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[2000] ZACC 22
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South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000] ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 27/00
SOUTH AFRICAN ASSOCIATION OF PERSONAL
INJURY LAWYERS Appellant
versus
HEATH, WILLEM HENDRIK First
Respondent
THE SPECIAL INVESTIGATING UNIT Second
Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third
Respondent
THE MINISTER OF JUSTICE Fourth Respondent
Heard
on : 7 September 2000
Decided on : 28 November
2000
JUDGMENT
CHASKALSON P:
Introduction
[1]
The Special Investigating
Units and Special Tribunals Act
[1]
(the Act) came into force in November 1996. According to the long title of the
Act, its purpose is:
“To provide for the establishment of Special Investigating Units for the
purpose of investigating serious malpractices or maladministration
in connection
with the administration of State institutions, State assets and public money as
well as any conduct which may seriously
harm the interests of the public, and
for the establishment of Special Tribunals so as to adjudicate upon civil
matters emanating
from investigations by Special Investigating Units; and to
provide for matters incidental thereto.”
[2]
This appeal concerns the
constitutionality of important provisions of the Act and of two proclamations
issued by the President pursuant
to its provisions. It reflects a tension that
often exists between the need on the part of government to confront threats to
the
democratic state, and the obligation on it to do so in a manner that
respects the values of the Constitution.
[3]
The tension is evident in
the affidavit of the Minister of Justice, the fourth respondent in the
application, who said:
“It is a regrettable and notorious fact that the levels of crime in South
Africa are unacceptably high. One aspect of crime
which requires special
investigative measures relates to corruption and unlawful conduct involving
state institutions, state property
and public money. Very often, such conduct
is perpetrated by public servants and state officials. The experience of other
countries
suggests that the investigation of conduct of this nature requires
special measures beyond the routine investigations conducted by
conventional law
enforcement agencies.”
[4]
Corruption and
maladministration are inconsistent with the rule of law and the fundamental
values of our Constitution. They undermine
the constitutional commitment to
human dignity, the achievement of equality and the advancement of human rights
and freedoms. They
are the antithesis of the open, accountable, democratic
government required by the Constitution. If allowed to go unchecked and
unpunished they will pose a serious threat to our democratic state. There can
be no quarrel with the purpose sought to be achieved
by the Act, or the
importance of that purpose. That purpose must, however, be pursued in
accordance with the provisions of the Constitution.
The appeal in the present
case depends upon whether this has been
done.
The background
[5]
In March 1997 the President,
acting under the provisions of the Act, established a special investigating unit
(SIU), which is the
second respondent in this appeal. The head of the SIU is
the first respondent who is a judge of the High Court. I will deal later
with
the role of the head of the SIU and with the powers vested in the SIU by the
Act. For the moment, it is sufficient to say that
the SIU has extensive powers
including powers to investigate allegations of corruption, maladministration and
unlawful or improper
conduct which is damaging to State institutions, or which
may cause serious harm to the interests of the public or any category thereof
and to take proceedings to recover losses that the state may have suffered in
consequence thereof.
[6]
On 26 March 1999 an
allegation was referred to the second respondent for investigation in terms of
the Act. The allegation was that
there had
been
“a failure by attorneys, acting on behalf of any person with regard to a
claim for compensation from the Road Accident Fund,
to pay over to such persons
the total nett amount received in respect of compensation from the Road Accident
Fund after deduction
of a reasonable and/or taxed amount in respect of
attorney-client costs . .
.”
[2]
[7]
The appellant is a voluntary
association whose members are attorneys and advocates whose practices involve
personal injury litigation.
It contends that the investigative powers vested in
the second respondent by the Act are highly intrusive, that the exercise of
such
powers against any of its attorney members would constitute an invasion of their
privacy, and would cause irreparable damage
to their professional reputation.
Although the appellant denies that any of its members has ever acted unlawfully
or improperly
in connection with amounts received by them on behalf of their
clients in respect of compensation from the Road Accident Fund (RAF),
it says
that it has ascertained that the SIU is soliciting complaints against some of
its members to enable the unit to investigate
the way they deal with RAF
claims.
[8]
It was in these
circumstances that the appellant brought proceedings in the Transvaal High
Court. It asked for an order declaring
certain provisions of the Act to be
inconsistent with the Constitution. Further, the appellant asked for orders
reviewing and setting
aside the proclamation under which the first respondent
was appointed and the proclamation under which allegations concerning personal
injury lawyers were referred to the second respondent for investigation. Other
relief not relevant to this appeal was also
claimed.
[9]
The application was
dismissed by Coetzee AJ in the High
Court
[3]
and, with leave granted in
terms of rule 18, the appellant has appealed directly to this Court against that
order. The first and
second respondents indicated in the High Court that they
took a neutral stand in the matter, and that they would abide the decision
of
that Court. They have made no representations to this Court. The third and
fourth respondents opposed the appeal.
The
issues
[10]
In the High Court the third
and fourth respondents (the respondents) raised a number of preliminary issues.
They disputed the standing
of the appellant to claim the relief sought by it and
they contended that the application was premature. They also contended that
the
appellant lacked the capacity to litigate because it had more than 20 members,
was an association formed for the purpose of carrying
on a business for the
acquisition of gain by its members, and in contravention of the Companies Act 61
of 1973
[4]
was not registered as a
company under that Act. The preliminary objections were dismissed by Coetzee
AJ.
[5]
Although the appellant raised
the issues again in its written argument before this Court, we were informed at
the hearing of the
appeal that it no longer relied on these contentions, and
that it abandoned them. In the circumstances there is no need to say anything
more about this.
[11]
Three separate issues are
raised by the appellant in the appeal. It contends that:
a) section 3(1) of the Act and the appointment of the first
respondent
[6]
as head of the SIU are
inconsistent with the Constitution because they undermine the independence of
the judiciary and the separation
of powers that the Constitution
requires;
b) the Proclamation referring the allegation concerning the conduct of attorneys
dealing with RAF claims
[7]
was in any
event beyond the scope of the Act and accordingly invalid;
and
3) the powers of search vested in the second respondent by the Act are contrary
to the right to privacy which everyone has under
section 14 of the Constitution,
and are accordingly invalid.
Before considering these
contentions it will be convenient to set out the scheme of the Act and the
provisions relevant to this appeal.
The scheme and relevant provisions
of the Act
[12]
The President is empowered
by the Act
[8]
to establish an SIU for
the purpose of investigating allegations of maladministration or unlawful or
improper conduct on any of
the grounds specified in section 2(2) of the Act.
The grounds referred to in sub-section (2) are any
alleged:
“(
a
) serious maladministration in connection with the affairs of
any State institution;
(
b
) improper or unlawful conduct by employees of any State
institution;
(
c
) unlawful appropriation or expenditure of public money or
property;
(
d
) unlawful, irregular or unapproved acquisitive act, transaction,
measure or practice having a bearing upon State property;
(
e
) intentional or negligent loss of public money or damage to public
property;
(
f
)
corruption in connection with the affairs of any State
institution; or
(
g
) unlawful or improper conduct by any person which has caused or may
cause serious harm to the interests of the public or any category
thereof.”
[13]
Section 3(1) of the Act
provides that the President must appoint a judge or an acting judge of a High
Court as head of the SIU. The
head of the SIU appoints the staff of the unit
which consists of “as many . . . fit and proper persons” as in the
opinion
of the head of the unit are necessary for its effective
functioning.
[9]
The SIU has extensive
powers of investigation including the power to summon and interrogate persons
and to conduct searches for
evidence that may be relevant to its
investigations.
[14]
If the SIU obtains evidence
“substantiating any allegation contemplated in section 2 (2)” it may
institute civil proceedings
in respect of such matters in a Special Tribunal
(ST)
[10]
established in terms of the
Act to deal with such matters.
[15]
The Act vests the ST with
jurisdiction to adjudicate upon any civil dispute emanating from the SIU’s
investigations and brought
before it by the SIU. The ST may make any order
which it deems appropriate to give effect to its decision. The ST functions in
the same way as a court according to rules made by its
President.
The role of the first respondent
as head of the SIU
[16]
The SIU is a juristic
person.
[11]
According to Mr
Rheeder, who describes himself as the manager of a team of investigators and the
person in charge of the investigation
against the attorneys, the first
respondent is the full time head of the SIU and has not sat as a judge since the
establishment of
the second respondent in March
1997.
[17]
The extensive nature of the
functions performed by the head of the SIU appears from the Minister’s
affidavit. The SIU is currently
engaged in investigations into approximately
100 organs of state said to involve 221580 cases. The investigations extend
over all
9 provinces and include 12 national investigations. Very substantial
sums of money, amounting in all to about R3 billion are said
to be at stake. As
head of the unit the first respondent is required to perform executive
functions. He is responsible for the
appointment of the staff of the
unit
[12]
who may include officers
seconded from the public
service.
[13]
He is also responsible
for their supervision and has the power to remove any member of the unit from
office “if there are
sound reasons for doing
so”.
[14]
The SIU may require
any person to provide it with information that may be reasonably necessary for
the performance of its
functions,
[15]
may require any
person to appear before it to produce books, documents or
objects,
[16]
may question any person
under oath,
[17]
may enter and search
premises in accordance with the provisions of the
Act,
[18]
and for that purpose may
“use such force as may be necessary to overcome resistance against such
entry and search of the premises,
including the breaking of any door or
window”.
[19]
The SIU must
refer evidence pointing to the commission of an offence to the relevant
prosecuting authority,
[20]
and may
institute civil proceedings in a ST if it has obtained evidence substantiating
any allegation contemplated in section 2(2)
of the
Act.
[21]
The first respondent is
ultimately accountable for the performance of these functions. As head of the
unit he may also refer matters
to the Public
Protector
[22]
and to the state
attorney or a State institution for the institution of legal proceedings against
any person, if during the course
of an investigation information comes to his
attention which in his opinion justifies the institution of such proceedings by
a State
institution.
[23]
The first
respondent has to determine how each of the investigations is to be
conducted,
[24]
and as head of the
unit he also has the power to issue interdicts or suspension orders if he has
reason to believe that delay in
applying to the ST for such orders would cause
serious and irreparable harm to the interests of the public. Any such order has
to
be confirmed by the ST within 48
hours.
[25]
The size of the
SIU’s staff and its budget are not referred to in the papers, but they
must be substantial. The SIU must
“from time to time as directed by the
President” report on
progress,
[26]
and upon the
conclusion of the investigation make a final report to the
President.
[27]
At least twice a
year the SIU must report to parliament on its investigations, activities,
composition and expenditure.
[28]
The
State Liability Act 20 of 1957
is applicable to the SIU, and for the
purposes of that Act, the head of the SIU is equated to a Minister of a
department.
[29]
[18]
Coetzee AJ held that the
functions that the first respondent is required to perform under the Act as head
of the SIU are not inconsistent
with the independence of the judiciary. He held
that under our Constitution there is no express provision dealing with the
separation
of powers, and that it was not competent for a court to set aside a
legislative provision on the basis that it violates what, at
best for the
appellant, is no more than a “tacit” principle of the
Constitution.
[30]
He held further
that United States and Australian authorities relied upon by the appellant were
not relevant, because the constitutions
of those countries provide for a rigid
separation of powers, whereas our Constitution does not do
so.
[31]
[19]
In the law of contract a
distinction is drawn between tacit and implied terms. The former refers to
terms that the parties intended
but failed to express in the language of the
contract, and the latter, to terms implied by
law.
[32]
The making of such a
distinction in this judgment might be understood as endorsing the doctrine of
original intent, which this Court
has never
done.
[33]
I prefer, therefore, to
refer to unexpressed terms as being “implied” or
“implicit”.
[34]
[20]
Coetzee AJ cited no
authority for his finding that a legislative provision cannot be set aside on
the grounds that it is inconsistent
with an implied provision of the
Constitution. Counsel were unable to refer us to any authority for such a
proposition and Mr Marcus
who appeared for the respondents placed no reliance on
it. I cannot accept that an implicit provision of the Constitution has any
less
force than an express provision. In
Fedsure
[35]
this Court held
that the principle of legality was implicit in the interim Constitution, and
that legislation which violated that
principle would be inconsistent with the
Constitution and
invalid.
[36]
[21]
The constitutions of the
United States and Australia, like ours, make provision for the separation of
powers by vesting the legislative
authority in the legislature, the executive
authority in the executive, and the judicial authority in the
courts.
[37]
The doctrine of
separation of powers as applied in the United States is based on inferences
drawn from the structure and provisions
of the Constitution, rather than on an
express entrenchment of the
principle.
[38]
In this respect, our
Constitution is no different.
[22]
In the first certification
judgment this Court held that the provisions of our Constitution are structured
in a way that makes provision
for a separation of
powers.
[39]
In the
Western
Cape
case
[40]
it enforced that
separation by setting aside a proclamation of the President on the grounds that
the provision of the Local Government
Transition
Act,
[41]
under which the President
had acted in promulgating the Proclamation, was inconsistent with the separation
of powers required by
the Constitution, and accordingly invalid. It has also
commented on the constitutional separation of powers in other
decisions.
[42]
There can be no
doubt that our Constitution provides for such a separation, and that laws
inconsistent with what the Constitution
requires in that regard, are
invalid.
[23]
In the United States the
President is head of government and head of state. The President is popularly
elected,
[43]
and neither the
President nor the cabinet are members of Congress. The President is, however,
vested with the power to veto legislation
passed by
Congress.
[44]
In South Africa the
President is head of government and head of state. The President is elected by
parliament from amongst its
members but ceases to be a member of parliament
after having been elected. Cabinet Ministers are appointed by the President
from
amongst members of parliament, remain members of parliament after their
appointment, and are directly answerable to it. There is
accordingly not the
same separation between the legislature and the executive as there is in the
United States. In this respect,
the South African system of separation of
powers is closer to the Australian
system.
[45]
There, the head of
state is the Queen, represented in Australia by the Governor General. The
Commonwealth government is headed
by the Prime Minister, and the Prime Minister
and cabinet are members of parliament. Under this system of “responsible
government”
the separation between the legislature and the executive is
not as strict as it is in the United States. In all three countries,
however,
there is a clear though not absolute separation between the legislature and the
executive on the one hand, and the courts
on the
other:
[46]
it is that separation
that is in issue in the present case.
[24]
The practical application
of the doctrine of separation of powers is influenced by the history,
conventions and circumstances of the
different countries in which it is applied.
In
De Lange v Smuts
Ackermann J said:
“I have no doubt that over time our Courts will develop a distinctively
South African model of separation of powers, one that
fits the particular system
of government provided for in the Constitution and that reflects a delicate
balancing, informed both by
South Africa’s history and its new
dispensation, between the need, on the one hand, to control government by
separating powers
and enforcing checks and balances and, on the other, to avoid
diffusing power so completely that the government is unable to take
timely
measures in the public interest.
This is a complex matter which will be developed more fully as cases involving
separation of powers issues are decided. For the
moment, however, it suffices
to say that, whatever the outer boundaries of separation of powers are
eventually determined to be,
the power in question here — ie the power to
commit an unco-operative witness to prison — is within the very heartland
of the judicial power and therefore cannot be exercised by non-judicial
officers.”
[47]
The
present case is concerned not with the intrusion of the executive into the
judicial domain, but with the assignment to a member
of the judiciary by the
executive, with the concurrence of the legislature, of functions close to the
“heartland” of
executive power.
[25]
The separation of the
judiciary from the other branches of government is an important aspect of the
separation of powers required
by the Constitution, and is essential to the role
of the courts under the Constitution. Parliament and the provincial
legislatures
make the laws but do not implement them. The national and
provincial executives prepare and initiate laws to be placed before the
legislatures, implement the laws thus made, but have no law-making power other
than that vested in them by the legislatures. Although
parliament has a wide
power to delegate legislative authority to the executive, there are limits to
that power.
[48]
Under our
Constitution it is the duty of the courts to ensure that the limits to the
exercise of public power are not transgressed.
Crucial to the discharge of this
duty is that the courts be and be seen to be
independent.
[26]
The separation required by
the Constitution between the legislature and executive on the one hand, and the
courts on the other, must
be upheld otherwise the role of the courts as an
independent arbiter of issues involving the division of powers between the
various
spheres of government, and the legality of legislative and executive
action measured against the Bill of Rights, and other provisions
of the
Constitution, will be undermined. The Constitution recognises this and imposes
a positive obligation on the state to ensure
that this is done. It provides
that courts are independent and subject only to the Constitution and the law
which they must apply
impartially without fear, favour or
prejudice.
[49]
No organ of state or
other person may interfere with the functioning of the
courts,
[50]
and all organs of state,
through legislative and other measures, must assist and protect the courts to
ensure their independence,
impartiality, dignity, accessibility and
effectiveness.
[51]
[27]
Mr Marcus submitted that
the principle of separation of powers is not necessarily compromised whenever a
particular judge is required
to perform non-judicial functions. He accepted,
however, that the performance of functions incompatible with judicial office
would
not be permissible. This is consistent with what this Court said in
President of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[52]
where it stated that “judicial officers may, from time to time, carry out
administrative tasks” but noted that “[t]here
may be circumstances
in which the performance of administrative functions by judicial officers
infringes the doctrine of separation
of
powers.”
[53]
[28]
It is also consistent with
the United States and Australian cases referred to by Mr Trengove, who appeared
for the appellant. No
precise criteria are set in those decisions for
establishing whether or not a particular assignment is permissible. The courts
in
both these countries determine this in the light of relevant considerations
referred to in the judgments.
[29]
Mr Trengove sought to
distill from these authorities certain criteria, which he submitted are relevant
to considering whether or not
under our Constitution it is permissible to assign
a non-judicial function to a judge. They are whether the performance of the
function
(a) is more usual or appropriate to another branch of
government;
[54]
(b) is subject to executive control or
direction;
[55]
(c) requires the judge to exercise a discretion and make decisions on the
grounds of policy rather than
law;
[56]
(d) creates the risk of judicial entanglement in matters of political
controversy;
[57]
(e) involves the judge in the process of law
enforcement;
[58]
(f) will occupy the judge to such an extent that he or she is no longer able to
perform his or her normal judicial
functions.
[59]
To
this may be added Blackmun J’s summary of the American jurisprudence as
showing that:
“Congress may delegate to the Judicial Branch non-adjudicatory functions
that do not trench upon the prerogative of another
Branch and that are
appropriate to the central mission of the
Judiciary.”
[60]
[30]
These considerations seem
to me to be relevant to the way our law of separation of powers should be
developed. Mr Marcus did not
dispute their relevance, but submitted that they
must be seen in the context of each particular case. They should be given a
weight
appropriate to the nature of the function that the judge is required to
perform, and the need for that function to be performed by
a person of undoubted
independence and integrity.
[31]
It is undesirable,
particularly at this stage of the development of our jurisprudence concerning
the separation of powers, to lay
down rigid tests for determining whether or not
the performance of a particular function by a judge is or is not incompatible
with
the judicial office. The question in each case must turn upon
considerations such as those referred to by Mr Trengove, and possibly
others,
which come to the fore because of the nature of the particular function under
consideration. Ultimately the question is
one calling for a judgement to be
made as to whether or not the functions that the judge is expected to perform
are incompatible
with the judicial office, and if they are, whether there are
countervailing factors that suggest that the performance of such functions
by a
judge will not be harmful to the institution of the judiciary, or materially
breach the line that has to be kept between the
judiciary and the other branches
of government in order to maintain the independence of the judiciary. In making
such judgement,
the court may have regard to the views of the legislature and
executive, but ultimately, the judgement is one that it must make
itself.
[32]
Counsel for the respondents
contended that our Constitution makes specific provision for the judiciary to
perform certain functions
that are of a non-curial character, and that it
accordingly contemplates a less rigid separation of powers than the United
States
and Australian constitutions. The non-curial functions referred to in
the Constitution include the following. The President of
the Constitutional
Court presides over the election of the President, and designates judges to
preside over the election of
Premiers.
[61]
If there is a vacancy
in the office of President or Premier, the President of the Constitutional Court
sets the time for such elections
to be
held.
[62]
The President of the
Constitutional Court determines the time for the first sitting of the National
Assembly
[63]
and also presides over
the election of the Speaker of the National
Assembly.
[64]
Judges designated by
the President of the Constitutional Court determine the time for the first
sittings of provincial
legislatures,
[65]
and preside over
the election of Speakers of such
legislatures.
[66]
A judge is
appointed to perform these functions to ensure that they are carried out
impartially and strictly in accordance with
constitutional requirements and this
is not inconsistent with the role of the judiciary in a democratic society.
Counsel also referred
to section 178 of the Constitution, which makes provision
for judges to sit on the Judicial Service Commission, the majority of whose
members are not judicial officers. The Commission has a central role in the
appointment of judges and may also give advice to the
government on matters
relating to the judiciary or the administration of justice. The functions of
the Judicial Service Commission
are not inconsistent with the role of the
judiciary in a democratic society. The appointment of judges is crucial to the
functioning
of independent courts. The giving of advice on the administration
of justice is also related to the subject matter of the judicial
office.
Government is not bound by the advice given, and if the subject on which advice
is sought is contentious, the judges concerned
can decline to participate in the
giving of such advice.
[33]
Coetzee AJ held that it was
part of the legal tradition of our country for judges to perform executive
functions such as presiding
over commissions of inquiry and sanctioning the
issuing of search warrants. He equated an appointment as head of the SIU to
these
functions.
[67]
The
“tradition” referred to by Coetzee AJ comes from the era of
parliamentary sovereignty. What is now permissible
must be determined in the
light of our new Constitution, and not necessarily by past
practices.
[34]
In dealing with the
question of judges presiding over commissions of inquiry, or sanctioning the
issuing of search warrants, much
may depend on the subject matter of the
commission and the legislation regulating the issue of warrants. In appropriate
circumstances
judicial officers can no doubt preside over commissions of inquiry
without infringing the separation of powers contemplated by our
Constitution.
The performance of such functions ordinarily calls for the qualities and skills
required for the performance of judicial
functions - independence, the weighing
up of information, the forming of an opinion based on information, and the
giving of a decision
on the basis of a consideration of relevant information.
The same can be said about the sanctioning of search warrants, where the
judge
is required to determine whether grounds exist for the invasion of privacy
resulting from
searches.
[68]
[35]
The fact that it may be
permissible for judges to perform certain functions other than their judicial
functions does not mean that
any function can be vested in them by the
legislature. There are limits to what is permissible. Certain functions are so
far removed
from the judicial function, that to permit judges to perform them
would blur the separation that must be maintained between the judiciary
and
other branches of government. For instance under our system a judicial officer
could not be a member of a legislature or cabinet,
or a functionary in
government, such as the commissioner of police. These functions are not
“appropriate to the central mission
of the
judiciary.”
[69]
They are
functions central to the mission of the legislature and executive and must be
performed by members of those branches of
government.
[36]
The first respondent has
not intruded into the affairs of the executive at his own instance. The
legislature made provision for the
appointment in the Act and the executive,
through the President, requested the first respondent to accept the appointment.
I have
no doubt that in accepting the appointment the first respondent acted in
what he perceived to be the national interest. The fact,
however, that all
involved acted in good faith and in what they perceived to be the interests of
the country, does not make lawful,
legislation or conduct that is inconsistent
with the separation of powers required by the
Constitution.
[70]
[37]
The respondents contend
that the position of head of the SIU is not incompatible with judicial office.
They stress the importance
of the SIU in the fight against corruption, and
support the appointment of a judge as head of the SIU on the ground that it is
important
that the unit be headed by a person whose integrity is beyond
reproach. This, said the Minister,
“was especially important given the nature and ambit of the tasks which
the Unit would be required to perform. It was for
this reason that it was
thought desirable that these tasks should be supervised by a judge or acting
judge of the High Court. Not
only was the view taken that a judge or acting
judge would be possessed of the necessary integrity, but it was also believed
that
a judge or acting judge would have the requisite skills and expertise to
perform the functions envisaged by the Act.”
[38]
I accept that it is
important that the head of the SIU should be a person of integrity. But judges
are not the only persons with
that attribute. The functions that the head of
the SIU has to perform are executive functions, that under our system of
government
are ordinarily performed by the police, members of the staff of the
National Prosecuting Authority or the state attorney. They are
inconsistent
with judicial functions as ordinarily understood in South
Africa.
[39]
I have already referred to
the functions that the head of the SIU has to
perform.
[71]
They include not only
the undertaking of intrusive investigations, but litigating on behalf of the
state to recover losses that
it has suffered as a result of corrupt or other
unlawful practices. Judges who perform functions such as presiding over a
commission
of inquiry, or sanctioning search warrants, may also become involved
in litigation. But that is an unwanted though possibly unavoidable
incident of
the discharge of what are essentially judicial functions. One of the purposes
of the Act is to provide special measures
for the recovery of money lost by the
state, and in the case of the head of the SIU therefore, litigation on behalf of
the state
is an essential part of the job.
[40]
The functions a judge who
heads the SIU has to perform are all related to the purpose of recovering money
for the state, if necessary
through litigation. By their very nature, such
functions are partisan. The judge cannot distance himself or herself from the
actions
of the SIU’s investigators. The evidence in this case provides
illustrations of partisan conduct on the part of investigators
of the SIU, which
are inconsistent with the judicial office.
[41]
The first respondent has
not been able to perform his judicial duties for a period of more than 3 years.
His appointment is indefinite,
and will continue unless he resigns, or is
requested by the President, with the consent of the Judicial Service Commission,
to resign.
Given the workload of the SIU and the indefinite nature of his
appointment, he might never return to his judicial duties, yet he
remains a
judge.
[42]
Mr Marcus contended that
the fact that the head of the unit has been unable to perform his judicial
duties for a long period of time,
and will continue to be unable to do so for as
long as he remains head of the unit, is not relevant. If the functions of head
of
the SIU and judge are incompatible, that incompatibility existed on the day
of the appointment. If they are not incompatible, they
do not become so because
the appointment is for a long period of time.
[43]
Whilst the length of the
appointment is not necessarily decisive in the determination of the question
whether the functions a judge
is expected to perform are incompatible with the
judicial office, it is, as indicated above, a relevant
factor.
[72]
There may be cases
where as a matter of urgency a judge is required in the national interest to
perform functions which go beyond
the functions ordinarily performed by judicial
officers. I express no opinion as to whether the performance of such functions
for
a limited period in such circumstances would be permissible under our
Constitution. The present case, however, is not such a case.
The Act
contemplates that the head of the Unit will be appointed indefinitely, and the
nature of the functions that have to be performed,
require that this should be
so. The unit could not function effectively if the appointment of its head were
to be made on a temporary
basis, calling for changes at regular intervals. That
would be destructive of the work of the Unit which requires the continuity
and
control that comes from a permanent appointment, or at least an appointment for
an indefinite but long term.
[44]
In
Wilson v Minister for
Aboriginal and Torres Strait Islander
Affairs
[73]
the Australian High
Court reviewed the Australian authorities dealing with the separation of powers.
The case concerned the question
whether the constitution permitted the Minister
to appoint Justice Mathews to prepare a report about the declaration for
preservation
and protection from injury or desecration of land of particular
significance to Aboriginals, and whether it permitted Justice Mathews
to accept
such appointment. The report was to be used as an aid to the exercise of the
Minister’s discretionary power to make
a declaration with regard to land
in relation to which a group had sought protection. Under the Aboriginal and
Torres Strait Islander
Heritage Protection Act of 1984 the Minister was required
to commission a report from a person nominated by him. The majority held
that
the nomination and appointment of Justice Mathews was not effective as the
performance of the reporting function would be inconsistent
with the separation
of powers required by the Constitution. Kirby J dissented. Notwithstanding
his dissent, he expressed sympathy
for the view taken by Mc Hugh J in
Grollo's
case
[74]
in words
that seem to me to be of particular relevance to the present case:
“it is not compatible with the holding of federal judicial office in
Australia for such an office holder to become involved
as ‘part of the
criminal investigative process’, closely engaged in work that may be
characterised as an adjunct to the
investigatory and prosecutory functions.
Such activities could ‘sap and undermine’ both the reality and the
appearance
of the independence of the judicature which is made up of the courts
constituted by individual judges. They could impermissibly
merge the judiciary
and the other branches of government. The constitutional prohibition is
expressed so that the executive may
not borrow a federal judge to cloak actions
proper to its own functions with the ‘neutral colours of judicial
action’.
[75]
[45]
The functions that the head
of the SIU is required to perform are far removed from “the central
mission of the judiciary.”
They are determined by the President, who
formulates and can amend the allegations to be investigated. If regard is had
to all
the circumstances including the intrusive quality of the investigations
that are carried out by the SIU, the inextricable link between
the SIU as
investigator and the SIU as litigator on behalf of the state, and the indefinite
nature of the appointment which precludes
the head of the unit from performing
his judicial functions, the first respondent's position as head of the SIU is in
my view incompatible
with his judicial office and contrary to the separation of
powers required by our Constitution.
[46]
Under our Constitution, the
judiciary has a sensitive and crucial role to play in controlling the exercise
of power and upholding
the bill of rights. It is important that the judiciary
be independent and that it be perceived to be independent. If it were to
be
held that this intrusion of a judge into the executive domain is permissible,
the way would be open for judges to be appointed
for indefinite terms to other
executive posts, or to perform other executive functions, which are not
appropriate to the “central
mission of the judiciary.” Were this to
happen the public may well come to see the judiciary as being functionally
associated
with the executive and consequently unable to control the
executive’s power with the detachment and independence required by
the
Constitution. This, in turn, would undermine the separation of powers and the
independence of the judiciary, crucial for the
proper discharge of functions
assigned to the judiciary by our Constitution. The decision, therefore, has
implications beyond the
facts of the present case, and states a principle that
is of fundamental importance to our constitutional order. It follows that
section 3(1) of the Act and Proclamation R24 of 1997, appointing the first
respondent as head of the SIU, must be declared to be
invalid.
Appropriate relief
[47]
Mr Marcus contended that
the role of the head of the SIU as litigator could be separated from the role of
the head of the unit as
investigator. He submitted that the latter, taken on
its own, is similar to the role performed by a judge who presides over a
commission
of inquiry, and would not be inconsistent with the judicial office.
He referred in this regard to New South Wales legislation, which
makes provision
for a judge to preside over a commission into corruption. The terms of the New
South Wales legislation were not
referred to, nor the demands that it makes on
the ordinary duties of the judge. In any event, a judge of the New South Wales
Supreme
Court is not subject to the separation of powers that applies to judges
of the Australian High Court and federal judges. The latter
hold office under
the Commonwealth Constitution which provides for a separation of powers. The
former hold office under the New
South Wales Constitution, which does not make
the same provision for a separation of
powers.
[76]
[48]
In the view that I take of
this matter, however, it is not necessary to decide whether the investigatory
functions of the head of
the SIU are consistent with the Constitution.
Investigation and litigation by the SIU are inextricably linked, and the Act
makes
no provision for them to be dealt with by separate functionaries.
Moreover, the appointment of the head of the SIU is for an indefinite
period
involving the performance of numerous ongoing tasks, and is not an appointment
for a single inquiry of limited duration, which
permits the judge to return to
his or her judicial functions once the inquiry has been completed. In my view
this is not a case
in which severance or notional severance would be an
appropriate order. What then is appropriate?
[49]
If the declarations of
invalidity were to have immediate effect, that would undermine the important
work being done by the SIU. The
legislation has been drafted on the basis that
the head of the SIU will control its activities, and will be a person of
integrity
and independence. If that person cannot be a judge, other criteria
must be set for measuring the independence and integrity of the
person to be
appointed to that office.
[50]
The fact that the head of
the SIU is a judge does not prejudice the persons being investigated. What is
involved is the principle
that judges must be, and be seen to be, separate from
and independent of the legislature and executive. The blurring of this line
has
already occurred, and is not likely to be increased in a material respect if the
first respondent continues temporarily to be
head of the unit until appropriate
arrangements are made for his replacement. On the other hand, the SIU cannot
function without
a head of the unit. In the circumstances of the present case,
there are good reasons to suspend the declarations of invalidity pertaining
to
section 3(1) of the Act and the appointment of the first respondent as head of
the unit. If the declarations of invalidity are
suspended provision can be made
for an orderly transfer of the powers of the head of the unit to a functionary
who is not a member
of the judiciary. That will require amendments to be made
to the legislation and time will be required for that purpose. In the
meantime
the important work being done by the SIU can continue. I will deal later with
what is an appropriate period.
The
Interpretation of section 2(2) of the Act
[51]
The President may refer
matters to the SIU for investigation only on the grounds mentioned in section
2(2) of the Act: namely, allegations
concerning matters detailed in the
subsection.
[77]
The appellant
contends that the allegations in the present case do not fall within the purview
of section 2(2).
[52]
Section 2(2) deals with the
ambit of the application of the Act which contains various provisions that
impact upon an entrenched constitutional
right to
privacy
[78]
of the persons affected
by them; the broader the reach of the Act, the greater the invasion of privacy.
In construing section 2(2)
regard must be had to the “the spirit, purport
and objects” of the Bill of
Rights.
[79]
The spirit, objects and
purport of the Bill of Rights, here the protection of privacy, will better be
met in this case by giving
a narrow rather than a broad interpretation to these
provisions.
[53]
Section 2(2) contains seven
sub-paragraphs.
[80]
The President
relied on sub-paragraphs (c) and (g) in referring the matter to the SIU for
investigation. Counsel for the respondents
correctly did not suggest that there
were other grounds on which the matter could be referred. Sub-paragraphs (c)
and (g) provide:
“(c) unlawful appropriation or expenditure of public money or
property.
. . . .
(g) unlawful or improper conduct by any person which has caused or may cause
serious harm to the interests of the public or any category
thereof.”
[54]
The purpose of the Act
appears from its long title which is referred to in paragraph [1] above. That
purpose is to provide mechanisms
for the investigation of “serious
malpractices or maladministration in connection with the administration of State
institutions,
state assets and public money as well as any conduct which may
seriously harm the interests of the public,” and for the adjudication
of
civil matters emanating from such
investigations.
Section 2(2)(c)
[55]
The RAF is a State
institution
[81]
and investigation of
any fraud on the RAF would fall within the scope of the Act. But the matters
referred to the SIU do not deal
with this. The allegations in
question
[82]
relate not to the RAF,
but to dealings between particular attorneys and their clients. There is no
suggestion that payments made
by the RAF to attorneys, on behalf of their
clients, were in any way improper or unlawful, or that the investigation can
possibly
give rise to the recovery of any money on behalf of the state. On the
face of it, the investigation is not concerned with the appropriation
or
expenditure of public money. It is concerned with the reasonableness of charges
made by particular attorneys to particular clients
for services rendered by them
in connection with RAF claims, and to the possible over-reaching of those
clients by their attorneys.
It involves an investigation into what would be
“a reasonable and/or taxed amount in respect of attorney-client
costs”,
and whether a particular attorney has either overcharged his or
her client, or failed in some other way to account properly to such
client for
the compensation paid to that attorney as the client’s
agent.
[56]
The respondents rely on the
definition of “public money” in the Act, which
reads:
“[A]ny money withdrawn from the National Revenue Fund or a Provincial
Revenue Fund, as contemplated in the Constitution, and
any money acquired,
controlled or paid out, by a State
institution.”
[83]
They
contend that money paid by the RAF to an attorney in settlement of a
client’s claim is money “paid out” by
a State institution, and
that it remains public money in the hands of the attorney. If that attorney
fails to account properly to
the client for the money received on the
client’s behalf, that, so it is contended, constitutes an “unlawful
appropriation”
of “public money” within the meaning of section
2(2)(c).
[57]
I am prepared to accept for
the purposes of this judgment that section 2(2)(c) may linguistically be capable
of such an interpretation.
In my view, however, the section should not be given
such a wide meaning.
[58]
The primary purpose of the
Act is to enable the state to recover money that it has lost as a result of
unlawful or corrupt action
by its employees or other persons. The public money
contemplated by the Act, is the money of a State institution that has been paid
out or expended, and which that institution is entitled to recover. Hence the
special mechanism for the investigation by the SIU
and the recovery of money
through the ST.
[59]
When the RAF pays
compensation to an attorney, as agent for the claimant, the RAF’s
obligations to the claimant are thereby
lawfully discharged. In the hands of
the attorney it is money lawfully paid and received, in which the State
institution no longer
has a legal interest, and which the attorney is then
obliged to pay to the client in accordance with the contract between them.
If
the attorney unlawfully appropriates that money, it would be an unlawful
appropriation of the client’s money and not an
unlawful appropriation of
money of a State institution.
Section
2(2)(g)
[60]
Section 2(2)(g)
contemplates unlawful or improper conduct by “any person”. It is
the conduct of that person that has
to cause “serious harm” to
“the interests of the public or any category thereof”. Each of
these requirements
has to be met, and that is not done by rolling up all
attorneys who overcharge their clients, and all clients who are overcharged,
and
treating the totality of all the attorneys as “any person”, the
totality of all the clients as “the public
or any category thereof”,
and the total overcharging as “serious
harm”.
[61]
The allegation that is the
subject matter of the investigation in the present case is in extremely wide
terms. It makes no distinction
between overcharging that is an isolated
occurrence and overcharging that is a persistent practice. It makes no
distinction between
the theft of money and the charging of excessive fees. It
makes no distinction between cases in which a full and proper disclosure
has
been made to clients concerning the compensation received and the fees charged
and cases in which clients might have been misled.
It covers cases in which the
harm that may have been suffered by a particular client is not “serious
harm”, and cases
in which the conduct of a particular attorney who may be
investigated affects only the interests of that client and not those of
any
other person. It is in substance an allegation relating to the way attorneys
conduct their practices and not an allegation concerning
unlawful conduct
alleged to have been committed by a particular attorney in respect of a
particular client or clients; nor is it
an allegation relating to corruption or
maladministration within State institutions, or relating to any matter that
affects the state’s
financial interests.
[62]
The
allegation requires the SIU to undertake a fishing expedition to establish
whether there may have been malpractices by individual
attorneys. It lacks the
specificity required by section 2(2)(g) to justify the launching of an
investigation. In particular, it
fails to specify particular acts by a
particular attorney which can be said to cause “serious harm” to the
“interests
of the public or any category
thereof”.
[63]
It follows that the matter
referred by the President to the SIU did not relate to an allegation
contemplated by section 2(2) and the
President had no power to refer an
allegation in those terms to the SIU for investigation under the Act. The
Proclamation ordering
the investigation therefore violates the principle of
legality and is accordingly inconsistent with the Constitution and
invalid.
[84]
[64]
The allegations do,
however, reveal a serious concern about the handling of RAF claims. If true,
they call for urgent attention.
This Court is not in a position to say whether
or not the allegations are well founded. But as an editorial of
De
Rebus
[85]
of April 1999 pointed
out, the allegations are damaging to the attorneys profession and it is in the
interests both of the profession
and those victims of road accidents who may
have complaints about the way their cases have been handled, that there be
proper channels
for resolving such complaints. There are various ways in which
such problems can be addressed. They need not involve the lodging
of a formal
complaint against the attorney, or complicated investigations. Clients are
often reluctant to lodge such complaints
and are not likely to do so if there
are other less confrontational ways of resolving their concerns.
[65]
In most cases all that is
necessary is accurate accounting and a means of verifying accounts where the
client has reservations concerning
its accuracy. This does not call for
complicated investigations or extensive powers of search. The relevant
information is readily
available and can be ascertained through enquiries
directed to the RAF and the attorney concerned. If there is a structure that
facilitates the making of such enquiries, and the provision of such information,
without clients having to adopt a confrontational
attitude to their attorneys,
this is likely to resolve most of the problems. The provision of explanations
and accurate information
will ordinarily be sufficient to put the client’s
mind at rest. If, however, as a result of those enquiries it should emerge
that
a client may possibly have been overreached by an attorney, appropriate action
can then be taken to investigate the
complaint.
The Power of Search
[66]
The powers of search vested
in the SIU by the Act are apparently seldom used. We were informed from the bar
that searches have been
undertaken by the SIU on only three occasions, none of
which was concerned with the investigation of the allegations that are the
subject matter of this appeal. It follows from the finding that has been made
concerning the invalidity of the referral that there
is no threat to the
appellant or its members that these powers will be used against them. In the
circumstances there is no need
to deal with the challenge to the
constitutionality of section 6 of the
Act.
Order
[67]
I have previously indicated
that it is appropriate to suspend the declarations of invalidity made concerning
section 3(1) of the Act
and Proclamation R24. Apart from this judgment, there
have been judgments in which it has been held that the SIU has exceeded its
jurisdiction,
[86]
and has undertaken
recoveries beyond its powers.
[87]
The constitutionality of other provisions has also been
questioned.
[88]
I express no
opinion on these matters, but as amending legislation will be required to
address the matters decided by this judgment,
the state may wish to consider
other issues relating to the structure of the Act and its
provisions.
[68]
If the declaration of
invalidity concerning Proclamation R31 of 1999 takes effect from the date of
this order, past investigations
that were undertaken by the SIU in good faith
will be protected. If it is alleged that investigations were not undertaken in
good
faith or that they went beyond what was permissible under the Act, the
persons affected thereby will retain such remedies as they
might have in
relation to such conduct. An appropriate order is therefore to declare
Proclamation R31 to be invalid with effect
from the date of this
order.
[69]
If the legislature wishes
to address all the issues raised in this and other decisions concerning the
constitutionality of the Act,
that may take a significant period of time. Less
time will, however, be needed for an amendment to address the declarations of
unconstitutionality
made in relation to section 3(1) and Proclamation R24, and
to appoint a functionary other than a judge to head the SIU. These are
the only
declarations that are to be suspended. Although there may be reasons for
allowing sufficient time for all matters to be
dealt with simultaneously, there
are good reasons for the first respondent’s position as the head of the
SIU to be regularised
without undue delay. Time will however be required for
the various committees of parliament to consider what is to be done and for
appropriate legislation to be drafted. Time must also be allowed for a new
appointment to be made, and for the first respondent
to transfer his
responsibilities to the new head of the SIU in an orderly fashion. I consider
that a period of 1 year will be sufficient
for this purpose and the declarations
of invalidity pertaining to section 3(1) of the Act and Proclamation R24 should
accordingly
be suspended for that period.
[70]
The following order is
made:
1. The appeal is upheld with costs, which are to include the costs of two
counsel.
2. The order made by the High Court is set aside and the following order is made
in its place:
2.1 Section 3(1) of Act 74 of 1996 is declared to be inconsistent with the
Constitution and invalid.
2.2 Proclamation R24 of 1997 is declared to be inconsistent with the
Constitution and invalid.
2.3 The declarations of invalidity made in regard to section 3(1) of Act 74 of
1996 and Proclamation R24 of 1997 are suspended for
a period of 1
year.
2.4 Proclamation R31 of 1999 is declared to be inconsistent with the
Constitution and invalid.
2.5 The declaration of invalidity made in regard to Proclamation R31 of 1999 is
to take effect from the date of this
order.
2.6 The third and fourth respondents must pay the applicant’s costs which
are to include the costs of two
counsel.
Langa DP,
Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O’Regan J,
Sachs J, Yacoob J and Madlanga AJ concur in
the judgment of Chaskalson
P.
For the appellant : WH Trengove SC and M Chaskalson instructed by
Haasbroek & Boezaart.
For the third and fourth respondents : GJ Marcus SC, A Cockrell and SM Lebala
instructed by the State Attorney, Pretoria.
[1]
Act 74 of 1996.
[2]
Proclamation R31 of 1999,
Government Gazette 19882 RG 6469, 26 March 1999.
[3]
South African Association of
Personal Injury Lawyers v Heath and Others
2000 (10) BCLR 1131 (T).
[4]
Sections 30(1) and 31.
[5]
Above n 3 at 1146E-1151G.
[6]
In terms of section 3(1) of the
Act and Proclamation R24 of 1997, Government Gazette 17854 RG 5884, 14 March
1997.
[7]
In terms of Proclamation R31 of
1999, above n 2.
[8]
Section 2(1) of the Act
provides:
“The President may, whenever he or she deems it necessary on account of
any of the grounds mentioned in subsection (2) by proclamation
in the
Gazette
-
(a)
(i) establish a Special Investigating Unit in order
to investigate the matter concerned; or
(ii) refer the matter to an existing Special Investigating Unit for
investigation. . .”
[9]
Section 3(2) of the Act.
[10]
Section 5(5).
[11]
Section 13(1).
[12]
Section 3(2).
[13]
Section 3(3).
[14]
Section 3(4)(c).
[15]
Section 5(2)(a).
[16]
Section 5(2)(b).
[17]
Section 5(2)(c).
[18]
Section 6(1).
[19]
Section 6(8)(a).
[20]
Section 4(1)(d).
[21]
Section 5(5).
[22]
Section 5(6)(b).
[23]
Section 5(7).
[24]
Section 5(1).
[25]
Section 5(8). In
Konyn and
Others v Special Investigating Unit
1999 (1) SA 1001
(Tk) at 1015H Locke AJ
expressed the opinion,
obiter
, that “[t]he constitutionality of
this section would seem to be highly questionable.” It is not necessary
for the purposes
of this judgment to express an opinion on this.
[26]
Section 4(1)(f).
[27]
Section 4(1)(g).
[28]
Section 4(1)(h).
[29]
Section 13(2).
[30]
Above n 3 at 1160A.
[31]
Above n 3 at 1159H-I.
[32]
Alfred McAlpine & Son
(Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at
526C-F.
[33]
A much disputed issue in the
United States. See: Tribe
American Constitutional Law
, 3 ed, vol 1
(Foundation Press, New York 2000) at 47-59. For the position in Canada see Hogg
Constitutional Law of Canada
3 ed, vol 2 (Carswell, Toronto 1992) at
57.1(e) who contrasts the approach to “originalism” in Canadian
jurisprudence
with that in the United States.
[34]
This is the language used in
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12)
BCLR 1458
(CC) at paras 56-59.
[35]
Id at para 58.
[36]
Implied constitutional
provisions have formed the basis of decisions by the Australian High Court to
invalidate legislative provisions.
See, for example,
Theophanous v Herald
& Weekly Times Ltd and Another
(1994) 182 CLR;
(1994) 124 ALR 1
at 11
where freedom of communication was accepted as being implicit in the
Commonwealth Constitution although the implication was
found not to extend to
freedom of expression generally. In
Roe v Wade
[1973] USSC 43
;
410 US 113
(1973) at
152-7 the United States Supreme Court found that there was an invasion of the
right to privacy even though such right was
not expressly protected in the
Constitution.
[37]
See article 1, section 1
(legislative power), article 2, section 1(1) (executive power) and article 3,
section 1 (judicial power)
of the Constitution of the United States. See
section 1, chapter I (legislative power), section 61, chapter II (executive
power)
and section 71, chapter III (judicial power) of the Commonwealth of
Australia Constitution Act, 1900.
[38]
For a similar approach in
Australia, see
Attorney-General for Australia v The Queen and the
Boilermakers’ Society of Australia and Others
[1957] AC 288
(HL) at
311-2, and Sri Lanka, see
Liyanage and Others v R
[1965] UKPC 1
;
[1966] 1 All ER 650
(PC) at 657-9.
[39]
Ex parte Chairperson of the
Constitutional Assembly: In re Certification of the Constitution of the Republic
of South Africa,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at
paras 106-113. The issue was whether the Constitution met the requirements of
Constitutional Principle VI in Schedule 4
of the interim Constitution, which
required that there be “a separation of powers between the legislature,
executive and judiciary,
with appropriate checks and balances to ensure
accountability, responsiveness and openness.”
[40]
Executive Council, Western
Cape Legislature and Others v President of the Republic of South Africa and
Others
1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC).
[41]
Act 209 of 1993.
[42]
See
De Lange v Smuts
NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC);
Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 45;
Bernstein and Others v Bester and Others
NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 105.
[43]
The popular election is for
delegates to an electoral college that elects the President.
[44]
Section 7(2) of article 1 of
the Constitution of the United States of America confers a power of veto on the
President of the United
States by requiring every bill that has been passed by
the House of Representatives and the Senate, before it becomes law, to be
presented to the President. If the President does not approve it, the bill must
be returned to the house in which it originated,
which must reconsider it.
Presidential objection can be overridden with two thirds support from both
houses.
[45]
See the
Western Cape
case, above n 40, at paras 55-56.
[46]
In the first certification
judgment, above n 39, at para 123, this Court
held:
“An essential part of the separation of powers is that there be an
independent Judiciary . . . . What is crucial to the separation
of powers and
the independence of the Judiciary is that the Judiciary should enforce the law
impartially and that it should function
independently of the Legislature and the
Executive.”
[47]
De Lange v Smuts
, above
n 42, at paras 60-61.
[48]
The
Western Cape
case,
above n 40, at para 64.
Executive Council, Western Cape v Minister of
Provincial Affairs and Constitutional Development and Another; Executive
Council, KwaZulu-Natal
v President of the Republic of South Africa and Others
[1999] ZACC 13
;
2000 (1) SA 661
(CC);
1999 (12) BCLR 1360
(CC) at para 123.
[49]
Section 165(2) of the
Constitution.
[50]
Section 165(3).
[51]
Section 165(4).
[52]
2000 (1) SA 1
(CC);
1999 (10)
BCLR 1059
(CC) at para 141.
[53]
Above n 107.
[54]
Mistretta v United States
[1989] USSC 9
;
488 US 361
(1989) at 388;
Wilson v Minister for Aboriginal and Torres
Strait Islander Affairs
(1996) 189 CLR 1
at 17.
[55]
Wilson
, above n 54, at
17-20.
[56]
Wilson
, above n 54, at
19;
Mistretta
, above n 54, at 407.
[57]
Mistretta
, above n 54,
at 407;
Wilson
, above n 54, at 9;
Grollo v Palmer
[1995] HCA 26
;
(1995) 184 CLR
348
at 366.
[58]
Grollo
, above n 57, at
366-367.
[59]
Grollo
, above n 57, at
365.
[60]
Mistretta
, above n 54,
at 388.
[61]
Sections 86(2) and 128(2) of
the Constitution.
[62]
Sections 86(3) and 128(3).
[63]
Section 51(1).
[64]
Section 52(2). The President
of the Constitutional Court may designate another judge to perform this
function.
[65]
Section 110(1).
[66]
Section 111(2).
[67]
Above n 3 at 1158A-1159A.
[68]
This is a task commonly
performed by judges in open and democratic societies. Thus, in
Inland
Revenue Commissioners and another v Rossminster Ltd and related appeals
[1980] 1 All ER 80
at 87 Viscount Dilhorne, commenting on the judicial
authorisation procedure in section 20C of the Taxes Management Act,
noted:
“(i)f the terms of this section are reconsidered by Parliament, it might
be thought desirable to replace a circuit judge by
a High Court judge as the
appropriate judicial authority. The power given by s 20C to seize and remove
other person’s property
and the fact that tax frauds more often than not
are of great complexity suggest that it should be the responsibility of a High
Court
judge to satisfy himself of the matters specified in sub-s (1)(
a
)
and (
b
). In saying that I do not wish to cast any reflection on the
Common Serjeant. As the requirement that a judge should be so satisfied
is the
final safeguard against abuse of the powers given by the section, it might be
preferable to place the responsibility for their
exercise on a more senior
judge.”
[69]
Above para 29.
[70]
See
Western Cape
case
above n 40, at para 100 where it was held that constitutional cases cannot be
decided on the basis that parliament acted in good
faith or on the basis that
there was no objection to action taken at the time that it was carried out.
[71]
See above para 17.
[72]
See above para 29.
[73]
Above n 54.
[74]
Above n 57.
Grollo’s
case was concerned with the power of a judge to authorise
telephone surveillance in connection with criminal investigations. The
majority
of the Australian High Court held that this function was not incompatible with
the judicial office, being similar to the
function of authorising search
warrants. Mc Hugh J dissented.
[75]
Above n 54 at 44-45 (footnotes
omitted). I should not be understood as expressing a preference for the
decision of Mc Hugh J or
that of the majority. The comments are, however,
particularly relevant to the facts of the present case, in which the head of the
SIU is required to devote all his time to functions that are ordinarily
performed by employees of the executive.
[76]
Although state judges in New
South Wales may be vested with administrative functions under Australian law,
and state courts are not
the sole repositories of judicial power in New South
Wales, state laws cannot deprive judges of their independence in the exercise
of
judicial functions:
Kable v The Director of Public Prosecutions for New South
Wales
(1995-1996) 189 CLR 51.
[77]
See above n 8. Section 2(2)
provides:
“The President may exercise the powers under subsection (1) on the grounds
of any alleged —
1) serious maladministration in connection with the affairs of any State
institution;
2) improper or unlawful conduct by employees of any State institution;
3) unlawful appropriation or expenditure of public money or property;
4) unlawful, irregular or unapproved acquisitive act, transaction, measure or
practice having a bearing upon State property;
5) intentional or negligent loss of public money or damage to public
property;
6) corruption in connection with the affairs of any State institution; or
g)
unlawful or improper conduct by any person which has caused or may
cause serious harm to the interests of the public or any category
thereof.”
[78]
Section 14 of the
Constitution.
[79]
Section 39(2) of the
Constitution.
[80]
See above n 77.
[81]
Section 1 of the Act defines
a“State institution” as:
“[A]ny national or provincial department, any local government, any
institution in which the State is the majority or controlling
shareholder or in
which the State has a material financial interest, or any public entity as
defined in section 1 of the Reporting
by Public Entities Act, 1992 (Act 93 of
1992).”
This definition of public entity reads:
“[A]n institution that operates a system of financial administration
separate from the national, provincial and local spheres
of government and in
which the State has a material financial
interest.”
[82]
See above para 6.
[83]
Section 1 of the Act.
[84]
Fedsure
, above n 34, at
paras 56-59.
[85]
The official publication of the
attorneys’ profession. April (1999) at 4.
[86]
Athimoolan Nadasen v The
Special Investigating Unit
, Case AR786/99, 31 August 2000, an as yet
unreported judgment of the Natal High Court, in which the SIU was found to have
acted outside
its jurisdiction after conducting its investigation on a matter
that arose in KwaZulu-Natal when it had jurisdiction only in the
Eastern
Cape.
[87]
Konyn
, above n 25;
Toto v Special Investigating Unit and Others
2000 (5) BCLR 553
(E).
[88]
Konyn
, above n 25, at
1015H.