief.
4
The court itself has an interest to ensure that it will ultimately be
in a position to grant effective relief to the successful
party. For
reasons that will appear in due course, the issues in the main
application and also in this application are constitutional
issues,
in such cases the court considering whether to grant or refuse an
interim interdict must also bear in mind that the courts
have a
constitutional obligation to uphold the Constitution and to "declare
that any ... conduct that is inconsistent with
the Constitution is
invalid to the extent of its inconsistency".
5
The court must also bear in mind that not only the parties but
society as a whole have an interest in upholding the Constitution
and
that relief in cases of constitutional breaches must vindicate the
Constitution.
6
As a
first requirement, the applicant had to show that he has at least a
prima facie right, though it might be open to some doubt,
to the
relief he seeks in the main application, that is, to review and set
aside the decision to remove him from office. In other
words, the
applicant had on a prima facie basis to prove facts that establish
that his removal from office was unlawful and therefore
subject to be
reviewed and set aside.
In the
main application the applicant relies on a number of grounds for the
review of the President's decision. Some of those grounds
are
predicated thereon that the President's decision constituted
administrative action as defined in the Promotion of Administrative

Justice Act, 3 of 2000 (PAJA). Consequently, there was some debate
before me as to whether the President's decision constituted

administrative action as defined in PAJA or whether it constituted
the exercise of executive power. The court that deals with the
main
application will probably have to decide that issue. For the moment I
assume without finding that the decision to remove the
applicant from
office constituted the exercise of executive power.
In the
main application the applicant contends, among other grounds, that
the President's decision constituted a breach of the legality

principle in that it was not authorised by law.
7
Our Constitutional Court has held, and has repeatedly reaffirmed,
that "(i)t 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".
8
"Lawfulness is relevant to the exercise of all public power,
whether or not the exercise of the power constitutes administrative

action."
9
Therefore, it is necessary first to consider the legal provisions
that empower the President to remove the NDPP from office.
In
section 12(5) thereof the Act provides: "The National
Director.... shall not be suspended or removed from office except
in
accordance with the provisions of subsections (6), (7) and (8)."
I shall return to the facts in some more detail later.
It suffices
now to point out that when President Motlanthe took the decision, he
expressly relied on section 12(6)(a)(iv) of the
Act. It is also the
President's case in the main application that the decision was taken
in terms of section 12(6)(a)(iv). It is
on the empowering provision
of that subsection that I shall now concentrate.
Section
12(6)(a)(iv) of the Act provides that the President may remove a NDPP
from office "on account thereof that he or she
is no longer a
fit and proper person to hold the office concerned". The
applicant contends that the President had no factual
basis for
holding that he is no longer fit and proper to hold office and
therefore that his removal was not authorised by law.
The question is
whether the applicant has established on a prima facie basis that the
President acted without a factual basis.
Before I
turn to the facts, it is necessary to give content to the concept "a
fit and proper person" when one is dealing
with the NDPP.
Section 9 of the Act deals with the qualifications for appointment as
NDPP. Section 9(1)(b) provides that he or
she must "be a fit and
proper person, with due regard to his or her experience,
conscientiousness and integrity, to be entrusted
with the
responsibilities of the office concerned". But it goes further.
Section 179(4) of the Constitution provides that
"National
legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice."
This necessarily
implies that the Constitution requires an independent prosecuting
authority. Section 32 of the Act embodies that
constitutional
principle. I quote section 32(1):
"(1) (a) A member of
the prosecuting authority shall serve impartially and exercise,
carry out or perform his or her powers,
duties and functions in good
faith and without fear, favour or prejudice and subject only to the
Constitution and the law.
(b) Subject to the
Constitution and this Act, no organ of state and no member or
employee of an organ of state nor any other person
shall improperly
interfere with, hinder or obstruct the prosecuting authority or any
member thereof in the exercise, carrying
out or performance of its,
his or her powers, duties and functions."
Section
179(4) of the Constitution and section 32 of the Act entrench a
principle of prosecutorial independence that has long been
part of
our law. Prosecutors "have always owed a duty to carry out their
public functions independently and in the interests
of the public".
10
In R v Riekert
11
the principle was stated thus: "The public prosecutor has a
wider task than counsel or attorney for a client. He represents
the
state, the community at large and the interests of justice
generally...". Mr Budlender for the amicus curiae referred
to a
number of foreign law authorities from which it appears that similar
principles of prosecutorial independence apply in Canada,
in the
United States of America, in the United Kingdom and in Namibia. 'The
rule of law requires that, subject to any immunity
and exemption
provided by law, the criminal law of the land should apply to all
alike. ... The maintenance of public confidence
in the
administration of justice requires that it be, and be seen to be,
even-handed."
12
As the
head of the national prosecuting authority the NDPP has a duty to
ensure that this prosecutorial independence is maintained.
It follows
that a person who is fit and proper to be the NDPP will be able to
live out, and will live out in practice, the requirements
of
prosecutorial independence. That he or she must do without fear,
favour or prejudice.
The facts
giving rise to the decision to remove the applicant from office
briefly are the following. It is common cause that President
Mbeki
suspended the applicant from office in September 2007. He did that on
two grounds that purportedly rendered the applicant
not fit and
proper to hold office. After the suspension, acting in terms of
section 12(6)(a) of the Act, President Mbeki appointed
Dr F Ginwala
as chairperson of an inquiry to determine whether the applicant is a
fit and proper person to continue in the office
of NDPP. At the
instance of government representatives the inquiry went much wider
than the two original grounds. After a lengthy
inquiry, Dr Ginwala
prepared a report that she submitted to President Motlanthe on 4
November 2008. According to Dr Ginwala's report,
the government had
failed to substantiate any of the grounds upon which they had
contended that the applicant was no longer fit
and proper to hold
office. Dr Ginwala recommended that the applicant "be restored
to the office of NDPP".
Despite
her positive recommendation, Dr Ginwala in her report made certain
adverse findings against the applicant. Evidently based
on these
findings. President Motlanthe concluded, according to the written
reasons he gave, that the applicant's conduct in relation
to national
security issues indicates "a clear lack of insight, which by
further necessary implication rendered him a person
not fit and
proper to hold the office of NDPP". It is the latter inference
and also its factual basis that are at issue. The
applicant's
qualifications, his experience, his conscientiousness and his
integrity are not in question.
As to Dr
Ginwala's adverse findings against him, the applicant disputes the
factual correctness thereof. He also contends that he
was not
afforded an adequate opportunity to deal with the allegations that
gave rise to the findings.
To sum
up, the Ginwala-inquiry found the allegations giving rise to the
applicant's original suspension to be unsubstantiated. The
inquiry
found the applicant to be a fit and proper person to hold office and
recommended his reinstatement. Yet, based on factual
findings that
are in dispute, President Motlanthe removed him from office because
of a lack of insight into matters of national
security.
If Dr
Ginwala's adverse findings were incorrect, the basis for the
President's conclusion that the applicant is not a fit and proper

person falls away. I have pointed out that the applicant has put
forward facts that, on a prima facie basis show that the factual

findings were not correct. On that basis, the applicant has made out
a prima facie case that the decision to remove him from office
was
not authorised by the law and therefore is invalid.
Despite
her adverse findings, Dr Ginwala recommended the applicant's
reinstatement. President Motlanthe held a different view. Having

regard thereto that it was the purpose of Dr Ginwala's inquiry to
determine whether the applicant is fit and proper to hold office,
the
facts establish on a prima facie basis that President Motlanthe might
have misconstrued the term "a fit and proper person"
as a
requirement for the office of NDPP. It is possible that the court
might in the main application hold that, in view of the

constitutional requirement of prosecutorial independence, the
President's reasons for removing the applicant from office do not

show that he was in fact not a fit and proper person to hold the
office of NDPP. On that basis too the applicant has established
a
prima facie right the relief in the main application on the basis
that the decision to remove him breached the legality principle.
I
conclude that, based on the legality principle, the applicant has
established on a prima facie basis facts that, if proved finally,

will entitle him to the relief sought in the main application. The
applicant has at least put forward "a serious question
to be
tried" which is the test for interim relief that has been used
when constitutional issues are at stake.
13
For the
President Mr Buchanan submitted that the President has a
constitutional duty to appoint the NDPP. For the court now to
interdict him from doing so, will be an unnecessary breach of the
principle of the separation of powers.
In order
properly to consider Mr Buchanan's submission, it is necessary to
deal with a number of relevant legal principles. Those
principles
will also inform the proper consideration of the other requirements
for an interim interdict.
The
purported exercise of public power that is not authorised by law is
invalid from the outset.
14
A declaration that executive action is invalid "is merely
descriptive of a pre-existing state of affairs".
15
In the interest of an orderly society, however, such action is
treated as if it were valid until it is declared invalid.
16
The court that finds executive action not authorised by law, must
declare it invalid. Such a court, however, has the discretion
to
limit the retrospective effect of the declaration of invalidity.
17
If the latter power is exercised, the court does not, it cannot,
declare the action valid. In the exercise of its discretion the
court
may merely recognise the practical consequences of action that was
invalid, but was treated as if it were valid until declared
invalid
and thus limit the retrospective effect of its declaration of
invalidity.
18
When
there is a serious challenge to the validity of the purported
exercise of public power, a state of uncertainty necessarily
follows:
On the one hand the action is treated as if it were valid until
declared invalid. On the other hand the practical consequences
of the
action may turn out to be invalid, as well. For that reason the law
requires of all concerned to respect the pending legal
process and,
as far as is reasonably possible, to limit the practical consequences
of the challenged action, "in appropriate
circumstances ... an
authority should ... halt its actions when it is aware that review
proceedings are to be instituted against
it. Failure to do so may
render the official concerned liable for contempt of court".
19
Because
the decision to remove the applicant from office is at the moment
still treated as valid and because it might in the end
turn out to be
valid, counsel is correct that, strictly speaking, the President has
the power to appoint a new NDPP. I cannot agree,
however, that
interdicting the President from exercising that power would amount to
a breach of the separation of powers. The very
power to appoint a new
NDPP is the subject matter of court proceedings and, apart from the
considerations set out above, the law
affords the court the
discretion to issue the interim interdict.
I now turn to the
further requirements for an interim interdict.
The
second requirement is that the applicant has a reasonable
apprehension that he will suffer irreparable harm if the interdict
is
not granted. I have made reference to section 172(1)(a) of the
Constitution in terms whereof the court must declare conduct
that is
inconsistent with the constitution invalid. The effect of such a
declaration in the present case will be that the President's
decision
to remove the applicant from office will be void from its inception
and that it will have no legal force or effect.
20
The court can, in terms of section 172 make an order limiting the
retrospective effect of the declaration of invalidity.
Assuming
that the applicant will be successful in the main application, an
appointment now of a new NDPP will severely limit his
remedies. In
view of the fact that there will then be another NDPP in the post,
the court will be more inclined to limit the retrospective
effect of
its declaration of invalidity. The applicant's rights to be
reinstated will also be adversely affected. In my view there
is a
reasonable apprehension that the applicant will suffer irreparable
harm if the interim interdict is not granted.
In this
regard, the interests of the public as a whole must also be taken
into consideration. The public has an interest in the
President and
the courts upholding the Constitution. I have pointed out that if a
breach of the Constitution occurs, the public
as a whole has an
interest in an effective remedy. If, for the reasons that I have set
out, the applicant's remedies are limited,
then the public interest
is also affected adversely. Allowing the President now to appoint a
new NDPP might ultimately turn out,
if the applicant is successful,
to have countenanced the unlawful exercise of public power. That is
not in the interests of society
as a whole.
The third
requirement for an interim interdict is that the balance of
convenience must favour the grant of the interim interdict.
It is
common cause that, since the applicant's suspension in 2007 there has
been an acting NDPP. There is no evidence that he did
not duly and
properly perform the duties of the NDPP.
For the
President Mr Buchanan submitted that it is not desirable to continue
to have an acting NDPP performing the important functions
in
question. It may be accepted, as a general proposition, that it is
not desirable for a lengthy period of time to have an acting
NDPP.
That undesirability must be weighed against the alternative that the
appointment of a new NDPP offers.
I have
pointed out that the very lawfulness of the appointment of a new NDPP
will from the outset be at issue. Decisions of a person
who was
unlawfully appointed as NDPP might be subject to attack. It is not
now necessary to consider whether such attacks would
be successful.
The mere fact of such attacks and the attendant uncertainty are
undesirable. Moreover, the appointment of a new
NDPP might turn out
to be temporary. While the fact of the appointment might well
influence the court's exercise of its discretion,
it remains possible
that a court might remove the newly appointed NDPP so as to reinstate
the applicant. Such a state of affairs
is undesirable not only
because it renders the new appointment possibly temporary, but also
because the appointment itself creates
uncertainty.
In my
view the balance of convenience clearly favours the applicant,
especially in view thereof that there is no evidence that the
acting
appointment that has been in place for nearly two years has caused
any practical difficulties.
The
fourth requirement for an interim interdict is that the applicant
must show that he has no alternative remedy. Mr Buchanan submitted

that if the applicant is successful, it does not necessarily follow
that he will be reinstated. He could also claim damages for
his
unlawful dismissal.
I have
pointed out that conduct inconsistent with the Constitution is void
from its inception. From that it follows that the applicant
will
automatically be reinstated if the main application succeeds, unless
the court makes an order to limit the retrospective effect
of its
declaration. If the court makes such an order the applicant might be
constrained to claim damages. All of that is speculation,
however.
The only effective way to protect the applicant's right to
reinstatement if he succeeds is to grant the interim interdict.
I
have already pointed out the society as a whole also has an interest
in an effective remedy. To award damages to the applicant
might
countenance the invalid exercise of public power.
According
to its notice of motion, the applicant seeks the interim order
pending the final determination of the main application
or, in the
alternative, until this court has given judgment in the main
application. The court that deals with the main application
will be
in a much better position than this court to decide whether an
interim order should be made pending a possible appeal against
its
decision. In the circumstances I am of the view that the order must
be made pending judgment in the main application.
Mr
Bruinders submitted that costs should follow the event. There is
something to be said for the view that the President should
have been
advised not to oppose this application. I have, however, no basis to
doubt his assertion that he is acting in the interests
of orderly
government. In my view the equitable order will be to order that
costs be costs in the main application. In that way,
the party who is
ultimately successful will in effect have a costs order relating to
these proceedings in his favour.
In the result the
following order is made:
The first respondent is
interdicted from making a permanent appointment of a new National
Director of Public Prosecutions until
this court has given judgment
in the main application in case no. 8550/09.
The costs of this
application shall be costs in the main application.
B.R. du
Piessis
Judge of
the High Court
On behalf of the
Applicant:
Deneys Reitz
C/O
Mothle Jooma Sabdia Inc
1st Floor, West Wing,
Duncan Manor
Cnr Duncan/Brooks Streets
Brooklyn
PRETORIA
On behalf of the
Respondents:
State Attorney
8th Floor, Bothonga
Heights
167 Andries Street
PRETORIA
On behalf of
Freedom under law:
Webber Wentzel
C/O
Friedland & Hart
4-301 Monument
Park
PRETORIA
1
See section 12(6)(b) of the Act.
2
The Law of South Africa (2nd edition) Vol. 11, p. 419, para 403.
3
Harms: Civil Procedure in the Supreme Court A5.6 with the
authorities at footnote 1.
4
See V & A Waterfront Properties v Helicopter & Marine
Services
2006 (1) SA 252
(SCA)
where, in para. 23.
where the court held that a litigant is entitled not to be forced
to seek alternative relief. The judgment
dealt with final relief
but the principle applies here.
5
Section 172(1) of the Constitution.
6
Tswelopele Non-Profit Organisation and Others v City of Tshwane
Metropolitan Municipality and Others
2007 (6) SA 511
(SCA) at para
17, 27 and 28 with the authorities there.
7
The rule of law, and thus the principle of legality, is a founding
principles of our Constitution, see section 1(c).
8
Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Metropolitan Council and Others 1999 (SA) 374 (CC) at para. 58 See

also Pharmaceutical Mnfrs of SA: in re ex parte President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para 17 to 20.
9
Minister of Health v New Clicks SA (Pty) Ltd and Others
2006 (2) SA
311
(CC) at para. 144.
10
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC)
para.72.
11
1954 (4) SA 254
(SWA) at 2610 to G. See also S v Yengeni
[2005] ZAGPHC 117
;
2006 (1)
SACR 405
(T) at para. 51.
12
The quotation is from the main judgment of the Privy Council in
Sharma v Brown-Antoine and Others
[2007] 1 WLR 78
0 (PC).
13
Ferreira v Levin NO; Vryenhoek v Powell NO
1995 (2) SA 813
(W) at
825C.
14
See sections 1(c) and 2 of the Constitution.
15
Per Kriegler J in Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA
786
(CC) at p. 94.
16
Hoexter: Administrative Law in South Africa, p. 486.
17
Section 172(1)(b)(i) of the Constitution.
18
See Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA). See also the discussion by Hoexter: Administrative Law in
South Africa at p. 486.
19
De Vilie: Judicial Review of Administrative Action in South Africa
at pp. 332 and 333
20
See Hoexter at pp. 484 - 485