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[2011] ZACC 6
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Glenister v President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA 347 (CC) ; 2011 (7) BCLR 651 (CC) (17 March 2011)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 48/10
[2011] ZACC 6
In
the matter between:
HUGH
GLENISTER
…........................................................................................
Applicant
and
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
…..................
First Respondent
MINISTER
FOR SAFETY AND SECURITY
…................................
Second
Respondent
MINISTER
FOR JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
…............................................
Third
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
….............
Fourth
Respondent
GOVERNMENT
OF THE REPUBLIC OF SOUTH AFRICA
…...........
Fifth
Respondent
together
with
HELEN
SUZMAN FOUNDATION
….......................................................
Amicus
Curiae
Heard
on : 2 September 2010
Decided
on : 17 March 2011
JUDGMENT
NGCOBO CJ:
Introduction
This
is an application for leave to appeal against a decision of the
Western Cape High Court, Cape Town (High Court) and an
application
for direct access. These applications concern the constitutional
validity of the National Prosecuting Authority
Amendment Act
1
(NPAA Act) and the South African Police Service Amendment Act
2
(SAPSA Act). These two statutes, together, will be referred to as
the impugned laws. The gravamen of the complaint relates
to the
disbanding of the Directorate of Special Operations (DSO), a
specialised crime fighting unit that was located within
the
National Prosecuting Authority (NPA), and its replacement with the
Directorate of Priority Crime Investigation (DPCI),
which is
located within the South African Police Service (SAPS). The
impugned laws brought this about.
The
DSO was established in 2001 under section 7(1) of the National
Prosecuting Authority Act
3
(NPA Act). Its purpose was to supplement the efforts of existing
law enforcement agencies in addressing organised crime. The
DSO was
vested with powers to investigate and institute criminal
proceedings relating to organised crimes or other specified

offences. On 27 January 2009, the President signed into law the
impugned laws. The combined effect of the impugned laws was
to
disband the DSO and establish the DPCI. It is this effect of the
impugned laws which is at the centre of the present constitutional

challenge. The applicant, Mr Glenister, a businessman, challenged
the impugned laws in the High Court on various grounds.
The
background
These
applications are a sequel to
Glenister v President of the
Republic of South Africa and Others
(
Glenister I
).
4
In
Glenister I
, Mr Glenister and others unsuccessfully
challenged the decision of the Cabinet to initiate the impugned
laws. After they were
signed into law, the applicant challenged
their validity on various grounds in the High Court. This
challenge, too, suffered
the same fate but on different grounds.
The applicant now seeks leave to appeal against the decision of the
High Court, alternatively,
an order granting him direct access.
The
President of the Republic of South Africa, the Minister for Safety
and Security, now the Minister for Police, and the Minister
for
Justice and Constitutional Development, the first, second and third
respondents respectively (respondents), are resisting
both
applications. Although the notice to oppose also cited the National
Director of Public Prosecutions (NDPP), he did not
play an active
role in the proceedings.
5
In this Court, the Helen Suzman Foundation (amicus), a
non-governmental organisation, applied for and was admitted as
amicus
curiae. Its objectives are “to defend the values that
underpin . . . liberal constitutional democracy and to promote

respect for human rights.” It joins the applicant in
challenging the validity of the impugned laws, but did so on their

alleged inconsistency with this country’s international
obligation to establish an independent anti-corruption unit.
The
full factual background giving rise to these proceedings is set out
in
Glenister I
.
6
It is therefore not necessary to repeat it, save so far as it is
relevant to these proceedings.
The
DSO was established in 2001 to supplement the efforts of existing
law enforcement agencies in tackling organised crime.
In due
course, concerns were raised within the criminal justice system and
the intelligence community relating to the role
and functioning of
the DSO. To respond to these concerns, on 1 April 2005 the
President appointed Judge Khampepe to chair a
commission of inquiry
(Khampepe Commission) to investigate and report on aspects of the
DSO, including the rationale for its
establishment, its mandate,
its location within the NPA as opposed to the SAPS, and the
relationship between the SAPS and the
DSO. The resulting Khampepe
Commission Report (Khampepe Report), signed on 3 February 2006,
recommended that the DSO should
continue to be located within the
NPA, 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 for Safety and
Security and the need to tackle the
unhealthy relationship between the DSO and the SAPS.
Cabinet
appeared to approve the Khampepe Report. A Cabinet statement of 29
June 2006 reveals that it 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, among other
things, that Cabinet had reviewed progress
in implementing the
recommendations of the Khampepe Commission.
Meanwhile,
the African National Congress (ANC), the ruling party, at its 52
nd
national conference, held in Polokwane in December 2007, adopted a
resolution calling for a single police service and the dissolution

of the DSO (Polokwane Resolution).
On
12 February 2008, following the Polokwane Resolution, the Minister
for Safety and Security, speaking in the National Assembly,

proposed the dissolution of the DSO and the creation of a new unit
under the SAPS to deal with organised crime. In the same
month, the
Director-General of the Department for Justice and Constitutional
Development stated during a radio interview that
the DSO would be
amalgamated with the SAPS. The legislative programme of the
Department for Safety and Security for 2008 indicated
that laws
dealing with the DSO would be placed before Parliament during that
year.
Following
a Cabinet meeting in April 2008, the Presidency issued a statement
to the effect that Cabinet had approved the NPAA
Bill and the
General Law Amendment Bill, later renamed the SAPSA Bill (the
Bills). Among other things, these Bills proposed
to dissolve the
DSO and replace it with the DPCI. The stated purpose 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.
As
I have indicated above, the applicant and others challenged the
decision to initiate the Bills. The North Gauteng High Court
held
that it had no jurisdiction to hear the application. By the time
the matter reached this Court by way of an application
for leave to
appeal and an application for direct access, the Bills had not only
been approved by Cabinet but were then before
Parliament. This
Court, in
Glenister I
, dismissed the challenge, holding that
it had not been established that it would be appropriate for this
Court to intervene
in the affairs of Parliament nor that material
and irreversible harm would result if the Court did not intervene
at that stage.
7
On
or about 23 October 2008, the impugned laws were passed by
Parliament, and on 27 January 2009 they were assented to and signed

by the President. On 17 April 2009, the applicant challenged the
constitutional validity of the impugned laws in the High Court.
Proceedings
in the High Court
In
the High Court, the applicant based his constitutional challenge on
several grounds. The one challenge was based on the absence
of a
rational basis for the enactment of the impugned laws. The others
alleged failure to comply with various constitutional
obligations
relating to accountability; cultivating the principles of good
human resource management practices and good labour
relations;
upholding international obligations; facilitation of public
involvement; protecting values enshrined in the Bill
of Rights; and
allowing the NPA to properly exercise its functions.
The
High Court dismissed all the grounds of attack based on
constitutional obligations. It held that, under section 167(4)(e)

of the Constitution, only this Court may “decide that
Parliament or the President has failed to
fulfil
a constitutional obligation.”
8
It accordingly concluded that it lacked jurisdiction to consider
the constitutional challenges based on the alleged failure
to
fulfil
constitutional obligations.
The
High Court dismissed the challenge based on rationality. It held
that the establishment of the DPCI within the framework
of the SAPS
“is manifestly designed to enhance the capacity of the SAPS
to prevent, combat and investigate national priority
crimes and
other crimes”;
9
this is a legitimate governmental purpose to pursue; and the means
by which this purpose is sought to be achieved “appear
to be
rational.”
10
It accordingly concluded that the decision to disband the DSO and
establish the DPCI “is rational and can certainly not
be
described as arbitrary.”
11
Proceedings
in this Court
The
application for leave to appeal is directed against these findings
and conclusions of the High Court. Direct access is sought
in the
event we uphold the finding and conclusion of the High Court that
it lacked jurisdiction in respect of the challenges
based on
constitutional obligations.
The
gravamen of the applicant’s constitutional complaint is the
disbandment of the DSO, which, as indicated above, was
located
within the NPA, and its replacement by the DPCI, which is located
within the SAPS. The applicant contended that the
scheme of the
impugned laws which brought about these changes is
unconstitutional. He submitted that it is irrational, unreasonable,

unfair and undermines the structural independence of the NPA. He
argued that, in enacting the impugned laws, the legislature

violated a number of its constitutional obligations. The
obligations contended for were to act reasonably and accountably;

to cultivate good human resource management; to respect
international treaty obligations; to maintain an independent
anti-corruption
unit; to allow public participation in the
legislative process; to allow the NPA properly to exercise its
functions; and to
respect values enshrined in the Bill of Rights.
The
amicus presented a discrete argument based on an international
obligation to establish an independent anti-corruption agency.
It
contended that the impugned laws violate this constitutional
obligation. This obligation, the amicus argued, flows from
the
international treaties that South Africa has ratified which require
states parties to establish an independent anti-corruption
unit to
fight the scourge of corruption. Having regard to the location of
the DPCI within the SAPS and the statutory provisions
governing it,
the amicus maintained that the DPCI is not independent.
For
their part, the respondents maintained that the scheme of the
impugned laws finds support in the provisions of sections
179 and
205 of the Constitution. Section 179(2) provides for the NPA with
“the power to institute criminal proceedings
on behalf of the
state, and to carry out any necessary functions incidental to
instituting criminal proceedings.” Section
205 provides for
the national police service whose objects “are to prevent,
combat and investigate crime, to maintain
public order, to protect
and secure the inhabitants of the Republic and their property, and
to uphold and enforce the law.”
There is nothing
constitutionally wrong therefore in locating an anti-corruption
unit within the SAPS, the respondents argued.
They further argued
that the South African Police Service Act
12
(SAPS Act), as amended by the SAPSA Act, and understood in the
context of the NPA Act, contains sufficient safeguards to ensure

the independence of the DPCI.
The
respondents contended that the scheme of the impugned laws is
rational. They submitted that the scheme was put in place
to
enhance the capacity of the SAPS to prevent, combat and investigate
national priority crimes, including corruption. They
argued that
this is a legitimate governmental purpose to pursue and that the
means by which this purpose is sought to be achieved
are logical,
rational and consistent with the Constitution. In addition, the
respondents submitted that the High Court was
correct in dismissing
the constitutional challenges based on failure to fulfil
constitutional obligations for lack of jurisdiction.
In
this Court, however, save for the obligation to facilitate public
involvement in the legislative process, I did not understand
the
applicant to suggest that each of the other obligations constitutes
a self-standing cause of action. Indeed, in response
to a question
by the Court, counsel for the applicant disavowed any claim that
the obligation to cultivate good human resource
management, based
on section 195 of the Constitution, for example, provides an
independent cause of action. In addition, he
conceded, very
properly, that the challenge based on failure to facilitate public
involvement is a matter that falls within
the exclusive
jurisdiction of this Court under section 167(4)(e) of the
Constitution.
Save
for the constitutional challenge based on failure to facilitate
public involvement, the High Court erred in concluding
that it
lacked jurisdiction in relation to other challenges based on
constitutional obligations. The obligations contended
for in these
challenges were not of the kind contemplated in section 167(4)(e)
of the Constitution.
13
However, the High Court was correct in dismissing the
constitutional challenge based on failure to facilitate public
involvement
for lack of jurisdiction.
14
It is this challenge which now forms the basis of the direct access
application by the applicant. It will be convenient to
consider
this challenge first, for, if the applicant succeeds on this
challenge, it may not be necessary to consider the application
for
leave to appeal.
15
The
application for direct access
The
application for direct access relates to the challenge based on the
alleged failure by Parliament to facilitate public involvement
in
the legislative process leading to the enactment of the impugned
laws. It is by now settled that sections 59(1)
16
and 72(1)
17
of the Constitution impose a constitutional obligation on
Parliament to facilitate public involvement in its legislative and

other processes.
18
It is equally settled that this obligation is of the kind envisaged
in section 167(4)(e).
19
Only this Court has the jurisdiction to decide whether Parliament
has failed to facilitate public involvement in its legislative

process.
Before
leaving this topic, it is necessary to comment on the procedure
followed by the applicant in raising this challenge.
Direct access
must be sought with the leave of this Court in those matters where,
in addition to this Court, other courts also
have jurisdiction. To
bypass the other courts and bring those matters directly to this
Court, litigants require an indulgence
from this Court in the form
of leave of this Court.
20
In matters where this Court has exclusive jurisdiction, that is, in
those matters set out in section 167(4) of the Constitution,
21
no indulgence is required as the litigants are obliged to come to
this Court.
An
application for leave to obtain direct access is therefore not the
appropriate vehicle for bringing to this Court matters
in which it
has original jurisdiction. Unless another rule specifically
applies, those applications must be brought to this
Court on notice
of motion pursuant to CC rule 11.
22
It was therefore not necessary for the applicant to bring an
application for direct access in order to raise the challenge
based
on failure to facilitate public involvement. To the extent that our
decision in
Poverty Alleviation
may have suggested
otherwise,
23
it does not represent the correct procedure. The applicant’s
application for direct access must therefore be treated
as an
ordinary application to this Court in terms of rule 11.
That
said, the challenge based on failure to facilitate public
involvement must fail for three reasons. First, it was not brought

timeously. In
Doctors for Life
24
and
Matatiele II
25
we emphasised the need to raise a challenge of this nature
immediately and without delay. In
Doctors for Life
, we held
that “applicants who have not pursued their cause timeously
in this Court may well be denied relief.”
26
The President signed the impugned laws into law on 27 January 2009.
The applicant launched his application for leave to appeal
only on
19 May 2010, slightly more than a year and three months later. This
delay has not been explained. The explanation tendered
by counsel
from the bar was that the applicant faced a dilemma whether to
conduct litigation in this Court in relation to this
challenge and
other litigation in the High Court in relation to those matters
that do not fall within the exclusive jurisdiction
of this Court.
This
explanation is not acceptable. The applicant may well have come
directly to this Court with this challenge and sought to
urge us
that, in relation to the other challenges which do not lie within
the exclusive jurisdiction of this Court, it was
in the interests
of justice that we hear those challenges together with the
challenge based on failure to facilitate public
involvement.
27
This
delay and the lack of a satisfactory explanation for it would have
been sufficient to deny the applicant relief.
28
Second,
this challenge is directed at Parliament, which, it is alleged,
failed to comply with its constitutional obligation
to facilitate
public involvement in its legislative process. Both the National
Assembly and the National Council of Provinces
have a direct and
substantial interest in the outcome of this challenge. They should
therefore have been joined in the proceedings.
Failure to join the
Speaker of the National Assembly and the Chairperson of the
National Council of Provinces would also have
been fatal to the
application.
Ordinarily,
these two reasons should be dispositive of this challenge. However,
on the merits, the application raises an important
question
concerning the obligation of Parliament to facilitate public
involvement in its legislative process. In addition,
we have the
affidavit of Mr Yunus Carrim, the Deputy Minister for Cooperative
Governance and Traditional Affairs. Mr Carrim
dealt with the
facilitation of public hearings in the legislative process that led
to the enactment of the impugned laws. He
was, at the time, a
Member of Parliament, the Chairperson of the Justice and
Constitutional Development Portfolio Committee
and the Co-chair of
the joint committee that dealt with the impugned laws in
Parliament. The joint committee was comprised
of the Justice and
Constitutional Development Portfolio Committee and the Safety and
Security Portfolio Committee (Joint Committee).
We therefore have
sufficient information on record to deal with the merits of this
challenge.
This
leads to the third reason why this challenge should fail. The
applicant has not made out a case for failure to facilitate
public
involvement. In
Doctors for Life
, we considered the nature
and scope of the obligation to facilitate public involvement in the
legislative process and said:
“
Parliament
and the provincial legislatures have broad discretion to determine
how best to fulfil their constitutional obligation
to facilitate
public involvement in a given case, so long as they act reasonably.
Undoubtedly, this obligation may be fulfilled
in different ways and
is open to innovation on the part of the legislatures. In the end,
however, the duty to facilitate public
involvement will often
require Parliament and the provincial legislatures to provide
citizens with a meaningful opportunity to
be heard in the making of
the laws that will govern them. Our Constitution demands no less.
In determining whether
Parliament has complied with its duty to facilitate public
participation in any particular case, the Court
will consider what
Parliament has done in that case. The question will be whether what
Parliament has done is reasonable in all
the circumstances. And
factors relevant to determining reasonableness would include rules,
if any, adopted by Parliament to facilitate
public participation,
the nature of the legislation under consideration, and whether the
legislation needed to be enacted urgently.
Ultimately, what
Parliament must determine in each case is what methods of
facilitating public participation would be appropriate.
In
determining whether what Parliament has done is reasonable, this
Court will pay respect to what Parliament has assessed as
being the
appropriate method. In determining the appropriate level of scrutiny
of Parliament’s duty to facilitate public
involvement, the
Court must balance, on the one hand, the need to respect
parliamentary institutional autonomy, and on the other,
the right of
the public to participate in public affairs. In my view, this
balance is best struck by this Court considering whether
what
Parliament does in each case is reasonable.”
29
And
in
Matatiele II
, we explained that this obligation does not
simply entail holding hearings. It must provide the opportunity to
influence the
decision of the law-maker:
“
While
it is true that the people of the province have no right to veto a
constitutional amendment that alters provincial boundaries,
they are
entitled to participate in its consideration in a manner which may
influence the decisions of the Legislature. The purpose
of
permitting public participation in the law-making process is to
afford the public the opportunity to influence the decision
of the
law-makers. This requires the law-makers to consider the
representations made and thereafter make an informed decision.

Law-makers must provide opportunities for the public to be involved
in meaningful ways, to listen to their concerns, values,
and
preferences, and to consider these in shaping their decisions and
policies. Were it to be otherwise, the duty to facilitate
public
participation would have no meaning.”
30
(Footnote
omitted.)
The
question is whether, in passing the impugned laws, Parliament took
reasonable steps to facilitate public involvement.
The
applicant acknowledges that public hearings were held in Parliament
during August and September 2008 and that public hearings
were also
held in the provinces during September and October 2008. He
contends, however, that the process was flawed. He complains
that
there was no justifiable basis for treating the Bills as urgent and
that it was unreasonable to have allocated five days
for public
hearings on the Bills.
Mr
Carrim’s affidavit resists this challenge. He states that the
Bills presented to Parliament were substantially re-written
as a
result of an exhaustive consultation process. He further alleges
that more than 190 hours were spent in full committee
and
sub-committee meetings discussing the Bills, more than 100 hours on
informal exchanges with a variety of stakeholders and
over 7 200
people participated in public hearings in the provinces.
In
addition, Mr Carrim states that a comprehensive report was prepared
on every submission received, and that the Joint Committee
which
considered the impugned laws went through this report. The Joint
Committee met with the DSO and the SAPS organised crime
fighting
units to advise them on the Bills and to get their input. He states
that numerous submissions were received, including
that of the
applicant, and that the Joint Committee took the submissions into
account in finalising the impugned laws. He states
that one of the
issues raised in the submissions was the operational independence
of the DPCI.
There
is nothing to gainsay this evidence. Significantly, Mr Carrim
states that, at the end of his submission to the Joint Committee,

the applicant remarked that he was surprised to have been given “a
fair hearing and complimented the Committee for the
fair manner in
which [he was received].”
In
the light of this evidence, I am unable to conclude that Parliament
did not fulfil its obligation to facilitate public involvement.
On
the contrary, the conclusion that Parliament
fulfilled
its constitutional obligation to facilitate public involvement in
relation to the impugned laws is unavoidable.
In
the event, the application falls to be dismissed. As this
application was heard together with the application for leave to

appeal, costs relating to it will be considered later in this
judgment.
Before
considering the application for leave to appeal, there are
preliminary issues that must first be disposed of. These are

applications for condonation by: (a) the applicant for the late
filing of the application for leave to appeal; (b) the amicus
for
the late filing of written submissions; and (c) the respondents for
the late filing of their response to the written submissions
of the
amicus.
31
Condonation
applications
The
test for determining whether condonation should be granted is the
interests of justice.
32
Factors that are relevant to this determination include, but are
not limited to, the nature of the relief sought, the extent
and
cause of the delay, the effect of the delay on the administration
of justice and other litigants, the reasonableness of
the
explanation for the delay or defect, the nature and cause of any
other defect in respect of which condonation is sought,
the
importance of the issue to be decided in the intended appeal and
the prospects of success.
33
These
applications must be determined in the light of these principles.
Late
filing of the application for leave to appeal by the applicant
The
order sought to be appealed against was given on 18 June 2009. No
reasons were given at the time, but were furnished only
on 26
February 2010. This delay was unfortunate. The practice of giving
an order immediately and furnishing reasons later is
one to be
resorted to when a court has made up its mind on the conclusions
but requires time to formulate reasons. While there
are pressures
of other judicial work in the High Court, reasons for an order must
receive priority and must be given shortly
after the order. Any
delay in furnishing the reasons may prejudice a litigant who wishes
to appeal against the order. That
said, the application for leave
to appeal was launched on 19 May 2010. This was more than 10 months
after the order was made
and almost three months after the reasons
for the order were furnished. In short, the application was filed
more than 15 days
after the filing deadline prescribed by CC rule
19.
CC
rule 19(2) provides as follows:
“
A
litigant who is aggrieved by the decision of a court and who wishes
to appeal against it directly to the Court on a constitutional

matter shall, within 15 days of the order against which the appeal
is sought to be brought and after giving notice to the other
party
or parties concerned, lodge with the Registrar an application for
leave to appeal: Provided that where the President has
refused leave
to appeal the period prescribed in this rule shall run from the date
of the order refusing leave.”
34
This
rule is clear and admits of no ambiguity. It requires a prospective
appellant to lodge an application for leave to appeal
“within
15 days of the order against which the appeal is sought.” The
rule does not contemplate a situation where
reasons for the order
are given on a later date than that of the order. It provides only
for a situation where the order forms
part of the judgment. Where
reasons for the order are given later, a prospective appellant is
therefore confronted with a dilemma:
either (a) to lodge an
application for leave to appeal against the order without
furnishing grounds upon which the intended
appeal will be based and
provide grounds later; or (b) to wait until the reasons are
furnished and then lodge the application
for leave to appeal and
ask for condonation citing the delay in furnishing the reasons as
the explanation for the delay.
Rule
49(1)(b) of the Uniform Rules of Court that apply to the High
Courts was inserted to address this dilemma.
35
It postpones the commencement of the period within which leave must
be sought until reasons have been delivered. There is a
need for
the rules of this Court to be amended so as to address the dilemma
confronting a prospective appellant where the reasons
for the order
are furnished later than the date of the order. But what is to be
done in the meantime?
The
question is whether this is an appropriate case in which we should
invoke the inherent power of this Court to protect and
regulate its
process under section 173.
36
This is an extraordinary power which must be exercised sparingly
and in exceptional situations.
37
In my view, the present situation, in which there is a vacuum
because neither legislation nor the rules address it, is an
extraordinary one in which it would be appropriate to exercise the
inherent power under section 173.
38
Pending
the promulgation of the relevant rule, this Court should adopt a
procedure which requires that, where reasons for the
order are
given later than the date of the order, the application for leave
to appeal is to be lodged within 15 days of the
date when the
reasons for the order were delivered. Applying this procedure to
the present case, the application for leave
to appeal should have
been lodged on 19 March 2010. The application was therefore late by
62 days. The application for condonation
must be assessed in light
of this delay.
The
explanation furnished for the delay is utterly unsatisfactory.
39
Ordinarily, this should lead to the refusal of the application for
condonation. However, what weighs heavily in favour of granting

condonation is the nature of the constitutional issues sought to be
argued in the intended appeal, as well as the prospects
of success.
This case concerns the constitutional authority of Parliament to
establish an anti-corruption unit, in particular
the nature and the
scope of its constitutional obligation, if any, to establish an
independent anti-corruption unit. These
are constitutional issues
of considerable importance. Apart from this, the decision to
disband the DSO and its replacement
by the DPCI has evoked public
interest in the light of the fight against corruption. And the
issues urged upon us by the applicant
and the amicus are arguable.
It
is, therefore in the interests of justice to grant condonation.
The
amicus’s late filing of written submissions
The
amicus seeks condonation for the late filing of its written
argument, the cause of which was its failure to comply with
the
page limit for written argument required by the rules and
directions of this Court. While the amicus is the author of its
own
misfortune, the explanation is understandable and condonation
should be granted.
The
respondents’ late filing of the response to the written
submissions of the amicus
The
respondents seek condonation for the late filing of their response
to the written submissions of the amicus. They received
the
condensed version of the written submissions of the amicus on 26
August 2010. They contend that they therefore could not
respond
timeously. I think they may well have worked on the basis of the
long version and could have filed their response timeously.
I am
nevertheless satisfied that condonation should be granted in their
case too.
The
application for leave to appeal
The
question whether the application for leave to appeal should be
granted depends upon whether: (a) it raises a constitutional
issue;
and (b) it is in the interests of justice to grant leave. Both
these questions must be answered in the affirmative in
the light of
the conclusion reached in relation to condonation, namely, that the
application raises constitutional issues of
considerable
importance; it is in the public interest to consider the issues in
the intended appeal; and the intended appeal
is arguable. These
considerations warrant the granting of leave to appeal. Leave to
appeal should therefore be granted.
The
appeal
The
following main issues arise on appeal:
Are
the impugned laws irrational?
Do
the impugned laws run afoul of constitutional provisions dealing
with the powers and the functioning of the NPA?
Does
the Constitution require Parliament to establish an independent
anti-corruption unit, and, if so, did Parliament comply?
Do
the impugned laws otherwise infringe any of the rights in the Bill
of Rights?
In
the event of the applicant succeeding on any of these grounds, what
is the appropriate relief?
Rationality
Under
our Constitution, national legislative authority vests in
Parliament.
40
However, in the exercise of its legislative authority, “Parliament
is bound only by the Constitution, and must act in
accordance with,
and within the limits of, the Constitution.”
41
But like all exercise of public power, there are constitutional
constraints that are placed on Parliament. One of these constraints

is that “there must be a rational relationship between the
scheme which it adopts and the achievement of a legitimate

governmental purpose.”
42
Nor can Parliament act capriciously or arbitrarily.
43
The onus of establishing the absence of a legitimate governmental
purpose, or of a rational relationship between the law and
the
purpose, falls on the objector. To survive rationality review,
legislation need not be reasonable or appropriate.
44
The
declared purpose of the SAPSA Act is to enhance the investigative
capacity of the South African Police Service in relation
to
national priority and other crimes by establishing a Directorate
for Priority Crime Investigation to combat those crimes.
45
It
cannot be gainsaid that this is a legitimate governmental purpose
to pursue. Criminals are becoming more sophisticated and
nowadays
tend to specialise in particular crimes. Corruption has become a
scourge in our country and it poses a real danger
to our developing
democracy. It undermines the ability of the government to meet its
commitment to fight poverty and to deliver
on other social and
economic rights guaranteed in our Bill of Rights. Organised crime
and drug syndicates also pose a real
threat to our democracy. The
amount of drugs confiscated inside our borders testifies to this.
The sophisticated international
network that is responsible for
transporting these drugs requires urgent attention.
For
our country to win the war against these serious crimes, we need to
enhance the capacity of the police to prevent, combat
and
investigate these crimes and other national priority crimes.
Strengthening the ability and the capacity of the SAPS to
address
the scourge of corruption and other national priority crimes is
unquestionably a legitimate governmental purpose. Establishing
a
separate division in the SAPS, the DPCI, for that purpose is
rationally related to the achievement of that purpose. The finding

of the High Court in this regard must therefore be upheld.
I
did not understand the applicant to suggest otherwise. He contends
that the scheme of the impugned laws is irrational. That
scheme is
the dissolution of the DSO, which was located in the NPA, and
replacing it with the DPCI, which is located within
the SAPS. What
makes this scheme irrational, the applicant maintains, is that: it
gives effect to the Polokwane Resolution;
Parliament blindly
followed this resolution; and the DSO was dissolved in order to
shield high-ranking ANC politicians and
their associates from
prosecution. The main plank of his argument was that it was
irrational for the DSO to be dissolved because
it was the most
successful crime fighting unit. As he put it, the “dilution
of the excellence of the DSO into the unknown
and untested DPCI,
which will be required to function in a dysfunctional SAPS under
political control instead of independently,
makes no rational sense
at all.” It is worth noting here that there is a dispute
about the efficacy of the DSO. The Minister
for Police refutes the
applicant’s assertion that the DSO was effective by pointing
to comments made by the former head
of the DSO to Parliament. These
were to the effect that the perception that the DSO was better than
the police was misleading,
and that the DSO success rate was
inflated in part because it was able to select its cases.
The
respondents contended that the scheme of the impugned laws is
rational. They submitted that the establishment of the DPCI
was
designed to enhance the capacity of the SAPS to prevent, combat and
investigate national priority crimes and other crimes.
They argued
that this is a legitimate governmental purpose and that the means
by which it is sought to be achieved are logical,
rational and
consistent with the Constitution. They submitted that the creation
and the subsequent dissolution of the DSO were
policy decisions
that were within the power of the executive and Parliament to make.
The
respondents submitted that the inference sought to be drawn by the
applicant, namely, that the true motive of the impugned
laws is to
shield high-ranking members of the ANC from prosecution, is
untenable. They draw attention to the fact that: (a)
the impugned
laws make provision for the continuation of investigations and
prosecutions that were underway when they were
enacted; (b) the
majority of those investigations and prosecutions have been
finalised; and (c) concerns relating to the operations
of the DSO
pre-date the Polokwane Resolution as evidenced by the Khampepe
Report.
Assume,
for the moment, that the impugned laws were in fact motivated by
the Polokwane Resolution. This does not render the
scheme
unconstitutional. As this Court recognised in
Glenister I
,
“there is nothing wrong, in our multiparty democracy, with
Cabinet seeking to give effect to the policy of the ruling
party.”
46
Indeed, it may well be the central role of a political party to
formulate policy recommendations with the intention that they
be
implemented, and there is nothing untoward in the Cabinet taking up
such recommendations. Under our parliamentary system,
these
recommendations become law only if the executive embodies them into
legislation which it initiates, Parliament passes
the legislation,
and the President signs the legislation. The origin of the
legislation does not negate the fact that at each
of these steps,
the relevant political actor applied his or her mind to the
legislation. And on the record there is no basis
to conclude that
this was not done.
I
now deal with the applicant’s main complaint, namely the
disbanding of the DSO and its replacement with the DPCI.
The
decision to disband the DSO and establish the DPCI and locate it
within the SAPS must be understood in the context of the

Constitution. Section 179 of the Constitution makes provision for a
single national prosecuting authority with “the power
to
institute criminal proceedings on behalf of the state, and to carry
out any necessary functions incidental to instituting
criminal
proceedings.”
47
On the other hand, section 205 makes provision for the national
police service, whose objects “are to prevent, combat
and
investigate crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property,
and to uphold
and enforce the law.”
48
It
is therefore within the power of Parliament to establish an
anti-corruption unit and to locate it within the SAPS. The

Constitution does not prescribe to Parliament where to locate the
anti-corruption unit. It leaves it up to the executive, which

initiates legislation under section 85(2)(d), and ultimately to
Parliament to make a policy choice. I agree with the submission
of
the respondents that the conceptualisation, design and formulation
of legislation required by the provisions of sections
179 and 205
of the Constitution, as well as the organisational, financial and
political ramifications thereof, involve a range
of policy choices
and decisions over a broad front. In as much as the decision of the
legislature to establish the DSO was
a policy decision, so too is
the decision to disband the DSO and establish the DPCI and locate
it within the SAPS. As this
Court pointed out in
Bel Porto
,
“[t]he fact that there may be more than one rational way of
dealing with a particular problem does not make the choice
of one
rather than the others an irrational decision.”
49
That
the decision was one of policy finds support in the record. The
memorandum on the objectives for amending the impugned
laws sets
out a number of reasons for the displacement of the DSO and
establishment of the DPCI.
50
In this regard the Khampepe Commission was appointed in order to
look into issues such as the lack of coordination between
the DSO
and the SAPS, the lack of oversight over the DSO, and operations
conducted by the DSO outside of its mandate. The memorandum
also
highlighted the need to address organised crime in a more
comprehensive fashion.
51
It is apparent from the record before us that the establishment of
the DPCI and the displacement of the DSO stemmed from, among
other
concerns, the controversy that surrounded the DSO since its
inception, in particular, concerns about the level of involvement

by the prosecutors into investigations, and the loss of objectivity
of prosecutors leading investigations. As a result of this,
a
policy decision was therefore taken by the government to transfer
this investigative component of the NPA to the SAPS.
Under
our constitutional scheme it is the responsibility of the executive
to develop and implement policy.
52
It is also the responsibility of the executive to initiate
legislation in order to implement policy.
53
And it is the responsibility of Parliament to make laws. When
making laws Parliament will exercise its judgment as to the
appropriate policy to address the situation. This judgment is
political and may not always coincide with views of social

scientists or other experts.
54
As has been said, “[i]t is not for the court to disturb
political judgments, much less to substitute the opinions of

experts.”
55
Here
we are not concerned with the question as to which of the two units
between the DSO and the DPCI is more efficient than
the other. We
are concerned with whether the establishment of the DPCI is
rationally related to a legitimate governmental purpose.
As long as
there is a rational relationship between the decision to disband
the DSO and establish the DPCI and the governmental
purpose to
enhance the investigative capacity of the SAPS in relation to
national priority crimes, it is irrelevant that the
governmental
purpose could have been achieved by retaining the DSO.
56
The decision by Parliament to disband the DSO and establish the
DPCI within the SAPS is entirely consistent with objects of
the
police service set out in section 205(3) of the Constitution. The
decision to locate the DPCI within the SAPS is manifestly
designed
to prevent, combat and investigate national priority crimes and
other crimes. This is a legitimate governmental purpose
and the
means by which the impugned laws seek to achieve this purpose are
rationally related to the governmental purpose.
In
all these circumstances the evidence cannot be said to establish
that the purpose of Parliament as reflected in the impugned
laws
was to protect leaders of the ANC. The respondents’
contention that the legislation authorises the continuance of

existing investigations and that most of the investigations under
the old regime have already been completed has not been refuted.
The
challenge based on rationality must therefore be dismissed.
Do
the impugned laws violate the provisions of section 179?
The
applicant also contended that the impugned laws violate the
provisions of section 179 of the Constitution. Three arguments
were
advanced in this regard. Two of them, made in the written argument,
were: first, that the disbanding of the DSO undermines
the
independence of the NPA which is required by section 179(4); and
second, that the DSO could not be disbanded without the
concurrence
of the NDPP as required by section 179(5). At the hearing, the
applicant advanced a third argument based on the
provisions of
section 179(2) read with section 179(4). As I understand the
argument, it was said that these two provisions,
read together,
required the DSO to be located within the NPA. Section 179
provides, in relevant part:
“
(2)
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.
.
. . .
(4)
National legislation must ensure that the prosecuting authority
exercises its functions without fear, favour or prejudice.
(5)
The National Director of Public Prosecutions—
(a)
must determine, with the concurrence of the Cabinet member
responsible for the administration of justice, and after consulting

the Directors of Public Prosecutions, prosecution policy, which must
be observed in the prosecution process”.
I
deal with these arguments in turn.
The
first argument is untenable. It is that without the power to
investigate crimes that it prosecutes, the NPA cannot function

without fear, favour or prejudice. But this cannot be so. Section
205(3) of the Constitution assigns the power to “prevent,

combat and investigate crime” to the SAPS. In the course of
oral argument, counsel for the applicant was constrained
to concede
that, but for the prior-existing DSO within the NPA, he could not
contend that the impugned laws were unconstitutional.
In effect,
then, the applicant’s claim is one of retrogression. But the
issue is not relative; the issue is whether the
NPA is able to
operate without fear, favour or prejudice without the DSO. If it is
able to do so, it does not matter that a
prior scheme existed.
57
There is no suggestion that it cannot. Sections 20 and 32 of the
NPA Act, both of which remain unaltered by the impugned laws,

ensure the independence of the NPA.
58
The
second argument, based on section 179(5), proceeded along these
lines. Section 179(5) requires the NDPP to determine prosecution

policy with the concurrence of the Minister for Justice and
Constitutional Development. The dissolution of the DSO is the
exercise of prosecution policy. The applicant argued that the DSO
could not therefore be dissolved without the concurrence of
the
NDPP. The dissolution of the DSO without the concurrence of the
NDPP was therefore fatal to the impugned laws.
The
argument fails to distinguish between the power of Parliament to
make laws and the authority of the NDPP to determine prosecution

policy. The decision whether to establish the DSO and where to
locate it is manifestly not a decision about a policy to be

observed in the prosecution process and is thus not a prosecution
policy decision. It is a decision about how best to fight
national
priority crimes and other crimes. The constitutional authority to
make this decision flows from the legislative powers
vested in
Parliament, in general, and, in particular, by sections 179(1)
59
and 179(7).
60
By contrast, section 179(5) is concerned with the determination of
prosecution policy “which must be observed in the
prosecution
process.” The power conferred by this provision is narrowly
confined to the conduct of the prosecution process.
It is not
concerned with the powers of the NPA to investigate national
priority crimes. The decision whether to disband the
DSO does not
therefore require the concurrence of the NDPP.
The
third argument was advanced during oral argument. It was based on
reading section 179(2) and section 179(4) together. Section
179(4),
which requires national legislation to “ensure that the
prosecuting authority exercises its functions without
fear, favour
or prejudice”, guarantees the independence of the NPA. This
independence is supported by granting the NPA
the power to
investigate the crimes in respect of which it initiates criminal
proceedings, because crime investigation is a
necessary function
“incidental to instituting criminal proceedings.”
61
Locating the DSO in the NPA was intended to guarantee that it would
conduct its own investigations. Without the DSO, the NPA
loses its
independence, and therefore the impugned laws, which brought about
this result, are unconstitutional.
The
fallacy in this argument is its premise. It rests on the assumption
that the Constitution requires the NPA to be given the
power to
investigate crimes as a “necessary function” that is
“incidental to instituting criminal proceedings.”
But
that is not so. The Constitution expressly gives this power to the
national police service, whose objects include “to
prevent,
combat and investigate crime”.
62
Whatever the scope of the phrase “the power . . . to carry
out any necessary functions incidental to instituting criminal

proceedings” in section 179(2), a phrase we need not, in this
case, define, it cannot mean that the powers vested in
the police
service by the Constitution must be assigned to the NPA. Nor does
it mean that a specialised crime fighting unit
must be established
within the NPA.
Given
the provisions of sections 179 and 205 of the Constitution, in
particular, the assignment of the powers to investigate
crime to
the police and the power to prosecute crime to the NPA, it is
indeed doubtful whether the power to investigate crime
can be said
to be incidental to the power to prosecute crime. Happily, in this
case we do not have to consider the question
of whether Parliament
had the power to confer full blown investigating functions and
powers on the NPA in the light of the
provisions of sections 179
and 205.
What
must be stressed here is that the Constitution does not require the
creation of a specialised crime unit within the NPA.
This is
implicit, if not explicit, from the provisions of section 205(3)
which assigns to police the power to investigate crime.
It leaves
the decision to the exercise of political judgment by Parliament,
the exercise of which is subject to the Constitution.
The
Constitution also does not require that once the specialised crime
unit is located within the NPA, its location may never
be changed
without undermining the independence of the NPA. Its location may
be changed but this is subject to the Constitution.
Nor does the
location of the specialised unit within the SAPS in itself violate
the Constitution in the light of the provisions
of section 205(3).
International
law does not support the proposition advanced by the applicant
either. For example, the Legislative Guide for
the Implementation
of the United Nations Convention against Corruption provides:
“
States
parties may either establish an entirely new independent body or
designate an existing body or department within an existing

organization. In some cases, an anti-corruption body may be
necessary to start combating corruption with fresh and concentrated

energy. In other cases, it is often useful to enlarge the competence
of an existing body to specifically include anti-corruption.

Corruption is often combined with economic offences or organized
criminal activities. It is thus a sub-specialization of police,

prosecution, judicial and other (for example, administrative)
bodies. Implementers are reminded that the creation of new bodies

with hyper-specialization may be counterproductive, if it leads to
overlapping of competences, a need for additional coordination,

etc., that would be hard to resolve.”
63
It
is difficult to fathom how the location of the specialised crime
fighting unit within the SAPS will render the NPA unable
to operate
without fear, favour or prejudice merely because it no longer
houses the DSO. There is simply no evidence to support
the argument
that without the DSO the NPA will lose its structural independence.
It follows that this argument cannot be upheld.
The
arguments based on section 179 cannot stand and must be dismissed.
The remaining question is whether to replace the DSO
with the DPCI
is unconstitutional because it violates the constitutional
obligations to: (a) establish an independent crime
fighting unit;
and (b) respect, protect, promote and fulfil the rights in the Bill
of Rights. It is to these issues that I
now turn.
The obligation to establish
an independent body
Corruption
is a scourge that must be rooted out of our society. It has the
potential to undermine the ability of the state to
deliver on many
of its obligations in the Bill of Rights, notably those relating to
social and economic rights.
As
will be discussed later, this judgment recognises an obligation
arising out of the Constitution for the government to establish

effective mechanisms for battling corruption. The establishment of
an anti-corruption unit is one way of meeting the obligation
to
protect the rights in the Bill of Rights. The Constitution is not
prescriptive, however, as to the specific mechanisms through
which
corruption must be rooted out, and does not explicitly require the
establishment of an independent anti-corruption unit.
The amicus
and the applicant conceded this in the course of the hearing.
Nevertheless, they contended that the obligation to
establish an
independent anti-corruption unit is implicit in the Constitution
when viewed in the light of South Africa’s
international
treaty obligations. Lest I be misunderstood, while I am prepared to
hold that there is a constitutional obligation
for the state to
take effective measures to fight corruption, I am not prepared to
narrowly construe the options available
to the state in discharging
that obligation.
The
amicus advanced two interrelated submissions in support of the
constitutional obligation contended for. First, this obligation

arises from the ratification of the United Nations Convention
against Corruption
64
(Convention) and the enactment of the Prevention and Combating of
Corrupt Activities Act
65
(PRECCA); and second, this obligation arises from the positive
obligation of the state to protect the rights in the Bill of
Rights
which is imposed by section 7(2) of the Constitution as informed by
South Africa’s obligations under the Convention.
The
applicant advanced an argument similar to the first submission of
the amicus. He contended that the obligation derives
from the
ratification of the Convention which gave it a “constitutionally
binding effect” as affirmed by the preamble
to PRECCA.
These
contentions raise three interrelated issues: (a) whether the
ratification of the Convention gives rise to a constitutional

obligation to establish an independent anti-corruption unit; (b)
whether the domestic incorporation of the Convention gives
rise to
a constitutional obligation; and (c) whether the obligation to
protect and fulfil the rights in the Bill of Rights
contemplated in
section 7(2) of the Constitution, when viewed in the light of the
Convention, establishes a constitutional
duty to establish an
independent anti-corruption unit.
These
contentions must be evaluated in the light of the place of
international law in our domestic legal framework, in particular

the scheme of section 231 of the Constitution, which governs
international agreements.
66
Status
of international agreements in our law
Section
231 of the Constitution governs international agreements and
provides:
“
(1)
The negotiating and signing of all international agreements is the
responsibility of the national executive.
An international agreement
binds the Republic only after it has been approved by resolution in
both the National Assembly and
the National Council of Provinces,
unless it is an agreement referred to in subsection (3).
An international agreement of
a technical, administrative or executive nature, or an agreement
which does not require either
ratification or accession, entered
into by the national executive, binds the Republic without approval
by the National Assembly
and the National Council of Provinces, but
must be tabled in the Assembly and the Council within a reasonable
time.
Any international agreement
becomes law in the Republic when it is enacted into law by national
legislation; but a self-executing
provision of an agreement that
has been approved by Parliament is law in the Republic unless it is
inconsistent with the Constitution
or an Act of Parliament.
The Republic is bound by
international agreements which were binding on the Republic when
this Constitution took effect.”
The
constitutional scheme of section 231 is deeply rooted in the
separation of powers, in particular the checks and balances
between
the executive and the legislature. It contemplates three legal
steps that may be taken in relation to an international
agreement,
with each step producing different legal consequences. First, it
assigns to the national executive the authority
to negotiate and
sign international agreements.
67
But an international agreement signed by the executive does not
automatically bind the Republic unless it is an agreement of
a
technical, administrative or executive nature.
68
To produce that result, it requires, second, the approval by
resolution of Parliament.
69
The
approval of an agreement by Parliament does not, however, make it
law in the Republic unless it is a self-executing agreement
that
has been approved by Parliament, which becomes law in the Republic
upon such approval unless it is inconsistent with the
Constitution
or an Act of Parliament. Otherwise, and third, an “international
agreement becomes law in the Republic when
it is enacted into law
by national legislation.”
70
The
approval of an international agreement, under section 231(2) of the
Constitution, conveys South Africa’s intention,
in its
capacity as a sovereign state, to be bound at the international
level by the provisions of the agreement. As the Vienna
Convention
on the Law of Treaties provides, the act of approving a convention
is an “international act . . . whereby
a State establishes on
the international plane its consent to be bound by a treaty.”
71
The approval of an international agreement under section 231(2),
therefore, constitutes an undertaking at the international
level,
as between South Africa and other states, to take steps to comply
with the substance of the agreement. This undertaking
will,
generally speaking, be given effect by either incorporating the
agreement into South African law
72
or taking other steps to bring our laws in line with the agreement
to the extent they do not already comply.
An
international agreement that has been ratified by resolution of
Parliament is binding on South Africa on the international
plane.
And failure to observe the provisions of this agreement may result
in South Africa incurring responsibility towards
other signatory
states. An international agreement that has been ratified by
Parliament under section 231(2), however, does
not become part of
our law until and unless it is incorporated into our law by
national legislation. An international agreement
that has not been
incorporated in our law cannot be a source of rights and
obligations.
73
As this Court held in
AZAPO
:
“
International
conventions do not become part of the municipal law of our country,
enforceable at the instance of private individuals
in our courts,
until and unless they are incorporated into the municipal law by
legislative enactment.”
74
There
is support for this approach to the relationship between
international agreements and domestic law in other common law

jurisdictions.
75
Dealing with the status of the United Nations Convention on the
Rights of the Child under Australian law, the High Court of

Australia said:
“
It
is well established that the provisions of an international treaty
to which Australia is a party do not form part of Australian
law
unless those provisions have been validly incorporated into our
municipal law by statute. This principle has its foundation
in the
proposition that in our constitutional system the making and
ratification of treaties fall within the province of the
Executive
in the exercise of its prerogative power whereas the making and the
alteration of the law fall within the province
of Parliament, not
the Executive. So, a treaty which has not been incorporated into our
municipal law cannot operate as a direct
source of individual rights
and obligations under that law.”
76
(Footnotes
omitted.)
In
jurisdictions that require legislative incorporation of an
international agreement in order for the agreement to create rights

and obligations under domestic law, the legislative act which
incorporates the international agreement into domestic law has
the
effect of transforming an international obligation that binds the
sovereign at the international level into domestic legislation
that
binds the state and citizens as a matter of domestic law.
To
summarise, in our constitutional system, the making of
international agreements falls within the province of the
executive,
whereas the ratification and the incorporation of the
international agreement into our domestic law fall within the
province
of Parliament. The approval of an international agreement
by the resolution of Parliament does not amount to its
incorporation
into our domestic law. Under our Constitution,
therefore, the actions of the executive in negotiating and signing
an international
agreement do not result in a binding agreement.
Legislative action is required before an international agreement
can bind the
Republic.
This
is not to suggest that the ratification of an international
agreement by a resolution of Parliament is to be dismissed
“as
a merely platitudinous or ineffectual act.”
77
The ratification of an international agreement by Parliament is a
positive statement by Parliament to the signatories of that

agreement that Parliament, subject to the provisions of the
Constitution, will act in accordance with the ratified agreement.

International agreements, both those that are binding and those
that are not, have an important place in our law. While they
do not
create rights and obligations in the domestic legal space,
international agreements, particularly those dealing with
human
rights, may be used as interpretive tools to evaluate and
understand our Bill of Rights.
78
Our
Constitution reveals a clear determination to ensure that the
Constitution and South African law are interpreted to comply
with
international law, in particular international human rights law.
Firstly, section 233 requires legislation to be interpreted
in
compliance with international law; secondly, section 39(1)(b)
requires courts, when interpreting the Bill of Rights, to
consider
international law; finally, section 37(4)(b)(i) requires
legislation that derogates from the Bill of Rights to be

“consistent with the Republic’s obligations under
international law applicable to states of emergency.” These

provisions of our Constitution demonstrate that international law
has a special place in our law which is carefully defined
by the
Constitution.
But
treating international conventions as interpretive aids does not
entail giving them the status of domestic law in the Republic.
To
treat them as creating domestic rights and obligations is
tantamount to “incorporat[ing] the provisions of the

unincorporated convention into our municipal law by the back
door.”
79
For
an international agreement to be incorporated into our domestic law
under section 231(4), our Constitution requires, in
addition to the
resolution of Parliament approving the agreement, further national
legislation incorporating it into domestic
law. There are three
main methods that the legislature appears to follow in
incorporating international agreements into domestic
law:
80
(a) the provisions of the agreement may be embodied in the text of
an Act;
81
(b) the agreement may be included as a schedule to a statute;
82
and (c) the enabling legislation may authorise the executive to
bring the agreement into effect as domestic law by way of a

proclamation or notice in the Government Gazette.
83
The
consequence of incorporation of an international agreement into our
domestic law under section 231(4) is that the agreement
“becomes
law in the Republic”. It is implicit, if not explicit, from
the scheme of section 231, that an international
agreement that
becomes law in our country enjoys the same status as any other
legislation.
84
This is so because it is enacted into law by national legislation,
and can only be elevated to a status superior to that of
other
national legislation if Parliament expressly indicates its intent
that the enacting legislation should have such status.
On certain
occasions, Parliament has done this by providing that, in the event
of a conflict between the international convention
that has been
incorporated and ordinary domestic law, the international agreement
would prevail.
85
The
amicus therefore properly accepted that, upon incorporation under
section 231(4), an international agreement assumes the
status of
ordinary legislation in our law. In addition, the amicus also
accepted, quite properly, that if there is a conflict
between an
international agreement that has been incorporated into our law and
another piece of legislation, that conflict
must be resolved by the
application of the principles relating to statutory interpretation
and superseding of legislation.
Once
it is accepted, as it must be, that incorporation of an
international agreement under section 231(4) gives the
international
agreement the status of ordinary legislation, two
consequences flow from this. Firstly, insofar as provisions in the
international
agreement give rise to rights and obligations under
domestic law, these rights and obligations flow from, and are
limited by,
the extent to which the domestic legislation
incorporating the agreement includes those provisions.
86
Secondly, it can hardly be contended that the incorporation of an
international agreement gives rise to constitutional rights
and
obligations. The incorporation of an international agreement does
not transform the rights and obligations embodied in
the
international agreement into constitutional rights and
obligations.
87
It only transforms them into statutory rights and obligations that
are enforceable in our law under the national legislation

incorporating the agreement.
Neither
the approval of the Convention under section 231(2) nor its
incorporation under 231(4) would have the effect of transforming

the rights and obligations embodied in the Convention into
constitutional rights and obligations. In the light of this
conclusion,
it is not necessary to consider whether PRECCA in fact
incorporated the Convention into domestic law under section 231(4).

Even if the provision in the Convention that creates the
international obligation to establish an independent
anti-corruption
unit is a self-executing provision, as the
applicant argued somewhat faintly, its status would be no different
from any other
provision in a statute and it would not create
constitutional obligations.
88
I
now turn to the argument based on section 7(2).
The argument based on
section 7(2) of the Constitution
As
I understand it, the argument of the amicus that there is a
constitutional obligation to establish an independent
anti-corruption
unit rooted in section 7(2) of the Constitution
proceeded along the following lines. Section 7(2) of the
Constitution creates
an obligation on the state to “respect,
protect, promote and fulfil the rights in the Bill of Rights.”
This obligation
goes beyond a mere negative obligation not to act
in a manner that would infringe or restrict a right. Rather, it
entails positive
duties on the state to take deliberate, reasonable
measures to give effect to all of the fundamental rights contained
in the
Bill of Rights. As corruption and organised crime have a
deleterious impact on any number of these rights, the amicus
contended
that among the state’s positive duties under
section 7(2) is an obligation to prevent and combat these specific
social
ills. The obligations contained in the Convention, the
amicus argued, give content to the state’s duty to protect
and
fulfil its obligations in terms of section 7(2).
I
accept that corruption has a deleterious impact on a number of
rights in the Bill of Rights and that the state has a positive
duty
under section 7(2) to prevent and combat corruption and organised
crime. I also accept that, in giving content to the
obligations of
the state in section 7(2), a court must consider international law
as an interpretive tool as required by section
39(1)(b).
Under
section 7(2), there are a number of ways in which the state can
fulfil its obligations to protect the rights in the Bill
of Rights.
The Constitution leaves the choice of the means to the state. How
this obligation is fulfilled and the rate at which
it must be
fulfilled must necessarily depend upon the nature of the right
involved, the availability of government resources
and whether
there are other provisions of the Constitution that spell out how
the right in question must be protected or given
effect. Thus, in
relation to social and economic rights, in particular those in
sections 26 and 27, the obligation of the state
is to “take
reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of these
rights.”
89
The
amicus has sought support for its argument in section 39(1)(b) of
the Constitution. That provision requires courts, when
interpreting
the Bill of Rights, to “consider international law”. A
distinction must be drawn between using international
law as an
interpretive aid, on the one hand, and relying on international law
as a source of rights and obligations, on the
other. The purpose of
section 39(1)(b), as its heading, “Interpretation of Bill of
Rights”, makes clear, is to
provide courts with an
interpretive tool when interpreting the Bill of Rights. It does not
purport to incorporate international
agreements into our
Constitution. Nor can it be used to create constitutional
obligations that do not exist in our Constitution.
The
argument based on section 7(2) raises the question whether it is
permissible, through a process of interpretation, to read
into our
Constitution a constitutional obligation that the Constitution does
not expressly create. This question must be determined
in the light
of section 39(1)(b) of the Constitution, which, as I have already
indicated, requires courts, when interpreting
the Bill of Rights,
to consider international law.
None
of the international agreements cited by the applicant and amicus
provides interpretive guidance as to the rights with
which they are
concerned. A court such as this Court is not provided with
meaningful assistance in interpreting the right to
equality under
section 9 of the Constitution, or dignity under section 10, by
reading the text of the Convention. It does not
follow from the
fact that corruption can have a deleterious impact on the enjoyment
of certain rights that the conventions
addressing corruption and
organised crime create a constitutional obligation on the state,
through the operation of section
7(2), to establish an independent
anti-corruption unit in the mirror image of those envisioned in the
conventions.
The
obligation of the state, under section 7(2) to prevent and combat
corruption must be informed by the provisions of section
205.
Section 205 of the Constitution requires the state to establish a
national police service whose objects include preventing,
combating
and investigating crime, which would include corruption, and
protecting and securing the person and property of the
inhabitants
of the Republic.
90
There is no requirement that the state must use the best method
possible or the most effective methods to combat crime including

corruption. While this is an ideal to strive for, it is not a
constitutional requirement. The state must “enable the
police
service to discharge its responsibilities effectively”.
91
That is all that the obligation entails.
To
read the obligation to consider international law as creating, in
conjunction with the obligation to protect the rights in
the Bill
of Rights, a constitutional obligation to establish an independent
anti-corruption unit, as the amicus invites us
to do, inevitably
would result in incorporating the provisions of the Convention into
our Constitution by the back door. This
would, in effect, amount to
giving the Convention a status equal to the provisions of the
Constitution, contrary to the express
provisions of section 231 of
the Constitution, which determine the legal status of an
international agreement. In addition,
this would go against the
express provisions of section 205 of the Constitution, which do not
require an independent anti-corruption
unit. In my view, the
invitation by the amicus cannot be accepted. Sections 39(1)(b) and
7(2) cannot be used to achieve the
result contended for.
In
the result, I conclude that there is no constitutional obligation
to establish an independent anti-corruption unit as contended
by
the applicant and the amicus. It follows, therefore, that the
argument based on a constitutional obligation to establish
an
independent anti-corruption unit must fail.
The
point to be stressed, however, is that which is made later in this
judgment. It is this: international law, in particular
the
Convention, does not dictate to states parties the particular form
of independence that must be granted to an anti-corruption
unit.
This is a recognition of the complexity and context-specific nature
of the issues involved in the fight against corruption.

Significantly, international law also recognises that states
parties have constitutions that are the supreme law in their
respective countries and to which the establishment of an
anti-corruption unit is subject. Thus, article 6(1) of the
Convention
requires each state party to establish an
anti-corruption unit “in accordance with the fundamental
principles of its
legal system”. Article 6(2) underscores the
need to have regard to a country’s constitution, by requiring
each
state party to grant its anti-corruption unit “the
necessary independence, in accordance with the fundamental
principles
of its legal system, to enable the body or bodies to
carry out its or their functions effectively and free from any
undue influence.”
It
is in this context that the role of international law, in
particular the Convention, must be understood. The Convention may

be used as an interpretive aide in understanding the nature and
scope of the constitutional obligation to effectively combat

corruption and organised crime, but such obligation is not a matter
that is governed directly by the Convention.
92
As the Convention explicitly states, an anti-corruption unit must
be established “in accordance with the fundamental
principles
of [our] legal system”. As an interpretive tool, therefore,
the Convention is at all times subject to the
requirements of the
Constitution, in particular those provisions of the Constitution
that specifically deal with the powers
of the legislature to
establish a police service in order to prevent, combat and
investigate crime.
Section
205(3) of the Constitution requires the establishment of a national
police service in order to “prevent, combat
and investigate
crime”.
93
Section 205(2) requires that the legislature “establish the
powers and functions of the police service” in order
to
“enable the police service to discharge its responsibilities
effectively”.
94
I accept that for the police service to effectively discharge its
responsibilities under the Constitution, it must not be subject
to
undue influence. That is the extent of the obligation imposed by
the Constitution, and it is in this context that the obligation

imposed by section 7(2) must be understood. The question for
determination, therefore, is whether the impugned laws establish
an
anti-corruption unit that has the capacity to “discharge its
responsibilities effectively”, as required by the

Constitution. As I will demonstrate in the next section, a careful
analysis of the provisions of the impugned laws makes plain
that
the legislature has established an anti-corruption unit which has
the capacity to “discharge its responsibilities
effectively”.
Meaning
of independence
The
amicus submitted that for an anti-corruption agency or body to be
independent, it must: have the power to initiate its own

investigations; allow investigators and prosecutors autonomous
decision-making powers in handling cases; not be subject to
undue
influence from any of the branches of government or any third
party; and have structural and operational autonomy. Save
to point
out that the second criterion must not be understood to suggest
that an anti-corruption unit must be located within
the NPA, there
is support for these broad criteria for independence.
95
I did not understand counsel for the amicus to suggest otherwise.
On the contrary, he very properly conceded that the legislature
has
a choice either to establish the anti-corruption agency as an
independent agency or locate it either within the SAPS or
the NPA.
That choice, however, must be governed, and indeed is limited, by
the Constitution.
What
is apparent from international instruments is that the requirement
of independence is intended to protect members of the
agency from
undue influence. This is necessary to ensure that the
anti-corruption unit can “discharge its responsibilities

effectively”. The independence of anti-corruption agencies is
“a fundamental requirement for a proper and effective

exercise of [their] functions.”
96
This is so because corruption largely involves the abuse of power.
In corruption cases involving the public sector, at least
one
perpetrator comes from the ranks of persons holding a public
office.
97
Hence the need to shield anti-corruption units from undue
influence. This is a theme that recurs in the international and
regional instruments cited by the amicus. Independence in this
context therefore means the ability to function effectively without

any undue influence. It is this autonomy that is an important
factor which will affect the performance of the anti-corruption

agency.
Based
on its review of models of specialised anti-corruption agencies,
the OECD has offered the following broad criteria for
determining
independence:
“
Independence
primarily means that the anti-corruption bodies should be shielded
from undue political interference. To this end,
genuine
political will
to
fight corruption is the key prerequisite. Such political will must
be embedded in a comprehensive
anti-corruption
strategy
.
The level of independence can vary according to specific needs and
conditions. Experience suggests that it is the
structural
and operational autonomy
that
is important, along with a clear legal basis and mandate for a
special body, department or unit. This is particularly important
for
law enforcement bodies. Transparent procedures for
appointment
and removal of the director
together
with proper human resources management and internal controls are
important elements to prevent undue interference. Independence

should not amount to a lack of
accountability
;
specialised services should adhere to the principles of the rule of
law and human rights, submit regular performance reports
to
executive and legislative bodies, and enable public access to
information on their work.”
98
It
is therefore permissible to locate anti-corruption agencies within
existing structures such as the NPA and the SAPS.
99
However, the independence of the law enforcement bodies that are
institutionally placed within existing structures in the form
of
specialised departments or units requires special attention. The
centralised and the hierarchical nature of their structures
and the
fact that they report at the final level to a Cabinet minister, as
in the case of the police and the NPA, presents
a risk of
interference. The risk of undue interference is even higher when
members of the unit lack autonomous decision-making
powers and
where their superiors have discretion to interfere in a particular
case. What is required are legal mechanisms that
will limit the
possibility of abuse of the chain of command and hierarchical
structure or interference in the operational decisions
involving
commencement, continuation and termination of criminal
investigations and prosecutions. All of this, however, is
subject
to the state party’s “fundamental principles of its
legal system”
100
as embodied in its constitution.
Ultimately
therefore, the question is whether the anti-corruption agency
enjoys sufficient structural and operational autonomy
so as to
shield it from undue political influence. I do not understand these
instruments to require absolute or complete independence.
Indeed,
the OECD has defined independence to primarily mean that “the
anti-corruption bodies should be shielded from
undue political
interference.”
101
It concludes that—
“
in
light of international standards, one of the prominent and mandatory
features of specialised institutions is not
full
independence
but
rather an adequate level of
structural
and operational autonomy
secured
through institutional and legal mechanisms aimed at preventing undue
political interference as well as promoting ‘pre-emptive

obedience’. In short, ‘independence’ first of all
entails de-politicisation of anti-corruption institutions.”
102
(Underlining
added.) (Footnote omitted.)
The
qualification that “full independence” is not a
mandatory feature of an anti-corruption agency is a significant

one. It recognises that there are different fundamental principles
within each legal system. There are those legal systems,
like ours,
where the executive is assigned final responsibility over the
functioning of police or the prosecution, as the case
may be. Even
with the administration of justice, the Minister for Justice and
Constitutional Development bears political responsibility
for the
administration of justice. This is a special feature of our
constitutional democracy. The Cabinet Minister responsible
for the
police is required by our Constitution to take final responsibility
for the functioning of the police, including all
crime fighting
units located within the police. The same is true of the Minister
for Justice with regard to the NPA.
This
qualification is therefore intended to accommodate these
constitutional requirements. But it also recognises the functional

realities of these bodies and the need for accountability. These
bodies should not be a law unto themselves. They should, as
the
passage cited earlier makes plain, “submit regular
performance reports to executive and legislative bodies, and enable

public access to information on their work.”
103
All of this presupposes that the legislature, the executive and the
judiciary have a role to play in the exercise by these
bodies of
their powers, consistently with the country’s constitution.
Indeed, the international agreements themselves
explicitly require
a state to establish an anti-corruption agency “in accordance
with the fundamental principles of its
legal system.”
104
Thus
understood, the independence of an anti-corruption unit in the
context of international agreements must not be confused
with the
independence of the judiciary, for example. Nor does independence
in the context of anti-corruption international
agreements require
that the executive should play no part in the functioning of
anti-corruption agencies. Were this to be the
case, this would run
afoul of the fundamental principles of our legal system as
contained in our Constitution, in particular,
sections 206(1) and
179(6). Indeed, it is doubtful whether, if that had been the
requirement, states like ours would have ratified
the conventions.
What is crucial, therefore, is whether the anti-corruption agency
enjoys an adequate level of structural and
operational autonomy,
secured through institutional and other legal mechanisms aimed at
preventing undue influence.
The
question, therefore, is not whether the DPCI is fully independent,
but whether it enjoys an adequate level of structural
and
operational autonomy that is secured through institutional and
legal mechanisms designed to ensure that it “discharges
its
responsibilities effectively”, as required by the
Constitution. The provisions of the SAPSA Act, one of the impugned

laws, have since been incorporated into the SAPS Act and are
contained in chapter 6A, which deals with the DPCI. It will

therefore be convenient to consider the relevant provisions of the
impugned laws as they appear in the SAPS Act. This is the
approach
that was adopted by the parties. The question presented here must
therefore be answered by examining the provisions
of the SAPS Act,
in particular, those dealing with the application of chapter 6A,
the appointment of the head of the DPCI,
its functioning, financial
support, parliamentary oversight and legal mechanisms for dealing
with undue political interference.
105
Before
turning to the specific provisions of the SAPS Act, however, it is
important to emphasise the particular context within
which these
provisions must be assessed. The Convention dictates that states
parties must establish an independent anti-corruption
unit, but it
remains sensitive to the need that the establishment of this unit
accord with the fundamental principles of a
particular state’s
legal system.
106
This is a crucial consideration. What it means is that the starting
point of the analysis, and the ultimate test of the appropriateness

and adequacy of the structure and location of a South African
anti-corruption unit, is the Constitution. If the structure and

location of the unit accord with the fundamental principles
embodied in our Constitution, it cannot be found wanting.
In
challenging the independence of the DPCI, much weight was placed by
the amicus and the applicant on the assertion that the
unit would
be exposed to political influence. This is indeed a valid concern,
as undue influence could well undermine the effectiveness
of an
anti-corruption unit. However, the argument that an anti-corruption
unit in South Africa must be insulated from political
actors is
simply inconsistent with the fundamental principles of our
Constitution.
Our
Constitution assigns to the police the role of preventing,
combating and investigating crime.
107
The placement of an anti-corruption unit that is dedicated to
preventing, combating and investigating particular forms of
criminal conduct within the SAPS is therefore entirely consistent
with the Constitution. Once this is recognised, it follows
that the
constitutional provisions related to the functioning of the police,
in particular those related to political oversight
over the police,
are instructive in assessing the degree of political exposure
appropriate for an anti-corruption unit in South
Africa given our
particular legal system.
It
is apparent from the provisions of the Constitution that, far from
requiring insulation from the political sphere, it is
a fundamental
principle of our legal system that there is political oversight
over the police. To this end, section 206(1)
requires that a member
of the Cabinet be responsible for policing and determining national
policing policy. Section 206(8)
requires the establishment of a
committee composed of the Cabinet member and members of the
Executive Councils responsible
for policing in the provinces to
“ensure effective co-ordination of the police service and
effective co-operation among
the spheres of government.” To
the extent then that oversight over a South African anti-corruption
unit located within
the police is subject to Cabinet-level
oversight, such oversight is not only consistent with the
Constitution, but expressly
contemplated.
A
similar conclusion must be drawn with regard to the political
appointment of, and control over, the head of the anti-corruption

unit. Section 207(1) of the Constitution bestows upon the President
the responsibility to appoint the National Commissioner
of the
police service, and section 207(2) requires the National
Commissioner to exercise control over the police in accordance
with
the national policing policy and directions of the Cabinet member
responsible for policing. Political involvement in the
leadership
selection and direction of the police is therefore a constitutional
imperative. It follows that a similar level
of involvement in a
specialised unit within the police would therefore not be
inconsistent with the Constitution.
Yet
more insight is gained by comparing the relative level of political
insularity called for by the Constitution with respect
to different
governmental institutions. The courts, for example, are required to
be “independent and subject only to
the Constitution and the
law, which they must apply impartially and without fear, favour or
prejudice.”
108
The prosecuting authority, on the other hand, must exercise its
functions “without fear, favour or prejudice.”
109
By contrast, the constitutional provisions related to the police
service are silent as to the need for the service to operate
either
independently or without fear, favour or prejudice.
110
This distinction is drawn not to support a conclusion that the
police, or a specialised unit within the police, may lawfully

operate with fear, favour and prejudice. Far from it. The
distinction is significant merely because it reflects the
Constitution’s
determination as to the appropriate level of
independence from the political system of particular governmental
institutions.
These determinations must be kept in mind in
assessing the specific provisions of the SAPS Act. And it is to
that task that
I now turn.
The
starting point in determining the sufficiency of the independence
of the DPCI is the commitment to address the scourge of
corruption
and other national priority offences, and to establish an
independent anti-corruption unit that is apparent from
the
provisions of chapter 6A of the SAPS Act.
111
The core provision in this regard is section 17B. It provides that
among the factors that must be taken into account in the

application of the provisions of this chapter, is the “need
to ensure that the Directorate . . . has the necessary independence

to perform its functions . . . [and] is equipped with the
appropriate human and financial resources to perform its
functions”.
Thus, chapter 6A is premised on the independence
of the DPCI. To this extent, it provides an interpretive injunction
for the
application and implementation of its provisions. Those who
are charged with the application and implementation of the
provisions
of this chapter are bound by this injunction. It is an
injunction that is deeply rooted in the need for an anti-corruption

unit, free from any undue political influence or otherwise. The
submissions of the applicant and the amicus do not take sufficient

account of this important provision.
Section
17B provides the framework within which the provisions of the
impugned laws must be understood and applied. But more
importantly,
it sets the standard against which the proper implementation and
application of the provisions of chapter 6A must
be assessed. It
requires the provisions of chapter 6A to be applied in a manner
that promotes, rather than undermines, the
independence of the
DPCI. Thus, for example, the policy guidelines that must be
determined by a Ministerial Committee for the
functioning of the
DPCI must be designed to ensure that the DPCI is not subject to any
undue influence in performing its functions.
Similarly, the
appointment of the head of the DPCI as well as his or her removal,
the structure and operation of the DPCI and
the oversight functions
must be designed to promote the independence of the DPCI.
If
the implementation or the application of chapter 6A falls short of
the standard prescribed by section 17B, namely, the “need
to
ensure that the [DPCI] . . . has the necessary independence to
perform its functions”, it is open to challenge as
a breach
of this provision. Section 17B provides a significant guarantee for
the independence of the DPCI. Therefore the remaining
provisions of
chapter 6A must be understood in the light of this guarantee that
sets the standard for their application and
implementation. Apart
from the provisions of section 17B, the other provisions of chapter
6A provide important safeguards against
undue interference with the
functioning of the DPCI.
First,
the commitment to the independence of the DPCI is evidenced by
ensuring the financial autonomy of the DPCI. Thus, under
section
17H, the administration and functioning of the DPCI must be paid
from monies appropriated by Parliament for this purpose
to the
department in terms of the Public Finance Management Act.
112
Second,
there are important safeguards in the manner in which the head of
the DPCI is appointed and its structural and operational
autonomy
are designed to prevent undue influence. The head of the DPCI holds
the rank of a Deputy National Commissioner and
is appointed by the
Minister for Police with the concurrence of the Cabinet. The
appointment of the head of the DPCI therefore
is not left in the
hands of the Minister, alone, but must be a combined effort of the
executive. Thus instead of leaving the
appointment of the head of
the DPCI to the Minister for Police as would have been competent
under the Constitution, the impugned
laws place this responsibility
in the hands of the entire Cabinet. And to ensure that Parliament
effectively performs its oversight
functions, the Minister is
required to report to Parliament on the appointment of the head of
the DPCI. Other members of the
Directorate are appointed by the
National Commissioner who does so on the recommendation of the head
of the DPCI.
Operationally,
there are important safeguards to ensure the independence of the
DPCI. The primary function of the DPCI is to
prevent, combat and
investigate national priority offences. The head of the DPCI
decides which priority offences must be investigated.
113
In doing so he or she acts in accordance with policy guidelines for
the selection of national priority offences that are determined
by
a Ministerial Committee. These policy guidelines must be approved
by Parliament in terms of section 17K(4). While the National

Commissioner of Police also has the power to refer to the head of
the Directorate offences that may be investigated, he or
she too is
guided by the policy guidelines determined by the Ministerial
Committee.
114
Thus, far from leaving it to the Minister for Police to determine
the policy guidelines, this is the responsibility of the

Ministerial Committee which must do so in a manner that ensures
that the DPCI has the necessary independence to perform its

functions, coupled with Parliamentary oversight as a
counterbalance.
These
policy guidelines, which include guidelines on the functioning of
the DPCI, must ensure that they limit the possibility
of abuse of
the chain of command and hierarchical structure or any interference
in the operational decisions involving the
conduct of
investigations and prosecutions. This must be so because the
provisions of chapter 6A must be applied in a manner
that will
“ensure that the [DPCI] . . . has the necessary independence
to perform its functions”, as required by
section 17B of the
SAPS Act and as required by the Constitution to “discharge
its responsibilities effectively”.
There is no reason to
believe that the policy guidelines will not comply with this
requirement, but if they do not, Parliament,
in the exercise of its
power to approve the policy guidelines, will no doubt not approve
them under section 17K. And if they
should pass through Parliament
unchallenged, they may well be challenged in court as being
inconsistent with the provisions
of the impugned laws, in
particular, section 17B.
Third,
the involvement of the NPA and the NDPP in the investigations
conducted by the DPCI strengthens the structural and operational

autonomy of the DPCI and provides yet another important safeguard
to prevent undue influence with the investigation and the

prosecution of corruption. Under section 17D(3), the head of the
Directorate may request the NDPP to designate a Director of
Public
Prosecutions to investigate a national priority offence. The
Director of Public Prosecutions is then required to invoke
the
extensive powers of investigation accorded to the NPA by section 28
of the NPA Act. The involvement of the Director of
Public
Prosecutions in the investigation is significant because the
investigators under the NPA Act do not report to the National

Commissioner of Police or the head of the Directorate. In addition,
section 17F(4) requires the NDPP to “ensure that
a dedicated
component of prosecutors is available to assist and co-operate with
members of the [DPCI] in conducting its investigations.”
The
involvement of the Director of Public Prosecutions and a dedicated
component of prosecutors to assist in the investigations
is
especially significant. While the OECD warns that the independence
of law enforcement agencies that are institutionally
placed within
existing structures, such as the police, requires special
attention, it suggests as one of the ways to address
the risk of
abusing the chain of command and hierarchical structures that the
“police officers working on corruption
cases, though
institutionally placed within the police, should in individual
cases report only and directly to the competent
prosecutor.”
115
And this is precisely what sections 17F(4) and 17D(3) do. Bringing
together the police and the prosecutors to work on investigations,

in my view, strengthens the independence of the DPCI. This is an
important structural and operational mechanism to ensure the

effectiveness of the DPCI in the performance of its duties.
Fourth,
the autonomy of the DPCI is further strengthened by parliamentary
oversight. Section 17K of the SAPS Act makes provision
for
parliamentary oversight. Subsection (1) provides that “Parliament
shall effectively oversee the functioning of the
Directorate and
the committees established [under the Act].” Parliament, for
example, has the power to request a report
from the head of the
Directorate on the activities of the DPCI.
116
In addition, Parliament must approve all policy guidelines in
connection with the functioning of the DPCI.
117
It was suggested, in the course of oral argument, albeit in a faint
tone, that if the rules for the functioning of the Directorate,
the
selection of national priority offences and the referral of
offences to the Directorate by the National Commissioner are
not
approved within three months, they are deemed to have been
approved. This does not detract from the fact that Parliament
has a
final responsibility to approve these rules. And this is an
important measure to ensure that the policy guidelines that
are
determined by the Ministerial Committee do not interfere with the
functioning of the Directorate.
It
is appropriate to respond to the suggestion that the Ministerial
Committee is a political body likely to undermine the effectiveness

of the DPCI. This suggestion is highly speculative and has no
factual basis. The scheme of the impugned laws finds support
in our
Constitution. The Ministerial Committee comprises of the Ministers
for Police, Finance, Home Affairs, Intelligence and
Justice. The
composition of the Ministerial Committee is understandable. Under
the Constitution, the Minister for Justice and
Constitutional
Development “must exercise final responsibility over the
prosecuting authority.”
118
The Minister for Police is responsible for policing.
119
The Ministers for Finance, Home Affairs and Intelligence have a
role to play in the administration and functioning of the police

and the fight against corruption and organised crime. Each of these
Ministers has a role to play in the functioning and administration

of the DPCI. This is the way our constitutional democracy is
structured.
What
must be emphasised here is that in creating these agencies, member
states are not required to ignore their constitutions.
As pointed
out earlier, the Convention requires states to establish
anti-corruption agencies “in accordance with the
fundamental
principles of [their] legal system.”
120
Indeed, the Legislative Guide for the implementation of the
Convention emphasises this. Thus, in terms of implementation of

article 6 of the Convention, the Legislative Guide provides:
“
Article
6 is not intended to refer to the establishment of a specific agency
at a specific level. What is needed is the capacity
to perform the
functions enumerated by the article.
.
. . .
Article
6, paragraph 2, requires that States endow the body in charge of
preventive policies and measures with:
(a)
The ‘independence’ to ensure it can do its job unimpeded
by ‘undue influence’, in accordance with
the
fundamental principles of their legal system
;
(b)
Adequate material resources and specialized staff and the training
necessary for them to discharge their responsibilities.
The
Convention does not mandate the creation or maintenance of more than
one body or organization for the above tasks. It recognizes
that,
given the range of responsibilities and functions, it may be that
these are already assigned to different existing agencies.”
121
(Emphasis
added.)
And
the guidance for implementation of article 36 is to similar effect:
“
Article
36 requires that States parties, in accordance with
the
fundamental principles of their legal system
,
ensure the existence of a body or bodies or persons specialized in
combating corruption through law enforcement.
.
. . .
Such
a body or bodies or persons must be granted the necessary
independence, in accordance with
the
fundamental principles of the legal system
of
the State party, to be able to carry out their functions effectively
and without any undue influence and should have the appropriate

training and resources to carry out their tasks. An interpretive
note states that the body or bodies may be the same as those

referred to in article 6”.
122
(Emphasis added.)
The
question therefore is whether the creation of the Ministerial
Committee and giving it the responsibility to oversee the

functioning of the DPCI is consistent with “the fundamental
principles of [our] legal system.” In my view, it is.
This is
in accordance with the fundamental principles of our Constitution,
as evidenced by section 179(6) which requires the
Minister for
Justice and Constitutional Development to “exercise final
responsibility over the prosecuting authority”,
and section
206(1) which provides that the Minister for Police “must be
responsible for policing and must determine national
policing
policy”. The inclusion of these Ministers in the Ministerial
Committee is therefore required by the Constitution.
The other
Ministers are included because of the role they play in the
administration and the functioning of the DPCI. What
must be
stressed here is that while the Ministerial Committee has the
responsibility for the functioning of the DPCI, this
is subject to
parliamentary oversight, which provides a counter-balance.
The
Ministerial Committee addresses the concern that may arise from the
fact that the Minister for Police is constitutionally
responsible
for the functioning of the police, and thus the DPCI. The impugned
laws address this concern by: first, requiring
policy guidelines
that deal with the functioning of the Directorate, the selection of
national priority offences, the referral
of cases to the
Directorate by the National Commissioner, and procedures to
coordinate the activities of the DPCI and other
government
departments and institutions; second, requiring that these policy
guidelines must be determined not just by the
Minister for Police
but a Ministerial Committee; third, requiring that these policy
guidelines must be approved by another
arm of government, namely,
the legislature; and finally, ensuring that the guidelines are
designed to ensure that the DPCI
has the necessary independence to
effectively perform its functions. Thus although the DPCI is within
the police, it is subject
to separate policy guidelines determined
by a Ministerial Committee which oversees the functioning of the
DPCI and ultimately,
at the final level, by Parliament.
It
may well be that another structure could have been established.
That, however, is not the issue. The question is whether
these
safeguards, together with the others already referred to, provide
adequate structural and operational autonomy secured
through
institutional and legal mechanisms to prevent undue political
interference. What must be stressed here is that it is
not the
judicial role to dictate to other branches what is the most
appropriate way to secure the independence of an anti-corruption

agency. The judicial role is limited to determining whether the
agency under consideration complies with the Constitution.
Indeed
the legislature here had to exercise a political judgment. That
there is more than one permissible way of securing the
structural
and operational autonomy of the DPCI does not make the choice of
one rather than the other unconstitutional.
123
Finally,
there is judicial oversight to prevent undue interference, which
may result in criminal sanctions. In order to address
any undue
political influence with the functioning of the DPCI, section
17L(1) makes provision for the appointment of a retired
judge to
investigate complaints. These complaints include complaints “of
any improper influence or interference, whether
of a political or
any other nature, exerted upon [a member of the Directorate]
regarding the conducting of an investigation.”
124
In addition, the head of the Directorate may, of his or her own
accord, request the retired judge to investigate complaints
or
allegations relating to investigations by the Directorate or
alleged interference with such investigations.
125
This is an important legal mechanism to address undue political
interference in the investigation.
Apart
from this, section 67 of the SAPS Act makes it a criminal offence
to resist or willfully hinder or obstruct a member of
the police
force in the exercise of his or her functions.
126
Similarly it is a criminal offence to induce or attempt to induce
any member not to perform his or her duties or to act in
conflict
with his or her duties.
127
Members of the DPCI are members of the police force and are
therefore protected by the provisions of section 67 from
interference
with their work.
In
structuring the DPCI as it did, Parliament in effect assured that
all three branches of government play an active role in
the
functioning of the anti-corruption unit. The executive, in the form
of the Ministerial Committee, sets the policy guidelines;
the
legislature, in the form of Parliament, approves or rejects these
policy guidelines and otherwise exercises oversight over
the unit;
and the judiciary, in the form of a retired judge, assures that
complaints of interference with the unit are investigated.
The
judiciary also plays a crucial role in ensuring that the
application and the implementation of the provisions of chapter
6A,
in particular, policy guidelines for the functioning of the DPCI,
ensures that the DPCI has the necessary independence
to perform its
functions effectively and consistently with section 17B.
The
inclusion of each branch of government and the designation to each
of a specified role follows from the importance of the
fight
against corruption to all aspects of government. It also serves as
an important safeguard against encroachment by any
single branch
into the independent operation of the DPCI. These are adequate
checks and balances to ensure the independence
of the DPCI.
Ultimately, therefore, the provisions of chapter 6A contain
sufficient safeguards to prevent undue interference
in the
functioning of the DPCI, backed by the injunction to apply and
implement the provisions of this chapter, in a manner
that ensures
that the DPCI has the necessary independence to perform its
functions effectively.
It
is true that the investigative capacity once held by the DSO within
the NPA now lies with the DPCI within the SAPS and that
no
prosecutors are placed within the DPCI. Both the applicant and the
amicus make much of this. They argued that this detracts
from the
independence of the anti-corruption agency, the DPCI. As I
understand the argument, this is so because the prosecutors
are
independent and are required by law to be such. But the same is
true of the DPCI, which, in terms of section 17B(b)(ii),
must have
“the necessary independence to perform its functions.”
But
significantly, this argument overlooks section 17F(4) which
provides that the NDPP must ensure that a dedicated component
of
prosecutors is available to assist and co-operate with the DPCI in
conducting its investigations. This must be understood
in the light
of the provisions of section 17D(3), which empower the head of the
DPCI to request the NDPP to designate a Director
of Public
Prosecutions to exercise the investigative powers in section 28 of
the NPA Act. It is therefore apparent that the
NDPP is still very
much involved in the DPCI.
In
sum, the impugned laws provide the DPCI with adequate independence
to deter the exertion of inappropriate influence by:
guaranteeing
the DPCI the necessary independence to perform its functions;
ensuring
that the DPCI has an adequate level of structural and operational
autonomy secured through legal mechanisms to prevent
undue
influence;
involving
the NPA and the NDPP in the investigations conducted by the DPCI;
providing
parliamentary oversight over the functioning of the DPCI and the
Ministerial Committee that makes policy guidelines
relating to the
functioning of the DPCI;
providing
judicial oversight to deal with complaints of undue influence;
providing
criminal sanctions to deal with undue influence; and finally,
ensuring
that the provisions of the impugned laws are applied and
implemented in a manner that ensures that the DPCI has the

necessary independence to perform its functions effectively and
consistently with section 17B.
Above
all, a significant safeguard which appears to elude both the
applicant and the amicus is section 17B which contains an
explicit
injunction on the application of the impugned laws. It expressly
requires that the need to ensure that the DPCI has
the necessary
independence must be taken into consideration in applying the
provisions of the impugned laws. What this means,
in effect, is
that in determining and approving the policy guidelines relating to
the functioning of the DPCI, overseeing the
functioning of the
DPCI, exercising the powers of oversight over the Ministerial
Committee, and in dealing with complaints
relating to undue
influence, all branches of government, including the officials who
administer the provisions of the impugned
laws, must apply the
provisions of the impugned laws in a manner that will promote the
independence of the DPCI. And if this
is not done, it violates not
only the provisions of the impugned laws, but the Constitution
itself.
This,
in my view, is an adequate level of structural and operational
autonomy that is secured through institutional and legal
mechanisms
that are designed to prevent undue interference in the effective
functioning of the DPCI. There is no suggestion
in the papers that
the injunction in section 17B has not been complied with. Instead,
the applicant was content with launching
a facial challenge to the
impugned laws. To the extent that this challenge is a facial
challenge to the impugned laws, it must
therefore fail.
For
all these reasons, I hold that the DPCI enjoys an adequate level of
structural and operational autonomy which is secured
through
institutional and legal mechanisms aimed at preventing undue
political interference. I am therefore satisfied that
the impugned
legislation complies with the obligation in section 205(2) of the
Constitution that requires national legislation
to “enable
the police service to discharge its responsibilities effectively”.
Violation
of the rights in the Bill of Rights
As
I understand the argument, it proceeds from section 7(2) of the
Constitution, which requires the state to “respect,
protect,
promote and
fulfil
the rights in the Bill
of Rights.” It was submitted that taking measures that are
retrogressive, as in locating the anti-corruption
unit within the
SAPS, which is not independent, as opposed to the NPA, which is,
detracts from the duty to protect the rights
in the Bill of Rights.
This proposition must stand or fall by the further submission that
the present anti-corruption unit
is not independent. Once it is
found, as I have above, that there are adequate safeguards to
prevent undue political interference,
I do not think it can be
suggested that the measures are retrogressive. I would, therefore,
reject the challenge based on the
violation of constitutional
rights.
Costs
The
litigation initiated by the applicant in these proceedings cannot
be described as vexatious. The issues that the applicant
has urged
on us are constitutional matters of considerable importance. In the
event, I am not persuaded that we should depart
from the general
rule that where a private litigant is unsuccessful in vindicating
his or her constitutional rights he or she
should not be mulcted
with costs. The argument by the respondents that the applicant is
bringing the same challenge that he
brought under
Glenister I
misconstrues our decision in
Glenister I
. In
Glenister
I
we did not consider the merits of the challenge. We were
concerned only with the timing of the challenge. The applicant
therefore
was entitled to raise his constitutional challenges in
the manner in which he did. There should, accordingly, be no order
for
costs.
Order
In
the event, I would have granted the applications for condonation
and leave to appeal. I would have dismissed the appeal and
the
constitutional challenge to the
National Prosecuting Authority
Amendment Act 56 of 2008
and the
South African Police Service
Amendment Act 57 of 2008
for failure to facilitate public
involvement in the legislative process.
Brand
AJ, Mogoeng J and Yacoob J concur in the judgment of Ngcobo CJ.
MOSENEKE
DCJ AND CAMERON J:
Introduction
160. The sharp issue in this
case is the constitutional validity of national legislation that
brought into being the Directorate
for Priority Crime Investigation
(popularly known as the Hawks) (DPCI)
128
and disbanded the Directorate of Special Operations (popularly known
as the Scorpions) (DSO).
129
161. We have had the distinct
benefit of reading the meticulously crafted judgment of Ngcobo CJ
(main judgment). We are indebted
to it for its comprehensive
exposition of the background, the contentions of the parties and the
issues. We agree with the manner
in which it disposes of the
applications for direct access, condonation and for leave to appeal.
162. We gratefully adopt the
manner in which the main judgment disposes of certain grounds
advanced by the applicant to invalidate
the impugned legislation.
Like it, we conclude that the impugned legislation, which created
the DPCI, cannot be invalidated on
the grounds that it is irrational
or that Parliament had failed to facilitate public involvement in
the legislative process that
led to its enactment. We further agree
that section 179 of the Constitution does not oblige Parliament to
locate a specialised
corruption-fighting unit within the National
Prosecuting Authority (NPA) and nowhere else. The creation of a
separate corruption-fighting
unit within the South African Police
Service (SAPS) was not in itself unconstitutional and thus the DPCI
legislation cannot be
invalidated on that ground alone. Similarly,
the legislative choice to abolish the DSO and to create the DPCI did
not in itself
offend the Constitution.
163. However, two crucial
questions remain for determination. The first is whether the
Constitution imposes an obligation on the
state to establish and
maintain an independent body to combat corruption and organised
crime. And if it does, the second is whether
the specialised unit
which the impugned legislation has established, the DPCI, meets the
requirement of independence. In answer
to the first question, unlike
the main judgment, we conclude unequivocally that the Constitution
itself imposes that obligation
on the state. To the second question,
we hold, unlike the main judgment, that the requirement of
independence has not been met
and consequently that the impugned
legislation does not pass constitutional muster.
164. The sequel to these
conclusions is that they lead us to an outcome that diverges from
the main judgment. We uphold the appeal,
find the offending
legislative provisions establishing the DPCI constitutionally
invalid and suspend the declaration of constitutional
invalidity in
order to give Parliament the opportunity to remedy the
constitutional defect within 18 months.
165. What follow are the
reasons that underpin the conclusion we reach. First, we describe
the need for combating corruption and
organised crime related to it;
thereafter we identify the source of the obligation to establish an
independent anti-corruption
unit; and third, we examine the content
of the obligation. In the end, we assess whether the structural and
operational attributes
of the DPCI satisfy the requirement of
independence.
The need and rationale for
combating corruption
166. There can be no gainsaying
that corruption threatens to fell at the knees virtually everything
we hold dear and precious
in our hard-won constitutional order. It
blatantly undermines the democratic ethos, the institutions of
democracy, the rule of
law and the foundational values of our
nascent constitutional project. It fuels maladministration and
public fraudulence and
imperils the capacity of the state to fulfil
its obligations to respect, protect, promote and fulfil all the
rights enshrined
in the Bill of Rights. When corruption and
organised crime flourish, sustainable development and economic
growth are stunted.
And in turn, the stability and security of
society is put at risk.
167. This deleterious impact of
corruption on societies and the pressing need to combat it
concretely and effectively is widely
recognised in public discourse,
in our own legislation,
130
in regional
131
and international
132
conventions and in academic research.
133
In a statement preceding the text of the United Nations Convention
against Corruption
134
(UN Convention), Kofi Annan
135
observed:
“
This
evil phenomenon is found in all countries big and small, rich and
poor but it is in the developing world that its effects
are most
destructive. Corruption hurts the poor disproportionately by
diverting funds intended for development, undermining a
government’s
ability to provide basic services, feeding inequality and injustice,
and discouraging foreign investment and
aid. Corruption is a key
element in economic under-performance, and a major obstacle to
poverty alleviation and development.”
168. These sentiments were
echoed on behalf of South Africa when it signed the UN Convention.
Minister Fraser-Moleketi said:
“
Corruption
is a common feature in all political systems, despite the
differences that may exist in their governing philosophies
or their
geography. Nation-states are increasingly aware that corruption
presents a serious threat to their core principles and
values, and
hinders social and economic development. As a result, there has been
a growing acceptance of the need to address
the problem in a
coordinated, comprehensive and sustainable way.”
136
169. The
preamble to the African Union Convention
137
(AU Convention) readily acknowledges that
“corruption undermines accountability and transparency in the
management of public
affairs as well as socio-economic development
on the continent”. In a similar vein, the preamble to
the
Southern African Development Community Protocol against Corruption
138
(SADC Corruption Protocol) refers to “
the
adverse and destabilising effects of corruption throughout the world
on the culture, economic, social and political foundations
of
society”, and recognises that “corruption undermines
good governance which includes the principles of accountability
and
transparency”.
170. Perhaps
the fullest recital of the insidious scourge of corruption on
society and the need to prevent and eliminate it is
to be found in
our own domestic legislation. The preamble to the Prevention and
Combating of Corrupt Activities Act
139
(PRECCA) records that corruption and related
corrupt activities undermine rights; the credibility of governments;
the institutions
and values of democracy; and ethical values and
morality; and jeopardises the rule of law. It endangers the
stability and security
of societies; jeopardises sustainable
development; and provides a breeding ground for organised crime. The
preamble notes that
corruption is a transnational phenomenon that
crosses national borders and affects all societies and economies;
that it is equally
destructive within both the public and private
spheres of life; and that regional and international co-operation is
essential
to prevent and control corruption and related crimes.
171. The
preamble goes on to recognise that various United Nations
resolutions and the SADC Corruption Protocol condemn corruption
and
related corrupt practices and underscores “the need to
eliminate the scourges of corruption through the adoption of

effective preventative and deterrent measures and by strictly
enforcing legislation against all types of corruption”. It

makes plain that the Republic enacts the legislation in order “to
be in compliance with and to become Party to” the
UN
Convention.
140
172.
Expectedly, our courts too have warned of the pernicious threat
corruption poses to our collective enterprise to entrench
a just and
democratic society. In
S v Shaik and
Others
,
141
this Court warned that corruption is
“antithetical
to the founding values of our
constitutional order.”
142
Similarly, in
South African Association of Personal Injury
Lawyers v Heath and Others
,
143
this Court held that—
“
[c]orruption
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.”
144
(Emphasis
added.)
173. In
S v Shaik and
Others
,
145
the Supreme Court of Appeal pointed out that—
“
[t]he
seriousness of the offence of corruption cannot be overemphasised.
It offends against the rule of law and the principles
of good
governance. It lowers the moral tone of a nation and
negatively
affects development and the promotion of human rights
.
As a country we have travelled a long and tortuous road to achieve
democracy. Corruption threatens our constitutional order.
We must
make every effort to ensure that corruption with its putrefying
effects is halted. Courts must send out an unequivocal
message that
corruption will not be tolerated and that punishment will be
appropriately severe.”
146
(Emphasis
added.)
174. We have noted the resolve
of Parliament to battle corruption. That provokes the question:
which “
effective preventative and deterrent
measures” are needed for “strictly enforcing legislation
against all types of
corruption”?
147
For the narrow purpose of this case, it must be
asked what
is the source of the obligation to establish and
maintain a corruption-fighting unit, and which structural and
operational attributes
must it have? To this question we now turn.
The obligation to establish
and maintain a corruption-fighting unit
175. The Constitution is the
primal source for the duty of the state to fight corruption. It does
not in express terms command
that a corruption-fighting unit should
be established. Nor does it prescribe operational and other
attributes, should one be
established. There is however no doubt
that its scheme taken as a whole imposes a pressing duty on the
state to set up a concrete
and effective mechanism to prevent and
root out corruption and cognate corrupt practices. As we have seen,
corruption has deleterious
effects on the foundations of our
constitutional democracy and on the full enjoyment of fundamental
rights and freedoms. It disenables
the state from respecting,
protecting, promoting and fulfilling them as required by section
7(2) of the Constitution.
176. Endemic
corruption threatens the injunction that government must be
accountable, responsive and open; that public administration
must
not only be held to account but must also be governed by high
standards of ethics, efficiency and must use public resources
in an
economic and effective manner. As it serves the public, it must seek
to advance development and service to the public.
148
In relation to public finance, the Constitution
demands budgetary and expenditure processes underpinned by openness,
accountability
and effective financial management of the economy.
149
Similar requirements apply to public procurement,
when organs of state contract for goods and services.
150
It is equally clear that the national police
service, amongst other security services, shoulders the duty to
prevent, combat and
investigate crime, to protect and secure the
inhabitants of the Republic and their property and to uphold and
enforce the law.
151
In turn the national prosecuting authority bears
the authority and indeed the duty to prosecute crime, including
corruption and
allied corrupt practices.
152
177. The Constitution enshrines
the rights of all people in South Africa. These rights are
specifically enumerated in the Bill
of Rights, subject to
limitation. Section 7(2) casts an especial duty upon the state. It
requires the state to “respect,
protect, promote and fulfil
the rights in the Bill of Rights.” It is incontestable that
corruption undermines the rights
in the Bill of Rights, and imperils
democracy. To combat it requires an integrated and comprehensive
response. The state’s
obligation to “respect, protect,
promote and fulfil” the rights in the Bill of Rights thus
inevitably, in the modern
state, creates a duty to create efficient
anti-corruption mechanisms. Parliament itself has recognised this in
the preamble to
PRECCA.
153
All this constitutes uncontested public and legislative policy in
South Africa. For it has been expressly articulated and enacted
by
Parliament. That, however, is not the end of the matter.
178. The core ground advanced
in order to invalidate the legislation that established the DPCI is
that it lacks the necessary
structural and operational independence
to be an effective corruption-fighting mechanism. And that, for that
reason, the impugned
legislation is inconsistent with international
obligations of the Republic and therefore the Constitution. It must
be said that
the Minister did not, nor could he, contend that
independence is not a necessary attribute of a corruption-fighting
mechanism.
The impugned legislation provides in circuitous words
that when applying its terms, the need to ensure that the
Directorate has
the necessary independence to perform its function
should be recognised and taken into account.
154
The “necessary independence” is not defined. In order to
understand the content of the constitutionally-imposed requirement

of independence we have to resort to international agreements that
bind the Republic.
155
As we now show, our Constitution takes into its very heart
obligations to which the Republic, through the solemn resolution of

Parliament, has acceded, and which are binding on the Republic in
international law, and makes them the measure of the state’s

conduct in fulfilling its obligations in relation to the Bill of
Rights.
Independence, international
obligations and our Constitution
179. The Constitution contains
four provisions that regulate the impact of international law on the
Republic. One concerns the
impact of international law on the
interpretation of the Bill of Rights.
156
A second concerns the status of international agreements.
157
A third concerns customary international law. The Constitution
provides that it “is law in the Republic unless it is

inconsistent with the Constitution or an Act of Parliament.”
158
A fourth concerns the application of international law. It provides
that when interpreting any legislation, “every court
must
prefer any reasonable interpretation of the legislation that is
consistent with international law over any alternative
interpretation that is inconsistent with international law.”
159
In this judgment we are concerned primarily with section 39(1)(b)
and with section 231, and it is to the latter provision that
we turn
first.
180. The negotiating and
signing of all international agreements “is the responsibility
of the national executive.”
160
An agreement that the executive has concluded does not without more
bind the Republic. For that to happen, the agreement must
be
approved by resolution in both the National Assembly and the
National Council of Provinces (NCOP).
161
However, agreements “of a technical, administrative or
executive nature, or an agreement which does not require either

ratification or accession” need not be so approved. They bind
the Republic once the national executive has properly entered
into
them, but must be tabled in the National Assembly and the NCOP
within a reasonable time.
162
181. In our view, the main
force of section 231(2) is directed at the Republic’s legal
obligations under international law,
163
rather than transforming the rights and obligations contained in
international agreements into home-grown constitutional rights
and
obligations. Even though the section provides that the agreement
“binds the Republic” and Parliament exercises
the
Republic’s legislative power, which it must do in accordance
with and within the limits of the Constitution,
164
the provision must be read in conjunction with the other provisions
within section 231. Here, section 231(4) is of particular

significance. It provides that an international agreement “becomes
law in the Republic when it is enacted into law by national

legislation”. The fact that section 231(4) expressly creates a
path for the domestication of international agreements may
be an
indication that section 231(2) cannot, without more, have the effect
of giving binding internal constitutional force to
agreements merely
because Parliament has approved them.
165
It follows that the incorporation of an international agreement
creates ordinary domestic statutory obligations. Incorporation
by
itself does not transform the rights and obligations in it into
constitutional rights and obligations.
182. As noted earlier, the main
force of section 231(2) is in the international sphere. An
international agreement approved by
Parliament becomes binding on
the Republic. But that does not mean that it has no domestic
constitutional effect. The Constitution
itself provides that an
agreement so approved “binds the Republic”. That
important fact, as we shortly show, has
significant impact in
delineating the state’s obligations in protecting and
fulfilling the rights in the Bill of Rights.
183. A number of international
agreements on combating corruption currently bind the Republic. The
UN Convention imposes an obligation
on each state party to ensure
the existence of a body or bodies tasked with the prevention of
corruption.
166
Moreover, Article 6(2) provides that—
“
[e]ach
State Party shall grant the body or bodies referred to in paragraph
1 of this article the necessary independence, in accordance
with the
fundamental principles of its legal system, to enable the body or
bodies to carry out its or their functions effectively
and free from
any undue influence. The necessary material resources and
specialized staff, as well as the training that such
staff may
require to carry out their functions, should be provided.”
184. Under Article
8(1)
of the Southern African Development Community Protocol on Combating
Illicit Drugs (SADC Drugs Protocol)
member states are
required to institute appropriate and effective measures to curb
corruption. Under Article 8(2) these measures
include the following—
“
(a)
Establishment of adequately resourced anti-corruption agencies or
units that are:
independent from undue
intervention, through appointment and recruiting mechanisms
that guarantee the designation
of persons of high professional
quality and integrity;
free to initiate and
conduct investigations”.
185. Under the SADC Corruption
Protocol, states parties must “adopt measures, which will
create, maintain and strengthen
. . . institutions responsible for
implementing mechanisms for preventing, detecting, punishing and
eradicating corruption”.
167
186. The AU Convention provides
in Article 5(3) that states parties undertake to “[e]stablish,
maintain and strengthen independent
national anti-corruption
authorities or agencies”. Article 20(4) reinforces the
importance of independence in more direct
terms: “The national
authorities or agencies shall be allowed the necessary independence
and autonomy, to be able to carry
out their duties effectively.”
187. The amicus helpfully
referred us to a report prepared in 2007 by the Organisation for
Economic Co-operation and Development
(OECD):
Specialised
Anti-corruption Institutions: Review of Models
(OECD Report).
168
It reports on a review of models of specialised anti-corruption
institutions internationally. The OECD Report identified the
main
criteria for effective anti-corruption agencies to be independence,
specialisation, adequate training and resources.
169
The OECD Report is not in itself binding in international law, but
can be used to interpret and give content to the obligations
in the
Conventions we have described.
170
188. The OECD Report defined
independence as follows:
“
Independence
primarily
means that the anti-corruption bodies should be shielded from undue
political interference. To this end, genuine political
will to fight
corruption is the key prerequisite. Such political will must be
embedded in a comprehensive anti-corruption strategy.
The level of
independence can vary according to specific needs and conditions.
Experience suggests that it is the structural
and operational
autonomy that is important, along with a clear legal basis and
mandate for a special body, department or unit.
This is particularly
important for law enforcement bodies. Transparent procedures for
appointment and removal of the director
together with proper human
resources management and internal controls are important elements to
prevent undue interference.”
171
(Emphasis
removed.)
The OECD Report also found
that—
“
one
of the prominent and mandatory features of specialised institutions
is not full independence but rather an adequate level
of structural
and operational autonomy secured through institutional and legal
mechanisms aimed at preventing undue political
interference as well
as promoting ‘pre-emptive obedience’. In short,
‘independence’ first of all entails
de-politicisation of
anti-corruption institutions. The adequate level of independence or
autonomy depends on the type and mandate
of an anti-corruption
institution. Institutions in charge of investigation and prosecution
of corruption normally require a higher
level of independence than
those in charge with preventive functions. . . .
. . . .
The
question of independence of the law enforcement bodies that are
institutionally placed within existing structures in the form
of
specialised departments or units requires special attention. Police
and other investigative bodies are in most countries highly

centralised, hierarchical structures reporting at the final level to
the Minister of Interior or Justice. Similarly, but to a
lesser
extent, this is true for prosecutors in systems where the
prosecution service is part of the government and not the judiciary.

In such systems the risks of undue interference is substantially
higher when an individual investigator or prosecutor lacks
autonomous decision-making powers in handling cases, and where the
law grants his/her superior or the chief prosecutor substantive

discretion to interfere in a particular case. Accordingly, the
independence of such bodies requires careful consideration in
order
to limit the possibility of individuals’ abusing the chain of
command and hierarchical structure, either to discredit
the
confidentiality of investigations or to interfere in the crucial
operational decisions such as commencement, continuation
and
termination of criminal investigations and prosecutions. There are
many ways to address this risk. For instance, special

anti-corruption departments or units within the police or the
prosecution service can be subject to separate hierarchical rules

and appointment procedures; police officers working on corruption
cases, though institutionally placed within the police, should
in
individual cases report only and directly to the competent
prosecutor.”
172
(Footnotes omitted.)
189. The obligations in these
Conventions are clear and they are unequivocal. They impose on the
Republic the duty in international
law to create an anti-corruption
unit that has the necessary independence. That duty exists not only
in the international sphere,
and is enforceable not only there. Our
Constitution appropriates the obligation for itself, and draws it
deeply into its heart,
by requiring the state to fulfil it in the
domestic sphere. In understanding how it does so, the starting point
is section 7(2),
which requires the state to respect, protect,
promote and fulfil the rights in the Bill of Rights. This Court has
held that in
some circumstances this provision imposes a positive
obligation on the state and its organs “to provide appropriate
protection
to everyone through laws and structures designed to
afford such protection.”
173
Implicit in section 7(2) is the requirement that the steps the state
takes to respect, protect, promote and fulfil constitutional
rights
must be reasonable and effective.
190. And since in terms of
section 8(1), the Bill of Rights “binds the legislature, the
executive, the judiciary and all
organs of state”, it follows
that the executive, when exercising the powers granted to it under
the Constitution, including
the power to prepare and initiate
legislation,
174
and in some circumstances Parliament, when enacting legislation,
must give effect to the obligations section 7(2) imposes on
the
state.
175
191. Now plainly there are many
ways in which the state can fulfil its duty to take positive
measures to respect, protect, promote
and fulfil the rights in the
Bill of Rights. This Court will not be prescriptive as to what
measures the state takes, as long
as they fall within the range of
possible conduct that a reasonable decision-maker in the
circumstances may adopt.
176
A range of possible measures is therefore open to the state, all of
which will accord with the duty the Constitution imposes,
so long as
the measures taken are reasonable.
192. And it is here where the
courts’ obligation to consider international law when
interpreting the Bill of Rights is of
pivotal importance. Section
39(1)(b) states that when interpreting the Bill of Rights a court
“must consider international
law”. The impact of this
provision in the present case is clear, and direct. What reasonable
measures does our Constitution
require the state to take in order to
protect and fulfil the rights in the Bill of Rights? That question
must be answered in
part by considering international law. And
international law, through the inter-locking grid of conventions,
agreements and protocols
we set out earlier, unequivocally obliges
South Africa to establish an anti-corruption entity with the
necessary independence.
193. That is a duty this
country itself undertook when it acceded to these international
agreements. And it is an obligation that
became binding on the
Republic, in the international sphere, when the National Assembly
and the NCOP by resolution adopted them,
more especially the UN
Convention.
194. That the Republic is bound
under international law to create an anti-corruption unit with
appropriate independence is of
the foremost interpretive
significance in determining whether the state has fulfilled its duty
to respect, protect, promote and
fulfil the rights in the Bill of
Rights, as section 7(2) requires. Section 7(2) implicitly demands
that the steps the state takes
must be reasonable. To create an
anti-corruption unit that is not adequately independent would not
constitute a reasonable step.
In reaching this conclusion, the fact
that section 231(2) provides that an international agreement that
Parliament ratifies “binds
the Republic” is of prime
significance. It makes it unreasonable for the state, in fulfilling
its obligations under section
7(2), to create an anti-corruption
entity that lacks sufficient independence.
195. This is not to incorporate
international agreements into our Constitution. It is to be faithful
to the Constitution itself,
and to give meaning to the ambit of the
duties it creates in accordance with its own clear interpretive
injunctions. The conclusion
that the Constitution requires the state
to create an anti-corruption entity with adequate independence is
therefore intrinsic
to the Constitution itself.
196. More specifically, we
emphasise that the form and structure of the entity in question lie
within the reasonable power of
the state, provided only that
whatever form and structure are chosen do indeed endow the entity in
its operation with sufficient
independence. Differently put, the
requirement of independence does not answer the question, what form
and structure must the
entity take? It merely asks, does the form
and structure given to the entity, ensure that it is sufficiently
independent?
197. We therefore find that to
fulfil its duty to ensure that the rights in the Bill of Rights are
protected and fulfilled, the
state must create an anti-corruption
entity with the necessary independence, and that this obligation is
constitutionally enforceable.
It is not an extraneous obligation,
derived from international law and imported as an alien element into
our Constitution: it
is sourced from our legislation and from our
domesticated international obligations and is therefore an intrinsic
part of the
Constitution itself and the rights and duties it
creates.
198. More specifically, the
amicus contended, and we agree, that failure on the part of the
state to create a sufficiently independent
anti-corruption entity
infringes a number of rights. These include the rights to equality,
human dignity, freedom, security of
the person, administrative
justice and socio-economic rights, including the rights to
education, housing, and health care.
199. Having reached this
conclusion, we pause to step back for a moment. We do so to reflect
more broadly on the suggestion in
the main judgment that our
constitutional law does not require the state to create an
independent anti-corruption entity. We
consider this erroneous, not
only for the reasons we have set out so far, but for a deeper reason
arising from the architecture
of our Constitution.
200. As we have already pointed
out, corruption in the polity corrodes the rights to equality, human
dignity, freedom, security
of the person and various socio-economic
rights. That corrosion necessarily triggers the duties section 7(2)
imposes on the state.
We have also noted that it is open to the
state in fulfilling those duties to choose how best to combat
corruption. That choice
must withstand constitutional scrutiny. And,
even leaving to one side for a moment the Republic’s
international law obligations,
we consider that the scheme of our
Constitution points to the cardinal need for an independent entity
to combat corruption.
177
Even without international law, these legal institutions and
provisions point to a manifest conclusion. It is that, on a common

sense approach, our law demands a body outside executive control to
deal effectively with corruption.
201. The point we make is this.
It is possible to determine the content of the obligation section
7(2) imposes on the state without
taking international law into
account. But section 39(1)(b) makes it constitutionally obligatory
that we should. This is not
to use the interpretive injunction of
that provision, as the main judgment suggests, to manufacture or
create constitutional
obligations. It is to respect the careful way
in which the Constitution itself creates concordance and unity
between the Republic’s
external obligations under
international law, and their domestic legal impact.
202. A further provision of the
Constitution that integrates international law into our law
reinforces this conclusion. It is
section 233, which, as we have
already noted, demands any reasonable interpretation that is
consistent with international law
when legislation is interpreted.
There is, thus, no escape from the manifest constitutional
injunction to integrate, in a way
the Constitution permits,
international law obligations into our domestic law. We do so
willingly and in compliance with our
constitutional duty.
Limitation
203. Any right in the Bill of
Rights may be limited by a law of general application to the extent
that the limitation is reasonable
and justifiable in an open and
democratic society based on human dignity, equality and freedom,
taking into account relevant
factors, including the nature of the
right, the importance of the limitation, and its nature and extent.
178
The respondents offered no attempt to justify any limitation of the
duty to create an independent anti-corruption unit; their
argument
was that the unit was indeed sufficiently independent. The absence
of any attempt to justify limitation is not surprising
since it
would, in our view, be hard to advance. The need for a sufficiently
independent anti-corruption unit is so patent, and
the beneficent
potential of its operation so incontestable, and the disadvantages
of its creation so hard to conceive, that justification
would be
hard to muster.
204. The provisions of the
South African Police Service Amendment Act
179
(SAPS
Amendment Act) must therefore be measured for compliance with
the state’s obligation to invest the agency with the necessary

independence.
205. We add that any obligation
binding upon the Republic under international law must not conflict
with express provisions of
the Constitution, including those in the
Bill of Rights. Here, there is no conflict. Far from containing any
provision at odds
with the obligation to create an independent
corruption-fighting entity, the very structure of our Constitution –
in which
the rule of law is a founding value,
180
which distributes power by separating it between the legislature,
181
the executive
182
and the judiciary,
183
and which creates various institutions supporting constitutional
democracy, which it expressly decrees must be independent and

impartial
184
– affords the obligation a homely and emphatic welcome.
206. The main judgment notes
that independence requires that the anti-corruption agency must be
able to function effectively without
undue influence. It finds that
legal mechanisms must be established that limit the possibility of
abuse of the chain of command
and that will protect the agency
against interference in operational decisions about starting,
continuing and ending criminal
investigations and prosecutions
involving corruption. It then asks whether the DPCI has sufficient
structural and operational
autonomy to protect it from political
influence. Here the question is not whether the DPCI has full
independence, but whether
it has an adequate level of structural and
operational autonomy, secured through institutional and legal
mechanisms, to prevent
undue political interference.
207. To these formulations we
add a further consideration. This Court has indicated that “the
appearance or perception of
independence plays an important role”
in evaluating whether independence in fact exists.
185
This was said in connection with the appointment procedures and
security of tenure of magistrates. By applying this criterion
we do
not mean to impose on Parliament the obligation to create an agency
with a measure of independence appropriate to the judiciary.
We say
merely that public confidence in mechanisms that are designed to
secure independence is indispensable. Whether a reasonably
informed
and reasonable member of the public will have confidence in an
entity’s autonomy-protecting features is important
to
determining whether it has the requisite degree of independence.
Hence, if Parliament fails to create an institution that
appears
from the reasonable standpoint of the public to be independent, it
has failed to meet one of the objective benchmarks
for independence.
This is because public confidence that an institution is independent
is a component of, or is constitutive
of, its independence.
Does the DPCI have the
operational and structural attributes of independence?
208. We consider that the
provisions creating the DPCI, while succeeding in creating some
hedge around it, fail to afford it an
adequate measure of autonomy.
Hence it lacks the degree of independence arising from the
constitutional duty on the state to
protect and fulfil the rights in
the Bill of Rights. Our main reason for this conclusion is that the
DPCI is insufficiently insulated
from political influence in its
structure and functioning. But we rest our conclusion also on the
conditions of service that
pertain to its members and in particular
its head. These make it vulnerable to an undue measure of political
influence.
209. In considering the
statutory provisions that create the DPCI, we make comparative
reference to the provisions that regulated
the structure and
functioning of the DSO that preceded it. By doing so we do not
suggest that the DSO constitutes a “gold
standard” from
which Parliament cannot deviate. We nevertheless consider that the
fact that Parliament has created an entity
that in signal ways is
less independent than the DSO is relevant to the inquiry, in two
ways.
210. First, it impacts on the
public perception of independence. A reasonable and informed member
of the public may have misgivings
about the DPCI’s
independence, given that the features protecting it are so markedly
more tenuous than those of the DSO.
Second, we find it hard to
conclude that the creation of an entity that is markedly less
independent than the DSO can fulfil
the state’s duty to
respect, protect, promote and fulfil the rights in the Bill of
Rights. This is because, as we now show,
independence is assessed on
the basis of factors such as security of tenure and remuneration,
and mechanisms for accountability
and oversight. These factors must
be analysed to determine whether, on the whole, the body satisfies
the threshold of adequate
independence. The now-defunct DSO was
independent. While it does not represent an inviolable standard,
comparison with it shows
how markedly short of independence the DPCI
falls.
211.
There is a further point. As the main judgment observes, the
international instruments require independence within our legal

conceptions. Hence it is necessary to look at how our own
constitutionally-created institutions manifest independence. To
understand
our native conception of institutional independence, we
must look to the courts, to Chapter 9 institutions, to the NDPP, and

in this context also to the now-defunct DSO. All these institutions
adequately embody or embodied the degree of independence appropriate

to their constitutional role and functioning. Without applying a
requirement of full judicial independence, all these institutions

indicate how far the DPCI structure falls short in failing to attain
adequate independence.
212. We therefore find
reference to the now-repealed provisions that invested the DSO with
its powers and created protections
for their exercise illuminating.
213. The lack of independence
is reflected in our view most signally in the absence of secure
tenure protecting the employment
of the members of the entity and in
the provisions for direct political oversight of the entity’s
functioning. We deal
first with security of tenure, and then with
political oversight.
214. The Constitution requires
the creation of an adequately independent anti-corruption unit. It
also requires that a member
of the Cabinet must be “responsible
for policing”.
186
These constitutional duties can productively co-exist, and will do
so, provided only that the anti-corruption unit, whether placed

within the police force (as is the DPCI) or in the NPA (as was the
DSO), has sufficient attributes of independence to fulfil
the
functions required of it under the Bill of Rights. The member of
Cabinet responsible for policing must fulfil that responsibility

under section 206(1) with due regard to the state’s
constitutional obligations under section 7(2) of the Constitution.
215. Differently stated, we do
not consider that the Constitution’s requirement that a
politician “must be responsible
for policing” requires
either that the anti-corruption unit must itself function under
political oversight, or that the
particular oversight arrangements
in the legislation now impugned are constitutionally acceptable. On
the contrary, as we now
show, we consider the political oversight
the legislation requires incompatible with adequate independence.
216. The second general point
we make is that adequate independence does not require insulation
from political accountability.
In the modern polis, that would be
impossible. And it would be averse to our uniquely South African
constitutional structure.
What is required is not insulation from
political accountability, but only insulation from a degree of
management by political
actors that threatens imminently to stifle
the independent functioning and operations of the unit.
Security of tenure and
remuneration
217. As we turn to the
conditions of employment of the DPCI, we make the initial
observation that under the provisions that applied
to the
now-defunct DSO, the head of the DSO, the directors, deputy
directors and prosecutors all had to swear an oath of office
or make
an affirmation before commencing duty.
187
That oath was to—
“
uphold
and protect the Constitution and the fundamental rights entrenched
therein and enforce the Law of the
Republic
without
fear, favour or prejudice and, as the circumstances of any
particular case may require, in accordance with the Constitution
and
the Law.”
188
There appears to be no
comparable requirement in the provisions constituting the DPCI.
218. We do not say that an oath
or affirmation of this kind ensures independence. Nor do we say that
it is essential to it. We
make a different point. We note that the
absence of any solemn undertaking, before commencing service and
exercising powers,
indicates the sharply diminished standing the
legislation accords the DPCI and its members. No longer are they
regarded as independently
bound by oath to uphold the Constitution
and to perform their duties without fear, favour or prejudice. They
are ordinary police
officials, required to perform their duty,
189
no doubt, but not enjoined or bound to do so by oath or affirmation.
219. What is more, the head of
the DPCI and the persons appointed to it enjoy little if any special
job security. The provisions
at issue provide that the head of the
DPCI shall be a Deputy National Commissioner of the SAPS, and shall
be “appointed
by the Minister in concurrence with the
Cabinet”.
190
In addition to the head, the Directorate comprises persons appointed
by the National Commissioner of the SAPS “on the
recommendation” of the head,
191
plus “an adequate number of legal officers”
192
and seconded officials.
193
The Minister is required to report to Parliament on the appointment
of the head of the DPCI.
194
220. The members of the DPCI
are, like other members of the SAPS, subject to inquiries into their
“fitness . . . to remain
in the Service on account of
indisposition, ill-health, disease or injury”
195
and on various other grounds.
196
Under prescribed conditions, an inquiry may be converted into a
disciplinary inquiry.
197
Under the South African Police Service Act (SAPS Act), the National
Commissioner may “discharge” any member of the
DPCI from
the SAPS on account of redundancy or the interests of the SAPS.
198
The Commissioner is empowered to discharge a member of the service
if, for reasons other than unfitness or incapacity, the discharge

“will promote efficiency or economy” in the SAPS, or
will “otherwise be in the interest of” the SAPS.
199
The reach of this provision appears to include the head of the
Directorate.
221. The grounds for dismissal
under the SAPS Act are broad. The DPCI’s members enjoy the
same security of tenure as other
members of the police force –
no more and no less. Their dismissal is subject to no special
inhibitions, and can occur
at a threshold lower than dismissal on an
objectively verifiable ground like misconduct or continued
ill-health.
222. In short, the members of
the new Directorate enjoy no specially entrenched employment
security. They, like other members
of the SAPS, have employment
rights under the SAPS Act and under other labour and employment law
statutes, but no special provisions
secure their employment. While
it is not to be assumed, and we do not assume, that powers under the
SAPS Act will be abused,
at the very least the lack of specially
entrenched employment security is not calculated to instil
confidence in the members
of the DPCI that they can carry out their
investigations vigorously and fearlessly. In our view, adequate
independence requires
special measures entrenching their employment
security to enable them to carry out their duties vigorously.
223. This is exacerbated by the
fact that the appointment of the National Commissioner of the SAPS
is itself renewable.
200
By contrast, the appointment of the National Director Public
Prosecutions (NDPP) – who selected the head of the DSO from

amongst the Deputy NDPPs – is not.
201
A renewable term of office, in contradistinction to a non-renewable
term, heightens the risk that the office-holder may be vulnerable
to
political and other pressures.
224. The lack of specially
entrenched employment security bears on the protection afforded the
members of DPCI by the complaints
mechanism headed by a retired
judge.
202
In our view, the absence of specially secured employment may well
disincline members of the Directorate from reporting undue

interference in investigations for fear of retribution. In the
result, the mechanism the new provisions create to protect any

member of the Directorate “who can provide evidence of any
improper influence or interference” exerted upon him or
her
regarding an investigation
203
necessarily diminishes in efficacy.
225. The contrast with the
position under the now-defunct DSO is signal. Previously, under the
NPA Act, the DSO was established
in the office of the NDPP, and fell
within the NPA.
204
In terms of section 179(1) of the Constitution, the NDPP is
appointed by the President as head of the national executive. The

head of the DSO was a deputy NDPP, assigned from the ranks of deputy
NDPPs by the NDPP,
205
and reporting to the NDPP. The NPA Act provides that a deputy NDPP
may be removed from office only by the President, on grounds
of
misconduct, continued ill-health or incapacity, or if he or she is
no longer a fit and proper person to hold the office.
206
And Parliament holds a veto over the removal of a deputy NDPP. The
reason for the removal, and the representations of the deputy
NDPP,
must be communicated to Parliament, which may resolve to restore the
deputy NDPP to office.
207
226. These protections applied
also to investigating directors within the DSO.
208
The special protection afforded the members of the DSO served to
reduce the possibility that an individual member could be threatened

– or could feel threatened – with removal for failing to
yield to pressure in a politically unpopular investigation
or
prosecution.
227. In addition, before the
statutory amendments now at issue, the head of the DSO, as a deputy
NDPP, enjoyed a minimum rate
of remuneration which was determined by
reference to the salary of a judge of the High Court.
209
By contrast, the new provisions stipulate that the conditions of
service for all members (including the grading of posts,
remuneration
and dismissal) are governed by regulations,
210
which the Minister for Police determines.
211
The absence of statutorily secured remuneration levels gives rise to
problems similar to those occasioned by a lack of secure
employment
tenure. Not only do the members not benefit from any special
provisions securing their emoluments, but the absence
of secured
remuneration levels is indicative of the lower status of the new
entity.
Accountability and oversight
by the Ministerial Committee
228. Our gravest disquiet with
the impugned provisions arises from the fact that the new entity’s
activities must be coordinated
by Cabinet.
212
The statute provides that a Ministerial Committee, which must
include at least the Ministers for Police, Finance, Home Affairs,

Intelligence and Justice,
213
and may include any other Minister designated from time to time by
the President,
214
may determine policy guidelines in respect of the functioning of the
DPCI,
215
as well as for the selection of national priority offences.
216
Indeed, the power the statute grants the head of the DPCI to combat
and investigate national priority offences which in the opinion
of
the head need to be addressed, is expressly subordinated to policy
guidelines issued by the Ministerial Committee, as is the
power of
the National Commissioner to refer offences or categories of
offences to the DPCI.
217
229. The head of the DPCI, as a
Deputy National Commissioner and a member of the SAPS,
218
is accountable to the National Commissioner, whose post, as we have
pointed out, lacks sufficient security of tenure,
219
thus inevitably creating vulnerability to political pressure. In
addition to this, the power of the Ministerial Committee to
issue
policy guidelines for the functioning of the DPCI creates in our
view a plain risk of executive and political influence
on
investigations and on the entity’s functioning.
230. It is true that the policy
guidelines the Ministerial Committee may issue could be broad and
thus harmless. But they might
not be broad and harmless. Nothing in
the statute requires that they be. Indeed, the power of the
Ministerial Committee to determine
guidelines appears to be
untrammelled. The guidelines could, thus, specify categories of
offences that it is not appropriate
for the DPCI to investigate –
or, conceivably, categories of political office-bearers whom the
DPCI is prohibited from
investigating.
231. This may be far-fetched.
220
Perhaps. The Minister for Police must submit any policy guidelines
the committee determines to Parliament for approval.
221
This is a safeguard against far-fetched conduct. But if Parliament
does nothing, the guidelines are deemed to be approved.
222
The point is that the legislation does not rule out far-fetched
inhibitions on effective anti-corruption activities. On the
contrary, it leaves them open. This is in our view plainly at odds
with a structure designed to secure effective independence.
It
underscores our conclusion that the legislation does too little –
indeed, far too little – to secure the DPCI
from interference.
232. The competence vested in
the Ministerial Committee to issue policy guidelines puts
significant power in the hands of senior
political executives. It
cannot be disputed that those very political executives could
themselves, were the circumstances to
require, be the subject of
anti-corruption investigations. They “oversee” an
anti-corruption entity when of necessity
they are themselves part of
the operational field within which it is supposed to function. Their
power over it is unavoidably
inhibitory.
233. We point out in this
regard that the DPCI is not, in itself, a dedicated anti-corruption
entity. It is in express terms a
directorate for the investigation
of “priority offences”. What those crimes might be
depends on the opinion of the
head of the Directorate as to national
priority offences – and this is in turn subject to the
Ministerial Committee’s
policy guidelines.
223
The very anti-corruption nature of the Directorate therefore depends
on a political say-so, which must be given, in the exercise
of a
discretion, outside the confines of the legislation itself. This
cannot be conducive to independence, or to efficacy.
224
234. Again, we should not
assume, and we do not assume, that the power will be abused. Our
point is different. It is that senior
politicians are given
competence to determine the limits, outlines and contents of the new
entity’s work. That in our view
is inimical to independence.
What is more, the new provisions go further than mere competence to
determine guidelines. They also
make provision for hands-on
supervision. They provide:
“
(a)
The Ministerial Committee shall oversee the functioning of the
Directorate and shall meet as regularly as necessary, but not
less
than four times annually.
(b)
The National Commissioner and the Head of the Directorate shall,
upon request of the Ministerial Committee, provide performance
and
implementation reports to the Ministerial Committee.”
225
235. These provisions afford
the political executive the power directly to manage the
decision-making and policy-making of the
DPCI. As with the power to
formulate policy guidelines, the statute places no limit on the
power of the Ministerial Committee
in overseeing the functioning of
the DPCI. On the contrary – the requirement that the
Ministerial Committee must meet regularly,
and that on request
performance and implementation reports must be provided to it, in
our view creates the possibility of hands-on
management, hands-on
supervision, and hands-on interference.
236. We find this impossible to
square with the requirement of independence. We accept that
financial and political accountability
of executive and
administrative functions requires ultimate oversight by the
executive. But the power given to senior political
executives to
determine policy guidelines, and to oversee the functioning of the
DPCI, goes far further than ultimate oversight.
It lays the ground
for an almost inevitable intrusion into the core function of the new
entity by senior politicians, when that
intrusion is itself inimical
to independence.
237. The new provisions contain
an interpretive injunction: in their application “the need to
ensure” that the DPCI
“has the necessary independence to
perform its functions”
226
must be recognised and taken into account. But this injunction
operates essentially as an exhortation. It is an admonition in

general terms, containing no specific details. It therefore runs the
risk of being but obliquely regarded, or when inconvenient,

disregarded altogether. This is because the interpretive rule
enjoins political executives to take the need to ensure independence

into account. At the same time other provisions place power in their
hands without any express qualification – power to
determine
policy guidelines and to oversee the functioning of the DPCI.
238. It is the structure of the
DPCI that brings its capacity to be adequately independent into
question, and it is its structure
that renders the interpretive
injunction potentially feeble. What independence requires is freedom
from the risk of political
oversight and trammelling, and it is this
very risk that the statutory provisions at issue create.
239. The new provisions require
parliamentary oversight of the DPCI.
227
In addition, the National Commissioner must submit an annual report
to Parliament.
228
And the head of the DPCI must at any time when requested by
Parliament submit a report on the DPCI’s activities.
229
These are beneficial provisions. Under our constitutional scheme,
Parliament operates as a counter-weight to the executive, and
its
committee system,
230
in which diverse voices and views are represented across the
spectrum of political views, assists in ensuring that questions
are
asked, that conduct is scrutinised and that motives are questioned.
240. We note, in considering
how far parliamentary oversight counter-weighs these limitations of
structure, that the phrase “oversee
the functioning of the
Directorate” occurs in relation to the duties of both the
Ministerial Committee
231
and Parliament,
232
except that in the latter case it is preceded by the word
“effectively”. While the Ministerial Committee must
“oversee
the functioning” of the DPCI, Parliament must
“effectively oversee” its functioning. Despite this
verbal emphasis
on Parliament’s oversight, no timelines or
minimum standards are set for what it does in this regard. By
contrast, the
statute requires that the Ministerial Committee meet
“as regularly as necessary, but not less than four times
annually.”
233
It is plain, as we indicated earlier, that it is the Ministerial
Committee’s oversight that is intended to be hands-on.
241. We thus make two points.
First, the parliamentary oversight the new provision requires is
more benign and less intrusive
than that of the Ministerial
Committee. Second, Parliament’s powers are insufficient to
allow it to rectify the deficiencies
of independence that flow from
the extensive powers of the Ministerial Committee. This diluted
level of oversight, in contrast
to the high degree of involvement
permitted to the Ministerial Committee in the functioning of the
Directorate, cannot restore
the level of independence taken at
source.
242. We appreciate that
Parliament is unlikely to ignore its oversight role. But the
provisions are nowhere designed to afford
it as active an
involvement in the functioning of the DPCI as that of the
Ministerial Committee. In addition, the Ministerial
Committee and
the head of the DPCI have power to determine what the reports to
Parliament contain. This is a significant power,
which may weaken
the capacity of Parliament to ensure a vigorously independent
functioning DPCI.
243. We consider that it is not
unrealistic to conclude that the Ministerial Committee will be
actively involved in overseeing
the functioning of the DPCI. By
contrast, parliamentary committees comprise members of a diversity
of political parties and views.
No consolidated or hegemonic view,
or interest, is likely to preponderate to the exclusion of other
views. As importantly, parliamentary
committees function in public.
234
The questions they ask of those reporting to them aim at achieving
public accountability. The Ministerial Committee by contrast

comprises political executives who function out of the public gaze.
The accountability they seek to exact is political accountability.

It is inimical to an adequately independent functioning of the DPCI.
244. We appreciate that the
international agreements at issue require the Republic to establish
an anti-corruption agency “in
accordance with the fundamental
principles of its legal system”.
235
We also accept that our legal system requires some level of
executive involvement in any area of executive functioning. We do

not cavil with some measure of executive involvement. It is its
extent, and the largeness with which its shadow looms in the
absence
of other safeguards, that is inimical to the independent functioning
of the DPCI.
245. A beneficial feature of
the new provisions is that that the National Commissioner may
request that prosecutors from the NPA
assist the DPCI in conducting
investigations.
236
But the arrangement does little to remedy the concern of politically
intrusive oversight. A weakness inherent in it is that it
is the
National Commissioner who must exercise the power to request that
prosecutors join an investigation. Whether the Commissioner
will
exercise this power in politically fraught investigations must be
open to question. It will depend on the Commissioner,
and on the
terms of his or her appointment. We accept that, where such requests
are made, the prosecutors will not be subject
to the same chain of
command as the investigators in the Directorate, but will continue
to report to the NPA. This will help
secure some measure of
independence and serve as a warrant against undue political
influence in investigations. But it is a limping
and partial
mechanism, which underscores the inadequacy of the arrangements to
secure the overall independence of the DPCI.
246. The other safeguards the
provisions create are in our respectful view inadequate to save the
new entity from a significant
risk of political influence and
interference. The complaints mechanism, headed by a retired judge,
237
and backed up by power to refer a complaint for prosecution,
238
operates after the fact. It permits complaints to be made, but does
not constitute a hedge in advance against their causes. It
also
permits a member of the public to complain about infringement of
rights caused by an investigation, and permits “any
member of
the Directorate who can provide evidence of any improper influence
or interference, whether of a political or any other
nature, exerted
upon him or her regarding the conducting of an investigation”
to complain.
239
247. This in our respectful
view deals with history. It does not constitute an effective hedge
against interference. What is more,
section 17L(7) is clear that in
the course of this investigation the retired judge may request
information from the NDPP in so
far as it may be necessary, but the
NDPP may on “reasonable grounds” refuse to accede to
such request. That may place
a considerable hurdle in the way of the
retired judge’s investigation. In short, an
ex post facto
review, rather than insisting on a structure that
ab initio
prevents interference, has in our view serious and obvious
limitations. In some cases, irreparable harm may have been caused

which judicial review and complaints can do little to remedy. More
importantly, many acts of interference may go undetected,
or
unreported, and never reach the judicial review or complaints stage.
Only adequate mechanisms designed to prevent interference
in the
first place would ensure that these never happen. These are signally
lacking.
248. For these reasons we
conclude that the statutory structure creating the DPCI offends the
constitutional obligation resting
on Parliament to create an
independent anti-corruption entity, which is both intrinsic to the
Constitution itself and which Parliament
assumed when it approved
the relevant international instruments, including the UN Convention.
We do not prescribe to Parliament
what that obligation requires. In
summary, however, we have concluded that the absence of specially
secured conditions of employment,
the imposition of oversight by a
committee of political executives, and the subordination of the
DPCI’s power to investigate
at the hands of members of the
executive, who control the DPCI’s policy guidelines, are
inimical to the degree of independence
that is required. We have
also found that the interpretive admonition in section 17B(b)(ii) of
the SAPS Act is not sufficient
to secure independence.
249. Regarding the entity’s
conditions of service, we have found that the lack of employment
security, including the existence
of renewable terms of office and
of flexible grounds for dismissal that do not rest on objectively
verifiable grounds like misconduct
or ill-health, are incompatible
with adequate independence. So too is the absence of statutorily
secured remuneration levels.
We have further found that the
appointment of its members is not sufficiently shielded from
political influence.
250. Regarding oversight, we
have concluded that the untrammelled power of the Ministerial
Committee to determine policy guidelines
in respect of the
functioning of the DPCI, as well as for the selection of national
priority offences, is incompatible with the
necessary independence.
We have found that the power to request prosecutors to join an
investigation has limited impact, given
that the National
Commissioner is the functionary who has the power to request it. We
have also found that the mechanisms to
protect against interference
are inadequate, in that Parliament’s oversight function is
undermined by the level of involvement
of the Ministerial Committee,
and in that the complaints system involving a retired judge
regarding past incidents does not afford
sufficient protection
against future interference.
Order
251. In the event, the
following order is made:
1. The applications for
condonation by the applicant, the first, second and third
respondents and the amicus are granted.
2. The application for leave to
appeal is granted.
3. The constitutional challenge
to the
National Prosecuting Authority Amendment Act 56 of 2008
and
the
South African Police Service Amendment Act 57 of 2008
, for
failure to facilitate public involvement in the legislative process,
is dismissed.
4. The appeal succeeds to the
extent indicated in paragraph 5.
5. It is declared that Chapter
6A of the
South African Police Service Act 68 of 1995
is
inconsistent with Constitution and invalid to the extent that it
fails to secure an adequate degree of independence for the

Directorate for Priority Crime Investigation.
6. The declaration of
constitutional invalidity is suspended for 18 months in order to
give Parliament the opportunity to remedy
the defect.
7. The respondents are ordered
to pay the costs of the applicant, including the costs of two
counsel, in the High Court and in
this Court.
Froneman
J, Nkabinde J and Skweyiya J concur in the judgment of Moseneke DCJ
and Cameron J.
For
the Applicant: RP Hoffman SC and PStC Hazell SC instructed by Louis
and Associates.
For
the First, Second and Third Respondents: WRE Duminy SC and S
Poswa-Lerotholi instructed by the State Attorney, Cape Town.
For
the Amicus Curiae: DN Unterhalter SC and M du Plessis instructed by
Webber Wentzel.
1
56
of 2008.
2
57
of 2008.
3
32
of 1998.
4
[2008]
ZACC 19
;
2009 (1) SA 287
(CC);
2009 (2) BCLR 136
(CC).
5
The
Government of the Republic of South Africa was cited separately in
the notice to oppose as fifth respondent, but was represented
in the
proceedings by the first, second and third respondents.
6
Glenister
I
above n 4 at paras 1-2 and 10-6.
7
Id
at para 57.
8
Glenister
v The President of the Republic of South Africa and Others
, Case
No 7798/09, 26 February 2010, Western Cape, Cape Town, unreported
at
para 5 (High Court Judgment). Section 167(4) of the Constitution
provides:
“
Only the Constitutional Court may—
. . . .
(e) decide that Parliament or the President has failed
to fulfil a constitutional obligation”.
9
High
Court Judgment above n 8
at para 13.
10
Id.
11
Id.
12
68
of 1995.
13
See
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at paras 13-30;
2006 (12) BCLR 1399
(CC) at 1411C-1416A (
Doctors for Life
);
see also
Women’s Legal Centre Trust v
President of the Republic of South Africa and Others
[2009] ZACC 20
;
2009 (6) SA 94
(CC) at paras
11-25 and
Poverty Alleviation Network
and Others v President of the Republic of South Africa and Others
[2010] ZACC 5
;
2010 (6) BCLR 520
(CC)
at para 21 (
Poverty Alleviation
)
.
14
Doctors
for Life
above n 13 SA at paras 27-8; BCLR at 1415D-F.
15
Compare
Tongoane and Others v Minister of
Agriculture and Land Affairs and Others
[2010]
ZACC 10
;
2010 (6) SA 214
(CC);
2010 (8) BCLR 741
(CC) at para 114.
16
Section
59(1) of the Constitution provides:
“
The National Assembly must—
(a) facilitate public involvement in the legislative
and other processes of the Assembly and its committees; and
(b) conduct its business in an open manner, and hold
its sittings, and those of its committees, in public, but reasonable
measures
may be taken—
(i) to regulate public access, including access of the
media, to the Assembly and its committees; and
(ii) to
provide for the searching of any person and, where appropriate, the
refusal of entry to, or the removal of, any person.”
17
Section
72(1) of the Constitution provides:
“
The National Council of Provinces must—
(a) facilitate public involvement in the legislative
and other processes of the Council and its committees; and
(b) conduct its business in an open manner, and hold
its sittings, and those of its committees, in public, but reasonable
measures
may be taken—
(i) to regulate public access, including access of the
media, to the Council and its committees; and
(ii) to provide for the searching of any person and,
where appropriate, the refusal of entry to, or the removal of, any
person.”
18
Doctors
for Life
above n 13 SA at para 14
;
BCLR at 1411E-G
; see also
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others
[2006] ZACC 12
; SA
[2006] ZACC 12
;
2007 (1)
BCLR 47
(CC) at para 34 (
Matatiele II
);
Merafong Demarcation Forum and Others v
President of the Republic of South Africa and Others
[2008]
ZACC 10
;
2008 (5) SA 171
(CC);
2008 (10) BCLR 969
(CC)
at
para 26 (
Merafong
)
and
Poverty Alleviation
above
n 13 at para 9.
19
Doctors
for Life
above n 13 SA at para 28;
BCLR at 1415F and
Poverty Alleviation
above n 13 at para 21.
20
Section
167(6) of the Constitution provides:
“
National legislation or the rules of the
Constitutional Court must allow a person, when it is in the
interests of justice and
with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional
Court”.
Rule 18
of the Constitutional Court Rules, 2003 sets forth the procedure for
direct access.
21
Section
167(4) of the Constitution provides:
“
Only the Constitutional Court may—
decide disputes between organs of state in the
national or provincial sphere concerning the constitutional status,
powers or
functions of any of those organs of state;
decide on the constitutionality of any parliamentary
or provincial Bill, but may do so only in the circumstances
anticipated
in section 79 or 121;
decide applications envisaged in section 80 or 122;
decide on the constitutionality of any amendment to
the Constitution;
decide that Parliament or the President has failed to
fulfil a constitutional obligation; or
certify
a provincial constitution in terms of section 144.”
22
CC
rules 14 to 17 apply to certain matters within the exclusive
jurisdiction of this Court. These rules do not, however, apply
to an
application brought under section 167(4)(e) of the Constitution.
Accordingly, CC rule 11, which provides for the default
procedure,
applies here.
23
Poverty
Alleviation
above n 13 at para 21.
24
Doctors
for Life
above n 13 SA at para 218; BCLR at
1467E.
25
Matatiele
II
above n 18 at para 100.
26
Doctors
for Life
above n 13 SA at para
218; BCLR
at1467E.
27
Compare
Matatiele II
above
n 18 at para 105.
28
Doctors
for Life
above n 13 SA at para 218;
BCLR at 1467E
.
29
Id
SA at paras 145-6; BCLR at 1451A-F.
30
Matatiele
II
above n 18 at para 97.
31
In
addition, there was an application to strike out. The papers
relating to this application were never brought to our attention.
It
is therefore not necessary to make any order on it.
32
Van
Wyk v Unitas Hospital
and Another (Open Democratic Advice
Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20 and
Brummer v Gorfil Brothers
Investments (Pty) Ltd
and Others
[2000] ZACC 3
;
2000 (2)
SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
33
See
Van Wyk
and
Brummer
above
n
32
.
34
CC
rule 19(2).
35
URC
49(1)(b) provides:
“
When leave to appeal is
required and it has not been requested at the time of the judgment
or order, application for such leave
shall be made and the grounds
therefor shall be furnished within fifteen days after the date of
the order appealed against: Provided
that when the reasons or the
full reasons for the court’s order are given on a later date
than the date of the order, such
application may be made within
fifteen days after such later date: Provided further that the court
may, upon good cause shown,
extend the aforementioned periods of
fifteen days.”
36
Section
173 of the Constitution provides:
“
The Constitutional Court, Supreme Court of
Appeal and High Courts have the inherent power to protect and
regulate their own process,
and to develop the common law, taking
into account the interests of justice.”
37
S
v Pennington and Another
[1997] ZACC
10
;
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC) at para 22;
Parbhoo and Others v Getz and Others
[1997] ZACC 9
;
1997 (4) SA 1095
(CC);
1997 (10) BCLR 1337
(CC) at para 4 and
S
v Thunzi and Others
[2010] ZACC 12
;
Case No CCT 81/09, 5 August 2010, as yet unreported at paras 19-22.
38
Pennington
above n 37 at para 22;
Parbhoo
above n 37 at para 4.
39
The
applicant says that: he had to undertake business trips and could
not communicate with his lawyers effectively whilst he was
away;
there was a lengthy record to read; and his attorneys and counsel
were geographically separated. A diligent litigant, desirous
of
appealing against the order, and respecting the rules of this Court,
would not have conducted himself in the manner in which
the
applicant did. It is difficult to believe that, having regard to the
technological advances in communication, effective communication

between the applicant and his attorneys was not possible.
A
perusal of the 17-page affidavit in support of the application for
leave to appeal belies any explanation given for the delay.
It deals
with the relief sought, the history of the litigation submissions,
interests of justice and condonation. Save for a
paragraph dealing
with the dismissal of challenges based on alleged constitutional
obligations, the submission is a repetition
of the submission made
in the High Court, and, as if this was not enough, both sets of
argument are attached. There are no page
references to any part of
the record in the affidavit. It is therefore difficult to understand
why there was this two-month delay.
40
Section
44(1) of the Constitution.
41
Section
44(4) of the Constitution.
42
New
National Party of South Africa v Government of the Republic of South
Africa and Others
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5)
BCLR 489
(CC) at para 19 (
New National Party
).
43
Id.
44
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 paras 86 and
89-90 and
New National Party
above n 42 at para 24.
45
Preamble
of SAPSA Act
.
46
Glenister
I
above n 4 at para 54.
47
Section
179(2) of the Constitution.
48
Section
205(3) of the Constitution.
49
Bel
Porto School Governing Body and Others v Premier, Western Cape, and
Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) at para 45 (
Bel Porto
).
50
Memorandum
on the Objects of the General Law Amendment Bill, GN 523 GG 31016, 9
May 2008 at paras 1.2-1.4.
51
Id
at para 1.4.
52
Section
85(2)(b) of the Constitution.
53
Section
85(2)(d) of the Constitution.
54
S
v
Lawrence; S v Negal; S v Solberg
[1997] ZACC 11
;
1997 (4) SA 1176
(CC);
1997 (10)
BCLR 1348
(CC) at para 42, quoting with approval Professor Hogg.
55
Id.
56
Prinsloo
v Van der Linde and Another
[1997]
ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 36.
57
It
bears mention that there was some concern that the DSO under the NPA
was perhaps too independent, operating as “a law
unto itself.”
Khampepe Commission of Inquiry,
Khampepe Commission of Inquiry
into the Mandate and Location of the Directorate of Special
Operations (“The DSO”),
Final Report
(February 2006)
at para 21.5.
58
Section
20 of the NPA Act provides:
“
(1) The power, as contemplated in section 179(2)
and all other relevant sections of the
Constitution
,
to—
institute and conduct criminal proceedings on behalf
of the State;
carry out any necessary functions incidental to
instituting and conducting such criminal proceedings; and
discontinue criminal proceedings,
vests in the
prosecuting authority
and shall,
for all purposes, be exercised on behalf of the
Republic
.”
Section
32(1)(a) of the NPA Act provides:
“
A member of the
prosecuting
authority
shall serve impartially and
exercise, carry out or perform his or her powers, duties and
functions in good faith and without
fear, favour or prejudice and
subject only to the
Constitution
and the law.”
59
Section
179(1) of the Constitution provides:
“
There is a single national
prosecuting authority in the Republic, structured in terms of an Act
of Parliament, and consisting
of—
(a) a National Director of Public Prosecutions, who is
the head of the prosecuting authority, and is appointed by the
President,
as head of the national executive; and
(b)
Directors of Public Prosecutions and prosecutors as determined by an
Act of Parliament.”
60
Section
179(7) of the Constitution provides:
“
All other matters concerning
the prosecuting authority must be determined by national
legislation.”
61
Section
179(2) of the Constitution.
62
Section
205(3) of the Constitution.
63
United
Nations Office on Drugs and Crime,
Legislative Guide for the
Implementation of the United Nations Convention against Corruption
(2006) at para 463 (Legislative Guide).
64
2004
43
ILM
37.
The Convention was adopted on
31 October 2003 and entered into force on 14 December 2005. South
Africa signed the Convention on
9 December 2003 and ratified it on
22 Nov
ember 2004. We have not been able to establish whether
the Convention was in fact approved by a resolution of Parliament as
required
by section 231(2) of the Constitution. Having regard to
legislative practice, it appears that once an international
agreement
has been approved by resolutions of both the National
Assembly and the National Council of Provinces, the executive
publishes
a notice in the Government Gazette for the general
information of the public. See, for example, GN 1534 GG 32722, 20
November
2009 (confirming approval, by resolution in both the
National Assembly and the National Council of Provinces, of the
Protocol
of 1992 to amend the International Convention on the
Establishment of an International Fund for Compensation for Oil
Pollution
Damage, 1971).
65
12
of 2004.
66
After
oral argument, this Court issued further directions (dated 29
November 2010) calling for additional written submissions.
These
directions directed the parties to lodge additional submissions on
the following issues:
“
1) Precisely what legislative
action is required before an international agreement becomes law in
South Africa under section 231(4)
of the Constitution?
2) What legislative action, if any, was taken to
incorporate the provisions of the United Nations Convention against
Corruption
(the Convention) into law under section 231(4) of the
Constitution?
3) If the Convention is part of our law by virtue of
the provisions of section 231(4) of the Constitution read with the
domestic
legislation, and if there is a conflict between the
Convention and the domestic legislation on the one hand and the
Constitution
on the other, is the validity of the impugned
legislation to be tested against a provision of the Constitution, or
against the
provisions of the domestic legislation and the
Convention?
4) If the Convention is not law in the sense
contemplated in section 231(4)—
i. what obligations, if any, does it create, and in
particular, does it oblige the Republic of South Africa to establish
an independent
anti-corruption unit? If so;
ii. does the Court have the power to enforce this
obligation? And if so; and
iii. what is the source of that power?”
67
Section
231(1) of the Constitution.
68
Section
231(3) of the Constitution. We are not concerned with such
agreements, here.
69
Section
231(2) of the Constitution.
70
Section
231(4) of the Constitution.
71
Vienna
Convention on the Law of Treaties, 1969 8
ILM
679 at article
II para 1(b).
72
See
below [99].
73
Pan
American World Airways Incorporated v S.A. Fire and Accident
Insurance Co. Ltd.
1965 (3) SA 150
(A.D.) at 161C-D. Compare
R v Secretary
of State for the Home Department, Ex parte Brind and Others
[1991] UKHL 4
;
[1991]
1 AC 696
(HL) at 762A-B (legislative incorporation in the United
Kingdom) and
Capital Cities
Communication Inc. v Canadian Radio-Television &
Telecommunications Commission
[1978] 2
S.C.R. 141
at para 54 (legislative incorporation in Canada).
74
Azanian
Peoples Organization (AZAPO) and Others v President of the Republic
of South Africa and Others
[1996] ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC) at para 26.
75
See
Baker v Canada (Minister of Citizenship and Immigration)
[1999]
2 S.C.R. 817
at paras 69 (per L’Heureux-Dubé J) and 79
(per Iacobucci J);
Ashby v Minister of Immigration
[1981] 1
NZLR 222
at 224 and
Kavanagh v Governor of Mountjoy Prison
[2002] 3 I.R. 97
at 129.
76
Minister
of State for Immigration and Ethnic Affairs v Teoh
[1995] HCA 20
;
[1995] 183
CLR 273
at 286-7.
77
Id
at 291.
78
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 35.
79
Teoh
above n 76 at 291 and
Ex parte Brind
above n 73 at
718E-F.
80
Dugard
International Law: A South African Perspective
3 ed (Juta,
Cape Town 2005) at 61.
81
Examples
of this approach include the Civil Aviation Offences Act 10 of 1972
(giving effect to the provisions of the Convention
on Offences and
certain other Acts committed on board Aircraft of 1963; the
Convention for the Suppression of unlawful Seizure
of Aircraft of
1970; and the Convention for the Suppression of unlawful Acts
against the Safety of Civil Aviation of 1971) and
the Children’s
Act 38 of 2005 (giving effect to the provisions of the Hague
Convention on Protection of Children and Co-operation
in Respect of
Intercountry Adoption of 1993, also known as the Hague Convention on
Inter-country Adoption).
82
Examples
of this approach include the Civil Aviation Act 13 of 2009
(incorporating the Convention on International Civil Aviation
of
1944 and its governing protocols, as well as the International Air
Services Transit Agreement of 1944, as schedules) and the
Diplomatic
Immunities and Privileges Act 37 of 2001 (incorporating, among other
things, the Vienna Convention on Diplomatic Relations
of 1961 and
the Vienna Convention on Consular Relations of 1963 as schedules).
83
An
example of this approach includes section 2(3)(a) of the Extradition
Act 67 of 1962.
84
See
[88] above
.
85
See
for example the Children’s Act 38 of 2005, giving effect to
the Hague Convention on Inter-country Adoption and noting,
in
section 256(2), that “where there is a conflict between the
ordinary law of the Republic and the Convention, the Convention

prevails.” In some countries, international agreements are
given a status superior to other legislation.
In
the Netherlands, article 94 of the Constitution provides that in a
conflict between international and domestic law, international
law
prevails:
“
Within the Kingdom, legal regulations in force
shall not be applicable if such application is incompatible with
provisions of
treaties that are binding on all persons or of
resolutions by international organizations.”
Translation
in Flanz (ed)
Constitutions of the Countries of the World
(Oceana Publications, Inc, New York 2003) at 18. Similarly, in
France, article 55 of the Constitution provides that “[t]reaties

or agreements duly ratified or approved, upon publication, prevail
over Acts of Parliament”, translation in Flanz (ed)
Constitutions of the Countries of the World
(Oceana
Publications, Inc, New York 2000) at 17, and in Argentina, article
75(22) of the Constitution provides that “[t]reaties
and
concordats have a higher standing than laws.” Translation in
Flanz (ed)
Constitutions of the Countries of the World
(Oceana Publications, Inc, New York 1999) at 14.
86
In
the United Kingdom, for example, which follows a similar legislative
incorporation process to South Africa, the European Convention
on
Human Rights (ECHR) was given domestic effect via the passage of the
Human Rights Act 1998 (Human Rights Act). The Human Rights
Act did
not give effect to every article of the ECHR, however, so the effect
of legislative incorporation of the ECHR into domestic
UK law was
that certain rights embodied in the convention were given
substantive domestic effect, and the interpretation of such
rights
under English law is guided by ECHR jurisprudence, but only those
rights enumerated in the Human Rights Act give rise
to domestic
claims rooted in English law. See Ewing “The Human Rights Act
and Parliamentary Democracy”
(1999) 62
MLR
79
at 84-8.
87
The
provisions of section 37(4)(b)(i) of the Constitution, which
provides that legislation that derogates from the Bill of Rights

must be “consistent with the Republic’s obligations
under international law applicable to states of emergency”,

arguably transforms the rights and obligations embodied in
international agreements into constitutional rights and obligations,

but only in the limited context of states of emergency. We are not
concerned with legislation that has been enacted in consequence
of a
declaration of a state of emergency. It is therefore not necessary
to express any firm views on this issue.
88
It
is at least arguable that, to the extent Parliament passes
legislation later in time that conflicts with the provisions of

PRECCA and the Convention, PRECCA is superseded by the subsequent
passage of the impugned legislation absent a provision in PRECCA

providing that the provisions of the Convention prevail in a
conflict between PRECCA and other legislation passed by Parliament.

It is not necessary, however, to express a firm view on this issue
as it is not before us.
89
Section
26(2) (right of access to adequate housing) and section 27(2) (right
of access to health care, food, water and social
security) of the
Constitution.
90
Section
205 of the Constitution states:
“
(1) The
national police service must be structured to function in the
national, provincial and, where appropriate, local spheres
of
government.
(2) National
legislation must establish the powers and functions of the police
service and must enable the police service to discharge
its
responsibilities effectively, taking into account the requirements
of the provinces.
(3)
The objects of the police service are to prevent, combat and
investigate crime, to maintain public order, to protect and secure

the inhabitants of the Republic and their property, and to uphold
and enforce the law.”
91
Section
205(2) of the Constitution.
92
South
African National Defence Union v Minister of Defence and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) at para
26.
93
Section
205(3) of the Constitution.
94
Section
205(2) of the Constitution.
95
See
[119] below.
96
Organisation
for Economic Co-operation and Development (OECD),
Specialised
Anti-Corruption Institutions: Review of Models
(2008) at 17
(OECD report).
97
Id.
98
Id
at 6.
99
See
[79]-[81]
above.
100
Article
6 of the Convention provides:
“
1. Each State Party shall, in
accordance with the fundamental principles of its legal system,
ensure the existence of a body or
bodies, as appropriate, that
prevent corruption by such means as:
(a) Implementing the policies referred to in article 5
of this Convention and, where appropriate, overseeing and
coordinating
the implementation of those policies;
(b) Increasing and disseminating knowledge about the
prevention of corruption.
2. Each State Party shall grant the body or bodies
referred to in paragraph 1 of this article the necessary
independence, in accordance
with the fundamental principles of its
legal system, to enable the body or bodies to carry out its or their
functions effectively
and free from any undue influence. The
necessary material resources and specialized staff, as well as the
training that such
staff may require to carry out their functions,
should be provided.”
101
OECD
report above n 96 at 6.
102
Id
at 17.
103
See
[119] above.
104
Article
6(2) of the Convention
.
105
Section
3 of the SAPSA Act inserted the provisions of chapter 6A into the
SAPS Act.
106
A
rticle
6(2) of the Convention.
107
Section
205(3) of the Constitution.
108
Section
165(2) of the Constitution.
109
Section
179(4) of the Constitution. This does not mean that the national
prosecuting authority must be cut-off from the political
sphere.
Indeed, section 179(6) provides that the Cabinet member responsible
for the administration of justice must exercise final
responsibility
over the prosecuting authority.
110
See
sections 205-7 of the Constitution.
111
Indeed,
the OECD emphasises that “[i]t is genuine political
commitment, coupled with adequate resources, powers and staff,
which
are as crucial as formal independence, if not more so, to the
success of an anti-corruption institution.” OECD report
above
n 96 at 17.
112
1
of 1999.
113
Section
17D(1)(a) of the
SAPS Act
.
114
S
ection
17D(1)(b) of the
SAPS Act
.
115
OECD
report
above n 96 at 17.
116
Section
17K(3) of the
SAPS Act
.
117
Section
17K(4) of the
SAPS Act
.
118
Section
179(6) of the Constitution.
119
Section
206(1) of the Constitution.
120
See
[114] above.
121
Legislative
Guide
above n 63 at paras 43 and 53-4.
122
Id
at paras 462 and 464.
123
Bel
Porto
above n 49 at para 45.
124
Section
17L(4)(b) of the
SAPS Act
.
125
Section
17L(10) of the
SAPS Act
.
126
Section
67(1)(a) of the
SAPS Act
.
127
Section
67(2)(a) of the
SAPS Act
.
128
South
African Police Service Act 68 of 1995
(SAPS Act)
as
amended by the
South African Police Service Amendment Act 57 of 2008
(SAPS Amendment Act)
.
129
National
Prosecuting Authority Act 32 of 1998 (NPA Act) as amended by the
National Prosecuting Authority Amendment Act 56
of 2008 (NPA Amendment Act).
130
Prevention
and Combating of Corrupt Activities Act 12 of 2004
and
Prevention of
Organised Crime Act 121 of 1998
.
131
Southern
African Development Community Protocol against Corruption (SADC
Corruption Protocol) adopted on 14 August 2001 and Southern
African
Development Community Protocol on Combating Illicit Drugs (SADC
Drugs Protocol) adopted on 24 August 1996,
http://
www.sadc.int
,
accessed on 16 March 2011.
132
United
Nations Convention against Corruption (2004) 43
ILM
37 (UN Convention); United Nations Convention
against Transnational Organized Crime (2001) 40
ILM
353; and African Union Convention on Preventing
and Combating Corruption (2004) 43
ILM
5 (AU Convention).
133
Goudie
& Stasavage “Corruption: The Issues” (1997) OECD
Development Centre Working Paper No 122; Hussman et al

“Institutional Arrangements for Corruption Prevention:
Considerations for the Implementation of the United Nations
Convention
against Corruption Article 6” (2009) U4
Anti-Corruption Resource Centre; Pilapitiya “The Impact of
Corruption on
the Human Rights Based Approach to Development”
(2004) United Nations Development Programme, Oslo Governance Centre;
Lash
“Corruption and Economic Development” (2003) U4
Anti-Corruption Resource Centre; and Van Vuuren “National
Integrity
Systems – Transparency International Country Study
Report (Final Draft): South Africa 2005” (2005) Transparency
International.
134
http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf
,
accessed on 16 March 2011.
UN Convention was
adopted on 31 October 2003 and entered into force on 14 December
2005. South Africa signed the Convention on
9 December 2003 and
ratified it on 22 November 2004.
135
Then
Secretary-General of the United Nations.
136
Opening
statement by Ms Geraldine J Fraser-Moleketi, the then Minister for
the Public Service and Administration, South Africa,
on the occasion
of the signing ceremony of the UN Convention (9 December 2003),
http://www.info.gov.za/speeches/2003/03122912461005.htm
,
accessed on 16 March 2011.
137
The
AU Convention was adopted on 11 July 2003. South Africa signed the
Convention on 16 March 2004, ratified the Convention on
11 November
2005 and it entered into force on 5 August 2006.
138
The
SADC Corruption Protocol was signed by the Heads of State of all 14
SADC member states on 14 August 2001. South Africa ratified
the
Protocol on 15 May 2003 and it entered into force on 6 July 2005.
139
12
of 2004. The preamble states:
“
WHEREAS the Constitution enshrines the rights of
all people in the Republic and affirms the democratic values of
human dignity,
equality and freedom;
AND WHEREAS the Constitution places a duty on the State
to respect, protect, promote and fulfil all the rights as enshrined
in
the Bill of Rights;
AND WHEREAS corruption and related corrupt activities
undermine the said rights, endanger the stability and security of
societies,
undermine the institutions and values of democracy and
ethical values and morality, jeopardise sustainable development, the
rule
of law and the credibility of governments, and provide a
breeding ground for organised crime;
AND WHEREAS the illicit acquisition of personal wealth
can be particularly damaging to democratic institutions, national
economies,
ethical values and the rule of law;
AND WHEREAS there are links between corrupt activities
and other forms of crime, in particular organised crime and economic
crime,
including money-laundering;
AND WHEREAS corruption is a transnational phenomenon
that crosses national borders and affects all societies and
economies, and
is equally destructive and reprehensible within both
the public and private spheres of life, so that regional and
international
cooperation is essential to prevent and control
corruption and related corrupt activities;
AND WHEREAS a comprehensive, integrated and
multidisciplinary approach is required to prevent and combat
corruption and related
corrupt activities efficiently and
effectively;
AND WHEREAS the availability of technical assistance
can play an important role in enhancing the ability of States,
including
by strengthening capacity and by institution-building, to
prevent and combat corruption and related corrupt activities
efficiently
and effectively;
AND WHEREAS the prevention and combating of corruption
and related corrupt activities is a responsibility of all States
requiring
mutual cooperation, with the support and involvement of
individuals and groups outside the public sector, such as organs of
civil
society and non-governmental and community-based
organizations, if their efforts in this area are to be efficient and
effective;
AND WHEREAS the United Nations has adopted various
resolutions condemning all corrupt practices, and urged member
states to take
effective and concrete action to combat all forms of
corruption and related corrupt practices;
AND WHEREAS the
Southern
African Development Community Protocol against Corruption
,
adopted on 14 August 2001 in Malawi, reaffirmed the need to
eliminate the scourges of corruption through the adoption of
effective
preventive and deterrent measures and by strictly
enforcing legislation against all types of corruption;
AND WHEREAS the Republic of South
Africa desires to be in compliance with and to become Party to the
United Nations
Convention against Corruption
adopted
by the General Assembly of the United Nations on 31 October 2003;
AND WHEREAS it is desirable to unbundle the crime of
corruption in terms of which, in addition to the creation of a
general, broad
and all-encompassing offence of corruption, various
specific corrupt activities are criminalized,
BE
IT THEREFORE ENACTED . . . .”
140
Id
.
141
[2008]
ZACC 7
;
2008 (5) SA 354
(CC);
2008 (8) BCLR 834
(CC).
142
Id
at para 72.
143
[2000]
ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC).
144
Id
at para 4.
145
2007
(1) SA 240 (SCA).
146
Id
at para 223.
See also
S v Kwatsha
2004
(2) SACR 564
(ECD) at 569-70;
S v Salcedo
2003 (1) SACR 324
(SCA) at para 3; and
S v Sadler
2000 (1) SACR 331
(SCA) at
para 13.
147
See
above n 12.
148
See
section 195 of the Constitution.
149
Section
215.
150
Section
217.
151
Section
205(3).
152
Section
179(2).
153
See
above n 12.
154
Section
17B(b)(ii) of the SAPS Act provides that “
[i]n
the application of this Chapter the following should be recognised
and taken into account . . . [t]he need to ensure that
the
Directorate . . . has the necessary independence to perform its
functions”.
155
In
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras 34-5, this Court made it plain
that it is entitled to consider both binding and non-binding
instruments of international
law.
156
Section
39(1)(b) provides that, when interpreting the Bill of Rights, a
court, tribunal or forum “must consider international
law”.
157
Section
231 provides:
“
(1) The negotiating and
signing of all international agreements is the responsibility of the
national executive.
(2) An international agreement binds the Republic only
after it has been approved by resolution in both the National
Assembly
and the National Council of Provinces, unless it is an
agreement referred to in subsection (3).
(3) An international agreement of a technical,
administrative or executive nature, or an agreement which does not
require either
ratification or accession, entered into by the
national executive, binds the Republic without approval by the
National Assembly
and the National Council of Provinces, but must be
tabled in the Assembly and the Council within a reasonable time.
(4) Any international agreement becomes law in the
Republic when it is enacted into law by national legislation; but a
self-executing
provision of an agreement that has been approved by
Parliament is law in the Republic unless it is inconsistent with the
Constitution
or an Act of Parliament.
(5)
The Republic is bound by international agreements which were binding
on the Republic when this Constitution took effect.”
158
Section
232.
159
Section
233.
160
Section
231(1).
161
Section
231(2).
162
Section
231(3).
163
See
Dugard
International Law: A South African Perspective
(3 ed)
(Juta, Cape Town 2005) 59-62.
164
Section
44(4) of the Constitution provides: “When exercising its
legislative authority, Parliament is bound only by the
Constitution,
and must act in accordance with, and within the limits of, the
Constitution.”
165
For
an academic discussion on the legal positions under the interim
Constitution and the final Constitution see Dugard “Kaleidoscope:

International Law and the South African Constitution” (1997) 8
European Journal of International Law
77 at 81-3; Keightley
“Public International Law and the Final Constitution”
(1996) 12
South African Journal on Human Rights
405 at
408-14; and Devine “The Relationship between International Law
and Municipal Law in the Light of the Interim South
African
Constitution 1993” (1995) 44
International and Comparative
Law Quarterly
1 at 6-11.
166
Article
6(1) above n 5.
167
Article
4(1)(g).
168
http://www.oecd.org/dataoecd/7/4/39971975.pdf
,
accessed on 16 March 2011.
169
The
OECD drew these criteria from the provisions of UN Convention as
well as the Council of Europe Criminal Law Convention on
Corruption.
Id at 6.
170
In
terms of Article 31(3)(b) of the Vienna Convention on the Law of
Treaties 1969 (1969) 8
ILM
679, the subsequent practice of
states in applying a treaty can be used to indicate how the states
have interpreted the treaty
and thus give content to treaty
obligations. Article 31 of the Convention reads:
“
General rule of
interpretation
1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the
treaty
in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of
a treaty shall comprise, in addition to the text, including its
preamble
and annexes:
(a) any agreement relating to the treaty which was made
between all the parties in connexion with the conclusion of the
treaty;
(b) any instrument which was made by one or more
parties in connexion with the conclusion of the treaty and accepted
by the other
parties as an instrument related to the treaty.
3. There shall be taken into account, together with the
context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of its
provisions;
(b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its
interpretation;
(c) any relevant rules of international law applicable
in the relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.”
Although
South Africa has neither signed nor ratified this Convention,
commentators observe that South Africa employs the Convention
in
formulating its practice regarding treaties: see Schlemmer “Die
Grondwetlike Hof en die Ooreenkoms ter Vestiging van
die
Wêreldhandelsorganisasie”
(2010) 4
TSAR
749
at
753.
171
Above
n 41 at 6.
172
Id
at 17.
173
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC
22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 44.
174
Section
85(2)(d) provides that the President exercises the executive
authority, together with the other members of the Cabinet,
by
“preparing and initiating legislation”.
175
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC
20
;
2005
(2) SA 359
(CC)
;
2005 (4) BCLR 301
(CC) at
para 69.
176
Id
at para 86.
177
See
Chapter 9 “State Institutions Supporting Constitutional
Democracy”.
178
Section
36(1) of the Constitution.
179
57
of 2008.
180
Section
1(c) of the Constitution provides: “The Republic of South
Africa is one, sovereign, democratic state founded on
the following
values . . . [s]upremacy of the constitution and the rule of law.”
181
Chapters
4 “Parliament” and 6 “Provinces”.
182
Chapter
5 “The President and National Executive”.
183
Chapter
8 “Courts and Administration of Justice”.
184
Chapter
9 “State Institutions Supporting Constitutional Democracy”.
The institutions are the Public Protector, the
South African Human
Rights Commission, the Commission for the Promotion and Protection
of the Rights of Cultural, Religious and
Linguistic Communities, the
Commission for Gender Equality, the Auditor-General and the
Electoral Commission. Section 181(2)
provides that these
institutions are “independent” and must be “impartial”.
185
S
v Van Rooyen
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR
810
(CC) at para 32, endorsing the finding in
Valente v The Queen
(1986) 24 DLR (4th) 161 (SCC) at 172 that the test for independence
should include public perception.
186
Section
206(1).
187
Section
32(2)(a) read with section 4 of the NPA Act before amendment by the
NPA Amendment Act.
188
Section
32(2)(a) of the NPA Act before amendment by the NPA Amendment Act.
189
Under
the South African Police Service’s Code of Conduct,
promulgated by regulation in terms of section 24(1)(h) of the
SAPS
Act, members of the SAPS commit themselves to, amongst other things,
upholding the Constitution and the law. See Regulations
for the
South African Police Service relating to the Code of Conduct for
Members of the Service, GN R529 GG 27642, 10 June 2005.
190
Section
17C(2)(a) of the SAPS Act.
191
Section
17C(2)(b) of the SAPS Act.
192
Section
17C(2)(c) of the SAPS Act.
193
Section
17C(2)(d) of the SAPS Act.
194
Section
17C(3) of the SAPS Act.
195
Section
34(1)(a) of the SAPS Act.
196
Section
34(1)(b)-(h) of the SAPS Act.
197
Section
34(3) read with section 40 of the SAPS Act.
198
Section
35(a)-(b) of the SAPS Act.
199
Section
35 of the SAPS Act.
200
Section
7(2) of the SAPS Act.
201
Section
12(1) of the NPA Act.
202
The
main judgment at [147] relies in part on the complaints mechanism
for the conclusion that the independence requirement is
satisfied.
203
Section
17L(4)(b) of the SAPS Act.
204
Section
7(1)(a) of the NPA Act before amendment by the NPA Amendment Act.
205
Section
7(3)(a) of the NPA Act before amendment by the NPA Amendment Act.
206
Section
12 of the NPA Act.
207
Section
12(6)(c)-(d) of the NPA Act.
208
Section
17 of the NPA Act applies to the NDPP, deputy NDPPs and directors.
209
Section
17(1) of the NPA Act before amendment by the NPA Amendment Act.
210
Sections
17G and 24 of the SAPS Act.
211
Section
24 of the SAPS Act.
212
Section
17I of the SAPS Act is headed “Coordination by Cabinet”.
213
Section
17I(1)(a) of the SAPS Act.
214
Section
17I(1)(b) of the SAPS Act.
215
Section
17I(2)(a) of the SAPS Act.
216
Section
17I(2)(b) of the SAPS Act.
217
Section
17D(1) of the SAPS Act provides:
“
The functions of the [DPCI]
are to prevent, combat and investigate—
(a) national priority offences, which in the opinion of
the Head of the Directorate need to be addressed by the [DPCI],
subject
to any policy guidelines issued by the Ministerial
Committee; and
(b)
any other offence or category of offences referred to it from time
to time by the National Commissioner, subject to any policy

guidelines issued by the Ministerial Committee.”
218
Section
17C(2)(a) of the SAPS Act.
219
See
above [222] and [223].
220
We
have not been able to establish that the Ministerial Committee has
in fact issued any guidelines. By GN R783 GG 33524, 7 September

2010, the Minister for Police issued regulations in terms of section
24(1)(eeA) of the SAPS Act dealing with disclosure of financial
and
other interests; measures for integrity testing of members of the
DPCI and for protection of confidentiality of information,
and the
form and manner in which complaints may be made to the retired judge
provided for in section 17L.
221
Section
17K(4) of the SAPS Act.
222
Section
17K(5) of the SAPS Act.
223
Section
17D(1)(a) of the SAPS Act.
224
As
indicated in n 93, two years after the legislation was passed, we
have been unable to find any guidelines published in terms
of
section 17I(2) of the SAPS Act.
225
Section
17I(3) of the SAPS Act.
226
Section
17B(b)(ii) of the SAPS Act.
227
Section
17K(1) of the SAPS Act provides: “Parliament shall effectively
oversee the functioning of the Directorate and the
committees
established in terms of this Chapter.”
228
Section
17K(2) of the SAPS Act.
229
Section
17K(3) of the SAPS Act.
230
See
National Assembly Rules (as of June 1999) Chapter 12 Rule 125(1)
(“Parties are entitled to be represented in committees
in
substantially the same proportion as the proportion in which they
are represented in the Assembly”.); Rules of the National

Council of Provinces (issued March 1999) Chapter 9 Rule 89(1)
(“Provinces are entitled to be equally represented in
committees”),
http://www.pmg.org.za/parlinfo/narules
and
http://www.pmg.org.za/
parlinfo/ncoprules
, accessed on
16 March 2011.
231
Section
17I(3)(a) of the SAPS Act.
232
Section
17K(1) of the SAPS Act.
233
Section
17I(3)(a) of the SAPS Act.
234
Section
59 of the Constitution.
235
Article
6(1) of the UN Convention.
236
Section
17F(2) and (4) of the SAPS Act.
237
Section
17L of the SAPS Act.
238
Section
17L(5) of the SAPS Act provides:
“
The retired judge may upon
receipt of a complaint investigate such complaint or refer it to be
dealt with by, amongst others,
the Secretariat, the Independent
Complaints Directorate, the National Commissioner, the Head of the
Directorate, the relevant
Provincial Commissioner, the National
Director of Public Prosecutions, the Inspector-General of
Intelligence, or any institution
mentioned in chapter 9 of the
Constitution of the Republic of South Africa, 1996.”
239
Section
17L(4)(b) of the SAPS Act.