Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others (CCT 07/14, CCT 09/14) [2014] ZACC 32; 2015 (1) BCLR 1 (CC); 2015 (2) SA 1 (CC) (27 November 2014)

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[2014] ZACC 32
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Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others (CCT 07/14, CCT 09/14) [2014] ZACC 32; 2015 (1) BCLR 1 (CC); 2015 (2) SA 1 (CC) (27 November 2014)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Cases
CCT 07/14 and CCT 09/14
In
the matter between:
HELEN
SUZMAN
FOUNDATION
.........................................................................................
Applicant
and
PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA
........................................
First
Respondent
MINISTER
OF
POLICE
...........................................................................................
Second
Respondent
HEAD
OF THE DIRECTORATE FOR
PRIORITY
CRIME
INVESTIGATION
....................................................................
Third Respondent
GOVERNMENT
OF THE REPUBLIC OF
SOUTH
AFRICA
.........................................................................................................
Fourth
Respondent
And
the matter between:
HUGH
GLENISTER
.................................................................................................................
Applicant
and
PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA
........................................
First
Respondent
MINISTER
OF
POLICE
...........................................................................................
Second
Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
....................................................................
Third
Respondent
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
.....................................
Fourth
Respondent
GOVERNMENT
OF THE REPUBLIC OF
SOUTH
AFRICA
............................................................................................................
Fifth
Respondent
Neutral
citation:
Helen Suzman Foundation v
President of the Republic of South Africa and Others; Glenister v
President of the Republic of South Africa
and Others
[2014]
ZACC 32
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J,
Van der Westhuizen
J and Zondo J
Heard
on:
19 August 2014
Decided
on:
27 November 2014
Summary:
South African Police Service Amendment
Act 10 of 2012
— confirmation of an order of constitutional
invalidity
South
African Police Service Act 68 of 1995
— Directorate for
Priority Crime Investigation — adequacy of the structural and
operational independence of a constitutionally
mandated
anti corruption entity
ORDER
Application
for confirmation of the order of the Western Cape Division of the
High Court, Cape Town:
1.
Leave to appeal against the order of the Western Cape Division of the
High Court, Cape Town striking out the additional evidence
sought to
be led by Mr Glenister is refused with costs in this Court and the
High Court, including costs of three counsel.
2.
Leave to appeal against the order of the Western Cape Division of the
High Court, Cape Town dismissing Mr Glenister’s application
to
have the entire legislative scheme of the
South African Police
Service Amendment Act 10 of 2012
declared constitutionally invalid is
refused, and each party is to pay its own costs.
3.
Leave to appeal against the order of the Western Cape Division of the
High Court, Cape Town dismissing the application by the
Helen Suzman
Foundation to declare
sections 17E(8)
,
17G
,
17H
,
17I
and
24
of the
South African Police Service Act 68 of 1995
as amended
constitutionally invalid is granted, but the appeal is dismissed with
no order as to costs.
4.
The order of constitutional invalidity made by the Western Cape
Division of the High Court, Cape Town is confirmed to the extent
set
out in paragraph 5.
5.
The following provisions of the
South African Police Service Act 68
of 1995
as amended are inconsistent with the Constitution and are
declared
invalid
and deleted from the date of this order:
(a)
The words “in accordance with the approved policy guidelines”
as contained in section 16(2)(h) and (3).
(b)
Section 17CA(15) and (16).
(c)
The words “subject to any policy guidelines by the Minister and
approved by Parliament” in section 17D(1)(a).
(d)
The words “selected offences not limited to” and “and”
in section 17D(1)(aA).
(e)
Section 17D(1)(b).
(f)
Section 17D(1A).
(g)
The “(2)” in section 17DA(1) and the whole of section
17DA(2).
(h)
Section 17K(4), (7) and (8).
6.
All other provisions of
sections 16
to
17K
of the
South African
Police Service Act 68 of 1995
as amended remain in force.
7.
The respondents are to pay the applicants’ costs in the High
Court as well as costs of the confirmation application, including

costs occasioned by the employment of three counsel.
8.
The first respondent is also to pay wasted costs occasioned by the
postponement on 15 May 2014 to the applicants, including costs
of
three counsel.
JUDGMENT
MOGOENG CJ
(Moseneke DCJ, Jafta J, Khampepe J, Leeuw AJ and Zondo J concurring):
Introduction
[1]
All
South Africans across the racial, religious, class and political
divide are in broad agreement that corruption is rife in this
country
and that stringent measures are required to contain this malady
before it graduates into something terminal.
[1]
[2]
We
are in one accord that South Africa needs an agency dedicated to the
containment and eventual eradication of the scourge of corruption.

We also agree that that entity must enjoy adequate structural and
operational independence to deliver effectively and efficiently
on
its core mandate.  And this in a way is the issue that lies at
the heart of this matter.  Does the
South African Police Service
Act
[2
]
(SAPS Act), as amended
again,
[3]
comply with the
constitutional obligation to establish an adequately independent
anti-corruption agency?
[4]
Parties
[3]
The applicant in CCT 07/14 is the Helen
Suzman Foundation (HSF), while Mr Hugh Glenister (Mr Glenister)
is the applicant in
CCT 09/14.  The respondents in both matters
include: the President of the Republic of South Africa (President);
the Minister
of Police (Minister); the National Head of the
Directorate for Priority Crime Investigation (National Head); the
Minister of Justice
and Constitutional Development (Minister of
Justice); the National Director of Public Prosecutions (NDPP); and
the Government of
the Republic of South Africa (Government).
Background
[4]
South
Africa had an agency that was practically established for the primary
purpose of combating corruption and specialised offences.
That
agency, the Directorate of Special Operations (DSO), popularly known
as the “Scorpions”, was eventually dissolved.
[5]
Out of its ashes emerged the Directorate for Priority Crime
Investigation (DPCI), otherwise known as the “Hawks”.
[6]
This was achieved by amending both the National Prosecuting Authority
Act
[7]
(NPA Act) and the SAPS
Act.  The constitutional validity of Chapter 6A of the SAPS
Act, in terms of which the DPCI was
established, was successfully
challenged by Mr Glenister in this Court in
Glenister
II
.
[8]
[5]
In
dealing with the constitutionality of the legislative scheme that
created the DPCI, this Court chose not to prescribe to Parliament
how
the constitutional defects were to be cured.
[9]
And in an attempt to remedy those defects, Parliament amended the
SAPS Act again.  The legislative scheme of this amended
version
was again challenged by Mr Glenister, whereas several sections were
specifically impugned by the HSF in the Western Cape
Division of the
High Court, Cape Town (High Court).
[10]
[6]
The High Court dismissed Mr Glenister’s
application.  In line with the Minister’s application, it
also struck out
the additional evidence on which his case was
premised.  The HSF achieved partial success.  Some of the
impugned sections
were found to be constitutionally invalid, whereas
several others were not.  A punitive costs order was made
against Mr Glenister
in respect of the successful striking out
application.  No order for costs was made in his favour for the
successful HSF application
that he had aligned himself with.  HSF
was awarded costs.
[7]
This then is the HSF’s application
for the confirmation of the declaration of the constitutional
invalidity of several sections
and its application for leave to
appeal against the decision not to declare invalid other sections
whose constitutionality was
challenged in the High Court.  There
is also an application by Mr Glenister for leave to appeal against
the order dismissing
his challenge to the constitutionality of the
very location of the DPCI within the SAPS and the entire scheme of
Chapter 6A in
terms of which the DPCI was established.  He also
applies for leave to appeal against the order striking out the
additional
evidence he sought to rely on, the consequential punitive
costs order made against him and the failure to award him costs for
the
successful HSF application.
Issues
[8]
The issues are—
(a)
the correct approach to this matter;
(b)
the non-joinder of the Speaker of the National Assembly and the
Chairperson of the National Council of Provinces;
(c)
Mr Glenister’s application for leave to appeal against the High
Court’s order dismissing his application to have
the
legislative scheme of the SAPS Amendment Act declared
constitutionally invalid;
(d)
Mr Glenister’s application for leave to appeal against the High
Court’s order striking out key aspects of the additional

evidence he sought to rely on with punitive costs;
(e)
the HSF’s application for leave to appeal against the High
Court’s dismissal of its application to have certain
sections
of the SAPS Act as amended declared constitutionally invalid;
(f)
the application for the confirmation of the order of constitutional
invalidity;
(g)
remedy; and
(h)
costs.
The
correct approach
[9]
Our
anti-corruption agency, the DPCI, is not required to be absolutely
independent.  It, however, has to be adequately independent.

And that must be evidenced by both its structural and
operational autonomy.
[11]
Parties are divided on whether the DPCI legislation must be examined
as a whole for constitutional compliance and if aspects
of it are
found wanting be declared invalid or whether attention should be
given to individual sections.
[10]
The correct approach to this matter is, in
my view, to examine each of the impugned provisions and determine
whether they militate
for or against a corruption fighting
agency which, though not absolutely independent, should nevertheless
be adequately independent
in terms of both its structure and
operations.  Those provisions that do not meet the
constitutional obligation to create
an adequately independent
corruption-busting entity, in line with
Glenister
II
, must be declared constitutionally
invalid individually and set aside.  This approach would inform
Parliament of the exact
nature and areas of concern that this Court
has about the affected provisions.  It would also eliminate a
repetition of the
mistakes previously made by Parliament in its
endeavour to cure the constitutional defects the legislation was
suffering from,
identified by
Glenister
II
.
Non-joinder
[11]
The President, the Government, the Minister
of Police and the Minister of Justice, took the preliminary point
that the applications
are fatally defective because the Speaker of
the National Assembly and the Chairperson of the National Council of
Provinces were
not joined as parties to these proceedings.
These leaders should, in their view, have been joined because
Parliament has
a material interest in the proceedings in which a
challenge is mounted against the legislation it has passed.  I
disagree.
[12]
Only
when the constitutionality of the procedure followed by Parliament in
processing and passing legislation is challenged, does
it become
necessary to join Parliament as a party.  This is so because
Parliament bears the constitutional responsibility
to ensure that the
correct procedures are followed in passing legislation.  And it
is for this reason, as well as its resultant
material interest in the
matter, that it must be afforded the opportunity to be heard and to
defend itself before potentially adverse
conclusions are arrived at
in relation to its primary area of responsibility.  This would
explain why Parliament had to be
cited in
Matatiele
Municipality
[12]
when the regularity of the constitutionally required consultative
process necessary to pass the impugned legislation was challenged.
[13]
Parliament
is, however, not to be cited when the substance of a provision is
challenged, save under exceptional circumstances, like
where
Parliament or the Provincial Legislature itself initiated and
prepared legislation as was the case in
Premier,
Limpopo Province
.
[13]
Ordinarily, it is the Executive that initiates, prepares and
introduces draft legislation in the National Assembly.
[14]
Only thereafter does Parliament get down to the business of ensuring
that constitutionally prescribed procedures are followed
in passing
Bills into law.
[15]
For
this reason, when the content of legislation is impugned, it is
usually only the Executive that must be cited.
[14]
This point thus falls to be dismissed.
Mr
Glenister’s application for leave to appeal
(a)
Can an independent corruption-fighting entity be located within the
SAPS?
[15]
The
thrust of Mr Glenister’s application is that the entire
legislative architecture in terms of which the DPCI was created
and
located within the SAPS must be pulled down.  This is because it
is incapable of establishing an adequately independent

anti-corruption unit.  In support of this contention, he relies
on two grounds.  One is the alleged incompatibility of
a proper
adherence to and application of sections 206(1) and 207(2) of the
Constitution with the location of an adequately independent

anti-corruption agency within the SAPS.  And the second is that
the location of the DPCI within the SAPS does not fall within
the
range of possible or constitutionally acceptable measures “a
reasonable decision-maker in the circumstances may adopt”.
[16]
He seeks to prove that the prevailing public perception is that the
SAPS is the most corrupt institution in South Africa
and that the
ruling party, Cabinet and Parliament are also corrupt.  The
placement of the DPCI within the corrupt SAPS that
is controlled by a
corrupt government can by necessary implication only give birth to a
corrupt anti-corruption unit.  The
public will thus not have
confidence in the capability of the DPCI to fight corruption, free of
manipulation by their corrupt masters.
This is the nub of Mr
Glenister’s case.  The rest is a matter of detail.
[16]
Mr Glenister contends that the SAPS
Amendment Act is invalid regard being had to the provisions of
section 206(1) of the Constitution,
which empowers the Minister to
determine national policing policy and section 207(2) of the
Constitution which enjoins the National
Commissioner of the SAPS to
“exercise control over and manage the police service in
accordance with the national policing
policy and the directions”
of the Minister.
He contends that it
is not a viable option at all because there can simply be no
independence within the SAPS unless sections 206(1)
and 207(2) are
amended.  To make this and the location point he seeks to rely
on additional evidence.
The only
qualification placed on the location of the DPCI within the SAPS,
having regard to the provisions of section 206(1), is
that the
anti-corruption unit must be sufficiently independent.  The
majority in
Glenister II
said:
“
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’.  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.”
[17]
(Footnote omitted and emphasis added.)
It
ill-behoves Mr Glenister to argue, contrary to this dictum, that the
DPCI can only be theoretically located within the SAPS and
that the
DPCI legislation must be invalidated for that reason alone.
[17]
Sections 206(1) and 207(2) are
fundamentally the same.  They are about the determination of the
national policing policy by
the Minister and its application to the
police service by the National Commissioner, respectively.  That
Glenister II
only made reference to the application of section 206(1) but not of
section 207(2), is of no moment.  What was said of section

206(1) applies with equal force to section 207(2).  Of concern
to us should only be whether the ministerial policies accord
with the
notion of adequate independence.  If the Minister has determined
a policing policy that can co-exist productively
with an adequately
independent anti-corruption unit, then the application of that
progressive policy by the National Commissioner
in terms of section
207(2) can in no way undermine the adequacy of the independence of
that unit.
[18]
The
oversight role of the Minister accords with political accountability
which is not inimical to adequate independence.  This

involvement and that of the National Commissioner, in the affairs of
the DPCI, do not constitute a degree of management by political

actors that threatens imminently to stifle the operational
independence of the DPCI.
[18]
[19]
About the location of the DPCI
Glenister
II
also had this to say:
“
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.”
[19]
(Emphasis added.)
By
keeping the DPCI within the SAPS, Parliament was acting in line with
the decision of
Glenister
II
to the effect that the Minister’s powers in terms of section
206 of the Constitution may productively co-exist with the location

of an adequately independent DPCI within the SAPS.
[20]
The question whether the location of the DPCI within the SAPS falls
within a range of possible measures “a reasonable

decision-maker in the circumstances may adopt”,
[21]
having regard to public perception, does not arise.  That issue
was settled in
Glenister
II
.
[20]
To the extent that the exercise of control
over and management of the police by the National Commissioner in
terms of section 207(2)
may impact negatively on the adequacy of the
independence of the anti-corruption entity, it is how that control
and management
are exercised that might be unconstitutional.  On
a reading of the
Glenister II
dicta that I have quoted, the constitutional imperative of adequate
independence and the exercise of the section 207(2) power can

co-exist comfortably.
[21]
The
words “provided only that the anti-corruption unit, whether
placed within the police force (as is the DPCI) . . . has
sufficient
attributes of independence”
[22]
and “thus the DPCI legislation cannot be invalidated on that
ground alone”
[23]
sum up
the location issue.  Whatever evidence one may seek to rely on
to prove that invalidity ought to result from location
alone cannot
on these dicta assist the proponent of that viewpoint.  The
invalidation of the DPCI legislation will always
require more than
location and no degree of contortion can detract from this reality.
As long as the challenge is premised
on location as the only ground
for invalidation, worse still in circumstances where reliance is
sought to be placed on the public
perception about levels of
corruption that precede the
Glenister
II
era, the application is bound to fail.
It
is a closed chapter that corruption is rife in South Africa and that
it is a practical possibility for an adequately independent

anti-corruption entity to be comfortably located within the SAPS.
(b)
Leave to appeal against the striking out of additional evidence
[22]
The evidence struck out by the High Court
sought to support the two recurring and interrelated contentions
dealt with above.
First, the location of the DPCI within the
SAPS necessarily undermines the adequacy of the DPCI’s
independence having regard
to sections 206(1) and 207(2) of the
Constitution.  Second, the location of the DPCI within the SAPS
does not fall within
the range of possible measures “a
reasonable decision-maker in the circumstances may adopt”
because of the prevailing
high levels of corruption.
[23]
Mr Glenister’s submissions in support
of the application for leave to appeal against the order striking out
additional evidence,
owe their potency and essence to the public
perception of the levels and reach of corruption sought to be shared
with this Court.
And that public perception is foundational to
the constitutional challenge to the practicality of locating an
anti-corruption unit
within: (i) “a corrupt SAPS”,
(ii) managed and controlled, in terms of sections 206(1) and
207(2) of the Constitution,
by a “corrupt Executive”,
(iii) deployed from the ranks of a “corrupt ruling party”
in terms of its cadre
deployment policies that have no regard for
integrity and meritocracy.  The entire super-structure of his
case would, even
absent other bases that are fatal to it, collapse
upon the striking out of the additional evidence.  This is so
because virtually
every aspect of his case revolves around the
admissibility of the additional evidence and the relevance of its
stated purpose.
[24]
A
useful summary of the key aspects of Mr Glenister’s
additional evidence was set out by the High Court.
[24]
Hundreds of pages are devoted to essentially establishing that the
Government of South Africa, the leadership of the African
National
Congress (ANC) and the law enforcement agencies of this country
engage in serious corruption.  He seeks to prove
that the SAPS
is the most corrupt institution in South Africa.  He also
maintains that our criminal justice system is dysfunctional.
To
make this point, some incidents relating to the President, some
Cabinet Members, members of Parliament, high-ranking leaders
of the
ANC, the top leadership of the NPA, the SAPS and the DPCI, are
cited.  The overwhelming majority of the people and
institutions
mentioned are not parties to these proceedings and are therefore
unable to defend themselves.
[25]
Reliance is placed on, among numerous other
documents, reports generated by individuals whose objectivity on the
dissolution of
the DSO is arguably suspect, speculative newspaper
articles and people assembled by Mr Glenister to present arguments
supportive
of his stance on the constitutional validity of the DPCI –
the only question to be decided being which presentation undermines

the DPCI best.  Senior Government functionaries are loosely
labelled as loyal deployees appointed in terms of the cadre
deployment
policies of the ANC which are effectively equated to
dishonest or corrupt individuals.
[26]
This Court is also sought to be informed of
the uncited ANC’s strategy and tactics in terms of which it
seeks to take firm
control of all levers of power in society and that
the DPCI is one such lever of power that is sought to be taken over
by the ANC
through the DPCI legislation.  Reference is made
quite extensively and with no sign of restraint to matters which are
before
courts or are likely to be challenged in court like the
dismissal of former National Commissioner Bheki Cele, the Arms Deal,
“Nkandla”
and a host of other allegations or
investigations regarding the probity and integrity of high ranking
personalities in or
connected to Government.
[27]
Is
the additional evidence scandalous, vexatious or irrelevant?
Two requirements must be met before a striking out application
can
succeed: (i) the matter sought to be struck out must be scandalous,
vexatious or irrelevant; and (ii) the court must be satisfied
that if
such a matter is not struck out the party seeking such relief would
be prejudiced.
[25]
[28]
“
Scandalous”
allegations are those which may or may not be relevant but which are
so worded as to be abusive or defamatory;
a “vexatious”
matter refers to allegations which may or may not be relevant but are
so worded as to convey an intention
to harass or annoy; and
“irrelevant” allegations do not apply to the matter in
hand and do not contribute one way or
the other to a decision of that
matter.
[26]
The test for
determining relevance is whether the evidence objected to is relevant
to an issue in the litigation.
[27]
[29]
The allegations in the struck-out material
amount to reckless and odious political posturing or generalisations
which should find
no accommodation or space in a proper court
process.  The object appears to be to scandalise and use the
court to spread political
propaganda that projects others as
irredeemable crooks who will inevitably actualise Mr Clem Sunter’s
alleged projection
that South Africa may well become a failed state.
This stereotyping and political narrative is an abuse of court
process.
A determination of the constitutional validity of the
DPCI legislation does not require a resort to this loose talk.
[30]
These
assertions or conclusions are scandalous, vexatious
[28]
or irrelevant.
[29]
Courts should not lightly allow vitriolic statements of this kind to
form part of the record or as evidence.  And courts
should never
be seen to be condoning this kind of inappropriate behaviour,
embarked upon under the guise of robustness.  Mr
Glenister says
it himself that the additional evidence is “troubling, alarming
and discomforting”.  The High Court
correctly noted that
the entirety of the Woods report constitutes hearsay and a number of
paragraphs amount to opinion evidence,
which is ordinarily
inadmissible.
[30]
I am
satisfied that it goes beyond mere irrelevance.
[31]
The public perception of independence in
Glenister II
relates to whether a reasonably informed and reasonable member of the
public will have confidence in an entity’s autonomy-protecting

features:
“
This
Court has indicated that ‘the appearance or perception of
independence plays an important role’ in evaluating whether

independence in fact exists. . . .  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.”
[31]
(Footnote omitted and emphasis added.)
Emphasis
here is on “public confidence in mechanisms that are designed
to secure independence”.  It cannot be seriously
argued
that location is a mechanism designed to secure independence or one
of the DPCI’s “autonomy-protecting features”.

Those are issues whose constitutional validity the HSF devoted its
time to challenging.  It is these features that “a

reasonably informed and reasonable member of the public” must
look to in reflecting on the independence of the DPCI.

Certainly not location.  The Court’s reference to public
confidence could not have been intended to mean that public
opinion
must from time to time be solicited to determine what the public
thinks of the independence of an institution.
[32]
The
overriding consideration is whether the DPCI legislation has inbuilt
autonomy-protecting features to enable its members to carry
out their
duties without any inhibitions or fear of reprisals.  The levels
of corruption cannot assist this Court to determine
whether the DPCI
enjoys an adequate measure of structural and operational
independence.  And it does get worse for Mr Glenister
because,
on his own papers, the additional evidence sought to be relied on was
already in existence before and when
Glenister
II
was
decided.
[32]
It does
raise the question, what is the relevance of this unchanged public
perception to location now?  In any event
the additional
evidence is destructive of Mr Glenister’s case.  A
key feature of that evidence is—
“
[t]hat
corruption is a major problem in South Africa, including those senior
levels of Government and the private sector, and has
become endemic,
is now a well entrenched perception that has been largely unchanged
for over six years, though the latest reading
does show a small
improvement”.
[33]
[33]
Information on widespread corruption within
the SAPS has been available since the apartheid era and public
perception of systemic
corruption within the SAPS was already formed
when
Glenister II
was decided.  This is borne out by a monograph produced by the
Institute for Security Studies (ISS), on which Mr Glenister
relies,
to the effect that—
“
[a]lmost
two decades after the end of apartheid, the South African Police
Service (SAPS) continues to struggle with one of the major

occupational hazards of policing, namely the abuse of power.
While progress has been made since the outright brutalities
of
apartheid-era policing, corruption is one of the biggest challenges
facing the SAPS.  Perhaps the lowest point was the
conviction of
South Africa’s former National Commissioner of Police, Jackie
Selebi, on corruption charges in 2010.
In
1996 the National Crime Prevention Strategy (NCPS) identified
‘corruption within the criminal justice system’ as
one of
the ‘crime categories of particular concern’.  This
remains the case.  While it is generally accepted
by
international experts that some corruption occurs in most, if not all
law enforcement agencies, the key issue is to manage and
control the
extent and nature of the abuse.
.
. .
One
of the most prominent challenges facing the SAPS is the widely held
perception, both within the organisation and among members
of the
public, that many of its members and leaders are corrupt.  This
monograph has explored the evidence that supports these
perceptions
and the measures taken by the SAPS to counter corruption in its
ranks.  The available evidence suggests that the
problem is
widespread and systemic in nature.”
[34]
(Footnote omitted.)
[34]
Mr Glenister seeks to rely on evidence of
public perception of corruption sourced from the TNS statement of 22
October 2012.  As
at that time, the public perception of
corruption existed for a period of over six years, although there had
since been a marginal
improvement.  Reliance is also placed on
the ISS Monograph which was published five months after the delivery
of
Glenister II
and could not therefore have been based on public perception that
only came into being after
Glenister
II
.  That means, when
Glenister
II
was decided in 2011, the high levels
of corruption Mr Glenister now seeks to inform the Court about were
already an established
fact.  The inescapable consequence of the
age of these high levels of corruption in the private and public
sectors, including
the SAPS, is that this Court failed to have due
regard to this public perception of corruption in the SAPS as at the
time we decided
Glenister II
.
Its decision that the mere location of the DPCI within the SAPS
cannot invalidate the DPCI legislation was in effect wrong.
Glenister II
’s
decision on location is on this logic not one that “a
reasonable decision-maker in the circumstances may adopt”.
Mr
Glenister can therefore only be understood to be suggesting that the
decision about the location of the DPCI in
Glenister
II
is wrong.
[35]
The
High Court, per Desai, Le Grange and Cloete JJ, correctly found that
the Minister was prejudiced because he could not reasonably
have been
expected to ascertain what case had to be met, given the free-flowing
plethora of newspaper and journal articles, books,
website references
et cetera, and Mr Glenister’s failure to plead his case with
clarity and precision.
[35]
It would have been difficult for any of the parties to determine
whether it was now a free-for-all insult-trading and
political point-scoring
contest, sanctioned by a court of law.
A court of law should never serve as a platform for that kind of
engagement.  This
additional evidence was correctly struck out.
(c)
Punitive costs order
[36]
The
Court should ordinarily be very loath to grant a punitive costs order
in a case like this.  This is constitutional litigation
and
parties should never be forced to be too careful to assert their
constitutional rights through a court process, for fear of
a costs
order.  And this would explain this Court’s general
disinclination to make costs orders against unsuccessful
parties who
chose to vindicate constitutional rights against the state.
Punitive costs should therefore never be an easy
option, regard being
had to the
Biowatch
principles.
[36]
But that
is not to say that no costs could ever be ordered against those
litigating against the state.  On the contrary
Biowatch
itself said:
“
It
bears repeating that what matters is not the nature of the parties or
the causes they advance but
the
character of the litigation and their conduct in pursuit of it
.
This means paying due regard to whether it has been undertaken
to assert constitutional rights and
whether
there has been impropriety in the manner in which the litigation has
been undertaken
. . . .  [P]ublic
interest groups should not be tempted to lower their ethical or
professional standards in pursuit of a cause.
.
. .
[T]he
general approach of this Court to costs in litigation between private
parties and the state, is not unqualified.  If
an application is
frivolous or vexatious, or in any other way manifestly inappropriate,
the applicant should not expect that the
worthiness of its cause will
immunise it against an adverse costs award
.”
[37]
(Footnote omitted and emphasis added.)
[37]
Mr Glenister has always been represented by
experienced Senior Counsel.  And it ought to have been known
that no good purpose
would be served by the admission of the
“troubling, alarming and discomforting” mass of
additional evidence he sought
to have the Court admit.  This is
a manifestly inappropriate and frivolous course to pursue also
because, on his own version,
it seeks to project the public
perception about corruption that was stale news already when
Glenister II
was decided.  To seek to burden this Court with so many pages of
hearsay, opinion, speculative, scandalous and vexatious evidence
is
conduct that must be discouraged.
[38]
In pursuit of an otherwise legitimate
constitutional cause of ensuring that there is an adequately
independent corruption-fighting
agency in this country, Mr Glenister
chose to be careless and to overburden the record with an ocean of
irrelevancies.  The
worthiness of his cause should not be
allowed to immunise him against an otherwise well-deserved adverse
costs order.  This
Court has not made an order for costs against
anyone litigating against the state for a long time and for good
reason.  If
there would ever be a fitting case for a costs
order, this is it.  In the exercise of this Court’s
discretion on costs
for the application to strike out the huge
volumes of unnecessary evidential material, Mr Glenister must bear
ordinary costs in
the High Court and in this Court.
Helen
Suzman Foundation’s application for leave to appeal
[39]
The HSF has launched an application for
leave to appeal against the High Court’s decision not to
declare sections 17H, 17E,
17G and 24 as well as 17I of the SAPS Act
constitutionally invalid.  The application raises a
constitutional issue.
It concerns the adequacy of the
independence of an anti-corruption entity.
(a)
Financial control
[40]
The constitutional validity of section 17H
of the SAPS Act as amended was challenged on the basis that the
Executive and the National
Commissioner of the SAPS have an
unacceptable degree of influence over the form and content of the
budget of the DPCI and over
the procurement of goods and services for
the DPCI.  This, the HSF contends, poses a risk to the adequacy
of the budget of
the DPCI for the purpose of executing its mandate.
[41]
South
Africa’s international law obligations do not set parameters on
the extent to which the DPCI should have control over
its budget.
The OECD Report
[38]
on a
review of models of specialised anti-corruption institutions
internationally may, however, be used to “interpret and
give
content” to these obligations.
[39]
It notes the following:
“
Adequate
funding of a body is of crucial importance.  While full
financial independence cannot be achieved (at minimum the
budget will
be approved by the Parliament and in many cases prepared by the
Government), sustainable funding needs to be secured
and legal
regulations should prevent unfettered discretion of the executive
over the level of funding”.
[40]
The
international trend is that the Executive prepares the budget and
Parliament approves it.  But the Executive should not
have an
unfettered discretion over the level of funding for an
anti-corruption unit.  This is the position in South Africa.

Good reason would have to be shown for suggesting that acting in line
with this international good practice, poses a threat to
the
functional independence of the DPCI.
[42]
The self-explanatory provisions of section
17H(1), (5) and (6) make the point:
“
(1)
The expenses incurred in connection with—
(a)
the exercise of the powers, the carrying out of the duties and the
performance of the functions of the Directorate; and
(b)
the remuneration and other conditions of service of members of the
Directorate,
shall
be defrayed from monies appropriated by Parliament for this purpose
to the departmental vote in terms of the Public Finance
Management
Act, 1999 (Act No. 1 of 1999).
.
. .
(5)
Monies appropriated by Parliament for the purpose envisaged in
subsection (1)—
(a)
shall be regarded as specifically and exclusively appropriated for
that purpose; and
(b)
may only be utilised for that purpose.
(6)
The National Head of the Directorate shall have control over the
monies appropriated by Parliament envisaged in subsection (1)
in
respect of the expenses of the Directorate.”
The
DPCI’s budget is “specifically and exclusively”
appropriated by Parliament for the entity’s expenses
to be
incurred in the performance of its mandate.  Neither the
Executive nor the National Commissioner has the final say on
the
level of the DPCI’s funding.  Parliament does.  The
preparation of the budget of the Directorate by its National
Head,
the consultation she is entitled to have with the National
Commissioner on the budget and the possible mediation by the Minister

in the event of disagreement between the two, demonstrate the
adequacy of the DPCI’s independence in relation to the budget.

More importantly, the National Head has control over the monies
appropriated by Parliament for the DPCI.  Added to this is

section 17K(2B) which provides that the National Head “shall
make a presentation to Parliament on the budget of the Directorate”.

Although this presentation relates to the money that would have been
spent already, it presents an annual platform to the National
Head to
raise whatever concerns she might have about the inadequacy of the
previous budget and the need for a future increase.
(b)
Integrity testing
[43]
HSF is concerned that the Minister has
enormous power over the DPCI through the integrity testing measures.
It contends that
the relevant provision has the potential to be used
as an intimidation tactic with ominous implications.  This is
seen as
an open-ended discretionary power which could be abused
because the section does not lay down guidelines on when and where
the
measures may be applied.  Section 17E(8) provides:
“
(a)
The Minister may prescribe measures for integrity testing of members
of the Directorate, which may include random entrapment,
testing for
the abuse of alcohol or drugs, or the use of the polygraph or similar
instrument to ascertain, confirm or examine in
a scientific manner
the truthfulness of a statement made by a person.
(b)
The necessary samples required for any test referred to in paragraph
(a), may be taken, but any sample taken from the body of
a member may
only be taken by a registered medical practitioner or a registered
nurse.
(c)
The Minister shall prescribe measures to ensure the confidentiality
of information obtained through integrity testing, if such
measures
are prescribed in terms of paragraph (a).”
Subsection
(9)(a) and (b) constitutes the necessary constraint on the exercise
of the discretionary power
[41]
vested in the Minister.  It provides that a member of the DPCI,
and this includes the National Head, shall serve impartially
and
exercise powers and perform functions in good faith.  It also
forbids improper interference with a member of the DPCI
in the
exercise or performance of her powers or duties and functions.
All this is to be done subject to the Constitution
and the SAPS Act.
[44]
As at the time of deciding
Glenister
II
, the provisions of section 17E(8)
were exactly the same as they are now.  Yet integrity testing
measures were not identified
as factors that potentially undermine
the sufficiency of the independence of the DPCI, although the entire
Chapter 6A was impugned.
I think for good reason.  There
is simply no basis for the assumption that the measures prescribed by
the Minister will
necessarily be intrusive.
[45]
It is, in my view, probably more
appropriate for the finer details on when and where to apply the
measures to be provided for not
in the legislation but in the
regulations or the measures themselves.  In terms of the
regulations issued by the Minister
for integrity testing—
“
[t]he
Head of the Directorate may conduct, or authorise any member or any
other person to conduct an integrity testing program to
test the
integrity of any relevant member of the Directorate.”
[42]
These
regulations, particularly in the light of the delegation of powers to
the Head, do not undermine the structural and operational

independence of the DPCI at all, as was feared by the HSF.  The
mere fact that the power to prescribe measures for integrity
testing
is vested in the Minister should not without more raise alarm bells.
It is part of accountability from which DPCI
members need not be
insulated.  Instead of seeking to invalidate the Minister’s
powers to prescribe the measures, the
correct approach would be to
challenge the prescribed regulations on their content and
application.
[46]
Members of the DPCI must always prove to be
above reproach
–
be men and women of
integrity.  And this underscores the need for integrity testing
to obviate the abuse of power and victimisation
of innocent citizens,
by members of the DPCI.  While it is quite fitting to be on high
alert about the possible manipulation
and abuse of the system by
anybody including political executives, it is equally important that
the public and even senior politicians
themselves be protected from
the possible abuse, blackmailing and victimisation by or through the
DPCI or its individual members.
(c)
Conditions of service
[47]
HSF,
relying on
Glenister
II
,
raised a concern about “the conditions of service that pertain
to members, in particular its Head.”
[43]
It went on to say that those conditions of service exposed the DPCI
to “an undue measure of political influence.”
[44]
Glenister
II
also said that—
“
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.
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,
which the
Minister for Police determines.  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.”
[45]
(Footnotes omitted.)
This
issue must be put in its proper context.  A comparison was made
between the provisions of the SAPS Act that deal with
the conditions
of service of all members of the DPCI and those that applied to the
NDPP, the Deputy National Director of Public
Prosecutions (Deputy
NDPP) assigned to be the Head of the DSO and the members of the DSO.
It is to the relevant provisions
of the NPA Act that I now turn for a
proper comparison of the conditions of service of different
categories of employees under
these dispensations.
[48]
Section 17(1) and (3) of the NPA Act
provides:
“
(1)
The remuneration, allowances and other terms and conditions of
service and service benefits of the National Director, a Deputy

National Director and a Director shall be determined by the
President: Provided that—
(a)
the salary of the National Director shall not be less than the salary
of a judge of a High Court, as determined by the President
under
section 2(1) of the Judges’ Remuneration and Conditions of
Employment Act, 1989 (Act 88 of 1989);
(b)
the salary of a Deputy National Director shall not be less than
85 per cent of the salary of the National Director;
and
(c)
the salary of a Director shall not be less than 80 per cent of the
salary
of
the National Director.
.
. .
(3)
The National Director is entitled to pension provisioning and pension
benefits determined and calculated under all circumstances,
as if he
or she is employed as a Director-General in the public service.”
These
guarantees of salaries relate to the NDPP and the Deputy NDPP.
They also applied to the Head of the DSO, who was a Deputy
NDPP, as
well as the Directors of Public Prosecution (DPPs) in the Provinces
and other Directors at that level.  Their allowances,
other
terms and conditions of service as well as service benefits were and
continue to be determined by the President.
[49]
As
in the case of the NDPP, the Deputy NDPP, the Head of the defunct
DSO, and the DPPs, the remuneration packages of the National
Head,
Deputy National Head and Provincial Heads of the DPCI are clearly
determined.  They are pitched at the levels no less
than that of
the highest paid Deputy National Commissioner, the highest paid
Divisional Commissioner and the highest paid Deputy
Provincial
Commissioner of the SAPS, respectively.
[46]
Their remuneration, allowances and other conditions of service are
determined by the Minister in consultation with the Minister
of
Finance.
[47]
In the case
of the Deputy National Head and Provincial Heads, they are determined
in a similar way but after consultation
with the National Head.
These remuneration scales are subject to Parliamentary approval and
cannot be reduced without Parliament’s
concurrence.
[48]
[50]
The
conditions of service of Deputy DPPs and prosecutors, excluding
remuneration, were and are still determined in terms of the
Public
Service Act.
[49]
Their
salary scales have always been determined by the Minister after
consultation with the NDPP and the Minister of Public
Service and
Administration with the concurrence of the Minister of Finance by
notice in the Gazette.
[50]
As for the special investigators of the DSO, their remuneration,
allowances and other service benefits were determined by
the Minister
in consultation with the National Director and with the concurrence
of the Minister of Finance.
[51]
Otherwise, all other conditions of service that applied to them were
prescribed by the NPA Act.
[52]
[51]
Members of the NPA and the DSO below the
level of the NDPP, the Deputy NDPP, in the case of the DSO the Head
and the DPPs, did not
therefore have statutorily secured remuneration
levels.  These were determined by the Minister in consultation
with several
other functionaries.  The members of the DPCI below
the levels of the National Head, the Deputy National Head and the
Provincial
Heads are in a similar position.  Of significance is
that section 24(1)(m) of the SAPS Act provides for the regulation of
“the grading of posts and remuneration structure, including
allowances or benefits of members”.  Furthermore, section

24(2) provides for the making of different regulations for different
categories of members or personnel and subsection (4) for

consultation with the Minister of Finance in relation to monetary
issues.
[52]
It has always been the duty of a Cabinet
member responsible for the anti corruption unit, in consultation
with other Executive
functionaries, to determine the conditions of
service, more importantly salaries and allowances of members below
the levels of
the Provincial Director of the NPA.  Not
surprisingly, this is also the case with these employees or members
below the level
of the Provincial Heads, in the DPCI.  There is
no fundamental difference between the determination of the conditions
of service
and remuneration scales of these comparable levels of
personnel between the NPA, the DSO of old, and the DPCI.  On the
contrary,
there is substantial similarity.
[53]
There is thus no merit in the contention
that the provisions relating to the conditions of service of members
of the DPCI are, unlike
their NPA and DSO counterparts, incompatible
with the requirements of adequate independence necessary for an
anti-corruption entity.
I find these conditions of service to
be constitutionally valid.
(d)
Co-ordination by Cabinet
[54]
Section
17I(1) empowers the President to designate a Ministerial Committee
comprising at least five Ministers.  That Committee
is empowered
to determine procedures to co-ordinate the activities of the DPCI and
other relevant Government departments or institutions.
[53]
While political accountability is permissible, the co ordination
of the activities of the DPCI and other departments
and institutions
could arguably open the door to executive interference and
manipulation.  It is reasonable to contend that
it potentially
poses a risk to the operational independence of the DPCI.
[55]
Section 17F provides for co-operation
between the National Head, on the one hand, and the Directors-General
of Government departments
and Heads of Government institutions such
as any of the intelligence services or the NDPP, on the other.
They are empowered
to explore possibilities of taking steps necessary
to help the DPCI achieve its objectives.  This extends to the
secondment
of personnel and the gathering, correlation, evaluation,
co-ordination and use of crime intelligence.  All these support
mechanisms
are to be activated by a request of the National Head
without any involvement of a Cabinet member.
[56]
The determination of procedures to
co-ordinate the activities of these institutions could just as well
be fulfilled by the National
Head and the Heads of departments and
institutions themselves.  That said, we need to bear in mind not
only that political
oversight is permissible but also that one of the
comparators of the DPCI is the DSO.  This point was aptly made
by
Glenister II
in these terms:
“
[I]t
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.”
[54]
[57]
Section 31 of the NPA Act as amended by the
DSO Act provided:
“
(1)
There is hereby established a committee, to be known as the
Ministerial Coordinating Committee (hereinafter referred to as the

Committee), which may determine—
(a)
policy guidelines in respect of the functioning of the Directorate of
Special Operations;
(b)
procedures to coordinate the activities of the Directorate of Special
Operations and other relevant government institutions,
including
procedures for—
(i)
the communication and transfer of information regarding matters
falling within the operational scope of the Directorate of Special

Operations and such institutions; and
(ii)
the transfer of investigations to or from the Directorate of Special
Operations and such institutions; and
(c)
where necessary—
(i)
the responsibility of the Directorate of Special Operations in
respect of specific matters; and
(ii)
the further procedures to be followed for the referral or the
assigning of any investigation to the Directorate of Special

Operations.”
The
rest of the section deals with the composition of the Ministerial
Coordinating Committee and the procedures that would govern
its
meetings.
[55]
[58]
Interestingly,
the DSO’s operations were also governed by policy guidelines.
But of direct relevance to the matter under
discussion were the vast
powers vested in that Ministerial Coordinating Committee by section
31 of the NPA Act.  That Committee
determined “procedures
to coordinate the activities” of the DSO and other government
institutions.  Tellingly,
that extended to procedures for “the
communication and transfer of information regarding matters falling
within the operational
scope” of the DSO and such
institutions.  Added to that comparatively intrusive power were
the powers to determine how
investigations were to be transferred
from the DSO to other institutions, the referral or assigning of any
investigations to the
DSO as well as the DSO’s responsibility
in respect of specific matters.  That is significant
involvement.  But
since absolute independence is not a
requirement, that would explain why, this provision notwithstanding,
the operational independence
of the DSO was held out as an example to
look up to for guidance in determining the adequacy of the DPCI’s
independence.
[56]
Had
the position been otherwise, it would, no doubt, have been among the
sections identified for special attention.
[59]
Section 31 was a more intrusive
mirror-image of its current equivalent.
Glenister
II
did not consider this particular
role of the Ministerial Coordinating Committee to be a risk to the
sufficiency of the DPCI’s
independence, so much so that it did
not even mention it.  Viewed objectively and with due regard to
the role of that Committee
in the operations of the DPCI, it is
difficult to conclude that section 17I is at odds with the
institutional independence of the
DPCI.
[60]
Leave to appeal will be granted but the
appeal itself will be dismissed.
Confirmation
[61]
Provisions relating to the appointment of
the National Head, the Deputy and the Provincial Heads of the DPCI,
the extension of tenure,
the suspension and removal of the National
Head, and the jurisdiction of the DPCI were declared constitutionally
invalid and set
aside by the High Court.  Consequently, the HSF
has applied for the confirmation of that order in terms of section
167(5)
of the Constitution.  I deal with the issues in that
order.
(a)
Appointment criteria
[62]
Provision is made for the appointment of
the National Head in section 17CA as follows:
“
(1)
The Minister, with the concurrence of Cabinet, shall appoint a person
who is—
(a)
a South African citizen; and
(b)
a fit and proper person,
with
due regard to his or her experience, conscientiousness and integrity,
to be entrusted with the responsibilities of the office
concerned, as
the National Head of the Directorate for a non-renewable fixed term
of not shorter than seven years and not exceeding
10 years.”
The
constitutional validity of this provision was successfully challenged
in the High Court on the basis that it does not provide
specific
criteria for the appointment of the National Head.  The criteria
in subsection (1) are, according to the HSF, unjustifiably
broad and
do not provide sufficient guidance to the Minister.
[63]
The HSF would have found the criteria
acceptable had the National Head, like its comparator the DSO, been
required to have legal
qualifications instead of undefined
experience.  The overarching requirement for suitability is “fit
and proper”
which, broadly speaking, means that the candidate
must have the capacity to do the job well and the character to match
the importance
of the office.  Experience, integrity and
conscientiousness are all intended to help determine a possible
appointee’s
suitability “to be entrusted with the
responsibilities of the office concerned”.  Similarly,
laziness, dishonesty
and general disorderliness must of necessity
disqualify a candidate.
[64]
The
kind of experience, work ethic and disposition to the truth that the
potential appointee has must point to the decision that
she is the
right person “to be entrusted with the responsibilities of the
office concerned”.
[57]
Since inconsequential experience and character flaws could not have
enhanced the prospects of her appointment to that office,
if she was
nevertheless appointed, then a successful legal challenge may be
mounted against that appointment.
[65]
Reliance
was placed on the following dictum from
Freedom
of Expression Institute
:
[58]
“
There
are other considerations which, in my view, indicate that the
ordinary court martial in its present form is unconstitutional.

In terms of rule 42 of the rules issued in terms of the Defence Act,
the appointment of the prosecutor is made by the convening

authority.  There are no criteria laid down as to what a fit and
proper person would be to be so appointed.  More particularly,

the appointee is not required to have any legal qualifications
whatsoever.  The convening authority is therefore at large
to
appoint anybody that it wants to.  But the convening authority
does not only appoint the prosecutor, his discretion is
limited by
their powers.  For example, he may not withdraw any charge
preferred against an accused without the permission
and consent of
the convening authority.  It is therefore self-evident that not
only is the convening authority able to appoint
somebody who is
ill-equipped to perform the function of a prosecutor, but that such
prosecutor does not exercise an independent
discretion and judgment.
The law as it stands invites arbitrariness as it allows executive
interference into judicial process.”
[59]
(Citation omitted.)
[66]
I hasten to say that a prosecutor is of
necessity required to hold some legal qualifications.  But not
so with a police official
or an investigator.  Decisions that
require knowledge of the law are regularly taken by a prosecutor, but
it is not necessarily
so with a special investigator or police
official.  As the name suggests, our corruption busting
entity is an investigative
unit, not a prosecutorial authority whose
members are required to analyse laws and argue cases in a court of
law.
[67]
The
authorities cited in support of the contention that legal
qualifications might, as in the case of the Head of the DSO, be
necessary
in this case are distinguishable and do not therefore
support that proposition.  It was sheer coincidence that the
Head of
the DSO was a lawyer.  It did not have to be so.
It was the fact of having to be appointed by the NDPP from among her

Deputies
[60]
that led to this
otherwise unnecessary requirement.  Investigators, unlike
prosecutors, do not have to appear in court except
perhaps as
witnesses.  Members of the DPCI are more like police officials
than prosecutors in terms of their line functions.
[68]
Sight
is not to be lost of the fact that the Head of the DSO, like the NDPP
and other Deputy NDPPs and DPPs, was a prosecutor.
And it was
for this reason that she was required to “possess legal
qualifications that would entitle him or her to practise
in all
courts in the Republic”.
[61]
These highly placed prosecutors are supposed to appear in court
albeit not as frequently as their juniors.  Besides,
they would
not be able to provide the strategic leadership and guidance required
by these institutions if they were not suitably
qualified for its
core business, which is the successful prosecution of cases in our
courts.  Sections 15(2) and 16(3) of
the NPA Act provide that
the Deputy DPP must have the right to appear in the High Court and
that the Minister would prescribe appropriate
legal qualifications
for the appointment of a prosecutor after consultation with the NDPP
and the DPPs.
[69]
The
qualifications of the NDPP and the Deputies are identical to those of
the National Head of the Directorate, the Deputy and the
Provincial
Heads.  The only difference is that each of these officials of
the NPA is required to “possess legal qualifications
that would
entitle him or her to practise in all courts in the Republic”.
[62]
This difference should not come as a surprise because the NPA is a
legal environment that requires people with legal qualifications
to
lead and to operate within it.  In fact even prosecutors at
entry level in the district courts are required to have legal

qualifications.
[63]
By
contrast the special investigators of the DSO were merely required to
be “fit and proper”
[64]
because
their responsibilities, just like those of the members of the DPCI,
were essentially of a policing nature.
[70]
Additional to the Head of the DSO, as many
special investigators as were required were appointed to the DSO.
Because, just
like the National Head, the Deputy Head and the
Provincial Heads of the DPCI, the special investigators were not
prosecutors, legal
qualifications were not required of them.
Instead, section 19A of the NPA Act provided:
“
(1)
The National Director may, on the recommendation of the head of the
Directorate of Special Operations, appoint a fit and proper
person as
a special investigator of that Directorate.
(2)
The National Director must, in the prescribed form, issue an identity
document under his or her signature to each person so
appointed,
which shall serve as proof that such person is a special
investigator.”
Like
the police, special investigators required some kind of identity
cards but not legal or any particular qualifications.
They
simply had to be fit and proper for the purpose of the investigations
they were employed to conduct.  Yet, this did not
affect the
adequacy of the independence of the DSO.
[71]
The
appointment criteria, in the impugned provisions, are objectively
ascertainable.  More detail is supplied in the appointment

criteria of the National Head, the Deputy and the Provincial Heads
than was the case with special investigators of the DSO.
They
are required to be “fit and proper”
[65]
with due regard to their experience, conscientiousness and integrity,
to be entrusted with the responsibilities of the office concerned.

It would be unreasonable to assume that a Minister and Cabinet would
find it difficult to appreciate what any aspect of the criteria

entails for the purpose of appointing the leaders of the DPCI.
The experience must be such as to enable them to carry out
their
duties as National Head or Deputy or Provincial Head, well.  It
is the experience relevant to those positions of high

responsibility.  Integrity is essential and so is
conscientiousness, as character qualifications for appointment to
these
high offices.
[72]
The other concern raised by the HSF is that
the appointment of the National Head by the Minister with the
concurrence of Cabinet
does not sufficiently insulate the Head from
undue political influence.  HSF also submitted that the
imperative for the independence
of an anti-corruption unit is
irreconcilable with entrusting the appointment of the National Head
to the Executive alone.
It further contends that it is an
essential safeguard of independence that the appointment of the Head
be approved by, rather than
merely reported to, Parliament.
There is no merit in these submissions.
[73]
Glenister
II
concluded
that the DSO was adequately independent.
[66]
It also made a comparative reference to its provisions as well as
those of the NPA, which were found to be adequately independent,
to
gauge whether the DPCI enjoyed the degree of independence appropriate
for its role and functioning as an anti-corruption entity.
[67]
That said, it must be noted that the NDPP is appointed by the
President.
[68]
The
Deputies, from whose ranks the Head of the DSO was assigned by the
NDPP who is herself a political appointee, were appointed
by the
President after consultation with the Minister.
[69]
Parliament never had and still does not have any role to play in the
appointment of these senior officials who are required
to be
independent, as is required of the NPA.
[74]
The preceding observations apply with equal
force to the appointment of the Deputy National Head and the
Provincial Heads of the
DPCI by the Minister with the concurrence of
Cabinet.  They are as insulated from undue executive control or
influence as
are the NDPP and the Deputy NDPPs.  The National
Commissioner of Police, who appears to be the only official in the
SAPS senior
to the National Head, is appointed in exactly the same
way as the NDPP who used to be senior to the DSO Head.  No
advertisement,
no prescribed interview.  The location of the
anti corruption unit should thus make no difference to the
appointment
criteria and process of its leaders and members.  To
decide otherwise would constitute an indirect and indefensible
shifting
of the
Glenister II
goal posts in relation to location.
[75]
Separation of powers requires that the
Judiciary refrain from being unnecessarily prescriptive to both the
Executive and Parliament
on the kind of institutionally independent
body required to stem the tide of corruption in this country.
The constitutionally
compliant policy choices they make must be
respected even if there are, in the opinion of the Judiciary, better
options available.
Ours is to ensure that the constitutional
requirements for a functional and efficient corruption-busting
machinery have been met
and nothing more or less.
[76]
I conclude that the appointment criteria
and process meet the constitutional requirements for adequate
independence and the order
of constitutional invalidity will not be
confirmed on this point.
(b)
Extension of tenure
[77]
Section 17CA(15) and (16) of the SAPS Act
provides:
“
(15)
The Minister shall with the consent of the National Head or Deputy
National Head of the Directorate,
retain
the National Head, or the Deputy National Head of the Directorate, as
may be applicable,
in his or her office
beyond the age of 60 years for such period which shall not—
(a)
exceed the period determined in section 17(CA); and
(b)
exceed two years, except with the approval of Parliament granted by
resolution.
(16)
The National Head or Deputy National Head of the Directorate
may
only be retained
as contemplated in subsection (15) if—
(a)
he or she wishes
to continue to serve in such office
; and
(b)
the mental and physical health of the person concerned enables him
or her so to continue
.”  (Emphasis added.)
HSF
has challenged the constitutional validity of these provisions on the
basis that they amount to a renewal of the term of office
which
eminently threatens the sufficiency of the independence of the
officials concerned and of the DPCI.
[78]
Subsections (15) and (16) apply to a
National Head or Deputy National Head who would have reached the age
of 60 years and would
thus be expected to retire.  The
possibility of a continuation in an office by an incumbent, who is
mentally and physically
healthy and willing to continue beyond the
age of 60 years, would only arise when that age has already been
reached.  No one
can tell reliably whether her health permits
continuation beyond 60 years, seven years in advance.  This
continuation is renewal
or extension of tenure by another name.
It would obviously happen if the Minister is inclined to allow
continuity.
After all she has the countervailing discretion to
renew or not to renew.  But for factors like health and
willingness that
would inform the Minister’s decision to allow
or not allow the National Head or the Deputy National Head to
continue in office,
no guidelines for renewal are set out in the
section. And that is how virtually unfettered the Minister’s
discretion is.
[79]
The words “retain”, “may
only be retained” and “continue to serve in such office”
and the requirement
that one could serve beyond the age of 60 years
if the “mental and physical health of the person concerned
enables him or
her so to continue”, all suggest that
subsections (15) and (16) are about the extension of the term of
office when the incumbent
reaches the age of 60 years but not at the
time of the assumption of office.  One cannot be retained in an
office before she
assumes that position.  Similarly, to continue
in an office presupposes that one would have been working in that
office before.
[80]
This favour, extendable to these
functionaries on undisclosed bases, has great potential to compromise
the independence of the affected
official and by extension the DPCI.
The incumbent would have known at the time of appointment that she
might, by reason of
age, require an extension at the age of 60
years.  And that could affect the independence of the
incumbent.  It is for
this reason that the Court in
Glenister
II
observed that—
“
[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.”
[70]
While
dealing with conditions of service,
Glenister II
remarked as
follows on the impact of the renewability of terms of office on
independence:
“
[T]he
lack of employment security,
including
the existence of renewable terms of office
. . . are incompatible with adequate independence.”
[71]
(Emphasis added.)
[81]
The
danger of renewability was also dealt with in
JASA
.
[72]
Renewal invites a favour-seeking disposition from the incumbent whose
age and situation might point to the likelihood of
renewal.  It
beckons to the official to adjust her approach to the enormous and
sensitive responsibilities of her office with
regard to the
preferences of the one who wields the discretionary power to renew or
not to renew the term of office.  No holder
of this position of
high responsibility should be exposed to the temptation to “behave”
herself in anticipation of
renewal.
[82]
The
extension of the term of office of the National Head and the Deputy
National Head in terms of section 17CA(15)
[73]
and
(16)
[74]
has
in a way been decided by
Glenister
II
and
is inimical to the adequacy of the independence of the DPCI.  It
is incompatible with the independence necessary for the
National Head
and Deputy National Head to be faithful to their mandate.  These
subsections are constitutionally invalid.
(c)
Suspension and removal of the National Head
[83]
Section 17DA provides for both the
suspension and removal from office of the National Head.  The
High Court upheld a challenge
to the constitutional validity of this
section.  Beginning with the suspension provisions, subsections
(1) and (2) provide:
“
(1)
The National Head of the Directorate shall not be suspended or
removed from office except in accordance with the provisions
of
subsections (2), (3) and (4).
(2)
(a) The Minister may provisionally suspend the National Head of the
Directorate from his or her office, pending an inquiry into
his or
her fitness to hold such office as the Minister deems fit and,
subject to the provisions of this subsection, may thereupon
remove
him or her from office—
(i)
for misconduct;
(ii)
on account of continued ill-health;
(iii)
on account of incapacity to carry out his or her duties of office
efficiently; or
(iv)
on account thereof that he or she is no longer a fit and proper
person to hold the office concerned.
(b)
The removal of the National Head of the Directorate, the reason
therefor and the representations of the National Head of the

Directorate, if any, shall be communicated in writing to Parliament
within 14 days after such removal if Parliament is then in
session
or, if Parliament is not then in session, within 14 days after the
commencement of its next ensuing session.
(c)
The National Head of the Directorate provisionally suspended from
office shall during the period of such suspension be entitled
to such
salary, allowance, privilege or benefit to which he or she is
otherwise entitled, unless the Minister determines otherwise.
(d)
An inquiry referred to in this subsection—
(i)
shall perform its functions subject to the provisions of the
Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000),
in
particular to ensure procedurally fair administrative action; and
(ii)
shall be led by a judge or retired judge: Provided that the Minister
shall make the appointment after consultation with the
Minister of
Justice and Constitutional Development and the Chief Justice.
(e)
The National Head of the Directorate shall be informed of any
allegations against him or her and shall be granted an opportunity
to
make submissions to the inquiry upon being informed of such
allegations.”
[84]
Suspension of the National Head takes place
“pending an inquiry into his or her fitness to hold . . .
office”.
There is therefore a link between the removal
process that is preceded by an inquiry and the suspension.  By
necessary implication,
the concerns that necessitate the inquiry
would also be the reasons for the suspension.  It can be
sustained only on the grounds
listed in subsection (2).  The
words “as the Minister deems fit”, could be understood to
suggest that she need
not have regard to the grounds for removal as
the basis for suspension.  They are unnecessary and potentially
misleading.
[85]
But for “as the Minister deems fit”
and the possibility of a suspension without pay and benefits provided
for in subsection
(2)(c), I can find no reason to attack the bases on
which this subsection empowers the Minister to suspend the National
Head.  These
are specific, objectively verifiable and acceptable
grounds for suspension and removal.  Suspension without pay
defies the
exceedingly important presumption of innocence until
proven guilty or the
audi alteram partem
rule and unfairly undermines the National Head’s ability to
challenge the validity of the suspension by withholding the salary

and benefits.  It irrefutably presumes wrongdoing.  An
inquiry may then become a dishonest process of going through the

motions.  Presumably, the Minister’s mind would already
have been made up that the National Head is guilty of what she
is
accused of.  Personal and familial suffering that could be
caused by the exercise of that draconian power also cry out
against
its retention.  It is the employer’s duty to expedite the
inquiry to avoid lengthy suspensions on pay.
[86]
The
only real threat to job security is the Minister’s power to
remove the National Head from office in terms of section 17DA(1)
and
(2).  These provisions are not clearly set out and therefore do
not provide even a modicum of clarity.
[75]
The removal process is initiated through the appointment of a
Judge by the Minister to head an inquiry into whether the National

Head should be removed from office on any of the grounds listed in
section 17DA(2)(a).
[76]
Based on the recommendations of that Judge, the Minister may remove
the Head.
[77]
Thereafter
the fact of the removal, the reason therefor and the representations
of the National Head, if any, are to be conveyed
to Parliament within
14 days of the removal.
[78]
[87]
Unlike section 12(6) of the NPA Act that
empowers Parliament to reverse the removal of the NDPP or Deputy NDPP
by the President,
section 17DA(2)(b) does not say what it is that
Parliament is required to do upon receipt of the information relating
to the Minister’s
removal of the National Head.  There is
no provision made for Parliament’s interference with that
decision.  This
begs the question, what purpose does it then
serve to inform Parliament?  A proper reading of subsection (2)
indicates that
the Minister’s removal of the National Head is,
subject to whatever court processes that might ensue, final.
Parliament
has no meaningful role to play but merely to note
the decision.  One would have thought that the requirements that
Parliament
be informed of the removal, be furnished with reasons for
the removal and the representations by the National Head within 14
days
of removal, were intended to facilitate speedy intervention by
Parliament before more, possibly unjustified, damage is done to the

life of the National Head or the functionality of the DPCI.
That intervention would ordinarily entail an assessment of the

propriety of the finding of wrongdoing and the punishment meted out
to the National Head, if correctly found guilty of wrongdoing.
[88]
But, not only is the section silent on what
Parliament is supposed to do, it is also silent on how it is to do
whatever is supposed
to be done, if any, and on the time frames
within which any action is to be taken.  It is similar to
section 17CA(3) which
requires the Minister to inform Parliament of
the appointment of the National Head within 14 days of the
appointment, but does
not say what, if any, Parliament is supposed to
do with that information.  Evidently it is, as in this instance,
merely for
noting.  All these are additional pointers to the
lack of clarity that pervades the SAPS Act as amended.
Parliament’s
power to intervene, as is the case in terms
of section 12(6) of the NPA Act, cannot be read into this
section without the
Court usurping the legislative role of
Parliament.  There is a yawning chasm between the subsection (2)
procedure and the
role of Parliament set out in subsections (3) to
(6).
[89]
This subsection (2) removal power is
inimical to job security.  It enables the Minister to exercise
almost untrammelled power
to axe the National Head of the
anti corruption entity.  The need for job security was
articulated in
Glenister II
in these terms:
“
[A]t
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.”
[79]
[90]
Subsections (3) to (6) provide for those
special measures that entrench the employment security of the
National Head.  They
deal with the suspension of the National
Head by the Minister, flowing from a possible removal process
initiated by a Committee
of the National Assembly.  Although the
Minister still has the power to suspend, no provision is made for
suspension without
salary, allowances, and privileges.  A
recommendation by a Committee of the National Assembly for the
removal of the National
Head would have to enjoy the support of at
least two thirds of the members of the National Assembly to be
implemented.  The
removal would then be carried out by the
Minister.
[91]
This suspension by the Minister and removal
through a parliamentary process guarantees job security and accords
with the notion
of sufficient independence for the anti-corruption
entity the state creates.  That portion of section 17DA(1) that
refers
to subsection (2) and subsection (2) itself are, however,
inconsistent with the constitutional obligation to establish an
adequately
independent corruption-busting agency.  They must
thus be set aside.  The balance of section 17DA passes
constitutional
muster and would thus continue to guide the suspension
and removal process of the National Head.
(d)
Jurisdiction of the DPCI
[92]
South
Africa needs a dedicated anti-corruption agency which will also
combat, prevent and investigate national priority offences.
And
this is what appears to be the purpose for the creation of the
DPCI.
[80]
The state’s
failure to realise this objective properly is, however, apparent from
the provisions that set out the functions
of the DPCI.
[93]
Sections that provide for the jurisdiction
of the DPCI are scattered in different parts of the SAPS Act.
This makes it difficult
to identify the offences that the DPCI is
empowered to prevent, combat and investigate.  Section 17D is
headed “Functions
of Directorate”.  One might
justifiably assume that all the functions are set out under that
section.  Regrettably,
one has to look elsewhere for the
definition and the list of national priority offences.
Ordinarily, all the definitions
are to be found in section 1 of an
Act.  Although section 1 of the SAPS Act does define several
concepts, “national
priority offences” is not one of
them.  It is instead located in section 17A which in turn refers
to section 16 which
sets out national priority offences.  The
complication does not end there.  For other offences that
constitute national
priority offences, section 16(2)(iA) points to
the Schedule to the Act.  It should be evident from the
discussion of other
aspects of the Act, like the suspension and
removal of the National Head, as well as the extension of tenure that
the quality of
drafting could use some improvement.
[94]
The focus of the real challenge to the
constitutional validity of the provisions that clothe the DPCI with
jurisdiction however
lies elsewhere.  And the concerns raised
are dealt with below with particular reference to the more directly
impugned sections.
Section 17D(1) provides:
“
(1)
The functions of the Directorate 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 Directorate, subject
to any
policy guidelines issued by the Minister and approved by Parliament;
(aA)
selected offences not limited to offences referred to in Chapter 2
and section 34 of the Prevention and Combating of Corrupt
Activities
Act, 2004 (Act No. 12 of 2004); 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 Minister and approved by Parliament.”
To
understand the nature and scope of the functions to be performed by
the DPCI, it is necessary to examine the meaning of “national

priority offences”, the nature and effect of “policy
guidelines” as well as “selected offences”,
the
scope of “any other offence or category of offences referred to
it from time to time by the National Commissioner”
and the
significance of the attendant power of the National Commissioner.
“
national
priority offences”
[95]
National
priority offences are defined as “organised crime, crime that
requires national prevention or investigation, or crime
which
requires specialised skills in the prevention and investigation
thereof, as referred to in section 16(1)”.
[81]
Section 16 lists a series of offences, including corruption,
which constitute national priority offences.  A concern
was
raised that some of those national priority offences do not deserve
the attention of an anti-corruption agency if that agency
were to pay
adequate attention to its core mandate.  This is not correct.
The DPCI has the primary duty to prevent, combat
and investigate
those national priority offences that are intimate to its core
business like corruption, crimes against humanity,
organised crime or
serious commercial crime “which in the opinion of the National
Head of the Directorate need to be addressed
by the Directorate”.
It is the Directorate itself that has to ensure that its
primary responsibilities are by no means
compromised.  Barring
other considerations, this guarantees the operational independence of
the DPCI.
[96]
What
could compromise the operational independence of the DPCI in relation
to national priority offences, is the role of the all-important

ministerial policy guidelines in determining the functions of the
DPCI.
[82]
The power to
issue policy guidelines for the operation of the DPCI has already
been found to create “a plain risk of
executive and political
influence on investigations and on the entity’s
functioning.”
[83]
That
these policy guidelines were previously issued by a Ministerial
Committee and now by the Minister of Police alone, does
not really
subtract from the gravity of these concerns.  They are all
political actors whose role in influencing the functional
activities
of the DPCI is very likely to undermine its independence.  The
power to determine these guidelines is as untrammelled
and
objectionable under a single Minister as it was under a Committee of
Ministers.  It is as open now as it was before, to
limit the
class of national priority offences the DPCI is to confine itself to
or to identify public office-bearers the DPCI is
not allowed to
investigate.
[84]
This
time, a single senior politician is given the authority “to
determine the limits, outlines and contents of the
new entity’s
work.  That . . . is inimical to independence.”
[85]
The removal of the hands-on supervisory role of the Ministerial
Committee has done very little, if anything, to minimise
the threat
to the institutional independence of the DPCI.
[97]
The
policy guidelines render the anti-corruption character of the DPCI
dependant on whatever the Minister, in the exercise of her

discretion, wants it to be.  The legislation should itself spell
out the parameters of the operational scope of the DPCI,
not the
Minister’s policy guidelines.  The power to make the
guidelines does violence to the necessary functional autonomy
of the
DPCI.
[86]
It has been
decided already that—
“
the
untrammelled power . . . 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.”
[87]
[98]
Section 17K(4), (7) and (8), which provides
for the policy guidelines, is inconsistent with the independence of
the DPCI and invalid.
To remedy the constitutional defect of
section 17D(1)(a) the words “subject to any policy guidelines
issued by the
Minister and approved by Parliament” must be
severed from the subsection.  The balance of this subsection
would still
be self-standing and capable of effective application.
[99]
The
effect of declaring section 17K(4), (7) and (8) constitutionally
invalid is that wherever the ministerial policy guidelines
appear in
the text, they are to be excised.  The words “in
accordance with the approved policy guidelines” in

section 16(2)(h)
[88]
must
also be struck out of the subsection.  Similarly, “in
accordance with the approved policy guidelines” in
section
16(3)
[89]
must be excised.
That would leave us with a section that is free of any encumbrances
that could pervert an otherwise acceptable
and harmless provision for
national priority offences in section 16.  Section 16 must
be left intact, save for the reference
to the ministerial policy
guidelines.
[100]
The High Court declared section 17A
constitutionally invalid.  It bears repetition, that the
National Head of the DPCI has
the discretion to decide which of the
national priority offences, defined by section 17A and set out in
section 16, to prioritise
for investigation.  That constitutes
an empowerment as opposed to an undermining of the institution and
its functionaries.
The provision puts the National Head, not
political actors or their proxies, firmly in charge of the operations
of the DPCI.
“
selected
offences”
[101]
The words “selected offences”
in section 17D(1)(aA) are not defined.  They are not even
cross referenced to
any other section of the Act to allude at
least to a sense of what they mean or entail. There is thus no way
for anybody to know,
by a mere reading of the Act, what “selected
offences” are, how they are selected and by whom.  A very
important
institution like an anti-corruption agency should never be
left to guess what its functions are, as it is now forced to do in
relation
to this category of offences.  Whoever has the power to
determine how to select, who selects and which offences are “selected

offences”, could easily limit the functional independence of
the DPCI.  The jurisdiction of the DPCI is an area where
little
or no room should exist for executive or political interference.
One of the key features of the life of an anti corruption
unit
that must be protected against undue interference is its functions.
These undefined “selected offences” are a
threat to the
operational independence of the DPCI.
[102]
The resultant constitutional defect should
be remedied through the severance of the words “selected
offences not limited to”.
What remains would be clearly
identifiable offences, in section 17D(1)(aA), to be investigated by
the DPCI.
“
any
other offence or category of offences”
[103]
The DPCI is also charged with the duty to
prevent, combat and investigate “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 Minister
and approved by Parliament.”
The National Commissioner is
vested with the power to prescribe part of what the DPCI is to do.
[104]
This is an undesirable encroachment which
is exacerbated by the role that the ministerial policy guidelines
play in the selection
of these offences for referral.  The
fluidity of the situation and the vagueness in relation to the nature
of the offences
contemplated, the National Commissioner’s
license to interfere in the operational space of the DPCI and the
preponderance
of the policy guidelines in the determination of the
DPCI’s functions, are all at odds with the imperative to
establish an
adequately independent anti-corruption unit.  Section
17D(1)(b) was thus correctly declared constitutionally invalid in its

entirety.
[105]
All
of these conclusions are arrived at, alive to the fact that the
functions of the DSO were not themselves clearly defined.
[90]
The DSO for instance had to investigate “offences or any
criminal or unlawful activities committed in an organised
fashion; or
such other offences or categories of offences as determined by the
President by proclamation in the Gazette.”
[91]
All the provisions which outlined the functions of the DSO,
which was found to be operationally independent in
Glenister
II
,
are arguably comparable to those of the DPCI as now refined.  More
disturbing though, is that the National Head of the DPCI
does not
seem to have any say in the determination of the offence or category
of offences to be referred from time to time by the
National
Commissioner.  The National Commissioner, who is far below the
level of the President who had the same powers, has
an unfettered
discretionary power to prescribe to the DPCI what additional
responsibilities she would like it to undertake.
[92]
The added fundamental difference is that the functions of the DPCI
are heavily tied up to the policy guidelines which have
already been
declared constitutionally invalid.  These offences owe their
very existence to the dictates of the towering policy
guidelines
which evidently did not carry the same overbearing weight under the
DSO dispensation.
Conclusion
[106]
A lot has been done in the course of
creating the new anti-corruption entity to significantly water down
its primary area of focus.
More concerning is the role of the
policy guidelines, already invalidated by
Glenister
II
, in the determination of the
offences to be investigated by the DPCI.  Lowering the power to
determine additional offences
or categories of offences from the
President, as it was in the case of the DSO, to the National
Commissioner and with the disconcerting
frequency provided for, adds
to the deepening concerns about the willingness to live up to the
declared commitment to fight corruption
more decisively.  Our
ability as a nation to eradicate corruption depends on the
institutional capacities of the machinery
created to that end.
[107]
The frequently articulated concerns about
the prevalence of corruption and the vows made to combat it, must be
matched by the level
of structural and operational independence
enjoyed by the agency established to do the work and the resources
deployed to achieve
that objective.  That the SAPS Act
amendments under consideration are a consequence of efforts meant to
cure the constitutional
defects identified by this Court in
Glenister
II
already, is in some respects
regrettable.  Regrettable having regard to the apparent
reluctance to strengthen the DPCI as directed
by this Court, in
instances like the ministerial policy guidelines and renewability.
This necessitates a great measure of
forthrightness by this Court
with regard to what exactly needs to be done to cure the
constitutional defects identified and how.
Remedy
[108]
The
need and urgency to put an end to the uncertainty about the
particular functions that the DPCI is required to perform, require

direct and immediate judicial intervention, without usurping the
legislative powers of Parliament.
[93]
That approach will usher in the clarity that the necessity for the
efficacy of the DPCI has been crying out for, for some
years now.
The order to be made will have to be severance of the
constitutionally offensive portions, leaving intact what
would still
enable this country to have a functional and effective
anti-corruption agency.
[109]
Severability
is appropriate only in circumstances where the removed portion of the
legislation or section does not so amputate the
affected provision as
to paralyse it.  What remains must still be capable of
effectively advancing the legislative vision.
It must allow for
the implementation of the purpose of the provision or legislation in
question.  That part of the legislation
or section that is to
remain after severance must not owe its life to the excised
provision.  It must be so self-standing
as to be capable of
meaningful and effective application even in the absence of the
excised offending part.  This is feasible
in this matter and
that is what the effect of severance would be on the impugned
provisions.
[94]
[110]
To give effect to that remedy, sections
will be severed from legislation in their entirety only where they
are constitutionally
offensive as a whole.  Where only a
subsection or words in a subsection are unconstitutional, the sting
of the declaration
of constitutional invalidity will fall on that
constitutionally objectionable part.  The specific portions of
the impugned
sections are to be dealt with as follows:
(a)
The words “in accordance with the approved policy guidelines”
are to be excised from section 16(2)(h) and (3).
This would
leave the National Head to identify the national priority offences to
be investigated in terms of section 17D(1)(a),
without any regard to
policy guidelines whose deleterious effect has already been
pronounced upon.
(b)
Subsections (15) and (16) are to be severed from section 17CA in
their entirety.  They militate against independence by

potentially birthing an illegitimate hope in the belatedly-appointed
National Head that a less assertive approach to certain
investigations
might just enhance the prospects of renewal.  The
certainty of retiring at 60 years of age however brightens the
prospects
of adequate personal and institutional independence.
This severance targets only the renewability provisions.
(c)
South Africa needs a dedicated and better focused anti-corruption
entity.  A clear identification of the functions of the
DPCI is
therefore crucial.  To achieve that all-important objective, the
segments of section 17D that are toxic to the operational

independence of the DPCI must be excised.  This is to be done as
follows:
(i)
Section 17D(1)(a) needs to and will be relieved of the words “subject
to any policy guidelines by the Minister and approved
by
Parliament”.  The effect of doing so would be to clarify
the mandate and function that is bestowed upon the DPCI
by
section 17D(1)(a) as being to prevent, combat and investigate
“national priority offences, which in the opinion of
the
National Head of the Directorate need to be addressed by the
Directorate”.
(ii)
Section 17D(1)(aA) is to lose the words “selected offences not
limited to”.  What the DPCI is empowered to
investigate
would then clearly be “offences referred to in Chapter 2 and
section 34 of the Prevention and Combating of Corrupt
Activities Act,
2004 (Act No. 12 of 2004)”.
(iii)
The “and” at the end of section 17D(1)(aA) and the whole
section 17D(1)(b) will be severed from section 17D(1).
(d)
For the reasons set out above, section 17K(4), (7) and (8), which
provide for the unbridled power to make ministerial policy
guidelines
that touch at the heart of the DPCI’s operational independence,
is to be wholly severed from section 17K.
Section 17D(1A) which
enjoins the National Head to enforce these policy guidelines must
suffer the same fate.
(e)
The power to suspend and remove the National Head of the DPCI from
office vested exclusively in the Minister in terms of section
17DA(1)
and (2) must be done away with.  To do so, a portion of
subsection (1) that refers to subsection (2) and subsection
(2)
itself must be severed from section 17DA.  It would still be
possible to address the performance-related concerns about
the
National Head or alleged acts of misconduct.  This would be
achieved through the remaining portion of subsection (1) and
the
whole of subsections (3) to (7) which are more in sync with the
legislative vision to create an adequately independent
anti corruption
unit whose National Head’s job security is
entrenched.
Costs
[111]
Counsel for the President tendered to the
applicants wasted costs, occasioned by the postponement of 15 May
2014, for three counsel.
Counsel for the respondents also
submitted that the complexity of the matter justified the employment
of three counsel by
any party.  For this reason, they indicated
that they would have no difficulty with an order directing their
clients to pay
costs for three counsel to the applicants should the
applicants be successful.  It is for this reason that the
respondents,
who are the unsuccessful parties, will be ordered to pay
costs for three counsel to the applicants.  Mr Glenister is
entitled
to both the High Court costs and costs in this Court, for
the successful HSF application that he associated himself with.

An order for costs for the striking out application both in the High
Court and in this Court will be made against him for three
counsel.
Order
[112]
In the result the following order is made:
1.
Leave to appeal against the order of the Western Cape Division of the
High Court, Cape Town striking out the additional evidence
sought to
be led by Mr Glenister is refused with costs in this Court and the
High Court, including costs of three counsel.
2.
Leave to appeal against the order of the Western Cape Division of the
High Court, Cape Town dismissing Mr Glenister’s application
to
have the entire legislative scheme of the
South African Police
Service Amendment Act 10 of 2012
declared constitutionally invalid is
refused, and each party is to pay its own costs.
3.
Leave to appeal against the order of the Western Cape Division of the
High Court, Cape Town dismissing the application by the
Helen Suzman
Foundation to declare
sections 17E(8)
,
17G
,
17H
,
17I
and
24
of the
South African Police Service Act 68 of 1995
as amended
constitutionally invalid is granted, but the appeal is dismissed with
no order as to costs.
4.
The order of constitutional invalidity made by the Western Cape
Division of the High Court, Cape Town is confirmed to the extent
set
out in paragraph 5.
5.
The following provisions of the
South African Police Service Act 68
of 1995
as amended are inconsistent with the Constitution and are
declared invalid and deleted from the date of this order:
(a)
The words “in accordance with the approved policy guidelines”
as contained in section 16(2)(h) and (3).
(b)
Section 17CA(15) and (16).
(c)
The words “subject to any policy guidelines by the Minister and
approved by Parliament” in section 17D(1)(a).
(d)
The words “selected offences not limited to” and “and”
in section 17D(1)(aA).
(e)
Section 17D(1)(b).
(f)
Section 17D(1A).
(g)
The “(2)” in section 17DA(1) and the whole of section
17DA(2).
(h)
Section 17K(4), (7) and (8).
6.
All other provisions of
sections 16
to
17K
of the
South African
Police Service Act 68 of 1995
as amended remain in force.
7.
The respondents are to pay the applicants’ costs in the High
Court as well as costs of the confirmation application, including

costs occasioned by the employment of three counsel.
8.
The first respondent is also to pay wasted costs occasioned by the
postponement on 15 May 2014 to the applicants, including costs
of
three counsel.
FRONEMAN
J (Cameron J concurring):
[113]
I have had the benefit of reading the
judgments of Mogoeng CJ (main judgment) and those of Cameron J,
Madlanga J, Nkabinde
J and Van der Westhuizen J.  Except for the
main judgment’s finding that the process for appointing the
National Head
is constitutionally compliant (in respect of which
I concur with Cameron J) and its dismissal of Mr Glenister’s
applications
for leave to appeal, I agree with its reasoning and
outcome.
[114]
Mr Glenister sought leave to appeal against
(1) the order dismissing his main application to have the entire
legislative scheme
of the SAPS Amendment Act declared
unconstitutional and (2) the order striking out the additional
evidence sought to be led in
support of that application.  I
would grant leave in both applications and uphold the appeal (in
part) on the striking out
application, but dismiss the appeal in the
main application.
[115]
The
main judgment finds that
Glenister
II
[95]
foreclosed both the constitutional challenge that Mr Glenister sought
to bring against the SAPS Amendment Act as well as the evidence
that
he sought to adduce to sustain that challenge.  I disagree.
Glenister II
does neither.  If that decision needs to be revisited it must be
done appropriately with reasoned discussion and justification
for any
change.  It should not be done by a re-interpretation of its
meaning that narrows its original scope without explaining
the
necessity for the change.
Constitutional
challenge
[116]
Mr
Glenister relied on two principles alluded to in
Glenister
II
.
The first related to whether the placement of the DPCI within the
SAPS could fall within the range of constitutionally acceptable

measures to be adopted by a reasonable decision maker.  The
second related to the role or significance of public perception
in
determining the range of constitutionally acceptable measures.
[96]
[117]
The main judgment holds that because of the
decision in
Glenister II
—
“
The
question whether the location of the DPCI within the SAPS falls
within a range of possible measures ‘a reasonable
decision-maker
in the circumstances may adopt’, having regard
to public perception, does not arise.  That issue was settled in
Glenister II
.”
[97]
It
goes on to state that “[i]t is a closed chapter that corruption
is rife in South Africa and that it is a practical possibility
for an
adequately independent anti-corruption entity to be comfortably
located within the SAPS”.
[98]
[118]
In
Glenister
II
the majority judgment stated:
“
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.”
[99]
(Emphasis added.)
And:
“
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’.  These
constitutional duties can productively coexist, 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.”
[100]
(Footnote omitted.)
[119]
The
judgment does not state that the creation of a separate
corruption-fighting unit within the SAPS will withstand any
constitutional
attack.  It says that something else will be
needed in order to sustain that kind of constitutional challenge.
Mr Glenister
sought to show that the additional factor was
that the current extent of corruption in our body politic was of the
kind that showed
that the location of the DPCI within the SAPS was
not a possible option for a reasonable decision-maker.  In other
words he
contended that this evidence showed that locating the DPCI
within the SAPS meant that it could not have “sufficient
attributes
of independence to fulfil the functions required of it
under the Bill of Rights”.
[101]
[120]
His attempt to do so fell squarely within
the range of approaches left open by
Glenister
II
.  Whether the kind of evidence
he offered was sufficient to sustain the constitutional challenge is
another question to which
I shall return, but
Glenister
II
does not prevent him from trying to
do so.
[121]
Glenister II
also
envisaged that evidence could be led that placed the range of options
open to a reasonable decision-maker within its proper
context:
“
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.
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.”
[102]
(Emphasis added and footnote omitted.)
The
italicised portion was said in reliance on the following paragraph in
Rail Commuters
:
“
The
standard of reasonableness requires the conduct of Metrorail and the
Commuter Corporation to fall within the range of possible
conduct
that a reasonable decision maker in the circumstances would have
adopted.  In assessing the reasonableness of
conduct, therefore,
the context within which decisions are made is of fundamental
importance.”
[103]
(Footnote omitted.)
[122]
In relation to public perception,
Glenister
II
continued:
“
This
Court has indicated that ‘the appearance or perception of
independence plays an important role’ in evaluating whether

independence in fact exists. . . .  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 bench marks for independence.
This is because public confidence that an institution
is independent
is a component of, or is constitutive of, its independence.”
[104]
(Emphasis added and footnote omitted.)
[123]
To sum up:
Glenister
II
did not hold that there could be no
challenge to the location of the DPCI within the SAPS, only that the
mere fact of its location
within the SAPS was not sufficient to
sustain a constitutional challenge.  Nor did it lay down that no
evidence may be adduced
to support a constitutional challenge that
was based on something more than the fact of the DPCI’s
location within the SAPS.
Glenister
II
does not preclude the presentation
of evidence of the context within which the range of possible options
open to a reasonable decision-maker
should be assessed.  Nor
does it prohibit evidence about the public perception of corruption
within that context.  Mr Glenister
sought to introduce
additional evidence of corruption in our body politic and the public
perception of the extent of that corruption
in order to bolster his
constitutional challenge that, currently, it is not a reasonable
option to locate the DPCI within the SAPS.
Glenister
II
, I repeat, allowed him to do that.
[124]
The main judgment finds that the evidence
of public perception that Mr Glenister sought to present showed
that the perception
already existed at the time of
Glenister
II
and hence this evidence takes the
matter no further than what that judgment already decided.  I
disagree.  First, the
evidence presented in this matter is not
all the same as that which was before the Court in
Glenister
II
.  Second, the challenge here is
predicated on what
Glenister II
decided.  The legal ground for the challenge here was created by
Glenister II
and thus the challenge is not precluded by that judgment by the
application of some kind of
res judicata
principle.
[125]
It is one thing for this Court to find that
the case Mr Glenister presented was not convincing, but quite another
to say that he
is prevented by our own past decision from doing so.
If there are aspects of
Glenister II
which need to be revisited or clarified
it must be done explicitly, not through a re-interpretation that is
at odds with what the
judgment actually says.
[126]
Leave to appeal against the order
dismissing Mr Glenister’s application to have the entire
legislative scheme of the SAPS
Amendment Act declared
unconstitutional must be granted, with costs.
The
factual challenge
[127]
It
is necessary to emphasise some obvious considerations at this stage.
In an application to strike out evidence on affidavit,
neither the
eventual veracity of the evidence nor the prospects of success of the
main application is at issue.  This is a
trite
proposition.
[105]
The
only question in a striking out application is whether the evidence
is admissible.  The truth of the evidence plays
no role at this
stage; it is only determined at the end of the matter if the evidence
is admitted.
[128]
The
main judgment proceeds from the proposition that after
Glenister
II
it
is an accepted fact that “corruption is rife in this country
and that stringent measures are required to contain this malady

before it graduates into something terminal”.
[106]
I agree.  But it does not follow that further probing into the
possible extent of the corruption is now a “closed

chapter”
[107]
and an
issue that “was settled”
[108]
in
Glenister II
.
What if the corruption is so “rife” that the very idea of
locating the DPCI within the SAPS – an otherwise
perfectly
acceptable option for “reasonable decision  makers”
– becomes unthinkable because those controlling
the SAPS may
themselves be part of the corruption?
[129]
The very idea that this situation might
exist will be scandalous for our country, but it does not mean that
our courts are entitled
to prevent concerned persons from seeking to
present evidence to sustain an assertion of that kind.
[130]
That is exactly what Mr Glenister sought to
do in his application to have the whole scheme of the SAPS Amendment
Act declared unconstitutional.
He tried to show that the
corruption at the very centre of our political life is so pervasive
that the unthinkable may be true:
our elected Government is trying to
undermine the independence of our constitutional institutions in
order to attain its own unconstitutional
aims.  The location of
the DPCI within the SAPS is allegedly part of this unconstitutional
endeavour.
[131]
That
is a grave assertion against what we hold dear under the
Constitution.  But it is our duty to treat the challenge on its

merits, not to denigrate it out of hand as scandalous and vexatious
because it seeks to portray the Government, the leadership
of the
governing party, the ANC, and the law enforcement agencies of this
country as corrupt.  The same applies to the submissions
that a
Deputy Minister of Justice allegedly said that our criminal justice
system – of which the SAPS forms an integral part
– was
“dysfunctional”
[109]
and that
“
a
‘corrupt SAPS’ [is] managed and controlled . .
. by a ‘corrupt Executive’ . . . deployed from
the ranks
of a ‘corrupt ruling party’ in terms of its cadre
deployment policies that have no regard for integrity and

meritocracy”.
[110]
[132]
What
we need to do is to make a dispassionate analysis of these
assertions, assess whether they are relevant and then test whether

the evidence presented in support of them is in accordance with our
principles and rules of evidence and procedure.  In doing
that
we need to look carefully at what “vexatious” and
“scandalous” mean in the context of an assertion
that
corruption lies at the core of the issue at stake.  Presenting
evidence of corruption in that kind of situation will
of necessity
involve making assertions that may be
regarded
as abusive or defamatory or may convey an intention to harass or
annoy,
[111]
but surely that
cannot be a legitimate reason to prevent a litigant from attempting
to present that kind of evidence.
Relevance
[133]
I agree that Mr Glenister’s
application is not a model of clarity, but irritation and
inconvenience at having to sort the
good from the bad in a matter is
insufficient reason for not going through that process.  Broadly
speaking, Mr Glenister seeks
to make out a case for the
unconstitutionality of the SAPS Amendment Act along the following
lines:
(a)
The legislation establishing and regulating the DSO was a proper and
constitutionally compliant statute to give effect to the

constitutional imperative of creating a functionally and structurally
independent anti corruption entity.
(b)
The 2007 ANC national conference took a decision to disband the DSO.
(c)
That decision was not taken to preserve a functionally and
structurally independent anti-corruption entity, but to ensure that

its replacement (established under the first South African Police
Service Amendment Act)
[112]
was under the control of the ANC, through the legislative and
executive arms of Government, which did not operate independently,

but were always subject to the control of the ANC.
(d)
The First Amendment Act is evidence of (c).
(e)
The decision of this Court in
Glenister II
effectively showed
the correctness of (a) to (d) above.
(f)
The SAPS Amendment Act, under consideration in this matter, is but a
continuation of the purpose referred to in (a) to (d) above.
(g)
The continuation of this purpose makes the decision to still locate
the DPCI within the SAPS one that goes beyond the decision

legitimated by
Glenister II
.
(h)
Hence, the attack on the constitutionality of the legislative scheme
of the SAPS Amendment Act is justified in terms of
Glenister II
.
(i)
The evidence offered in support of the application was relevant and
established the case advanced in propositions (e) to (h).
(j)
The appeal should thus succeed and the whole legislative scheme of
the SAPS Amendment Act should be declared constitutionally
invalid.
[134]
It
is an unfortunate fact that the decision taken at the 2007 ANC
national conference to replace the DSO was followed by a
controversial
decision not to proceed with corruption charges against
the current President of the country, a decision that was, until very
recently,
still subject to litigation in the courts.
[113]
So too is the fact that a former National Commissioner of the SAPS
has been found guilty of corruption.
[114]
In support of his application Mr Glenister asserted that it is the
goal of the ANC to establish “hegemonic control
of all the
levers of power in society”.
[115]
In support of this he relied on the ANC website and an extract from a
National Executive Committee address on 8 January 2011
confirming
it.  The address contained in the annexure sets out the goals of
the ANC and states:
“
We
reiterate . . . that we place a high premium on the involvement of
our cadres in all centres of power. . . .  We also need
their
presence and involvement in key strategic positions in the State as
well as the private sector, and will continue strategic
deployments
in this regard.”
[135]
This
evidence was objected to as irrelevant and was struck out.  It
is not irrelevant to the case Mr Glenister sought to advance.

If the ruling party has stated that it wishes to control all levers
of power in society, it may be inferred that the location of
the DPCI
within the SAPS is not a reasonable option because the potential for
control over the DPCI through cadre deployment in
the SAPS would
undermine the adequate structural and operational independence
required of a dedicated anti corruption unit.
[116]
The ANC’s own statements, relied upon by Mr Glenister, can
hardly be described as vexatious or scandalous within the
meaning of
the rule.
[136]
There
was no prejudice to the Minister that could not have been met by
admitting, denying or explaining the strategy of cadre deployment
on
affidavit.  It is an accepted rule of our law that a party who
seeks to strike out evidence must nevertheless on affidavit
deal with
the allegations made that he seeks to strike out.
[117]
The Minister did not comply with this requirement at all in the
striking out application.  This is an instance where
there was
nothing that prevented him from putting up evidence on affidavit to
counteract the evidence adduced by Mr Glenister.
[137]
Reliance was also placed by Mr Glenister on
a concession made by a former Deputy Minister of Justice in the
Glenister II
matter
that South Africa’s criminal justice administration is
“dysfunctional”.  This was also objected to
as
irrelevant and struck out.  It is not irrelevant and should not
have been struck out.  The SAPS forms part of the
criminal
justice system.  If it is also “dysfunctional” this
fact must be of some relevance to the question of
the location of the
DPCI.
[138]
Also
struck out were media reports on statements made by the President and
the former Deputy Minister of Correctional Services in
relation to
this Court’s findings in
Glenister
II
.
In an address at the Access to Justice Conference
[118]
the President is reported to have stated that the Judiciary should
not, when striking down legislation, use this as an opportunity
to
change policies determined by the Executive.  In an interview
with the President in another newspaper article he apparently

expressed his preference for the minority judgment in
Glenister
II
and appeared to indicate that there is uncertainty about what to do
when there is more logic in the dissenting judgment than in
the
majority judgment.  In another media article the former Deputy
Minister of Correctional Services also criticises the
Glenister
II
majority judgment.  Mr Glenister takes issue with the
President’s failure to repudiate the opinions expressed in that

article.  Lastly, evidence is offered of the President’s
response to a question posed in Parliament which included the

following statement by him:
“
[The
ANC representatives] have more rights here because we are a
majority.  You [i.e. the opposition] have fewer rights because

you are a minority.  Absolutely, that’s how democracy
works.”
[139]
These statements by the President and his
apparent condonation of the views expressed by one of his Deputy
Ministers are relevant
to substantiate Mr Glenister’s
constitutional challenge that it is not a reasonable option to locate
the DPCI within the
SAPS, because they indicate resistance or
non-acceptance of the legal position and point to a continued
intention to exercise political
control over anti-corruption
activities.  What Mr Glenister seeks to show is that there is a
disregard for constitutional
democracy and the Judiciary at the
highest level of Government.  For that reason he asserts that
there is great danger if
the DPCI is subject to political control by
those who hold these views.  In those circumstances the location
of the DPCI within
the SAPS cannot be a reasonable option for
reasonable decision-makers.
[140]
Once again there was no prejudice.
The allegations could have been denied, admitted or explained on
affidavit, for example,
on the basis that members of the Executive
are entitled to express their opinions on court decisions as part of
the open democratic
debate in the country and that it is wrong to try
and read anything sinister in them doing that.  This was not
done.
I fail to see anything vexatious or scandalous in
requiring members of the Executive to explain statements that may be
interpreted
as expressing disregard for the basic tenets of our
constitutional democracy.
[141]
The affidavit and report of Professor Gavin
Woods (Woods Report), director of the Anti-Corruption Education and
Research Centre
at Stellenbosch University, and the affidavit of Mr
Gareth Newham (Newham affidavit), head of the Crime and Justice
Programme at
the Institute for Security Studies (ISS), were also
struck out.  They should not have been.
[142]
In
relation to the Woods Report, the High Court found that “in the
affidavit to which the report is annexed, Woods does not
even confirm
that the contents of the report are true and correct”.
[119]
This is incorrect.  In his affidavit Professor Woods states that
the facts deposed to in his affidavit are true and
correct and that
to the extent that he relies on information he received from others
he believes that information to be correct.
He explicitly
states that “[I] further confirm the contents of the attached
report”.  The High Court thus misdirected
itself in
striking out this evidence.
[143]
The
Woods Report deals with reports of corruption in the media and, in
particular: (1) the allegations of corruption in relation
to the Arms
Deal; (2) “Nkandla”; (3) a former Minister of
Police’s “security wall and slush fund”
(where
there was allegedly interference in a DPCI investigation); (4)
misappropriation of funds by a former Minister of Communications;
(5)
the involvement of a former Deputy Minister of Economic Development
in a pension fund scandal; (6) irregular expenditure by,
and the
false qualifications of, a former Minister of Cooperative Development
and Traditional Affairs; (7) the improper appointment
of Adv Menzi
Simelane as NDPP (and the role played by former Minister of Justice
and Constitutional Development in that appointment);
[120]
(8) the improper lease agreements for the SAPS buildings involving a
former Minister of Public Works, a former National Commissioner
and a
former Director-General of Public Works; and (9) “Travelgate”
(involving fraudulent travel claims by a number
of members of
Parliament, members of Cabinet and parliamentary office-bearers).
Notably, Professor Woods states that “[i]n
South Africa the
Executive leadership . . . are perceived as tolerating corruption and
fraud and on many occasions they have been
seen as rewarding parties
involved in corruption”.
[121]
[144]
This is a report by an expert based on
research he conducted.  It is relevant to determine the level of
corruption at the highest
political level in our society and the
general public’s perception of corruption at that level.
The proper way to counteract
the views in the Woods Report was to
challenge, on affidavit, Professor Woods’ qualifications,
methodology and conclusions.
Again, this was not done.
[145]
The same applies to the Newham affidavit.
It includes a number of annexures
illustrating the work of the ISS in the field of corruption in South
Africa, including (1) a
monograph on the systemic problem of
corruption in South Africa (particularly in the police service), the
causes of such corruption
and possible strategies for combating it;
(2) a report on the public’s perceptions of the levels of
corruption and other
crime in the SAPS based on the findings of a
study undertaken by the ISS; (3) a report on the role and
effectiveness of police
oversight bodies; (4) a report evincing the
view of police officers at three Gauteng police stations on police
corruption, which
in particular shows that 66 of the 77 respondents
believed corruption exists on a large scale in the SAPS; (5) an ISS
article on
the poor leadership within the SAPS and its impact on the
effective performance by the SAPS of its mandate; (6) an ISS article
addressing the lack of political will to address corruption in South
Africa; (7) an opinion on the SAPS Amendment Bill prepared
by a
well-known law professor; and (8) the ISS’ submissions to the
Portfolio Committee on Police on the SAPS Amendment
Act when it
was still a Bill, including reasons for the opinion that an
adequately independent anti-corruption entity could not
be located in
the SAPS.  It also expresses the view that the DPCI should be
located outside of the SAPS.
[146]
It
is not necessary to refer in detail to each of the further paragraphs
objected to and struck out.  Some fall within the
same reasoning
for admissibility set out above,
[122]
others do not.
[123]
Leave to appeal against the order upholding the Minister’s
striking out application must be granted, with costs.
The
striking out order in the High Court must be set aside and replaced
with an order striking out only the paragraphs set out
in footnote
123 of this judgment.
[147]
But
even if I am wrong to read
Glenister
II
to mean that it allows the constitutional challenge and this kind of
evidence Mr Glenister sought to present, I believe it is at
least a
reasonably contestable reading for which Mr Glenister should not be
castigated for adopting.  If that is so,
Biowatch
[124]
applies.  There is insufficient reason for ascribing ill motives
to him in following a reasonable reading of
Glenister II
.
He should not be saddled with costs, especially not of three
counsel.
Merit
of the appeals
[148]
That leaves only Mr Glenister’s
appeal against the dismissal of his application to have the entire
legislative scheme of the
SAPS Amendment Act declared
unconstitutional.  Other than in the main judgment, the appeal
must be decided on the basis of
the evidence referred to in [133] to
[147] above, together with the evidence on the affidavits of the
respondents.
[149]
In
Glenister
II
the majority judgment found that there is scope for the productive
co-existence of the constitutional duties to create an adequately

independent anti-corruption unit and to have a member of Cabinet
exercise responsibility over policing.
[125]
The
order in the main judgment adequately ensures that this purpose of
productively co-existing constitutional duties between the
Minister
and the anti-corruption unit can be achieved.  The more drastic
relief Mr Glenister seeks is unnecessary.
I
would thus dismiss the appeal.
CAMERON
J (Froneman J and Van der Westhuizen J concurring):
[150]
I have had the benefit of reading the
judgment by Mogoeng CJ (main judgment) and those by Froneman J,
Nkabinde J and Van der Westhuizen
J.  I find the reasoning and
outcome of the main judgment compelling, and concur in it, subject to
two qualifications.
First, I agree with Froneman J, for the
reasons he gives, that the application to strike out Mr Glenister’s
evidence should
have been dismissed, and that leave to appeal should
be granted to him in this Court.
[151]
Second,
I do not agree with the main judgment’s conclusion that the
process for appointing the National Head of the DPCI is

constitutionally compliant.
[126]
In my view, consolidating the power to appoint the Head in the
Minister and the Cabinet erodes the DPCI’s independence
to a
constitutionally impermissible degree.  I would confirm the High
Court’s order declaring section 17CA constitutionally
invalid.
[152]
The section provides in relevant part:
“
(1)
The Minister, with the concurrence of Cabinet, shall appoint a person
who is—
(a)
a South African citizen; and
(b)
a fit and proper person,
with
due regard to his or her experience, conscientiousness and integrity,
to be entrusted with the responsibilities of the office
concerned, as
the National Head of the Directorate for a non-renewable fixed
term of not shorter than seven years and not
exceeding 10 years.
(2)
The period referred to in subsection (1) is to be determined at the
time of appointment.
(3)
The Minister shall report to Parliament on the appointment of the
National Head of the Directorate within 14 days of the

appointment if Parliament is then in session or, if Parliament is not
then in session, within 14 days after the commencement of
its next
ensuing session.”
So
the Minister chooses the Head of the DPCI, subject to the concurrence
of Cabinet.  Once the appointment has been made, the
Minister
must “report” to Parliament.  But Parliament has no
veto power, nor any other say in the appointment.
Is that
constitutionally permissible?
[153]
The
High Court found that it was not.
[127]
Its reasons are compelling.  The independence of an institution
depends pivotally on the independence of those who staff
it.
Where political considerations influence the selection of the
institution’s staff, its independence is, to that
extent,
limited.  If compliant incumbents are selected at the outset,
securing their tenure and preserving the autonomy of
the institution
within which they work will be inadequate to secure independence.
[154]
And – this is the crucial point –
the more the institution’s mandate threatens political
office-bearers, the greater
is the risk of political weight being
brought to bear on its appointments.  Where the institution’s
core mandate is
to investigate crimes committed by political
office-bearers, the risk may become severe.
[155]
That risk may be mitigated by a balanced
appointment process that diffuses the power of selection and
appointment among various
stakeholders.  It is aggravated when
the power to appoint is consolidated in a single, politically
prominent office bearer,
or in a close-knit group of government
executives who may have a shared interest in finding a compliant
appointee.
[156]
This is not to pass comment on any
particular group of political incumbents.  Still less does it
reflect on any currently in
office.  It reaches beyond
incumbency to the stark realities of power, to which we all are
prone.
[157]
This
Court has long recognised these salutary principles in relation to
other institutions whose independence is constitutionally
required.
It has authoritatively noted that there should be a body that
“provides a check and balance to the power
of the Executive”
to make appointments;
[128]
that if appointments are “at the discretion” of members
of the Executive “there would be concern” about
the
appointees’ independence;
[129]
and that it is at odds with an institution’s independence if
the Executive can “tell [it] . . . whom to employ”.
[130]
[158]
These
principles are also embodied in South Africa’s “native
conception of institutional independence” vindicated
in
Glenister
II
.
[131]
Our Constitution’s Chapter 9 institutions – which, as
this Court has recognised, provide important comparators
here
[132]
– bear witness to the pitfalls of approval powers concentrated
in the Executive.  Section 193 provides that every member
of the
institutions that support our constitutional democracy is appointed
“on the recommendation” of Parliament.
[133]
[159]
Indeed,
in the case of the Public Protector and Auditor-General the
Constitution goes further, requiring that the recommendation
be
approved by a supermajority.
[134]
These are the two institutions of accountability whose gaze, like
that of the DPCI, is fixed firmly on the political branches;
their
task “inherently entails investigation of sensitive and
potentially embarrassing affairs of government”.
[135]
As the HSF rightly contends, they may provide the “paradigm
comparators” for a sufficiently independent anti-corruption

unit.
[160]
Recognising
all this, the OECD Report,
[136]
whose relevance in understanding our own native constitutional
obligations
Glenister
II
recognised,
[137]
states this fundamental principle:
“
The
selection process for the head [of a specialised anti-corruption
institution] should be transparent and should facilitate the

appointment of a person of integrity on the basis of high-level
consensus among different power-holders (e.g. the President and
the
Parliament; appointment through a designated multidisciplinary
selection committee on the proposal of the Government, or the

President, etc.).  Appointments by a single political figure
(e.g. a Minister or the President) are not considered good
practice.”
[138]
[161]
Section 17CA of the SAPS Act does not
conform to these principles.  It does not require “consensus
among different power
holders”.  It involves neither
Parliament, except by report, nor a special selection committee.
Instead, it provides
for appointment “by a single political
figure”, namely the Minister.
[162]
But
the section ties the Minister’s power to appoint the Head to
Cabinet approval.  Is this a sufficient safeguard?
It is
not.  The members of the Cabinet, equally with the Minister, are
appointed by the President and serve at his favour.
[139]
They are, with few exceptions, senior members of the ruling party,
and politically allied to each other.  So their oversight
does
not adequately dilute the Minister’s power.
[163]
Nor
do they counterweigh the power of the Executive, for they are part of
it.  Indeed, as the High Court found, they are the
very
“political heads of all of the government departments that the
DPCI might have to investigate”.
[140]
They do not bring a disinterested judgment to bear on the Head’s
appointment.
[164]
In
addition, the Head and the Minister decide who appoints the deputy
national heads of the DPCI and its provincial heads.
[141]
So the Head’s susceptibility to political influence is likely
to trickle down, thus affecting the independence of those
whom he or
she appoints.
[165]
The
practical upshot is this.  The Head’s appointment should,
as the High Court held, be subject to parliamentary approval.

This has many virtues.  First, it dilutes the power possessed by
any single individual to appoint the Head he or she desires.

Resonant with the separation of powers, it attaches a significant
counterweight to the power of the Executive and its members.
[142]
Second, it spreads scrutiny of the appointment across the political
spectrum, ensuring that a diversity of political actors
has a say –
including parties whose members, not being in government, will feel
less exposed to possible investigation.
[166]
This is no panacea, of course, especially
since the votes of the ruling party’s members may eventually be
sufficient to carry
through the appointment.  But parliamentary
involvement is salutary for a third reason.  It is good for
transparency,
public accountability and democracy.  It forces
the appointment process out of the Executive’s impenetrably
private
deliberations into the fresh light of the parliamentary
chamber, whose proceedings are publicly accessible, and where they
are
ripe for dissection and disputation by every person in the
country.
[167]
Our
Constitution pointedly regards as a fundamental value not only
universal adult suffrage but also “accountability,
responsiveness
and openness” of government.
[143]
In
M
& G Media Ltd
,
the Supreme Court of Appeal rightly held that “[o]pen and
transparent government and a free flow of information concerning
the
affairs of the State is the lifeblood of democracy”.
[144]
The OECD Report also emphasises that the appointment process must be
transparent.
[145]
And
the Constitution recognises Parliament’s essential role in
providing for “participatory democracy, accountability,

transparency and public involvement”.
[146]
[168]
It
is true, and the main judgment rightly points out,
[147]
that Parliament had no role in the appointment of the head of the
DSO.
[148]
And, as that
judgment also notes,
Glenister
II
stated
that “[t]he now defunct DSO was independent”.
[149]
Setting store by this, the main judgment finds that the requirement
of adequate independence cannot entail that Parliament
must have a
role in the appointment of the Head of the DPCI.
[150]
[169]
This
reasoning is not persuasive.
Glenister
II
invoked the DSO only for comparative purposes, to show “how
markedly short of independence the DPCI falls”.
[151]
In doing so, the Court made clear, “we do not suggest that the
DSO constitutes a ‘gold standard’”.
[152]
Nor did the DSO “represent an inviolable standard”.
[153]
[170]
For these reasons, it is not conclusive to
point out that
Glenister II
described the DSO as independent.  That is to invoke the DSO as
precisely what
Glenister II
disavowed:
a gold standard.
Glenister II
made no firm finding, with precedential force, that the DSO was
perfectly independent in every respect.  And indeed it could
not
have done that, for the constitutionality of the legislation
constituting the DSO was not before it.  It was concerned
with
the old DPCI, constituted by the predecessor of the legislation now
before us, and invoked the DSO’s relative independence
only to
show how far that legislation strayed from the independence
constitutionally required.  In assigning power to appoint
the
Head exclusively to the Minister and the Executive, the present
legislation does the same.
[171]
In
short,
Glenister
II
provides
no answer to the HSF’s rightful concerns about the appointment
of the Head of the DPCI.  If anything, it compounds
them.
For
Glenister
II
pointed to the appointment process for the Head of the DPCI under the
old legislation – which said, not unlike the present

legislation, that he or she shall be “appointed by the Minister
in concurrence with Cabinet”
[154]
– as one of the factors that eroded the independence of the
unit’s staff.
[155]
[172]
There
is a further point.  The appointment of the head of the DSO
differed materially from the process section 17CA now provides.

Whereas the Head of the DPCI is appointed by the Executive alone,
with only a report to Parliament, the head of the DSO was appointed

by the NDPP.
[156]
It
is true, as the main judgment observes, that the NDPP is himself
appointed by the President,
[157]
and that he chose the head of the DSO from a further set of
presidential appointees, namely the Deputy National Directors of the

NPA.
[158]
So the
appointment of the DSO was hardly immune to presidential influence.
[173]
Still, in the case of the DSO that
influence was indirect.  The President exercised it at one
remove.  The NDPP –
whose independence, once appointed,
the Constitution directly guaranteed – made the final
selection.  In the case of
the Head of the DPCI, by contrast,
the Executive’s power is unmediated.  Hence the need for
parliamentary involvement
is here more pressing.
[174]
What is more, the DSO had several positive
features the current DPCI signally lacks.  Those may have tipped
the balance in
Glenister II
’s
global assessment that the DSO was adequately independent.  Put
differently, the DSO was adequately independent
despite
the process for its head’s appointment.  But the
countervailing factors that justified a conclusion of adequate
independence
there are absent here.
[175]
Most
pertinently, the DSO was outside the SAPS.  By contrast, the
DPCI is lodged firmly within the SAPS.  The unit’s

location plainly matters.  It is true that
Glenister
II
recognised that it was constitutionally permissible to locate the
DPCI within the SAPS.
[159]
But
Glenister
II
found only that the DPCI’s location did not “in itself”
make the unit unconstitutional; the DPCI legislation
could not be
invalidated “on that ground alone”.
[160]
[176]
The
implication was that the unit’s independence would be decreased
by its location within the SAPS, but that it might nevertheless
have
other “sufficient attributes of independence to fulfil the
functions required of it”.
[161]
One important attribute to offset the DPCI’s location within
the SAPS would be an irreproachable process for the appointment
of
its members – and that is lacking here.
[177]
Similar
considerations apply to the main judgment’s invocation of the
appointment process governing the NPA and its head,
the NDPP.
[162]
In addition, the temptation to appoint an incumbent with an
insufficiently robust sense of independence may be greater in
the
case of the DPCI – whose primary function is to investigate
political office-bearers – than in the case of the
NDPP, who
handles all prosecutions in the country, and only incidentally those
of the Executive.
[178]
I would therefore confirm the High Court’s
order declaring section 17CA constitutionally invalid.
NKABINDE
J:
[179]
I
have read the judgments of Mogoeng CJ (main judgment), Froneman J,
Cameron J, Van der Westhuizen J and Madlanga J.  I concur
with
the main judgment in every aspect except in relation to findings
regarding section 17E(8)(a) of the SAPS Act,
[163]
including a finding that the provision is constitutionally compliant
in respect of the integrity testing provisions in terms of
that
section.  What raises alarm bells is the unfettered discretion
vested upon the Minister.  While it is correct that
courts must
be careful not to be prescriptive and take on a legislative role, I
think that we need not shy away from the task at
hand either, which
is to test whether the provisions as they stand allow for sufficient
independence of the DPCI from undue political
interference.
[180]
Section 17E(8)(a) gives the Minister
unbridled discretionary power to prescribe measures for testing the
integrity of members of
the DPCI.  The testing “may
include random entrapment, testing for the abuse of alcohol or drugs,
or the use of the
polygraph or similar instrument to ascertain . . .
the truthfulness of a statement made by a person”.  The
HSF contends
that the power vested on the Minister is open-ended and
may be abused as an intimidation tactic with ominous implications.
[181]
The
power to test the integrity of the members of the DPCI is important
and may be conducted (if the Legislature so feels) at various

intervals during members’ terms of office.  It is also the
case that membership within the DPCI has the core requirement
that
the person occupying the position is seen to be a person of
“integrity”.
[164]
This is because it is important too that the “watchdogs are
being watched”.  There is a noble aim behind
ensuring that
DPCI members are able to pass integrity tests.  This said, it is
remarkable that the testing measures to be
prescribed are to be
enforced against only the members of the DPCI.
[182]
It
is a general characteristic of the law that any power that can have
pernicious effects should be better and more extensively

circumscribed to the person tasked with administering that
power.
[165]
In
Affordable
Medicines
[166]
this Court has recognised that “[d]iscretion has an important
role to play in decision-making”.  Relying on
Dawood
,
[167]
albeit in a different context, this Court held that discretion
“permits abstract and general rules to be applied to specific

and particular circumstances in a fair manner” and “[t]he
scope of discretionary powers may vary”.
[168]
In
Dawood
,
this Court said:
“
Discretion
plays a crucial role in any legal system.  It permits abstract
and general rules to be applied to specific and particular

circumstances in a fair manner.  The scope of discretionary
powers may vary.  At times they will be broad, particularly

where the factors relevant to a decision are so numerous and varied
that it is inappropriate or impossible for the Legislature
to
identify them in advance.  Discretionary powers may also be
broadly formulated
where
the factors relevant to the exercise of the discretionary power are
indisputably clear
.
A further situation may arise where the decision-maker is possessed
of expertise relevant to the decision to be made.”
[169]
(Emphasis added and footnotes omitted.)
[183]
Affordable Medicines
further
held however that—
“
delegation
must not be so broad or vague that the authority to whom the power is
delegated is unable to determine the nature and
the scope of the
powers conferred.  For this may well lead to the arbitrary
exercise of the delegated power.
Where
broad discretionary powers are conferred, there must be some
constraints on the exercise of such power so that those who are

affected by the exercise of the broad discretionary powers will know
what is relevant to the exercise of those powers or in what

circumstances they are entitled to seek relief from an adverse
decision.  These constraints will generally appear from the

provisions of the empowering statute
as well as the policies and objectives of the empowering
statute.”
[170]
(Emphasis added and footnote omitted.)
[184]
In
my view, the exercise of the broad discretion conferred by section
17E(8)(a) is not circumscribed.  The factors relevant
to the
exercise of the discretionary power are not expressed in the statute
and it is not suggested that the Minister is possessed
of expertise
relevant to the exercise of that power.  Those who will be
affected by the decisions of the Minister when prescribing
integrity
testing measures will not know precisely what is relevant to the
exercise of the power or in what circumstances they
are entitled to
seek relief if her decision adversely affects them.
[171]
[185]
The
main judgment seems to accept that the discretionary power vested on
the Minister is broad.  However, it holds that section
17E(9)(a)
and (b) constitutes the necessary constraints on the exercise of the
discretionary power, because the subsection provides
for a member of
the DPCI, including the National Head, to serve impartially and
exercise power and perform functions in good faith.
The main
judgment states that the subsection also forbids improper
interference with a member of the DPCI in the exercise or performance

of her or his powers, duties or functions.  All this, the main
judgment holds, is done subject to the Constitution and the
SAPS
Act.
[172]
Section
17E(9)(a) and (b) does not, in my view, fetter the Minister’s
wide discretionary powers.
[186]
The
main judgment’s preferred approach is to wait for the Minister
to prescribe the measures and anybody may then challenge
them on
their actual as opposed to anticipated content and application.
[173]
However,
Glenister
II
is instructive in this regard:
“
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.”
[174]
[187]
There is another problem with ex post facto
review in this case.  What kind of power is the power to create
measures for integrity
testing?  At the point of review, where
the empowering provisions are not instructive, under which principles
of law would
a member of the DPCI safeguard her or his rights or an
investigation?  It is not necessary to decide that point, but
one wonders
how many grounds a potential complainant would have to
challenge the exercise of this discretion by the Minister where the
empowering
provision offers no guidance.
[188]
In my view, the current content of section
17E(9)(a) and (b), which the main judgment suggests fetters the wide
discretion, does
not contain any or sufficient guide to the Minister
on the proper exercise of her discretion.  Remarkably, section
17E(8)
does not state the factors relevant to the exercise of the
discretionary power by the Minister.  The empowering provision,

without more, confers an unbridled discretion on the Minister.
It cannot be forgotten that the DPCI must be shielded from
undue
political influence which is bound to come from political actors, of
which the Minister forms part.
[189]
The
main judgment uses the current regulations to lend some authority for
the proposition that this unfettered discretion will not
be
misapplied.  It is stated that the provisions of section 17E(8)
were exactly the same as they are now and yet the security
and
integrity measures were not identified as factors that potentially
undermine the sufficiency of the independence in
Glenister
II
.
The main judgment holds that there is no basis for the assumption
that the measures prescribed by the Minister will necessarily
be
intrusive.
[175]
I
think that these remarks miss the point.  The correct approach,
I consider, should rather be whether the “autonomy-protecting

features” are sufficient to enable the DPCI to adequately
discharge its duties.  This is so because there might have
been
other cogent reasons why
Glenister
II
did not mention the impact of the impugned section 17E(8)(a).
[176]
[190]
That the current regulations are, prima
facie, appropriate is not helpful.  I do not think that it is
appropriate to use them
as a means to certify the constitutionality
of the empowering provision.  Even regulations that were to
strike the right balance
between accountability and autonomy may be
repealed or amended at the Minister’s whim.  Furthermore,
it is likely that
the regulations will submit to the dictates of the
empowering provision and, if there is nothing to guide the
implementation and
content of the regulations, there are even fewer
grounds on which to test the regulations should the time come.
[191]
There
is another reason why this power should be circumscribed: public
perception of the Minister’s unbridled power.
It has
already been said by this Court that the appearance or perception of
independence plays a role in the evaluation of whether
independence
in fact exists.
[177]
Where the overarching test for independence is that the DPCI be
sufficiently insulated from undue political interference,
a component
of that is for a reasonably informed, reasonable member of the public
to have confidence in the autonomy-protecting
features of the
DPCI.
[178]
Such a
member of the public would, in order to determine the relative import
of the provision as it is, make reference to
some local
comparators.
[179]
[192]
Interestingly,
other state departments have employed lesser means to assure
integrity without making the choice to bestow on a minister
unbridled
power as to how, when and where integrity testing should be done,
where information garnered from these tests will be
kept and who will
see it.  The National Defence Force also deals with matters of
high confidentiality.  It requires integrity
testing of its
members for the performance of their duties, but this is only subject
to section 2A of the National Strategic
Intelligence Act,
[180]
to which the DPCI is also subject.
[181]
[193]
In conclusion, I would have upheld the
HSF’s appeal in respect of its challenge to section 17E(8)(a)
and declared that section
unconstitutional.
VAN
DER WESTHUIZEN J:
Introduction
[194]
Young democracies often struggle with the
responsibilities that come along with hard-fought freedom.
South Africa is no exception.
Corruption or perceptions of
corruption seem to be rife.  Here we are confronted with serious
questions regarding our law-enforcing
machinery and, more
specifically, with the independence of an anti corruption body
within our system of government.
[195]
As to the constitutional validity of the
SAPS Amendment Act, I agree by and large with the reasoning and
conclusions of the main
judgment by Mogoeng CJ.
[196]
In her judgment, Nkabinde J raises concerns
regarding section 17E(8)(a) of the SAPS Act and the integrity testing
of the members
of the DPCI for which it allows.  I fail to see
how exactly the discretion of the Minister to prescribe measures to
engage
in testing would undermine the DPCI’s independence, or
in what way the discretion could be curbed to better secure
independence.
That testing, under section 17E(9)(a) and
(b), is to be done impartially, in good faith and without improper
interference,
comforts me that the judicial review of the testing
practice will be possible.  I am thus unable to concur with the
judgment
of Nkabinde J.
[197]
I respectfully disagree with the conclusion
the main judgment reaches on section 17CA of the SAPS Act.  The
location of the
DPCI inside of the SAPS renders it necessary to have
countervailing forces to ensure independence that were perhaps less
necessary
for the DSO.  These countervailing factors ought to be
informed to some degree by the appointment measures employed for the

offices of the Public Protector and Auditor General.
The transparency afforded by airing this process in Parliament
will
contribute to the unit’s independence.  It will also serve
to bolster public perception of the independence of
the National Head
of the DPCI.  Accordingly, I agree with the judgment of Cameron
J and the conclusion that the High Court’s
order
concerning the constitutional invalidity of section 17CA ought to be
upheld.
[198]
On the question of Mr Glenister’s
application for leave to appeal, and the admissibility of the
evidence tendered by him,
I diverge from the main judgment.  In
this regard I align myself, partly but not completely, with Froneman
J’s judgment.
The
application for leave to appeal
[199]
Mr Glenister applies to this Court for
leave to appeal against the decision of the High Court dismissing his
claim that the entire
SAPS Amendment Act is unconstitutional.
He essentially argues that even though
in
theory
an anti-corruption unit could be
located within the SAPS, it is
in
reality
impossible to do so in today’s
South Africa.  The officials in the leadership structure of the
SAPS – according
to Mr Glenister – are corrupt to
such an extent that no anti-corruption unit could constitutionally be
located under
it.
[200]
The
main judgment argues that this Court’s decision in
Glenister
II
ruled
out that argument.  Like Froneman J, I prefer a different
reading of that judgment.  It is too strong to say that
Glenister
II
conclusively dealt with all aspects pertaining to the question of the
location of the DPCI.
[182]
Mr
Glenister’s challenge is not premised on the theoretical
location of the DPCI as the only ground for invalidation.
He
questions whether, given our particular context, its location within
the SAPS is constitutionally permissible.
[201]
The
main judgment considers it evident that “
[i]t
is a closed chapter that corruption is rife in South Africa and that
it is a practical possibility for an adequately independent

anti-corruption entity to be comfortably located within the
SAPS”.
[183]
Mr Glenister considers the first fact to preclude the veracity
of the second.  I agree with Froneman J that it
is open to Mr
Glenister to plead his case on this point.  Leave to appeal
should have been granted on this issue.
The
appeal against the striking out of evidence
[202]
Given
the above, I think it is open to Mr Glenister to adduce evidence in
support of his claim that the practical reality of conditions
within
the SAPS renders it incapable of housing the DPCI if the latter is to
enjoy an adequate degree of independence.  I
agree with Froneman
J that
Glenister
II
did
not preclude Mr Glenister from adducing evidence about the
public perception of corruption within that context.
[184]
Indeed, Mogoeng CJ remarks: “Mr Glenister’s
submissions . . . owe their potency and essence to the public

perception of the levels and reach of corruption sought to be shared
with this Court”.
[185]
[203]
In
addition, I find the argument in the main judgment – that the
evidence was before the Court in
Glenister
II
and
is therefore not admissible now – untenable.  While
corruption as a phenomenon and events evidencing corruption certainly

existed prior to
Glenister
II
,
that does not mean that the precise evidence that Mr Glenister seeks
to adduce now was before the Court then.  The Court
was not in a
position to take judicial notice of levels of corruption in the
SAPS.
[186]
It may only
take cognisance of evidence that is properly before it.
[187]
It must evaluate that evidence in accordance with the principles of
evidence and procedure.
[204]
The
main judgment
[188]
sets out
the test for whether evidence should be struck out.  It does not
actually evaluate the evidence before this Court,
however.  It
labels the evidence “odious political posturing” and
finds that the Court is used to “spread
political propaganda”
and to advance a “political narrative”.
[189]
[205]
This
Court is inevitably and frequently asked to make decisions that have
“political” implications.  Constitutional

adjudication is necessarily political, because it is guided by the
values and principles in the Constitution, which have to be

interpreted and applied within a specific socio-political reality.
In a way, law – or at least constitutional law –
is often
“political”.
[190]
When this Court is called upon to rule on the constitutional validity
of the conduct of political parties or their members,
including the
ruling party, constitutional law indeed impacts on day-to-day
political life.  That this Court and others often
have to deal
with “the political” does not mean that it should engage
in endorsing or condemning any particular party,
or faction within a
party, or further a party’s political agenda.  The Court
may not “play politics” or
get involved in party
political battles.
[191]
As far as possible, it must base its decisions regarding material
placed before it on the Constitution and the law.
[192]
Allowing the evidence in this case would not amount to becoming
involved in partisan politics.  I am uncomfortable with
evidence
being labelled as “political” as constituting a ground
for its inadmissibility.
[206]
As
to relevance, I align myself with the analysis of Froneman J.
The question is: If it is relevant to consider the perception
of a
reasonable observer about the independent functioning of our national
anti-corruption unit when determining its constitutional
validity,
can we consider the views of real, live observers to ascertain what a
reasonable observer might perceive?
[193]
I think we can, at least to some extent.
[207]
We
should not organise a popularity poll about state organs’
trustworthiness or levels of corruption.  Head counts will
get
us nowhere when reasonableness is the standard.  However,
ascertaining what constitutes a reasonable member of the public,
and
what their views would be, is not done in a vacuum.  It is
context-specific.  Judges often rely on their own experience
as
members of society to determine this.  What Mr Glenister
seems to have been trying to achieve is to present this Court
with a
factual basis which could inform its construction of the reasonable
observer.  That factual basis, at least in part,
relies on what
people think about this matter.  Whether Mr Glenister is
correct that these people are reasonable –
or whether the
evidence and studies are fallible, reliable or true – is a
different enquiry.
[194]
[208]
I
also agree with Froneman J that presenting evidence of corruption in
this context may well entail evidence that comes across as
abusive or
annoying.
[195]
This
alone is not sufficient to render the evidence inadmissible.
Prejudice must be demonstrated.
[196]
In addition, a court has discretion to grant a striking out order and
is not compelled to do so.
[197]
[209]
Once
it has been established that the general nature of the evidence and
what it seeks to demonstrate are permissible, one must
ascertain
whether each particular piece of impugned evidence is actually
irrelevant
and
will
cause prejudice to the respondents.  In order to be successful
in an application to strike out, both must be demonstrated.
[198]
Admissible
evidence
[210]
I
agree with Froneman J that the evidence relating to the cadre
deployment is admissible.  It is relevant to the enquiry and

would not cause prejudice to the respondents.
[199]
[211]
I
am sympathetic to the main judgment’s finding that the evidence
regarding statements made by the President and Deputy Minister
of
Correctional Services (Deputy Minister) about
Glenister
II
– as reported in newspapers – merely seeks to show that
there is corruption at the highest level of Government and
that the
Executive seeks to exercise political control over anti-corruption
activities.
[200]
If
this were true, then there would logically be nowhere to place the
DPCI that would be immune from this pervasive corruption.
I am
therefore more sceptical about the relevance of the newspaper
articles than Froneman J is.
[212]
I
do have serious doubts that this evidence will be of value to the
outcome of the case.  But I accept that Mr Glenister’s

main contention is that the Executive’s extensive involvement
in the SAPS through sections 206(1) and 207(2) of the Constitution

renders it an inopportune place to house the DPCI, because of how
allegedly corrupt the relevant Cabinet member and the National

Commissioner (appointed by the President) are.  Accordingly,
evidence which could potentially support this point is relevant
and
admissible.
[201]
In
addition, the statements are discrete and record utterances of the
President and the Deputy Minister.  They
are well placed to
refute Mr Glenister’s interpretation of them and can do so
without addressing reams of allegations.  The
respondents will
therefore not be prejudiced.
[213]
Like
Froneman J, I think that the Newham affidavit is relevant and
admissible.
[202]
The
ISS report on public perceptions of the SAPS, the monograph on the
systemic problem of corruption in the SAPS, the report
on the role
and effectiveness of police oversight bodies and the report from
police officers at particular stations are directly
relevant to the
case Mr Glenister seeks to make.  I question their ultimate
probative value, as they may be speculative and
the methods for
research may not be convincing.  But it cannot be said that they
are irrelevant to whether the public perception
of the SAPS is such
that it is practically unfeasible to achieve adequate independence
for the DPCI if they are located in the
SAPS.
Inadmissible
evidence
[214]
I disagree with Froneman J that the
concession made by a former Deputy Minister of Justice in
Glenister II
that the criminal justice system was “dysfunctional” is
relevant.  This evidence would lead us nowhere.

Presumably, wherever the DPCI is situated, it must form part of the
criminal justice system.
[215]
I
am also sceptical about the admissibility of the Woods Report.
I am not convinced that the nature of the evidence will simply
cause
irritation and inconvenience at having to go through all of it
[203]
and not actually amount to prejudice, as the High Court and the main
judgment found it would.  There may be a danger that
the
respondents do not know what case to meet.
[204]
[216]
The
Woods Report lists various allegations of corruption levelled at the
Executive, but most of these are unproven.  If the
respondents
were to attempt to address each one and met them with a bald denial –
in motion proceedings – they may
run the risk of having the
veracity of the allegations accepted by a court.
[205]
This would force them to meet a multitude of ancillary issues which
do not directly prove anything and that would cause prejudice.
[206]
Those subsidiary issues include not only all the questions about the
expert himself and his methodology, but also the content
of the
allegations.  To draw the respondents into a trial about a
multitude of other issues regarding evidence that is not
really
helpful to Mr Glenister’s case is prejudicial.
[207]
The low probative value must be weighed against the prejudice
caused.
[208]
The Woods
Report must be struck out.
[217]
As
to the remainder of the evidence, I align myself with the judgment of
Froneman J.
[209]
While
the main judgment’s scepticism about the value of the evidence
and its weight may be well-placed, it has not
been sufficiently
demonstrated at this stage of the enquiry that the rest of the
evidence is scandalous, vexatious or irrelevant
as well as
prejudicial and should therefore be struck out in its entirety.
[218]
I
concur with Froneman J’s conclusion that leave to appeal
against the order upholding the Minister’s striking out
application must be granted with costs.  The striking out order
in the High Court must be set aside and replaced with an order

striking out the paragraphs set out in footnote 123 of his judgment
as well as the Woods Report and evidence pertaining to the
comment of
the former Minister that the legal system is “dysfunctional”.
[210]
The
appeal
[219]
As to Mr Glenister’s appeal against
the dismissal of his main application to have the entire legislative
scheme of the SAPS
Amendment Act declared constitutionally invalid, I
agree with the main judgment that the appeal should be dismissed.
End
note
[220]
Corruption threatens the very existence of
our constitutional democracy.  Effective laws and institutions
to combat corruption
are therefore absolutely essential.  It is
the task of the courts – and this Court in particular –
to ensure that
legal mechanisms against corruption are as trustworthy
and tight as possible, within the demands and parameters of the
Constitution.
[221]
But courts can only do so much.  A
corruption-free society can only develop in the hearts and minds of
its people – particularly
the ones occupying positions of
political and economic power.  We need dedication to the spirit
and high aspirations of the
Constitution.  Institutions are
tools designed to help people realise their ambitions.  Much
dedication is required on
the part of those handling the tools.
[222]
Of course the structure of our
institutional watchdogs must be made as immune to corruption as
possible.  But even the most
sophisticated institutional design
will require the exercise of discretion and therefore integrity on
the part of – and trust
in – the office-bearer.
Thoroughly closing all perceived loopholes will guarantee little.
The more procedures
and processes we put in place to safeguard
against corruption, the more plausible deniability we give to a
corrupt actor if all
the technical boxes have been ticked.
Generally, abstract institutional designs cannot be corrupt.  As
we know, people
can be.
MADLANGA
J:
[223]
I
have had the benefit of reading the judgment by Mogoeng CJ (main
judgment) and those by Froneman J, Cameron J, Nkabinde J and
Van der
Westhuizen J.  I concur in the main judgment with the
exception of its dismissal of Mr Glenister’s
applications
for leave to appeal.  On these applications only,
[211]
I concur in the judgment of Froneman J.
CCT
07/14 Helen Suzman Foundation v President of the Republic of South
Africa and Others
For
the Applicant: D Unterhalter SC, M du Plessis and
A Coutsoudis
instructed by Webber
Wentzel.
For
the First Respondent: K Kemp SC and T Masuku instructed
by
the State Attorney.
For
the Second and
Fourth
Respondents: M Donen SC, T Masuku and H Cronje
instructed
by the State Attorney.
CCT
09/14 Glenister v President of the Republic of South Africa and
Others
For
the Applicant: I Smuts SC, D Taljaard and
G Lloyd Roberts
instructed by
MA Cooper
Attorneys.
For
the First Respondent: K Kemp SC and T Masuku instructed
by
the State Attorney.
For
the Second, Third and Fifth Respondents: M Donen SC, T Masuku and H
Cronje
instructed
by the State Attorney.
[1]
Glenister
v President of the Republic of South Africa and Others
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC)
(
Glenister
II
)
at para 57:
“
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.”
An
assertion that corruption “has become a scourge in our
country” and that “it poses a real danger to our
developing democracy” reinforces the view that corruption is
rife in this country.  Corruption must necessarily be
rife to
rise to the level of being a scourge in our country.  And it is
particularly when corruption is widespread that
it would pose a real
danger to our young democracy.  It is not merely isolated and
insignificant incidents of corruption
that our country has to
contend with, but large scale and serious levels of corruption.
[2]
68
of 1995.
[3]
The
SAPS Act was amended by the
South African Police Service Amendment
Act 10 of 2012
(SAPS Amendment Act).
[4]
See
Glenister
II
above n 1 at paras 189 and 191-2, where this Court held that the
state has an obligation to create an adequately independent

anti-corruption unit.
[5]
The
DSO, which was located within the National Prosecuting Authority
(NPA), was established in terms of
section 7(1)(a)
of the
National
Prosecuting Authority Act 32 of 1998
as amended by the National
Prosecuting Authority Amendment Act 61 of 2000 (DSO Act).  This
entity was abolished by the
National Prosecuting Authority Amendment
Act 56 of 2008
.
[6]
The
DPCI, which is located within the South African Police Service
(SAPS), was established in terms of Chapter 6A of the
South African
Police Service Amendment Act 57 of 2008
.
[7]
32
of 1998.
[8]
See
Glenister
II
above n 1, in which Mr Glenister was the applicant and the HSF
appeared as amicus curiae.
[9]
Id
at para 191.
[10]
In
that case, reported as
Helen
Suzman Foundation v President of the Republic of South Africa and
Others; In Re: Glenister v President of the Republic of
South Africa
and Others
[2013] ZAWCHC 189
;
2014 (4) BCLR 481
(WCC) (High Court
judgment), the HSF was the applicant in WCC case number 23874/12
while Mr Glenister was the applicant
in WCC case number 23933/12.
These two separate applications were not consolidated, but, for the
sake of practical convenience,
were heard concurrently by the High
Court.
[11]
Glenister
II
above n 1 at para 206.
[12]
Matatiele
and Others v President of the RSA and Others (No 2)
[2006]
ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC) and
Matatiele
Municipality and Others v President of the RSA and Others
[2006] ZACC 2; 2006 (5) SA 47 (CC); 2006 (5) BCLR 622 (CC).
[13]
Premier,
Limpopo Province v Speaker of Limpopo Provincial Government and
Others
[2011] ZACC 25; 2011 (6) SA 396 (CC); 2011 (11) BCLR 1181 (CC).
[14]
Sections
73(2) and 85(2)(d) of the Constitution.  This is not to
discount the National Assembly’s powers in terms of
section
55(1)(b) to initiate or prepare legislation, except money Bills.
[15]
Id
sections 55(1)(a), 57, 73(3)-(5) and 74-6.
[16]
Glenister
II
above n 1 at para 191.
[17]
Id
at para 214.
[18]
The
point made by
Glenister
II
,
id at para 216, in this regard 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.”
[19]
Id
at para 162.
[20]
Id
at para 214.
[21]
Id
at para 191.
[22]
Id
at para 214.
[23]
Id
at para 162.
[24]
The
High Court judgment above n 10 at para 9 states that “[i]nsofar
as Glenister’s allegations are concerned, they
may briefly be
summarised as follows:
9.1
That at an unspecified date prior to 2009 the then Deputy Minister
of Justice, Adv J de Lange, conceded that South Africa’s

criminal justice system was ‘dysfunctional’.
9.2
That Mr Clem Sunter, a ‘well known and well respected scenario
planner’, has recently revised his predictions
for the future
of South Africa and has concluded that there is a one in four chance
that it will become a failed state.
9.3
That from ‘public utterances’ made by the President he
is ‘less than pleased’ with the findings in
Glenister
II
.  This inference is drawn, inter alia, from the
President’s ‘failure to repudiate the scurrilous
opinion’
of his Deputy Minister of Correctional Services,
published in a newspaper article on 1 September 2011.
9.4
That corruption is rife can safely be accepted in light of comments
made by winning entrants in a competition about anti-corruption

strategies sponsored by Glenister himself, as well as comments made
by the Institute for Accountability in Southern Africa (whose

members include Glenister’s legal team) and who have been
‘particularly vocal’ about the available strategies
for
the implementation of the findings in
Glenister II
.
9.5
That Mr David Lewis of Corruption Watch has ‘found’ that
the Police Service is at present the most corrupt institution
in
South Africa.
9.6
That the last three National Police Commissioners are all ‘loyal
deployees’ of the ruling party, which is ‘illegal
and
unconstitutional’.
9.7
That the ruling party’s website reflects that its goal is the
‘hegemonic control of all of the levers of power
in society’.
9.8
That the DPCI is corrupt and inefficient and finds itself,
constitutionally, ‘under the control of a Minister (who is

himself compromised) who serves in a Cabinet that is not without its
own challenges when it comes to issues of corruption and

corruptibility’.
9.9
That the National Head of the DPCI is ‘another employed cadre’
of the ruling party and that his track record ‘is
not
unblemished’ if regard is had to various newspaper articles
attached to support this allegation.  Various other
political
figures are also vilified; and parliamentary exchanges and the like
are included to indicate levels of corruption and
inefficiency.
9.10
The respondents and the court are referred to seven separate
websites which apparently support the aforementioned allegations.”
[25]
See
rule 6(15) of the Uniform Rules of Court as well as
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 733B and
Tshabalala-Msimang
and Another v Makhanya
and
Others
[2007] ZAGPHC 161
;
2008 (6) SA 102
(W);
2008 (3) BCLR 338
(W)
(
Tshabalala-Msimang
)
at 110C-111C.
[26]
Tshabalala-Msimang
id
at 110H-111A and
Vaatz
v Law Society of Namibia
1991 (3) SA 563
(Nm) at 566C E.
[27]
Stephens
v De Wet
1920 AD 279
at 282.
[28]
Examples
of scandalous and vexatious matter include para 8.8 of the affidavit
deposed to by Mr Glenister on 26 November 2012,
incorporated as
the annexure to his founding affidavit in the High Court (High Court
annexure) which refers to the last three
National Commissioners as
“loyal deployees of the African National Congress (‘
the
ANC
’)”
who were awarded the position due to the “cadre employment
policies of the ANC”; para 8.14 which refers
to the deployment
of “loyal cadres” by the ANC, to all centres of power in
an effort to control the agency; and para
9.11 which refers to the
National Head as another “deployed cadre of the ANC”.
[29]
Examples
of irrelevant matter include paras 10 and 13 of Mr Glenister’s
founding affidavit in the High Court; paras 7.1-7.6,
7.14-7.16, 8.8,
8.12, 8.14, 8.20, the last sentence of 9.1, paras 9.6-9.18, 14.8 and
15.3-15.5 of the High Court annexure; the
Woods report; the Newham
affidavit; and para 5.2 of Mr Glenister’s replying affidavit
in the High Court.
[30]
The
definition of hearsay is set out in
section 3(4)
of the
Law of
Evidence Amendment Act 45 of 1988
as “evidence, whether oral
or in writing, the probative value of which depends upon the
credibility of any person other
than the person giving such
evidence”.  There are three statutory exceptions to the
general inadmissibility of hearsay
evidence.  The first is
mutual agreement between the proponent and the opponent, the second
is the confirmatory testimony
by the original declarant of the
narrator’s initial hearsay testimony, and the third is by way
of the interests of justice.
None is applicable here.
For example, para 9.6-9.9 of the High Court annexure, which restates
conclusions allegedly reached
by Adv Stephen Powell and Mr Martin
Plaut, constitute hearsay.
Any
opinion, whether from a lay-person or expert, which is expressed on
an issue the court can decide without receiving such opinion
is in
principle inadmissible because of its irrelevance.  Only when
an opinion has probative force can it be considered
admissible.
This is not the case here.  For example, para 8.14 of the High
Court annexure refers to Mr Glenister’s
opinion relating to
“the hegemonic tendencies of the governing alliance”.
This opinion has no probative force
and is of no assistance to the
Court in deciding the issues.
[31]
Above
n 1 at para 207.
[32]
See
Higgs
Metro
Adults View Corruption as Endemic – TNS
,
Annexure “Z” to Mr Glenister’s Founding Affidavit
in the High Court (TNS statement).
[33]
Id
at 3.
[34]
Newham
and Faull
Protector
or Predator? Tackling Police Corruption in South Africa
(31 August 2011) Institute for Security Studies Monograph Number 182
(ISS Monograph) at 1 and 49.
[35]
Rule
18(4) of the Uniform Rules of Court provides:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim,
defence or answer
to any pleading, as the case may be, with sufficient particularity
to enable the opposite party to reply thereto.”
See
Reynolds NO v Mecklenberg (Pty) Ltd
1996 (1) SA 75
(W) at 78:
“
When
the relief to be sought has been decided upon, and it has also been
decided that motion proceedings are appropriate, the
facts relevant
to such relief can be selected from the raw material with due regard
to the context.  Those facts can then
be set out simply,
clearly and in chronological sequence, and without argumentative
matter, in the affidavits which are to support
the notice of
motion.”
See
also
Swissborough Diamond Mines (Pty) Ltd and Others v Government
of the Republic of South Africa and Others
1999 (2) SA 279
(T)
at 324:
“
[I]t
is not open to an applicant or a respondent to merely annexe to its
affidavit documentation and to request the Court to have
regard to
it.  What is required is the identification of the portions
thereof on which reliance is placed and an indication
of the case
which is sought to be made out on the strength thereof.  If
this were not so the essence of our established
practice would be
destroyed.  A party would not know what case must be met.”
See
also
National Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA);
2009 (4) BCLR 393
(SCA) (
Zuma
)
at para 47:
“
It
is not proper for a court in motion proceedings to base its judgment
on passages in documents which have been annexed to the
papers when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits.  The reason
is manifest
–
the other party may well be prejudiced because
evidence may have been available to it to refute the new case on the
facts.  A
party cannot be expected to trawl through annexures
to the opponent’s affidavit and to speculate on the possible
relevance
of facts therein contained.”  (Footnote
omitted.)
[36]
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC)
(
Biowatch
).
[37]
Id
at paras 20 and 24.
[38]
Organisation
for Economic Co-operation and Development
Specialised
Anti-Corruption Institutions: Review of Models
(2008) (OECD Report).
[39]
Glenister
II
above n 1 at para 187.
[40]
OECD
Report above n 38 at 26.
[41]
In
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
(
Affordable
Medicines
)
at para 34, this Court held that—
“
[w]here
broad discretionary powers are conferred, there must be some
constraints on the exercise of such power so that those who
are
affected by the exercise of the broad discretionary powers will know
what is relevant to the exercise of those powers or
in what
circumstances they are entitled to seek relief from an adverse
decision.
These constraints will
generally appear from the provisions of the empowering statute as
well as the policies and objectives of
the empowering statute.
”
(Footnote omitted and emphasis added.)
[42]
Regulation
3(1) of the Regulations for the
South African Police Service Act 68
of 1995
relating to the Directorate for Priority Crime
Investigation, GN 783,
GG
33524, 7 September 2010.
[43]
Above n 1 at para 208.
[44]
Id.
[45]
Id
at para 227.
[46]
Section
17CA(8)(b) of the SAPS Act.
[47]
Id
section 17CA(8)(a).
[48]
Id
section 17CA(8)(b) and (9).
[49]
103
of 1994.  See also
section
19 of the NPA Act.
[50]
Section 18 of the NPA Act.
[51]
Section
19C of the NPA Act as amended by the DSO Act.
[52]
Id
sections
19A and 19B.
[53]
Section 17I(2)(d) of the SAPS Act.
[54]
Above
n 1 at para 211.
[55]
Section
31(2) and (3) of the NPA Act as amended by the DSO Act.
[56]
Glenister
II
above n 1 at paras 209-11.
[57]
Section
17CA(1) of the SAPS Act.
[58]
Freedom
of Expression Institute and Others v President, Ordinary Court
Martial, and Others
1999 (2) SA 471
(C);
1999 (3) BCLR 261
(C) (
Freedom
of Expression Institute
).
[59]
Id
at para 19.  The following discussion in
Affordable
Medicines
above
n 41 at para 34 was also relied on for the proposition that the
appointment criteria of the National Head was too broad
and
therefore led to an arbitrary exercise of power:
“
The
delegation must not be so broad or vague that the authority to whom
the power is delegated is unable to determine the nature
and scope
of the powers conferred.  For this may well lead to the
arbitrary exercise of the delegated power.  Where
broad
discretionary powers are conferred, there must be some constraints
on the exercise of such power so that those who are
affected by the
exercise of the broad discretionary powers will know what is
relevant to the exercise of those powers or in what
circumstances
they are entitled to seek relief from an adverse decision.  These
constraints will generally appear from the
provisions of the
empowering statute as well as the policies and objectives of the
empowering statute.”  (Footnote
omitted.)
[60]
Section
7(3) of the NPA Act as amended by the DSO Act provided:
“
The
head of—
(a)
the Directorate of Special Operations, shall be a Deputy National
Director, assigned by the National Director; and
(b)
any other Investigating Directorate, shall be an Investigating
Director, and shall perform the powers, duties and functions
of the
Investigating Directorate concerned subject to the control and
directions of the National Director.”
[61]
Section
9(1)(a) of the NPA Act.  And see also section (7)(3)(a) of the
NPA Act as amended by the DSO Act.
[62]
Section
9(1)(a) of the NPA Act.
[63]
Id
section 16(3) provides:
“
The
Minister may from time to time, in consultation with the National
Director and after consultation with the Directors, prescribe
the
appropriate legal qualifications for the appointment of a person as
prosecutor in a lower court.”
[64]
Section
19A(1) of the NPA Act as amended by the DSO Act provided:
“
The
National Director may, on the recommendation of the head of the
Directorate of Special Operations, appoint any fit and proper
person
as a special investigator of that Directorate.”
[65]
See
Democratic
Alliance v President of the Republic of South Africa and Others
[2012] ZACC 24
;
2013 (1) SA 248
(CC);
2012 (12) BCLR 1297
(CC) at
para 20 where this Court held that the “fit and proper”
criterion is an “objective jurisdictional fact”.
[66]
Above
n 1 at para 210.
[67]
Id
at paras 209-11.
[68]
Section
10 of the NPA Act.
[69]
Id
section 11.
[70]
Above
n 1 at para 223.
Glenister
II
mistakenly stated that the term of office of the NDPP was not
renewable, whereas it in fact was: see section 12(4) of the NPA
Act.
[71]
Id
at para 249.
[72]
Justice
Alliance of South Africa v President of the Republic of South Africa
and Others
[2011]
ZACC 23
;
2011 (5) SA 388
(CC);
2011 (10) BCLR 1017
(CC) (
JASA
)
at paras 73 and 75:
“
It
is well established on both foreign and local authority that a
non-renewable term of office is a prime feature of independence.

Indeed, non-renewability is the bedrock of security of tenure and a
dyke against judicial favour in passing judgment.  Section

176(1) gives strong warrant to this principle in providing that a
Constitutional Court judge holds office for a non renewable

term.  Non-renewability fosters public confidence in the
institution of the judiciary as a whole, since its members function

with neither threat that their terms will not be renewed nor any
inducement to seek to secure renewal.
.
. .
In
approaching this question it must be borne in mind that the
extension of a term of office, particularly one conferred by the

executive or by Parliament, may be seen as a benefit.  The
judge or judges upon whom the benefit is conferred may be seen
as
favoured by it.  While it is true, as counsel for the President
emphasised, that the possibility of far-fetched perceptions
should
not dominate the interpretive process, it is not unreasonable for
the public to assume that extension may operate as a
favour that may
influence those judges seeking it.  The power of extension in
section 176(1) must therefore, on general
principle, be construed so
far as possible to minimise the risk that its conferral could be
seen as impairing the precious institutional
attribute of
impartiality and the public confidence that goes with it.”
(Footnotes omitted.)
[73]
See
[77].
[74]
Id.
[75]
For
example, the subsection should have provided first for suspension,
that is (2)(a) and (c), the inquiry in terms of subsection
(2)(d);
then the right to be informed of the allegations in (2)(e); and
finally the removal and referral to Parliament in (2)(b).
[76]
The
grounds listed in section 17DA(2)(a) of the SAPS Act which allow for
the removal from office of the National Head are set
out in [83].
[77]
Id
section 17DA(2)(a) and (b).
[78]
Id
section 17DA(2)(b).
[79]
Above
n 1 at para 222.
[80]
Section
17B(a) of the SAPS Act states that the purpose for the creation of
the DPCI is the—
“
need
to establish a Directorate in the Service to prevent, combat and
investigate national priority offences, in particular serious

organised crime, serious commercial crime and serious corruption.”
[81]
Section
17A of the SAPS Act.
[82]
Id
section 17K(4), (7) and (8).
[83]
Glenister
II
above n 1 at para 229.
[84]
Id
at para 230.
[85]
Id
at para 234.
[86]
Id
at para 233.
[87]
Id
at para 250.
[88]
Section
16(2)(h) of the SAPS Act provides:
“
Circumstances
contemplated in subsection (1) comprise criminal conduct or
endeavour thereto which a Provincial Commissioner requests
the
National Head of the Directorate for Priority Crime Investigation,
referred to section 17C(2), to prevent or investigate
by employing
expertise and making resources available at national level and to
which request the National Head of the Directorate
for Priority
Crime Investigation accedes in accordance with the approved policy
guidelines.”
[89]
Id
section 16(3) provides:
“
In
the event of a dispute between the National Head of the Directorate
for Priority Crime Investigation and the National Commissioner
or
the National Head for Priority Crime Investigation and a Provincial
Commissioner regarding the question whether criminal conduct
or
endeavour thereto falls within the mandate of the Directorate, the
determination by the National Head of the Directorate for
Priority
Crime Investigation in accordance with the approved policy
guidelines, shall prevail.”
[90]
Section
7 of the NPA Act as amended by the DSO Act provided:
“
(1)
(a)
There is hereby
established in the
Office
of the National Director
an
Investigating Directorate, to be known as the Directorate of Special
Operations, with the aim to—
(i)
investigate, and to carry out any functions incidental to

investigations;
(ii)
gather, keep and analyse information; and
(iii)
where appropriate, institute criminal proceedings and carry out any

necessary functions incidental to instituting criminal proceedings,
relating to—
(aa)
offences or any criminal or unlawful activities committed in an
organised
fashion; or
(bb)
such other offences or categories of offences as determined by the
President
by proclamation in the
Gazette
.
(b)
For the purpose of subparagraph (aa), ‘organised fashion’

includes the planned, ongoing, continuous or repeated participation,
involvement or engagement in at least two incidents of criminal
or
unlawful conduct that has the same or similar intents, results,
accomplices, victims or methods of commission, or otherwise
are
related by distinguishing characteristics.
(1A)
The President may, by proclamation in the
Gazette
, establish
not more than two additional Investigating Directorates in the
Office of the National Director, in respect of matters
not
contemplated in subsection (1)(aa) or (bb).”
[91]
Id
section 7(1)(a)(iii)(aa) and (bb).
[92]
Contrast
this with section 7(1)(bb) of the NPA Act which vested essentially
the same power in the President.  This was not
an ideal
situation, but at least the President is an office-bearer
sufficiently highly placed and above easy manipulation to
reasonably
guarantee adequate independence and protection against interference
from senior politicians.
[93]
This
was done in
Coetzee
v Government of the Republic of South Africa; Matiso and Others v
Commanding Officer, Port Elizabeth Prison, and Others
[1995] ZACC 7; 1995 (4) SA 631 (CC); 1995 (10) BCLR 1382 (CC).
[94]
Malachi
v Cape Dance Academy International (Pty) Ltd and Others
[2010] ZACC 13
;
2010 (6) SA 1
(CC);
2010 (11) BCLR 1116
(CC) at
paras 45-7 and
Coetzee
id at para 16.
[95]
Above
n 1.
[96]
At
[15].
[97]
At
[19].
[98]
At
[21].
[99]
Glenister
II
above n 1 at para 162.
[100]
Id
at para 214.
[101]
Id.
[102]
Id
at para 191.
[103]
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para
86.
[104]
Glenister
II
above n 1 at para 207.
[105]
Relevance
does not necessarily depend on the factual merit of the impugned
allegations; whether they are true is not considered
but their
relevance to the merits of the case is what is of consequence.
See in this regard
Zuma
above
n 35 at para 25 and
Elher
(Pty) Ltd v Silver
1947 (4) SA 173
(W) at 177-8.  In
Stephens
above
n 27 at 282 the Appellate Division held that—
“
the
correct test to apply is whether the matter objected to is relevant
to an issue in the action.  And no particular section
can be
irrelevant within the meaning of the Rule if it is relevant to the
issue raised by the plea of which it forms a part.
That plea
may eventually be held to be bad, but until it is excepted to and
set aside it embodies an issue by reference to which
the relevancy
of the matter which it contains must be judged.”
The
same applies to evidence on affidavit in an application.  Rule
6(5)(d)(iii) of the Uniform Rules of Court allows for
the equivalent
of an “exception” procedure in motion proceedings.
[106]
At
[1].  See also [2] (where the main judgment refers to the
“scourge of corruption”); [21] (where it states
again
that “corruption is rife”); and [75] (where it speaks of
“the tide of corruption” in our country).
[107]
At
[21].
[108]
At
[19].
[109]
See
above n 24.
[110]
See
at [23].
[111]
These
are the pre-constitutional tests for determining whether allegations
are “vexatious” or “scandalous”
for striking
out purposes.  See [28].
[112]
57
of 2008 (First Amendment Act).  The First Amendment Act amended
the NPA Act and the SAPS Act to abolish the DSO and instead
create
the DPCI.  It was this amendment to the SAPS Act that was under
scrutiny in
Glenister
II
.
See [4].
[113]
Zuma
v Democratic Alliance and Others
[2014] ZASCA 101.
[114]
S
v Selebi
[2011] ZASCA 249; 2012 (1) SA 487 (SCA).
[115]
Para
8.12 of the affidavit deposed to by Mr Glenister on 26 November 2012
and attached as Annexure HG 1 to Mr Glenister’s
founding
affidavit in the High Court (Annexure HG 1).  Annexure
HG 1 is the founding affidavit filed by Mr Glenister
in
his application for direct access to this Court in 2012 (case number
CCT 118/12).  Mr Glenister used it again
in the
current case, including the originally attached annexures
(Annexures A-BA), in order to set out the case he sought
to
make.  Mr Glenister’s case is primarily based on the
allegations in Annexure HG 1 and its annexures, and it
is also
portions of Annexure HG 1 and its annexures that form the
majority of the subject matter of the application to strike
out.
[116]
Section
206(1) of the Constitution provides that “[a] member of the
Cabinet must be responsible for policing and must determine
national
policing policy after consulting the provincial governments and
taking into account the policing needs and priorities
of the
provinces as determined by the provincial executives”.
Section 207(2) continues that “[t]he National
Commissioner
must exercise control over and manage the police service in
accordance with the national policing policy and the
directions of
the Cabinet member responsible for policing”.
[117]
Gore
v Amalgamated Mining Holdings
1985 (1) SA 294
(C) at 295H-296B and
Dennis
v Garment Workers’ Union, Cape Peninsula
1955
(3) SA 232
(C) at 239H.  See also Cilliers et al
Herbstein
and Van Winsen: The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
5 ed (Juta & Co Ltd, Cape Town 2009) vol 1 at 448; Harms
Civil
Procedure in the Superior Courts
Service Issue 51 (LexisNexis, Durban 2014) vol 1 at para B6.74;
Harms “Civil Procedure: Superior Courts” in
LAWSA
3 ed (2012) vol 4 at para 144; and Van Loggerenberg and Farlam
Erasmus:
Superior Court Practice
Service Issue 45 (Juta & Co Ltd, Cape Town 2014) at B1–58.
[118]
President
Jacob Zuma “Keynote Address” (delivered at the Access to
Justice Conference in Pretoria, 8 July 2011).
[119]
High
Court judgment above n 10 at para 8.
[120]
Compare
Democratic
Alliance
above
n 65.
[121]
Woods
Report at paragraph 2.8.8.3.
[122]
Paras
10 and 13 (in part) of Mr Glenister’s founding affidavit in
the High Court; paras 7.1-7.5, 7.14-7.16, 8.8 (in part),
8.12, 8.20,
9.6 9.10, 9.11 (in part), 9.12-9.16, 14.8, and 15.3-15.5 of
Annexure HG 1; the Woods Report; the Newham
affidavit; and para
5.2 of Mr Glenister’s replying affidavit.
[123]
Para
13 (in part) of Mr Glenister’s founding affidavit in the High
Court; and paras 7.6, 8.8 (in part), 8.14, 9.1, 9.11
(in part) and
9.17-9.18 of Annexure HG 1.
[124]
Biowatch
above
n 36 at paras 21-3.
[125]
Glenister
II
above n 1 at para 214, as quoted at [118].
[126]
At
[72] to [76].
[127]
High
Court judgment above n 10 at paras 47-58.
[128]
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC)
(
First
Certification
)
at para 124 (discussing the appointment of judges).
[129]
Id
at para 128.
[130]
New
National Party 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
99 (discussing the Independent Electoral Commission).
[131]
Above
n 1 at para 211.
[132]
Id.
[133]
Section
193(4) of the Constitution.
[134]
Section
193(5)(b)(i).
[135]
First
Certification
above
n 128 at para 163.
[136]
Above
n 38.
[137]
Above
n 1 at para 187.
[138]
Above
n 38 at 26.
[139]
Section
91(2) of the Constitution.
[140]
High
Court judgment above n 10 at para 48.
[141]
Section
17CA(4) and (6) of the SAPS Act.
[142]
In
other words, it “provides a check and balance to the power of
the Executive” to make appointments, as the
First
Certification
case
above n 128 held was so important.
[143]
Section
1(d).  See also section 195(1).
[144]
President
of the Republic of South Africa and Others v M & G Media Ltd
[2010] ZASCA 177
;
2011 (2) SA 1
(SCA) at para 1.
[145]
Above
n 38 at 26.
[146]
Section
57.  See also, on the significance of Parliament, its
institutional features, and public participation,
Oriani-Ambrosini
v Sisulu, Speaker of the National Assembly
[2012] ZACC 27
;
2012 (6) SA 588
(CC);
2013 (1) BCLR 14
(CC) at paras
46-9 and
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) at
paras 90-146.
[147]
See
[73].
[148]
See
section 7(3) of the NPA Act prior to its 2008 amendment.
[149]
Above
n 1 at para 210.
[150]
See
[73] to [76].
[151]
Above
n 1 at para 210.
[152]
Id
at para 209.
[153]
Id
at para 210.
[154]
Section
17C(2)(a) of the SAPS Act prior to its 2012 amendment.
[155]
Glenister
II
above
n 1 at para 219.
[156]
Section
7(3)(a) of the NPA Act prior to its 2008 amendment.
[157]
Section
179(1)(a) of the Constitution and section 10 of the NPA Act.
[158]
Section
11 of the NPA Act.
[159]
Glenister
II
above
n 1 at para 162.
[160]
Id.
[161]
Id
at para 214.  See also the judgment of Froneman J at [119].
[162]
See
[73].
[163]
Section
17E(8)(a) is quoted in full at [43].
[164]
See
section 17CA(1) of the SAPS Act, which obligates the Minister to
appoint as the National Head of the DPCI a person “with
due
regard to his or her experience, conscientiousness and integrity, to
be entrusted with the responsibilities of the office
concerned”.
[165]
For
instance, where imprisonment may result there are high thresholds
and procedural mechanisms to protect against the improper
use of
power.  In the labour law context, when dismissal may result
there are the prescripts of substantive and procedural
fairness that
should be adhered to.  In administrative law, the proper
exercise of administrative power should be done within
the limits of
lawfulness, reasonableness and procedural fairness.  The
improper use of power is guided and guarded by the
principles
inherent in bodies of law which are viewed as adjuncts to the
prescripts contained in empowering provisions.
[166]
Affordable
Medicines
above
n 41 at para 33, which
was
decided in the context of delegated power.  One of the issues
under discussion was whether it was impermissible for the

Legislature to leave it to the Director-General to prescribe the
conditions on which a licence may be issued.  The finding
made
on that point was that discretion is important for decision-making;
it will also vary based on the complexity of the decision
to be
made, the opaqueness of the factors relevant to the decision and the
deference owed to a decision-maker who is possessed
of the relevant
expertise.  However, the empowering provision, as well as the
policies and objectives of the empowering
statute must guide and
fetter the power so exercised.
[167]
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC)
(
Dawood
).
[168]
Affordable
Medicines
above n 41 at para 33.
[169]
Dawood
above n 167 at para 53.
[170]
Affordable
Medicines
above
n 41 at para 34.
[171]
See
Dawood
above
n 167 at para 47.
[172]
At
[43].
[173]
At
[45].
[174]
Glenister
II
above n 1 at para 247.
[175]
At
[44].
[176]
On
my reading of
Glenister
II
that section does not appear to have been put before the Court.
There was no pointed attack at this section or any other
of the
erstwhile Chapter’s autonomy-protecting features.  It may
have also been a tactical move on the part of the
Court to have not
considered this section in particular.  For instance there
might have been an acknowledgement that so
much of the Chapter was
problematic therefore the most salient points and themes were
touched upon and the entire Chapter was
struck out.
[177]
See
Glenister
II
above n 1 at para 207.
[178]
Id
at para 210.
[179]
Id
at para 211, where this Court stated:
“
[I]t
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.”
[180]
39
of 1994.
[181]
Section
17E(1) of the SAPS Act provides:
“
Any
person who is considered for appointment in, or secondment to, the
Directorate, shall be subject to a security screening investigation

in terms of and in accordance with section 2A of the National
Strategic Intelligence Act, 1994 (Act No. 39 of 1994).”
[182]
See
Glenister
II
above
n 1 at para 214, which the main judgment considers to have disposed
of the location issue.
[183]
At
[21].
[184]
See
[123].
[185]
See
[23].
[186]
While
the fact that there is a high level of corruption in South Africa
may be a notorious fact – which courts are, according
to
S
v Mosala
1968
(3) SA 523
(T), permitted to take judicial notice of – it
cannot be said that specific details of corruption in various levels
of
the SAPS are notorious and well-known.
[187]
See
Schmidt “Evidence” in
LAWSA
2 ed (2005) vol 9 at para 821.
[188]
At
[27] to [28].
[189]
At
[29].
[190]
See
Van der Westhuizen “A Few Reflections on the Role of Courts,
Government, the Legal Profession, Universities, the Media
and Civil
Society in a Constitutional Democracy” (2008) 8
African
Human Rights Law Journal
251.
[191]
See,
for example, Van Marle “Jurisprudence, Friendship and the
University As Heterogeneous Public Space”
(2010) 127
SALJ
628
at 639:
“
Central
to this discussion is the distinction drawn between the notion of
politics and the notion of the political.  ‘Politics’

refers to examples of how actual political relations and partisan
politics are acted out.  ‘The political’ describes

the theoretical reflection on the possibility of politics.”
See
also the sources referred to in the article, for example,
Lacoue-Labarthe and Nancy
Retreating the Political
(Routledge, London 1997).
[192]
Section
165(2) of the Constitution provides that this Court is “independent
and subject only to the Constitution and the
law, which [it] must
apply impartially and without fear, favour or prejudice”.
[193]
This
Court held in
Glenister
II
above
n 1 at para 207 that public perception is constitutive of the DPCI’s
independence.
[194]
S
v Shabalala
[1986]
ZASCA 84
;
1986 (4) SA 734
(A) at 743F-G noted the difference between
admissibility and weight.  However, the Court also held that if
the weight is
so inconsequential and the relevance accordingly so
problematic, there can be little point in receiving the evidence.
[195]
At
[132].
[196]
Rule 6(15)
of the Uniform Rules of Court.  See also
Zuma
above
n 35 at para 22 and
Beinash
above
n 25 at 733B.
[197]
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
1974
(4) SA 362
(T) at 368G.
[198]
See
also
Zuma
above
n 35 and
Steyn
v Schabort en Andere NNO
1979
(1) SA 694 (O).
[199]
At
[135] to [136].
[200]
At
[25].
[201]
In
a relevance enquiry the court is asked to make a provisional or
tentative assessment of the potential weight of the evidence
sought
to be adduced.  See Schwikkard and Van der Merwe
Principles
of Evidence
3 ed (Juta & Co Ltd, Cape Town 2009) at 49.
[202]
At
[145].
[203]
Judgment
of Froneman J at [133].
[204]
Zuma
above n 35 at paras 47 and 81.
[205]
In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) the Court held that, generally speaking, the
respondent’s version of events will be accepted in motion
proceedings
unless their response to the applicant’s averment
constitutes a bald denial.
[206]
Land
Securities plc v Westminster City Council
[1993]
4 All ER 124
at 128H.
[207]
See
Schwikkard and Van der Merwe above n 201.
[208]
S
v Nel
1990
(2) SACR 136
(C).  Relevance is on a spectrum.
Accordingly, if the relevance is minimal, then prejudice would
become determinative.
[209]
See
above n 122 to n 123.
[210]
Para
10 of Mr Glenister’s founding affidavit in the High Court.
[211]
For
the identification of these applications see the judgment of
Froneman J at [114].