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[2008] ZACC 19
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Glenister v President of the Republic of South Africa and Others (CCT 41/08) [2008] ZACC 19; 2009 (1) SA 287 (CC); 2009 (2) BCLR 136 (CC) (22 October 2008)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 41/08
[2008] ZACC 19
HUGH GLENISTER
Applicant
versus
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
First Respondent
MINISTER OF SAFETY
AND SECURITY
Second Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Third Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Fourth Respondent
HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS
Fifth Respondent
SPEAKER OF THE
NATIONAL ASSEMBLY
Sixth Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES
Seventh Respondent
AFRICAN CHRISTIAN
DEMOCRATIC PARTY
Eighth Respondent
DEMOCRATIC ALLIANCE
Ninth Respondent
INDEPENDENT DEMOCRATS
Tenth Respondent
UNITED DEMOCRATIC
MOVEMENT
Eleventh Respondent
INKATHA FREEDOM PARTY
Twelfth Respondent
together with
CENTRE FOR
CONSTITUTIONAL RIGHTS
Amicus Curiae
Heard on:
20 August 2008
Decided
on: 22 October 2008
JUDGMENT
LANGA CJ:
Introduction
The
Directorate of Special Operations (DSO), commonly known as the
Scorpions, was established in terms of section 7(1) of the
National
Prosecuting Authority Act 32 of 1998 (NPA Act),
1
and came into existence in 2001. Its purpose is to deal with
national priority crimes and to supplement the efforts of existing
law enforcement agencies in tackling serious crime. It is located
within the National Prosecuting Authority (NPA) and, as
a
specialist unit, is vested with powers of investigation, including
the power to gather, keep and analyse information, and
the power to
institute criminal proceedings, where appropriate, relating to
organised crime or other specified offences. In
April 2008,
Cabinet approved draft legislation
2
which, among other things, proposed to relocate the DSO and
amalgamate it with the South African Police Service (SAPS).
The
applicant has chosen to challenge Cabinet’s decision to
initiate this legislation in the courts. He approached the
Pretoria High Court (High Court) as a matter of urgency on 18 March
2008 for a final order, alternatively for an interim order,
interdicting and restraining the President, the Minister of Safety
and Security and the Minister for Justice and Constitutional
Development (first, second and third respondents respectively) from
initiating legislation that seeks to disestablish the DSO.
Subsequently, once Cabinet had in fact approved draft legislation
to be introduced in Parliament, the applicant amended his
notice of
motion to seek an order interdicting the respondents “from
persisting with the passage of legislation”
that seeks to
disestablish the DSO. In his judgment handed down on 27 May 2008,
Van der Merwe J held that the High Court had
no jurisdiction to
hear the application in the circumstances and struck it from the
roll. He held that the Constitutional
Court might have
jurisdiction to consider the matter.
The
applicant now applies to this Court on two bases. In Part A of his
notice of motion he seeks leave to appeal, on an urgent
basis,
against the judgment and order of the High Court. Part B contains
an application for direct access and seeks, on an
urgent basis, an
order: (1) declaring that the decision taken by Cabinet on or about
30 April 2008 to initiate legislation
disestablishing the DSO (to
which I will refer as the decision) is unconstitutional and
invalid; and (2) directing the relevant
ministers to withdraw the
National Prosecuting Authority Amendment Bill of 2008 (NPAA Bill)
and the South African Police Service
Amendment Bill of 2008 (SAPSA
Bill) (collectively referred to as the Bills) from the National
Assembly.
By
the time this Court heard argument in this matter, the Bills were
before Parliament. Parliament’s Portfolio Committees
on
Justice and Constitutional Development and on Safety and Security
had called for comment on the Bills and had held public
hearings
regarding their content.
The
parties
The
applicant approaches this Court by virtue of his own interest in
the matter as a South African businessman who has a vested
interest
in the survival and growth of the economy which, he alleges, is
threatened by crime and thus by legislation that results
in the
disbanding of an effective crime-fighting unit (such as the DSO).
He also approaches this Court in the interest of
a group or class
of persons and in the public interest.
3
The
first respondent is the President of the Republic of South Africa,
cited in his official capacity, who abides the decision
of the
Court. The second respondent is the Minister of Safety and
Security, also cited in his official capacity as the minister
responsible for the SAPS. The third respondent is the Minister for
Justice and Constitutional Development, cited in her official
capacity as the minister responsible for the NPA, within which
authority the DSO is currently located. The second and third
respondents will be referred to collectively as the respondents as
they are the two respondents who oppose the application.
The
fourth respondent is the National Director of Public Prosecutions
(NDPP), in whose office the DSO is located by virtue
of section
7(1)(a) of the NPA Act, while the fifth respondent is the Head of
the Directorate of the DSO. Both the fourth and
fifth respondents
abide the decision of the Court. The fourth respondent lodged an
affidavit in the High Court including certain
factual information
to assist the Court. The sixth and seventh respondents are also
cited in their official capacities and
are, respectively, the
Speaker of the National Assembly and the Chairperson of the
National Council of Provinces. No relief
is sought against the
fourth, fifth, sixth and seventh respondents; they are cited by
virtue of the interest they might have
in the matter. They have
taken no part in these proceedings.
The
eighth to twelfth respondents are all political parties who are
cited as respondents in this matter by virtue of their admittance
in the High Court as amici curiae. They are, respectively, the
African Christian Democratic Party, the Democratic Alliance,
the
Independent Democrats, the United Democratic Movement and the
Inkatha Freedom Party. Of these, only the eleventh respondent,
the
United Democratic Movement (UDM), appeared in this Court to support
the application. The Centre for Constitutional Rights
(CFCR) was
admitted as amicus curiae in this Court. The CFCR is a unit of the
FW de Klerk Foundation, a charitable trust.
The stated mission of
the Centre is to uphold the Constitution and to assist in
litigation in which constitutional issues
arise.
Applications
for condonation
The
second and third respondents filed their answering affidavit two
days late and the UDM filed its written submissions two
days late.
The delays were minimal and plausible reasons were given for both.
No material prejudice was caused to the other
litigants or to the
Court. I consider that condonation should be granted in both
instances. The CFCR also applied for condonation
in light of the
fact that, at the time of its application to be admitted as amicus
curiae, it had not obtained the consent
of the fourth and fifth
respondents. These two respondents have however not made any
submissions to this Court and, as already
indicated,
4
the applicant seeks no relief against them. Condonation should
thus also be granted in this instance.
Directions
of this Court
In
setting down the application for leave to appeal, the directions
issued by the Chief Justice specify as the only issue to
be
decided:
“
. . . whether, in the
light of the doctrine of the separation of powers, it is appropriate
for this Court, in all the circumstances,
to make any order setting
aside the decision of the National Executive that is challenged in
this case.”
The
sole question for decision is therefore whether it is appropriate
for this Court to intervene at this stage of the legislative
process. This question goes to the relief sought both in Part A,
the application for leave to appeal, and Part B, the application
for direct access. If judicial intervention is inappropriate, both
applications must fail.
Factual
background
The
application relies upon the following background facts, which are
either common cause or undisputed. Since its establishment
in
2001, the DSO has undertaken a number of high-profile
investigations, some of which have involved prominent members of
the African National Congress (ANC). On 1 April 2005, the first
respondent appointed Judge Sisi Khampepe to chair a commission
of
inquiry (Khampepe Commission) to investigate and report on certain
aspects of the DSO. The issues to be considered by the
Khampepe
Commission included the rationale for the establishment of the DSO,
its mandate, the question whether the DSO should
be located within
the NPA or the SAPS, and the systems for coordination and
cooperation between the SAPS and the intelligence
agencies on the
one hand and the DSO on the other. The Khampepe Commission’s
report (Khampepe Report) was signed on
3 February 2006, presented
to the first respondent on 22 May 2006, and published on 5 May
2008. It recommended that the DSO
should continue to be located
within the NPA and under the Minister for Justice and
Constitutional Development,
5
albeit with certain adjustments. Other recommendations related to
the President’s power to transfer oversight and
responsibility over the law enforcement component of the DSO to the
Minister of Safety and Security
6
and the need to tackle the evidently unhealthy relationship between
the DSO and the SAPS.
7
Although
Judge Khampepe made a number of recommendations for change, she
approved of the work of the DSO in general. She found
that there
was nothing unconstitutional in the DSO and the SAPS sharing a
mandate, nor in the DSO’s methodology, which
combines the
skills of prosecutors to direct investigations, analysts to
interpret information, and investigators to collate
information for
successful prosecutions. She regarded the combination of these
skills as an effective tool in addressing complex
and organised
crime.
Cabinet
appeared to approve the Khampepe Report. A Cabinet statement of 29
June 2006 reveals that Cabinet endorsed the National
Security
Council’s decision to accept, in principle, the
recommendations of the Khampepe Commission, including the retention
of the DSO within the NPA. A further statement of 7 December 2006
stated that, at its meeting of the previous day, Cabinet
had
reviewed progress in implementing the recommendations of the
Khampepe Commission, noted the tension between the DSO and
the
SAPS, and decided that legal instruments must be put in place to
ensure greater coordination and cooperation between the
two
agencies.
However,
the Minister of Safety and Security, Mr Charles Nqakula, speaking
during the debate on the President’s State
of the Nation
Address in the National Assembly on 12 February 2008, made the
following statement:
“
We want to place on the
table, therefore, a proposal for the creation of a better crime
fighting unit, to deal with organised
crime, where the best
experiences of the Scorpions and the police’s Organised Crime
Unit will be merged. The best investigators
from the two units will
be put together, under the South African Police Service, as a
reconstructed organised crime fighting
unit. The Scorpions, in the
circumstances, will be dissolved and the Organised Crime Unit of the
police will be phased out and
a new amalgamated unit will be
created.”
A
draft resolution proposing that the DSO be moved from the
jurisdiction of the NPA to the SAPS was prepared at the ANC’s
national policy conference in June 2007. Six months later, in
December 2007, the ANC adopted a resolution calling for a single
police service and the dissolution of the DSO at its 52
nd
national conference held in Polokwane (Polokwane Resolution). The
relevant part of the Polokwane Resolution, under the heading
“Peace
and Stability”, reads as follows:
“
6 The constitutional
imperative that there be a Single Police Service should be
implemented.
. . . .
8 The Directorate of Special
Operations (Scorpions) be dissolved.
9 Members of the DSO performing
policing functions must fall under the South African Police
Services.
10 The relevant legislative
changes be effected as a matter of urgency to give effect to the
foregoing resolution.”
Following
the conference in Polokwane, the acting NDPP, Advocate Mokotedi
Mpshe, in a communiqué to staff, reported to
members of the
DSO that “a decision [had] been taken” about the
investigative unit of the DSO. Amplification of
this is to be
found in the February-March edition of
Khasho
, the
newsletter for NPA staff, where Advocate Mpshe wrote:
“
You should be aware by
now that the government has officially announced that the DSO will
be merged with the SAPS’s Organised
Crime Unit to form a new
crime-fighting body.”
Then,
during a radio interview in February 2008, the Director-General of
the Department of Justice and Constitutional Development
stated
that the DSO would be amalgamated with the SAPS.
8
The legislative programme of the Department of Safety and Security
for 2008 also indicated that laws dealing with the DSO
would be
placed before Parliament during the year.
Subsequent
to a Cabinet meeting on 30 April 2008, the Government Communication
and Information System issued a statement to
the effect that
Cabinet had approved the NPAA Bill and the General Law Amendment
Bill (later renamed the SAPSA Bill)
9
and that the Bills would be tabled in Parliament. The stated aim
of the Bills was to strengthen the country’s capacity
to
fight organised crime and to give effect to the decision to
relocate the DSO from the NPA to the SAPS. The Bills were
published in the Government Gazette on 8 May 2008 and 9 May 2008
respectively.
10
One
last set of facts should be recorded. In an affidavit deposed to
by Advocate Mpshe on 16 May 2008, he states that between
1 April
2007 and the date of his affidavit, of the 530 employees working
for the DSO, 56 (38 of whom were investigators) resigned
from the
DSO, 26 of them since the end of January 2008. Although there is
disagreement as to the reasons for the resignations,
the numbers
are not in dispute.
Submissions
of the parties in this Court
As
set out in paragraph 9 above, the only issue in this Court is
whether, in the light of the doctrine of the separation of
powers,
it is appropriate for this Court to make any order setting aside
the decision of the National Executive that is challenged
in this
case. The parties lodged written argument directed at this issue.
The
applicant submits that “it is a necessary component of the
doctrine of separation of powers that the courts have a
constitutional obligation to ensure that the executive acts within
the boundaries of legality.” The applicant relied
on the
following statement of Ngcobo J speaking for the majority of this
Court in
Doctors for Life
:
“
Courts have
traditionally resisted intrusions into the internal procedures of
other branches of government. They have done this
out of comity
and, in particular, out of respect for the principle of separation
of powers. But at the same time they have claimed
the right as well
as the duty to intervene in order to prevent the violation of the
Constitution. To reconcile their judicial
role to uphold the
Constitution, on the one hand, and the need to respect the other
branches of government, on the other hand,
Courts have developed a
‘settled practice’ or general rule of jurisdiction that
governs judicial intervention in
the legislative process.
The basic position appears to
be that, as a general matter, where the flaw in the law-making
process will result in the resulting
law being invalid, Courts take
the view that the appropriate time to intervene is after the
completion of the legislative process.
The appropriate remedy is to
have the resulting law declared invalid. However, there are
exceptions to this judicially developed
rule or ‘settled
practice’. Where immediate intervention is called for in
order to prevent the violation of the
Constitution and the rule of
law, courts will intervene and grant immediate relief. But
intervention will occur in exceptional
cases, such as where an
aggrieved person cannot be afforded substantial relief once the
process is completed because the underlying
conduct would have
achieved its object.”
11
(Footnotes omitted.)
The
applicant contends, on the basis of the above dictum and foreign
case-law, that there are exceptional cases in which an
aggrieved
litigant cannot be expected to wait for Parliament to enact a
statute before he or she challenges it in court. The
important
question, according to the applicant, is “whether effective
redress could be given after the legislation [has
been] enacted.
If the answer to that question is ‘no’, then the courts
are obliged to intervene at an earlier
stage.” The applicant
contends that in the present matter the DSO will have been
destroyed long before the enactment
of the legislation. In making
this assertion, he points to the evidence of Advocate Mpshe
indicating that many of the employees
within the DSO have already
resigned, or plan to resign, as a result of the decision. Even if
an application challenging the
resulting legislation were to be
successful, the applicant submits, it would not be possible to
reconstruct the institution.
The damage would have been done –
with the consequential harm to the ability to fight crime –
and would be irreversible.
It is for these reasons that the
applicant submits that the Court should intervene at this stage of
the legislative process.
The
UDM argues that the decision to initiate legislation was in breach
of the constitutional principle of legality,
12
thus falling to be set aside. Because the decision emanated
directly from a resolution of the governing party structures,
it
amounts to Cabinet having abdicated its constitutional
responsibility, substituting accountability to the governing party
for its accountability to Parliament. The UDM draws this inference
by traversing the chronology of events, commencing with
the
purported acceptance of the Khampepe Report to the resolutions of
the ANC conferences, and culminating with a change of
heart by the
executive and its decision to dissolve the DSO. The UDM
acknowledges that Cabinet will ordinarily give weight
to the policy
of the ruling party but contends that what is not permissible is
for Cabinet to follow this policy blindly, as
it alleges happened
in this case.
The
UDM also contends that the doctrine of separation of powers is not
a barrier to the Court’s consideration of the decision
of the
executive in this case. It submits that our courts are competent
to review decisions of the other arms of the state.
It argues that
since the separation of powers doctrine is dynamic, it should be
adapted to the prevailing conditions (in which
there is a danger of
“one-party domination”) and accommodate institutional
developments that have crucially shifted
the balance of power
between the branches of government. The relative marginalisation
of the legislature, argues the UDM,
has a disastrous impact on the
ability of opposition parties to make their voices heard in policy
formulation. The Court should
act as a counterweight if the ruling
party overreaches itself and, it contends, if the Court does not
act, it is unlikely anyone
else will.
Counsel
for the CFCR in general makes common cause with the applicant and
the UDM regarding their central submissions. He also
argues that
the separation of powers doctrine does not preclude the Court from
interdicting the continued passage of the Bills
on the basis that
the executive’s actions constitute independent, foundational
and egregious violations of the Constitution
and the rule of law.
However, the focus of his argument is that the decision by Cabinet
is structurally inconsistent with
the Constitution and a threat to
the independence of the NPA which is guaranteed by section 179(4)
of the Constitution.
13
He argues that the DSO is an integral part of the NPA; it is
central to the NPA’s ability to properly function as it
has
been given powers not only by the NPA Act, but also by
constitutional provisions. The DSO is the institution which
carries out the NPA’s “incidental” functions as
envisaged by section 179(2) of the Constitution.
14
He submitted that the effect of the decision will be to place the
DSO within the SAPS, which is not independent. Moreover,
if the
NPA does not have the DSO to do its “incidental” work,
it too cannot function independently and this will
render
government in breach of its international obligations, which
require the establishment and maintenance of independent
specialised agencies to fight corruption.
15
The
CFCR supports judicial intervention at this early stage because it
contends that the obligation to protect the public from
crime is at
the core of a constitutional democracy and that intervening at a
later stage would be too late to prevent harm.
The
second and third respondents argue against judicial intervention at
this stage. In their analysis of the separation of
powers
doctrine, they highlight the duty of Cabinet to account to the
legislature for policies, decisions and actions, and
the
concomitant powers of Parliament to ensure the accountability of
the executive. They submit that the Constitution has
created
checks and balances to maintain the delicate balance in the power
wielded by the executive, legislature and judiciary.
They argue
further that intervention with the executive’s initiation of
legislation would upset this balance –
it is neither
necessary nor warranted.
In
advancing this argument, the respondents do not take issue with the
submission that pre-enactment relief should be granted
where an
exceptional case has been made out, the basis for this exception
being that the courts are duty-bound to enforce compliance
with the
Constitution and the rule of law. However, because Bills, such as
those in this case, may be amended, adopted or
rejected by
Parliament, they cannot create, detract from or extinguish rights;
they only do so once they become law. Therefore,
exceptional cases
must be established on proof of immediate and irreversible harm
caused by the conduct in question. Relief
would be appropriate in
those circumstances, the respondents submit, because the
constitutional power of the Court to deal
effectively with the
legislation once enacted would otherwise be rendered nugatory.
The
respondents contend that these circumstances are not present in
this case. They argue that the statistics relating to the
number
of resignations of DSO employees, upon which the applicant relies,
are not sufficient proof of the employees having
left as a result
of the decision; one should not speculate about the reasons why
employees might have left the institution.
Moreover, alternative
remedies are open to the applicant in the event that the enactments
ultimately prove to be unconstitutional.
The respondents argue
that the existence of alternative remedies is a major and relevant
factor in the exercise of a court’s
discretion to interfere.
Currently, however, the deliberative process of Parliament is under
way, the political party respondents
are fully participating in it,
no decision has been taken regarding the final form of the
enactment, and the DSO continues
to carry out its mandate as
contemplated in the NPA Act. They contend that in light of these
circumstances it is not appropriate
for this Court to make the
order sought by the applicant.
The
legal issues
The
directions specify only one issue for determination and that is
whether, in the light of the doctrine of separation of powers
implicit in our Constitution, and considering all the circumstances
of this case, it is appropriate for this Court to set aside
the
decision of the National Executive or to interdict the respondents
from pursuing the passage of the Bills through Parliament.
In
considering this question, it will be useful to commence with a
discussion of the principle of separation of powers under
our
constitutional order.
The
principle of separation of powers
It
is by now axiomatic that the doctrine of separation of powers is
part of our constitutional design. Its inception in our
constitutional jurisprudence can be traced back to Constitutional
Principle VI, which is one of the principles which governed
the
drafting of our Constitution. It proclaimed that—
“
[t]here shall be a
separation of powers between the legislature, executive and
judiciary, with appropriate checks and balances
to ensure
accountability, responsiveness and openness.”
16
There
is no express mention of the separation of powers doctrine in the
text of the 1996 Constitution. In the First Certification
judgment,
In re: Certification of the Constitution of the
Republic of South Africa, 1996
,
this Court held that the
text of the new Constitution did comply with Constitutional
Principle VI. The Court stated:
“
There is, however, no
universal model of separation of powers and, in democratic systems
of government in which checks and balances
result in the imposition
of restraints by one branch of government upon another, there is no
separation that is absolute.”
17
It
continued—
“
[t]he principle of
separation of powers, on the one hand, recognises the functional
independence of branches of government. On
the other hand, the
principle of checks and balances focuses on the desirability of
ensuring that the constitutional order, as
a totality, prevents the
branches of government from usurping power from one another. In
this sense it anticipates the necessary
or unavoidable intrusion of
one branch on the terrain of another. No constitutional scheme can
reflect a complete separation
of powers: the scheme is always one of
partial separation.”
18
In
a subsequent case,
De Lange v Smuts NO and Others
,
Ackermann J repeated that there is no universal model of
separation of powers. He continued with the following remarks:
“
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.”
19
The
starting point in an understanding of the model of separation of
powers upon which our Constitution is based, must be the
text of
our Constitution.
20
Section 85 of the Constitution vests the executive authority in
the President acting with the Cabinet. In terms of section
85(2)(d), the Cabinet has the constitutional authority to prepare
and initiate legislation. Section 73(2) gives a Cabinet
member the
authority to introduce a Bill in the National Assembly. Thus the
ministers had the constitutional authority to
initiate the
legislation in issue here. One of the issues the Cabinet will
consider is whether the proposed legislation that
it approves and
initiates conforms to the Constitution.
In
our constitutional democracy, the courts are the ultimate guardians
of the Constitution. They not only have the right to
intervene in
order to prevent the violation of the Constitution, they also have
the duty to do so.
21
It is in the performance of this role that courts are more likely
to confront the question of whether to venture into the
domain of
other branches of government and the extent of such intervention.
It is a necessary component of the doctrine of
separation of powers
that courts have a constitutional obligation to ensure that the
exercise of power by other branches of
government occurs within
constitutional bounds. But even in these circumstances, courts
must observe the limits of their powers.
In
Doctors for Life
, the Court made these points:
“
The constitutional
principle of separation of powers requires that other branches of
government refrain from interfering in parliamentary
proceedings.
This principle is not simply an abstract notion; it is reflected in
the very structure of our government. The
structure of the
provisions entrusting and separating powers between the legislative,
executive and judicial branches reflects
the concept of separation
of powers. The principle ‘has important consequences for the
way in which and the institutions
by which power can be exercised’.
Courts must be conscious of the vital limits on judicial authority
and the Constitution’s
design to leave certain matters to
other branches of government. They too must observe the
constitutional limits of their authority.
This means that the
Judiciary should not interfere in the processes of other branches of
government unless to do so is mandated
by the Constitution.
But under our constitutional
democracy, the Constitution is the supreme law. It is binding on
all branches of government and
no less on Parliament. When it
exercises its legislative authority, Parliament ‘must act in
accordance with, and within
the limits of, the Constitution’,
and the supremacy of the Constitution requires that ‘the
obligations imposed by
it must be fulfilled’. Courts are
required by the Constitution ‘to ensure that all branches of
government act within
the law’ and fulfil their constitutional
obligations. This Court ‘has been given the responsibility of
being the
ultimate guardian of the Constitution and its values’.
Section 167(4)(e), in particular, entrusts this Court with the
power to ensure that Parliament fulfils its constitutional
obligations. This section gives meaning to the supremacy clause,
which requires that ‘the obligations imposed by [the
Constitution] must be fulfilled’. It would therefore require
clear language of the Constitution to deprive this Court of its
jurisdiction to enforce the Constitution.”
22
(Footnotes omitted.)
Whether
this Court should intervene at this stage must therefore be guided
by the principle of separation of powers. The principle
of checks
and balances focuses on the desirability that the constitutional
order, as a totality, prevent the branches of government
from
usurping power from one another. The system of checks and balances
operates as a safeguard to ensure that each branch
of government
performs its constitutionally allocated function and that it does
so consistently with the Constitution. Against
this background, I
turn now to the question that needs to be considered.
As
pointed out above,
23
the sole question in this case is whether it can ever be
appropriate for this Court to intervene when draft legislation is
being considered by Parliament, to set aside the decision of the
executive to initiate the legislative process. This question
can
be divided into the following three sub-questions:
can
courts ever intervene at this stage of the legislative process;
if
the answer to (i) is “yes”, what are the circumstances
that would warrant intervention; and
are
these circumstances present in this case?
Are
there ever circumstances in which a court may intervene to decide
whether a decision by the executive to initiate legislation
is
unlawful?
The
applicant seeks to impugn the conduct of the executive in preparing
legislation before the legislation has been enacted
by Parliament.
Clearly, if the legislation had been enacted, the applicant’s
remedy would have been to challenge its
constitutionality.
However, the applicant has not waited for this to happen. Instead,
he complains of a very specific form
of executive conduct –
the initiation of legislation – which is a part of the
legislative process.
24
As the Bills concerned are now before Parliament, the judiciary is
being asked to consider a matter that is presently within
the
sphere of responsibility of Parliament. It is Parliament that is
vested with the primary oversight function of the executive.
The
Court is thus being asked to intervene before Parliament has
concluded its work. In considering whether the Court can
and
should intervene at this stage, the starting point should be the
respective roles of this Court and of Parliament as provided
for by
the Constitution.
Judges
(and thus the courts) in our constitutional order have the duty to
uphold and protect the Constitution.
25
Section 38 of the Constitution provides that people may approach
competent courts for appropriate relief in relation to the
actual
or threatened infringement of rights.
26
This Court has held that relief will not be appropriate unless it
is effective.
27
Courts therefore are guardians of the Constitution. It is this
role which we must bear in mind in addressing the question
of
whether this Court may intervene before Parliament has concluded
its work.
However,
the Constitution is replete with provisions that make it plain that
ordinarily a court will not interfere with the
functioning of
Parliament. For example, section 167(4)(b) restricts the ability
of all courts to pronounce on the constitutionality
of
parliamentary or provincial Bills by providing that only the
Constitutional Court may—
“
decide on the
constitutionality of any parliamentary or provincial Bill, but may
do so only in the circumstances anticipated in
section 79 or 121”.
In
Doctors for Life
, this Court held that section 167(4)(b)
must be understood to mean that, where a challenge to a Bill is
levelled in order to
render it invalid, the only circumstances in
which this Court may entertain the challenge are those provided for
in sections
79 or 121.
28
Sections 79 and 121 permit the President or a Premier, as the case
may be, prior to signing a Bill into law, to refer it to
this Court
and not to any other court and, even then, only if he or she has
reservations as to whether the Bill is constitutional
or not.
These provisions preserve the autonomy of both Parliament and the
provincial legislatures to pursue their law-making
responsibilities
without undue interference by courts. In this case, the applicant
has not sought to attack the validity of
the Bill. Indeed, counsel
for the applicant specifically stated that the Court need not look
at particular provisions of the
Bills, but merely at their general
design, to determine whether the Court’s jurisdiction should
be exercised. What he
urges us to consider is the impact of a
decision of the executive, not the constitutionality of a Bill.
There
may however be exceptions to the principle that a court may not
intervene in the legislative process. In
Doctors for Life
,
this Court acknowledged that there is no express constitutional
provision that precludes this Court from intervening in
parliamentary proceedings before Parliament has concluded its
deliberations on a Bill.
29
Ngcobo J noted that the question of whether the Court had this
power raised two important, and potentially conflicting,
constitutional principles:
“
On the one hand, it
raises the question of the competence of this Court to interfere
with the autonomy of Parliament to regulate
its internal proceedings
and, on the other, it raises the question of the duty of this Court
to enforce the Constitution, in
particular, to ensure that the
law-making process conforms to the Constitution.”
30
However,
the Court reached no firm conclusion on this question.
31
In my view, as will become clear from what follows, I do not find
it necessary to decide the question in this case either.
I am
prepared to accept, for the purposes of argument, that a court may
intervene in parliamentary proceedings. The question
that arises
next is the circumstances in which it may do so.
What
are the circumstances that would permit judicial intervention?
In
considering this question, we should bear in mind the following two
principles: On the one hand, the Constitution requires
the courts
to ensure that all branches of government act within the law;
32
on the other, it requires courts to refrain from interfering with
the autonomy of the legislature and the executive in the
legislative process.
In
Doctors for Life
, this Court considered jurisprudence from
other jurisdictions concerning the question of when it would be
appropriate for a
court to intervene in the legislative process
before it is complete.
33
The Court noted that the ordinary rule under the jurisprudence,
notably of the Privy Council, is that courts will ordinarily
not
intervene until the process is complete. However, in
Rediffusion
(Hong Kong) Ltd v Attorney-General of Hong Kong and Another
,
the Privy Council held that a court in Hong Kong may intervene if
there is “no remedy when the legislative process is
complete
and the unlawful conduct in the course of the legislative process
will by then have achieved its object”.
34
In
my view, having regard to the doctrine of separation of powers
under our constitutional order, this test would be the appropriate
test to apply. Intervention would only be appropriate if an
applicant can show that there would be no effective remedy
available to him or her once the legislative process is complete,
as the unlawful conduct will have achieved its object in the
course
of the process.
35
The applicant must show that the resultant harm will be material
and irreversible.
36
Such an approach takes account of the proper role of the courts in
our constitutional order: While duty-bound to safeguard
the
Constitution, they are also required not to encroach on the powers
of the executive and legislature. This is a formidable
burden
facing the applicant.
We
were referred to the decision in
Trinidad and Tobago Civil
Rights Association v The Attorney-General of Trinidad and Tobago
,
37
in which the High Court did intervene to prevent the enactment of a
Bill. The impugned Bill proposed to abolish the jurisdiction
of
the court to consider public interest applications for judicial
review. The High Court in that case held that the legislation
would have impaired the rights of the public to challenge
legislation, causing immediate prejudice and affecting the powers
of the judiciary. The circumstances were thus, according to the
High Court, sufficiently exceptional to warrant interference
by the
courts.
On
appeal, however, the Court of Appeal of Trinidad and Tobago agreed
with the views expressed in the Privy Council decisions
that courts
should as far as possible avoid interfering with pre-enactment
legislative process.
38
The test it formulated is whether it has been shown that, if a
Bill is enacted, an applicant will not be able to access relief
because the Bill’s object would have been achieved.
39
It held that if the Bill in question were enacted, the courts
would have the power to declare it void if it offended the
constitution. The High Court had erred in holding this was an
exceptional case because it had not been shown that irreversible
consequences, damage or prejudice would result.
40
Cases
that would warrant intervention on this approach will be extremely
rare. As acknowledged in an Australian case,
Cormack v Cope
,
it is not the introduction of a Bill that affects rights; it is the
making of a law that does that.
41
Thus, before the law has been enacted, it would be extremely
unusual to be able to demonstrate harm. In my view, it is not
necessary in this case to attempt to identify with precision what
would constitute “exceptional circumstances”
or to
formulate in advance in what circumstances they may arise. The
question whether exceptional circumstances exist depends
on the
facts of each case and is a matter to be considered on a
case-by-case basis. In this particular case, for the reasons
given
below, it is not appropriate for the judiciary to intervene.
Do
the circumstances of this case warrant judicial intervention?
All
three parties arguing for judicial intervention in this case sought
to demonstrate that the executive’s decision to
introduce the
Bills constituted a gross violation of the Constitution. The
arguments were presented with a great deal of passion,
no doubt
because of the important and emotive debates in the country about
the unacceptable levels of crime, its prevention
and the measures
that are being, or should be, employed to combat it.
The
reasons advanced, however, require close examination. We are
dealing with the constitutionally mandated power of the executive
to initiate legislation and the power of the legislature to enact
it. While I do not find it necessary to circumscribe with
precision the exact circumstances that would warrant judicial
interference of this nature, I am of the view that the reasons
advanced to justify intervention by the Court must, at the very
least, demonstrate material and irreversible harm that could
not be
remedied once the legislation has been enacted. With this in mind,
I turn now to consider the arguments made by the
applicant, the UDM
and the CFCR.
The
main argument by the applicant is that judicial intervention is
appropriate at this stage because of the negative effect
the draft
legislation is exerting on the daily operations of the DSO. In
particular, the applicant’s counsel points
to the information
provided by the acting NDPP in his affidavit that many DSO
employees have left their employment. Counsel
argues that this
must be occurring because of the plan to disestablish the DSO,
which would allegedly have a material and irreversible
effect on
the DSO, undermine the state’s capacity to render basic
security and cause harm to the constitutional order
itself. He
argues that there would be no remedy in the future because by then
it would be too late.
This
argument must fail. First, it is not clear at this stage what
Parliament will decide to do. The applicant’s case
regarding
material and substantive harm is premised on the assumption that
the legislation will be enacted without material
change. However,
Parliament may choose to make significant and substantial
amendments to the draft legislation or it may choose
not to enact
the legislation at all. Until the content of the legislation has
been determined by Parliament, the effect of
the legislation cannot
be determined.
Second,
it is not clear that the members of the DSO are leaving because of
the decision to initiate legislation to disestablish
the DSO. The
respondents state that there could well be other reasons for this
depletion in numbers. The causal relationship,
therefore, between
the executive decision to introduce the legislation and the fact
that many members have left has not been
clearly established.
Nevertheless, even were it to be established that some of them,
indeed perhaps all of them, had left
because of the decision to
introduce the legislation, it cannot be said that this will
necessarily constitute irreversible
harm sufficient to warrant
intervention by this Court at this stage. Institutions often
experience times of change and uncertainty.
Often too, they
experience high levels of staff turnover. The level of staff
turnover described by the acting NDPP in this
case, while high,
cannot be said to be so high as to constitute material and
irreversible harm sufficient to warrant intervention.
In reaching
this conclusion, it is important to bear in mind that this is a
particularly high threshold to meet.
The
applicant further argues that the President and Cabinet seek to
disestablish the DSO and place its members in a dysfunctional
unit
(the SAPS) because a number of members of the ANC are (or have
been) subject to the unwelcome attentions of the DSO.
Again if
this argument has any foundation, something which need not be
decided in this case, appropriate relief can be sought
in due
course.
The
UDM argues that, because the decision to initiate the legislation
arose as a result of the Polokwane Resolution, Cabinet
acted under
dictation in making the decision to initiate the legislation to
disestablish the DSO. It suggests further that
the executive
followed the dictates of the ruling party rather than its
responsibilities in terms of the Constitution. In
my view, there
is nothing wrong, in our multi-party democracy,
42
with Cabinet seeking to give effect to the policy of the ruling
party. Quite clearly, in so doing, Cabinet must observe its
constitutional obligations and may not breach the Constitution.
However, if in this case, once the legislation is enacted,
it is
established that the legislation does breach the Constitution,
relief will be available and the legislation may be declared
invalid. In my view, this argument does not establish that
material and irreversible harm will result if the Court does not
intervene at this stage. The argument cannot succeed.
The
UDM also argues that, having regard to what it refers to as “the
relative marginalisation of the legislature”
and the dangers
of one-party domination, the Court should act because no-one else
will. I cannot agree. The role of this
Court is established in
the Constitution. It may not assume powers that are not conferred
upon it. Moreover, the considerations
raised by the UDM do not
establish that irreversible and material harm will eventuate should
the Court not intervene at this
stage.
The
CFCR argues that the draft legislation poses a significant threat
to the independence of the NPA and will cause harm to
the structure
of our Constitution, such that intervention is necessary. The
first difficulty with this argument is that it
assumes that the
content of the draft legislation will remain unchanged during its
passage through Parliament. The Court cannot
make this assumption.
I must proceed on the basis that Parliament will observe its
constitutional duties rigorously. If it
is correct that the draft
legislation does threaten structural harm to the Constitution or
the institution of the NPA, something
which I expressly refrain
from deciding, then Parliament will be under a duty to prevent that
harm. It would be institutionally
inappropriate for this Court to
intervene in the process of law-making on the assumption that
Parliament would not observe
its constitutional obligations.
Again, should the legislation as enacted be unconstitutional for
the reasons proffered by
the CFCR, appropriate relief can be
obtained thereafter. This argument must thus also fail.
Conclusion
In
conclusion, then, I find that the applicant has not established
that it is appropriate for the Court to intervene in the
affairs of
Parliament in this case. He has not shown that material and
irreversible harm will result if the Court does not
intervene. In
the circumstances, both the application for leave to appeal (in
Part A) and the application for direct access
(in Part B) must be
refused as it is not in the interests of justice for the
applications to be granted.
Costs
The
applicant has raised important constitutional issues and there is
great public interest in the matter. It accordingly seems
to me
that this is a matter in which this Court should make no order as
to costs.
Order
It
is ordered that:
(a) The
applications for condonation are granted.
(b) The
applications for leave to appeal and for direct access are
dismissed.
(c) There
is no order as to costs in this Court.
Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs
J, Van der Westhuizen J and Yacoob J concur in the judgment
of Langa
CJ.
Counsel for the Applicant: Advocate DN Unterhalter SC & Advocate
A Cockrell instructed by Wertheim Becker Inc.
Counsel
for the Second and
Third Respondents: Advocate LT Sibeko SC, Advocate G Malindi &
Advocate L Gcabashe instructed by the State Attorney.
Counsel for the Eleventh Respondent: Advocate M Osborne &
Advocate N Mangcu-Lockwood instructed by De Klerk & Van Gend
Inc.
Counsel for the Amicus Curiae: Advocate P Hoffman SC & Advocate
N de Havilland instructed by Webber Wentzel Bowens.
1
Section 7(1) of the NPA Act provides:
“
(a) There is hereby
established in the Office of the National Director an Investigating
Directorate, to be known as the Directorate
of Special Operations,
with the aim to—
(i)
investigate,
and to carry out any functions incidental to investigations;
(ii)
gather,
keep and analyse information; and
(iii)
where
appropriate, institute criminal proceedings and carry out any
necessary functions incidental to instituting criminal proceedings,
relating to—
(aa)
offences
or any criminal or unlawful activities committed in an organised
fashion; or
(bb)
such
other offences or categories of offences as determined by the
President by proclamation in the Gazette.”
2
The National Prosecuting Authority Amendment Bill of 2008 (NPAA
Bill) (B23-2008) and the General Law Amendment Bill of 2008,
which
has been renamed the South African Police Service Amendment Bill of
2008 (SAPSA Bill) (B30-2008).
3
The applicant has obtained, by way of an online
petition, a number of “signatures” in support of his
opposition to
the proposed legislation, which he has submitted to
demonstrate he acts on behalf of a group of persons which opposes
the disestablishment
of the DSO. He has also submitted a number of
public opinion polls to demonstrate support for the DSO and
opposition to the
proposed legislation. To support his claim that
he acts in the public interest, the applicant refers to the “massive
amount”
of public interest in the matter, as evidenced by the
public opinion polls and media reports.
4
Above [6].
5
The observations in the Khampepe Report included the following
remarks: “I am also satisfied that there is nothing
unconstitutional
in having a structure such as the DSO located under
the prosecutorial authority” and “it is inconceivable
that the
Legislature will see it fit to repeal the provisions of the
NPA Act that relate to the activities and location of the DSO.”
(See pages 39 and 103 of the Khampepe Report.)
6
See
page 68 of the Khampepe Report, where the
following is stated:
“
It
is both untenable and anomalous that the Minister of Safety and
Security who has the responsibility to address the overall
policing/investigative needs and priorities of the Republic should
not exercise any control over the investigative component
of the DSO
considering the wide and permissive mandate of the DSO relating to
organised crime.”
7
See
page 106 of the Khampepe Report, where the
following is stated:
“
There
has been no sound relationship between the DSO and SAPS in
particular. The evidence of the NDPP confirms that the relationship
between the DSO and the SAPS was an unhappy relationship. The head
of the DSO ascribed the tension to be institutional jealousy
and
personality differences.”
8
The Director-General has since stated, in an affidavit filed at this
Court, that this interview reflected his own personal views
and not
those of Cabinet.
9
Above n 2.
10
In Government Gazettes 31037 GN 562 and 31016 GN
523 respectively.
11
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at paras 68-9;
2006 (12) BCLR 1399
(CC) at 1425A-D.
12
For a discussion of the constitutional principle of legality see
Pharmaceutical Manufacturers Association of South Africa 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 paras 17-20;
President of the Republic of South
Africa and Others v South African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at
para 148; and
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
56-9.
13
This section provides:
“
National
legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice.”
14
Section 179(2) of the Constitution provides:
“
The
prosecuting authority has the power to institute criminal
proceedings on behalf of the state, and to carry out any necessary
functions
incidental
to instituting criminal proceedings.”
(Emphasis added.)
15
The CFCR cites the United Nations Convention Against Corruption and
the African Union Convention on Preventing and Combating
Corruption
as relevant.
Article 36 of the United Nations
Convention Against Corruption of 2003 (which South Africa ratified
on 22 November 2004) provides
as follows:
“
Each
State Party shall . . . ensure the existence of a body or bodies or
persons specialized in combating corruption through law
enforcement.
Such body or bodies or persons shall be granted the necessary
independence, in accordance with the fundamental
legal system of the
State Party, to be able to carry out their functions effectively and
without undue influence.”
Article 5 of the African Union
Convention on Preventing and Combating Corruption of 2003 (which
South Africa ratified on 7 December
2005) provides as follows:
“
State Parties undertake to:
. . . .
(3) Establish,
maintain and strengthen independent national anti-corruption
authorities or agencies.”
16
See Schedule 4 to the Interim Constitution Act 200 of 1993 and
Ex
Parte Chairperson of the Constitutional Assembly: In Re:
Certification of the Constitution of the
Republic of South Africa, 1996
[1996]
ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) in Annexure
2.
17
Id at para 108.
18
Id at para 109.
19
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para
60. See also
South African Association of Personal Injury
Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) at para 24, where this Court held that “[t]he
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.”
20
See
S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5)
BCLR 423
(CC) at para 17 and
Van Rooyen and Others v The State
and Others (General Council of the Bar of South Africa Intervening)
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC) at para
34, where the following comments of Professor Tribe in
American
Constitutional Law
Volume One 3ed (Foundation Press, New York
2000) are referred to with approval:
“
What
counts is not any abstract theory of separation of powers, but the
actual separation of powers ‘operationally defined
by the
Constitution’. Therefore, where constitutional text is
informative with respect to a separation of powers issue,
it is
important not to leap over that text in favor of abstract principles
that one might wish to see embodied in our regime
of separated
powers, but that might not in fact have found their way into our
Constitution’s structure.” (Footnotes
omitted.)
21
See above n 11 at para 70 of the SA Law Report
and 1427A-B of the BCLR.
22
Id
at paras 37-8 of the SA Law Report and at 1417C-1418A of
the BCLR.
23
Above [9].
24
Section 85(2) of the Constitution provides:
“
The President exercises the executive authority,
together with the other members of the Cabinet, by—
. . . .
(d) preparing
and initiating legislation”.
25
Item 6(1) of Schedule 2 to the Constitution requires that each judge
or acting judge must swear or affirm the following:
“
I,
A.B., swear/solemnly affirm that, as a Judge of the Constitutional
Court/Supreme Court of Appeal/High Court/E.F. Court, I will
be
faithful to the Republic of South Africa, will uphold and protect
the Constitution and the human rights entrenched in it,
and will
administer justice to all persons alike without fear, favour or
prejudice, in accordance with the Constitution and the
law. (In the
case of an oath: So help me God.)”
26
Section 38 of the Constitution reads as follows:
“
Anyone listed in this section has the right to
approach a competent court, alleging that a right in the Bill of
Rights has been
infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons
who may
approach a court are:
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who
cannot act in their own name;
(c) anyone acting as a member of, or in the interest
of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an
association acting in the interest of its members.”
27
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 69.
28
Above n 11 at para 52 of the SA Law Report and at 1421E-H of the
BCLR.
29
Id at para 67 of the SA Law Report and at 1424H-J of the BCLR.
30
Id.
31
Id at para 71 of the SA Law Report and at 1427C-D of the BCLR.
32
See
President of the Republic of South Africa and Others v United
Democratic Movement (African Christian Democratic Party and Others
Intervening; Institute for Democracy in South Africa and Another as
Amici Curiae
)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11)
BCLR 1164
(CC)
at para 25.
33
Above n 11 at para 68 of the SA Law Report and at 1425A-B of the
BCLR and at fn 52 of that case.
34
[1970] 2 WLR 1264
at 1277G–H;
[1970] AC 1136
(PC) at 1157E–F.
See also the decision of the Privy Council in
Methodist Church
in the Caribbean and the Americas (Bahamas District) and Others v
Symonette and Others; Poitier and Others v
Methodist Church of the
Bahamas and Others
(2000) 59 West Indian Report 1 at 14g-h.
35
See
Rediffusion (Hong Kong) Ltd
above n 34.
36
Id
.
37
Trinidad and Tobago Civil Rights Association; Rajh Basdeo v The
Attorney-General of Trinidad and Tobago
[2005] TTHC 66
, HCA No.
S 1070 of 2005, delivered on 7 November 2005.
38
The Attorney-General of Trinidad and Tobago v The Trinidad and
Tobago Civil Rights Association; Rajh Basdeo
Civ App No 149 of
2005, delivered on 18 July 2007, unreported, a
t
para 18.
39
Id a
t para 20.
40
Id at para 21.
41
Menzies J in
Cormack
and Another v Cope and Others; The State of Queensland and Another v
Whitlam and Others
[1974] HCA 28
;
(1974) 131 CLR 432
at 465.
42
See section 1 of the Constitution, which
provides:
“
The Republic of South Africa is one, sovereign,
democratic state founded on the following values:
. . . .
(d) Universal adult suffrage, a national common voters
roll, regular elections and a multi-party system of democratic
government
to ensure accountability, responsiveness and openness.”