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[2016] ZACC 30
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McBride v Minister of Police and Another (CCT255/15) [2016] ZACC 30; 2016 (2) SACR 585 (CC); 2016 (11) BCLR 1398 (CC) (6 September 2016)
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 255/15
In the matter between:
ROBERT
McBRIDE
Applicant
and
MINISTER OF
POLICE
First
Respondent
MINISTER FOR PUBLIC SERVICE AND
ADMINISTRATION
Second
Respondent
and
HELEN SUZMAN
FOUNDATION
Amicus
Curiae
Neutral citation:
McBride v Minister of Police and Another
[2016] ZACC 30
Coram:
Mogoeng CJ, Bosielo AJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J.
Judgments:
Bosielo AJ (unanimous)
Heard on:
17 May 2016
Decided on:
6 September 2016
Summary:
Confirmation proceedings — independence of
police complaints body — section 206(6) of the Constitution —
decision
by Minister to suspend and institute disciplinary
proceedings against Executive Director of the Independent Police
Investigative
Directorate invalid and set aside
Declaration of invalidity — section 6(3)(a) and 6(6) of the
Independent Police Investigative Directorate Act 1 of 2011 —
sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act,
Proclamation 103 of 1994 — regulation 13 of the IPID
Regulations
ORDER
On application for confirmation of the order of the High Court of
South Africa, Gauteng Division, Pretoria:
1. It is declared that the following provisions are invalid to the
extent that they authorise the Minister of Police to suspend,
take
any disciplinary steps pursuant to suspension, or remove from office
the Executive Director of the Independent Police Investigative
Directorate—
1.1.
section 6(3)(a) and 6(6) of the Independent Police Investigative
Directorate Act 1 of 2011;
1.2.
sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act,
Proclamation 103 of 1994;
1.3.
regulation 13 of the IPID Regulations for the Operation of the
Independent Police Investigative Directorate (GN R98 of Government
Gazette 35018 of 10 February 2012), (IPID Regulations).
2. Parliament is directed to cure the defects in the legislation
within 24 months from the date of this order.
3. Pending the correction of the defect(s):
3.1.
Section 6(6) of the Independent Police Investigative Directorate Act
1 of 2011 is to be read as providing as follows:
“Subsections
17DA(3) to 17DA(7) of the
South African Police Service Act 68 of 1995
apply to the suspension and removal of the Executive Director of
IPID, with changes as may be required by the context.”
3.2.
Sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act,
Proclamation 103 of 1994 and regulation 13 of the IPID Regulations
are declared inconsistent with section 206(6) of the Constitution and
shall not apply to the Executive Director of the Independent
Police
Investigative Directorate.
4. It is declared that the decision of the Minister of Police to
suspend Mr Robert McBride from his position as Executive
Director of the Independent Police Investigative Directorate is
invalid and is set aside.
5. The order in paragraph 4 is suspended for 30 days in order for the
National Assembly and the Minister of Police, if they
so choose,
to exercise their powers in terms of the provisions referred to in
paragraph 3.1 above.
6. It is declared that the decision of the Minister of Police to
institute the disciplinary inquiry against Mr Robert McBride,
which
was to commence on 21 May 2015, is invalid and is set aside.
7. The Minister of Police is directed to pay the costs of Mr Robert
McBride, including the costs of two counsel.
JUDGMENT
BOSIELO AJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring):
Introduction
[1] On 4 December 2015, acting in terms of section 172(1)(a) of the
Constitution,
[1]
the High Court of South Africa, Gauteng Division, Pretoria
(High Court) declared several sections of the Independent Police
Investigative Directorate Act (IPID Act)
[2]
inconsistent with the Constitution and invalid. These were
section 6(3)(a) and 6(6) of the IPID Act; sections 16A(1), 16B,
17(1)
and 17(2) of the Public Service Act;
[3]
and regulation 13 of the IPID Regulations for the Operation of the
Independent Investigative Directorate (IPID Regulations),
[4]
which were found to be inconsistent with section 206(6) of the
Constitution and thus invalid, to the extent that they purport to
authorise the Minister of Police to suspend, take disciplinary steps
pursuant to the suspension, or remove from office the Executive
Director of the Independent Police Investigative Directorate
(IPID).
[5]
[2] For this declaration of invalidity to have legal force, it must
be confirmed by this Court in terms of section 172(2)(a) of
the
Constitution.
[6]
Hence the application to this Court.
[3] The applicant is Mr Robert McBride, the Executive Director of
IPID since 3 March 2014. He has been on precautionary
suspension since 24 March 2015 – pending a disciplinary inquiry
to be initiated against him by the Minister of Police.
The
first and second respondents are the Minister of Police and the
Minister of Public Service and Administration respectively.
Only
the Minister of Police (Minister) participated in the proceedings
before us. The Helen Suzman Foundation (HSF),
a
non-governmental organisation whose main objective is to defend the
values that underpin our constitutional democracy and to
promote
respect for human rights and the rule of law, was admitted as amicus
curiae (friend of the court) and presented oral submissions
before
us.
[4] Section 206(6) of the Constitution provides for the establishment
of an independent police complaints body by national legislation.
[7]
Pursuant to this section, Parliament established IPID. Its
primary duty is to investigate any alleged misconduct or
offence
committed by a member of the police service. IPID’s
independence is further bolstered by section 4 of the IPID
Act which
provides that the Directorate functions independently from the South
African Police Service (SAPS).
[8]
[5] However, this must be contrasted with section 206(1) of the
Constitution, which provides for a member of the Cabinet to be
responsible for policing and the determination of national policing
policy.
[9]
Allied to this is section 6(3)
[10]
of the IPID Act which makes IPID’s Executive Director subject
to the laws governing the public service as well as section
6(6)
[11]
which authorises the Minister to remove the Executive Director from
office on specified grounds. But this section is silent
on
oversight of the Minister’s action by Parliament.
[6] Mr McBride’s primary submission is that the cumulative
effect of these pieces of legislation is that IPID does not have
sufficient safeguards to ensure that its Executive Director and IPID,
as an institution, are able to act with sufficient independence.
The gravamen of this submission is that these provisions are inimical
to any notion of the independence of the Executive Director
as
demanded by both the Constitution and the IPID Act.
[7] Although the Minister opposed the application in the High Court,
before us he made qualified, albeit far-reaching, concessions.
The Minister accepted that the impugned provisions do not provide
adequate protection of the independence of IPID. As a result,
he supported the confirmation of invalidity as per paragraph 1 of the
order of the High Court. But he opposed confirmation
of
paragraphs 3, 4, 5 and 6 of the High Court’s order.
These, in part, sought to read
section 17DA(3)
to
17DA
(7) of the
South African Police Service Act
[12]
(SAPS Act) into section 6(6) of the IPID Act – pending the
expiry of 12 months or correction of the defect(s) by the
Legislature, whichever should occur first. The other part of
the opposed order has the effect of insulating the Executive
Director
from the application of sections 16A(1),
[13]
16B,
[14]
17(1)
[15]
and 17(2)
[16]
of the Public Service Act. The Minister also opposed the
setting aside of the decision to suspend Mr McBride from his position
as Executive Director of IPID, and institute disciplinary proceedings
against him. It is to be noted that the High Court
suspended
the effect of these two orders, pending parliamentary intervention.
[8] Central to this application is the crisp question: whether, in
the light of the applicable statutory framework, IPID enjoys
adequate
structural and operational independence, as envisaged by section
206(6) of the Constitution, to ensure that it is effectively
insulated from undue political interference.
Background
[9] At the time when Mr McBride took office on 3 March 2014, there
was a political storm brewing over the alleged unlawful rendition
of
four Zimbabwean nationals in November 2010 and January 2011.
Lieutenant-General Anwa Dramat (General Dramat), then the
head of the
Directorate for Priority Crime Investigation (DPCI) and Major General
Sibiya (General Sibiya), then the provincial
head of, Gauteng, were
allegedly implicated in these unlawful renditions.
[10] IPID initiated an investigation into this matter overseen by
Advocate Mosing (Mr Mosing), of the National Prosecuting Authority
(NPA), assisted by Mr Innocent Khuba (Mr Khuba), the Provincial Head:
IPID, Limpopo. On 22 January 2014, IPID issued its
first report
(January report) which concluded that General Dramat and General
Sibiya were involved in the illegal renditions of
the Zimbabweans.
It recommended that criminal charges be brought against them.
[11] Mr Khuba explained in his affidavit that because he regarded the
January report as provisional, he continued with his investigations.
His investigations gave birth to a second report, dated 18 March 2014
(March report), which was signed by Mr Khuba; Mr Matthews
Sesoko,
Chief Director: IPID Investigation and Information Management (Mr
Sesoko); and Mr McBride. Contrary to the first
report, the
second report concluded that there was no evidence implicating
General Dramat and General Sibiya in the illegal renditions
of the
Zimbabweans. As a result it recommended that no criminal
charges be brought against them. This report was submitted
to
the National Director of Public Prosecutions (NDPP) for a decision on
possible prosecution on 13 April 2015.
[12] Faced with the glaring discrepancies in the two reports, the
Minister suspected serious tampering. As a result, he
commissioned Werksmans Attorneys (Werksmans) to investigate the two
reports. Relying on the January report and the investigation
by
Werksmans, the Minister invoked his powers in terms of section 6(6)
of the IPID Act, the Public Service Act and Chapter 7 of
the Senior
Management Services Handbook (SMS Handbook), and placed Mr McBride on
precautionary suspension on 24 March 2015.
Acting on
the strength of section 6(6)(a) of the IPID Act read with the
provisions governing disciplinary proceedings under the
Public
Service Act and the IPID Regulations, the Minister served Mr McBride
with a notice to attend a disciplinary enquiry.
In the High Court
[13] The Minister’s actions stung Mr McBride into a defensive
mode. Mr McBride instituted an urgent application before
the
High Court, firstly for an interim interdict to restrain the Minister
from suspending him, and secondly, for an order declaring
section
6(3)(a) and 6(6) of the IPID Act, regulation 13 of the IPID
Regulations, sections 16A(1), 16B, 17(1) and (2) of the Public
Service Act (only insofar as they apply to the Executive Director of
IPID), paragraphs 2.5, 2.6, 2.7(1) – (5) of Chapter
7 and
paragraphs 18-19 of Chapter 8 of the SMS Handbook (impugned
provisions) constitutionally invalid and setting them aside.
In
addition, Mr McBride sought an order to review and set aside the
decision by the Minister to suspend him as the Executive Director
of
IPID and to institute disciplinary proceedings against him.
[14] Relying on section 206(1) of the Constitution, the Minister
opposed this application. He asserted that this section
gives
him the power to oversee the police as the Cabinet member responsible
for policing. The disciplinary proceedings he
had instituted
against Mr McBride were therefore lawful as they are authorised by
section 206(1). He contended further
that sections 6(3)(a)
and 6(6) of the IPID Act authorised him to invoke the laws governing
the public service to remove the
Executive Director of IPID from
office. He also relied on sections 16A(1), 16B, 17(1) and
17(2) of the Public Service
Act, which authorise him to take
appropriate disciplinary proceedings against Mr McBride as head of
IPID.
[15] The High Court found that the independence of IPID is expressly
guaranteed and protected under section 206(6) of the Constitution,
which is “significant and decisive”.
[17]
Furthermore, the High Court reasoned that, given that IPID performs
overlapping anti-corruption functions with the DPCI,
it must be
afforded at least the equivalent protections that the Constitution
requires for the DPCI.
[18]
In
Glenister II
,
[19]
this Court found that the independence of the DPCI was an implicit
constitutional requirement, flowing from section 7(2) of the
Constitution and the threat to South Africa posed by endemic
corruption. The High Court found that inasmuch as the DPCI is
independent despite there being no express constitutional
entrenchment of its independence, by parity of reasoning “the
effect of the constitutional entrenchment of the independence of IPID
is that the
operational and structural independence of IPID must
be at least as strongly protected as that of the DPCI
”.
[20]
[16] The High Court went further to hold that IPID’s
constitutionally guaranteed independence requires more stringent
protection.
This is because, unlike the DPCI which is situated
within SAPS, IPID is institutionally and functionally independent
from SAPS.
[21]
Another reason presented by the High Court as to why the principles
pronounced in
Glenister II
extend to IPID is that, having
found that the DPCI requires adequate independence from Executive
interference in that case, it would
be subversive of IPID not to
afford it the same level of independence as the DPCI. As IPID
has oversight and accountability
responsibilities over the DPCI,
affording the DPCI adequate independence without doing the same for
IPID appears to be self-defeating.
In this regard, the High
Court held that IPID’s oversight role over the DPCI would be
compromised and might create room for
political interference to seep
through and render the DPCI’s independence nugatory.
[22]
[17] Crucially, the High Court held that section 6(3)(a) and 6(6) of
the IPID Act, sections 16A(1), 16B, 17(1) and 17(2) of the
Public
Service Act and regulation 13 of the IPID Regulations are
inconsistent with section 206(6) of the Constitution. This
was
based on the fact that the impugned sections do not provide for
parliamentary oversight in relation to the suspension, discipline
or
removal of the Executive Director and that they afford the Minister
unilateral powers and the sole discretion to terminate the
Executive
Director’s tenure. Furthermore, the Minister is entitled
to discipline the Executive Director on the same
basis as any head of
department in the public service, without any special oversight or
protection. The High Court found
that this amounts to
inadequate security of tenure for a national head of an independent
body investigating police misconduct,
including corruption.
[23]
Hence it declared the impugned sections inconsistent with section
206(6) of the Constitution and invalid. However the
declaration
of invalidity was suspended for 12 months to allow Parliament to
remedy the defects.
[18] As an interim measure, the High Court read section 17DA of the
SAPS Act into section 6(6) of the IPID Act, with the other
impugned
provisions being read as having no application to the Executive
Director of IPID. The decisions to suspend and institute
a
disciplinary inquiry against Mr McBride were set aside – with
the order setting aside the Minister’s decision to
suspend Mr
McBride being itself suspended for 30 days to allow the National
Assembly and the Minister to exercise their powers
in terms of
section 17DA (as it was read into section 6(6) of the IPID Act),
should they so choose. All of these orders were
referred to
this Court for confirmation.
[24]
The issues
[19] The issues are as follows:
a) Should the declaration of constitutional invalidity of the
impugned sections be confirmed?
b) Should the decision by the Minister to suspend Mr McBride and
institute the disciplinary proceedings, taken in terms of the
laws
governing the Public Service, be allowed to stand and continue?
c) Is the order granted by the High Court a just and equitable remedy
as contemplated by section 172(1)(b) of the Constitution?
d) Costs.
Should invalidity be confirmed?
[20] I pause to observe that a day before the hearing, the Minister
filed a draft order with the Registrar of this Court.
This
draft order was foreshadowed in his written submissions. It
reads thus:
“1. The orders of constitutional invalidity granted by the High
Court of South Africa (Gauteng Division, Pretoria) in respect
of
sections 6(3)(a) and 6(6) of the Independent Police Investigative
Directorate Act 1 of 2011 (‘IPID Act’), and Regulation
13
of the Regulations for the Operation of the Independent Police
Investigative Directorate GN R 98 GG No 35018 (10 February 2012)
(‘IPID Regulations’) are confirmed;
2. The orders of invalidity in paragraph 1 above are suspended for a
period of 18 months to enable Parliament to cure the constitutional
defect;
3. Pending the enactment of legislation by Parliament, or the expiry
of the 18 month period in paragraph 2 above:
3.1
Section 6(6) of the IPID Act is to be read as providing as follows:
‘Sub-sections
17DA(3) to 17DA(7) of the
South African Police Service Act 68 of 1995
to apply to the suspension and removal of the Executive Director of
the Independent Police Investigative Directorate, with such
changes
as may be required by the context’; and
3.2
regulation 13 of the IPID Regulations, shall be read as having no
application to the Executive Director of the Independent
Police
Investigative Directorate;
4. It is declared that the decisions to suspend, and institute
disciplinary proceedings against the Applicant are invalid;
5. The decisions in paragraph 4 above are not set aside;
6. It is declared that, in terms of paragraph 3.1. above, and section
17DA(3) of the SAPS Act as applied to the Executive Director
of IPID,
the relevant Portfolio Committee of the National Assembly is deemed
to be seized with the disciplinary proceedings already
instituted
against the Applicant;
7. The First Respondent is directed to the pay the costs of the
Applicant in the High Court, including those occasioned by the
employment of two counsel; and
8. There is no order as to the costs of the confirmation proceedings
before this Court.”
[21] It is clear from the draft order that the Minister made a
qualified concession. But he supports the confirmation of
the
declaration of invalidity in respect of the orders in paragraphs 1 to
4 only. However, he resists the setting aside of
his decision
to suspend Mr McBride from his position as the Executive Director of
IPID as well as to institute disciplinary proceedings
against him.
Despite conceding their invalidity, he nonetheless urged us to
endorse the disciplinary proceedings already
underway and for them to
be deemed to be undertaken by the relevant Portfolio Committee of the
National Assembly.
[22] As appears from the Minister’s draft order, the Minister
supports confirmation by this Court of the declaration of invalidity
in respect of section 6(3)(a) and 6(6) of the IPID Act and regulation
13 of the IPID Regulations. Although the Minister supports
the
declaration of invalidity in respect of his decision to suspend and
institute disciplinary proceedings against Mr McBride,
he requests
that the decision not be set aside but that the relevant Portfolio
Committee of the National Assembly be deemed to
be seized with the
disciplinary proceedings already underway. But the Minister
requests that the disciplinary proceedings
against Mr McBride be
allowed to proceed to finality – thus validating the
proceedings the Minister concedes are invalid.
[23] As already stated, section 172(1)(a) of the Constitution
provides that when a court decides a constitutional issue within
its
powers, it must declare any law or conduct inconsistent with the
Constitution invalid to the extent of such inconsistency.
This
section is couched in peremptory terms. It is therefore a
constitutional imperative. This Court has a duty to
satisfy
itself that the declaration of invalidity of the various impugned
sections was properly made.
[25]
It also has to satisfy itself whether the impugned sections are
inimical to the independence of IPID. This requires
this Court
to examine each of the impugned provisions to determine whether they
are congruent with, or subversive of, IPID’s
independence as
demanded by section 206(6) of the Constitution.
[24] IPID is an independent police complaints body established in
terms of section 206(6) of the Constitution. Section
4(1)
of the IPID Act requires it to function independently of SAPS.
This is to ensure that IPID is able to investigate cases
or
complaints against the police without any fear, favour or prejudice
or undue external influence. Section 4(2) of the IPID
Act
requires that each organ of state assist the Directorate to maintain
its impartiality and to perform its functions effectively.
Importantly, section 2 of the IPID Act requires IPID to play an
oversight role over SAPS and Municipal Police Services. Given
the nature, scope and importance of the role played by police in
preventing, combating and investigating crime, IPID’s oversight
role is of cardinal importance. This is aimed at ensuring
accountability and transparency by SAPS and Municipal Police Services
in accordance with the principles of the Constitution.
[26]
[25] IPID is headed by an Executive Director who is nominated by the
Minister in terms of section 6(1) of the IPID Act.
This
nomination must be either confirmed or rejected by the Parliamentary
Committee within a period of 30 parliamentary working
days.
[26] The Executive Director’s responsibilities are set out in
section 7 of the IPID Act. They include: providing strategic
leadership to the Directorate;
[27]
appointing provincial heads of each province;
[28]
appointing such staff as may be necessary to enable the Directorate
to perform its functions in terms of the Act;
[29]
giving guidelines concerning the investigation and management of
cases by officials within the respective provincial offices, the
administration of national and provincial offices and, the training
of staff at national and provincial levels;
[30]
referring criminal cases revealed as a result of an investigation to
the NPA for criminal prosecution and notifying the Minister
of such
referral;
[31]
ensuring that complaints regarding disciplinary matters are referred
to the National Commissioner and where appropriate, the Provincial
Commissioner;
[32]
once a month submitting a summary of disciplinary matters to the
Minister and providing the Secretary with a copy thereof;
[33]
and keeping proper records of all financial transactions, assets and
liabilities of the Directorate, ensuring that the Directorate’s
financial affairs comply with the Public Finance Management Act
[34]
and, preparing an annual report in the manner contemplated in section
32.
[35]
The Executive Director is also the accounting officer of the
Directorate. Evidently, his duties are extensive and wide.
[27] This must be seen against section 7(7) of the IPID Act which
requires the Executive Director to submit a summary of disciplinary
matters to the Minister. In addition, section 32 requires the
Executive Director to prepare and submit an annual report in
the form
prescribed by the Minister within five months of the end of the
financial year to the Minister. Evidently, this
is intended to
ensure that the Executive Director accounts to the Minister about the
activities within IPID. This is probably
because the Minister,
as the political head of the police, bears political responsibility
for the police.
[28] But does this on its own undermine IPID’s independence to
a point where it offends section 206(6) of the Constitution?
No. The fact that IPID is required by both the Constitution and
the IPID Act to be independent does not mean that it cannot
be held
accountable. Like all other organs of state, IPID must be
accountable for its actions. To be insulated from
undue
political interference or control does not mean that IPID should be
insulated from political accountability. Accountability
is one
of the important values enshrined in our Constitution – a basic
tenet for good governance. Hence the requirement
that it must
submit reports about its activities to the Minister who in turn will
place them before Parliament. This Court
explained this
apparent conundrum in
Glenister II
as follows:
“The second general point we make is that adequate independence
does not require insulation from political accountability.
In
the modern polis, that would be impossible. And it would be
averse to our uniquely South African constitutional structure.
What is required is not insulation from political accountability, but
only insulation from a degree of management by political
actors that
threatens imminently to stifle the independent functioning and
operations of the unit.”
[36]
[29] Section 6(3)(a) of the IPID Act makes the Executive Director
subject to the laws governing the public service. In terms
of
the Public Service Act, section 16A(1)(a) authorises the
executive authority to take appropriate disciplinary steps against
the head of the department and to report such non-compliance to the
Minister. Section 16B in turn authorises the institution
of
disciplinary proceedings against such a head, whilst section 17(1)
vests the power to dismiss in the relevant executive authority.
Is this statutory regime compatible with the independence of IPID and
its Executive Director as envisaged by section 206(6) of
the
Constitution? I think not.
[30] It is axiomatic that public servants are government employees.
They are beholden to government. They operate under
government
instructions and control. The authority to discipline and
dismiss them vests in the relevant executive authority.
This
does not require parliamentary oversight. To subject the
Executive Director of IPID to the same regime is to undermine
or
subvert his independence. It is not congruent with the
Constitution.
[31] What then does the independence of IPID mean? Does it mean
complete or sufficient independence? Admittedly, it
is
difficult to attempt to define the precise contours of a concept as
elastic as this. It requires a careful examination
of a wide
range of facts to determine this question. Amongst these are
the method of appointment, the method of reporting,
disciplinary
proceedings and method of removal of the Executive Director from
office, and security of tenure. However, this
Court has had
occasion to deal with the independence of a similar institution in
Helen Suzman Foundation
[37]
and
Glenister II
. Although the two cases deal with the
independence of the DPCI, whose mandate is different to that of IPID,
they offer useful
guidelines in giving substance to IPID’s
constitutionally guaranteed independence – they offer bright
lights for us
as we traverse this new area.
[32] Grappling with the principle of the independence of the DPCI as
a corruption fighting body, Ngcobo CJ observed as follows
in
Glenister II
, with the agreement of the majority:
“The question, therefore, is not whether the DPCI is fully
independent, but whether it enjoys an adequate level of structural
and operational autonomy that is secured through institutional and
legal mechanisms designed to ensure that it ‘discharges
its
responsibilities effectively’, as required by the
Constitution.”
[38]
[33] The Chief Justice also states:
“Ultimately therefore, the question is whether the
anti-corruption agency enjoys sufficient structural and operational
autonomy
so as to shield it from undue political influence.”
[39]
[34] To address this vexed issue, the High Court sought guidance from
a number of international instruments.
[40]
These included: the United Nations Convention against Corruption;
[41]
the Council of Europe’s Commissioner for Human Rights’
Opinion on the Independent and Effective Determination of Complaints
Against the Police;
[42]
and the AU Resolution on Police Reform, Accountability and Civilian
Police Oversight in Africa.
[43]
[35] That Court had recourse to a report by the Organisation for
Economic Co-operation and Development titled:
Specialised
Anti-corruption Institutions: Review of Models
,
[44]
which was cited with approval by this Court in
Glenister II
.
[45]
The report proffers the following definition of independence:
“Independence primarily means that the anti-corruption bodies
should be shielded from undue political interference.
To this
end, genuine political will to fight corruption is the key
prerequisite. Such political will must be embedded in
a
comprehensive anti-corruption strategy. The level of
independence can vary according to specific needs and conditions.
Experience suggests that it is the structural and operational
autonomy that is important, along with a clear legal basis and
mandate
for a special body, department or unit. This is
particularly important for law enforcement bodies. Transparent
procedures
for appointment and removal of the director together with
proper human resources management and internal controls are important
elements to prevent undue interference.”
[46]
[36]
Glenister II
expressly stated that this definition was
not part of international law, but accepted that it serves as a
useful interpretive tool
against which IPID’s independence may
be measured. I have found the criteria adumbrated in this
definition to be both
useful and illuminating in trying to define and
delineate the contours of independence as it pertains to the
independence of IPID.
[37] In
Glenister II
, the majority held that a
corruption-fighting entity will have the requisite independence if it
can be established that the “reasonably
informed and reasonable
member of the public will have confidence in an entity’s
autonomy protecting features”.
[47]
Factors that might be considered in assessing the independence of an
institution include security of tenure and remuneration,
and the
mechanisms in place for accountability and oversight.
[48]
Since IPID is entrusted with wide-reaching police oversight powers,
the same considerations, at the very least, should be
factored in
when assessing its independence. In contradistinction to the
DPCI, the threshold for satisfying independence
in respect of IPID is
arguably more stringent given that the Constitution expressly demands
its independence.
[38] On the other hand, section 6 of the IPID Act gives the Minister
enormous political powers and control over the Executive Director
of
IPID. It gives the Minister the power to remove the Executive
Director of IPID from his office without parliamentary oversight.
This is antithetical to the entrenched independence of IPID envisaged
by the Constitution as it is tantamount to impermissible
political
management of IPID by the Minister. To my mind, this state of
affairs creates room for the Minister to invoke partisan
political
influence to appoint someone who is likely to pander to his whims or
who is sympathetic to the Minister’s political
orientation.
This might lead to IPID becoming politicised and being manipulated.
Is this compatible with IPID’s
independence as demanded by the
Constitution and the IPID Act? Certainly not.
[39] To subject the Executive Director of IPID, which the
Constitution demands to be independent, to the laws governing the
public
service – to the extent that they empower the Minister
to unilaterally interfere with the Executive Director’s tenure
– is subversive of IPID’s institutional and functional
independence, as it turns the Executive Director into a public
servant subject to the political control of the Minister.
[40] Without adequate independence, it would be easy for the Minister
to usurp the power of the Executive Director under the guise
of
exercising political accountability or oversight over IPID in terms
of section 206(1) of the Constitution. In this case,
acting
unilaterally, the Minister invoked the provisions of section 16A(1)
of the Public Service Act, placed Mr McBride on suspension
and
instituted disciplinary proceedings against him. Undoubtedly,
such conduct has the potential to expose IPID to constitutionally
impermissible executive or political control. That action is
not consonant with the notion of the operational autonomy of
IPID as
an institution. Put plainly it is inconsistent with section
206(6) of the Constitution. It follows that it
is invalid and
must be set aside.
[41] All this should be seen against the extensive powers IPID has to
investigate the police. Section 28 of the IPID Act
authorises
the Directorate to investigate a whole variety of matters involving
the police and complaints of assault, torture, rape,
discharge of
firearms, death while in police custody and as a result of police
action. Section 28(1)(g) authorises the Directorate
to
investigate corruption within the police, whilst section 28(2)
empowers the Directorate to investigate systemic corruption within
the police force. There have in recent years been alleged
instances of police brutality and killings perpetrated against
civilians. Undoubtedly, these are very serious matters which
affect the public. Naturally, the public has a direct
interest
in seeing these matters being vigorously pursued and properly
investigated. IPID is given this responsibility.
It is
cast in the role of a watchdog over the police. It is therefore
necessary to its credibility and the public confidence
that it be not
only independent but that it must also be seen to be independent to
undertake this daunting task without any interference,
actual or
perceived, by the Minister.
[42] A question might be asked whether the statutory framework
created by the impugned sections conduce to engendering public
confidence in the independence of IPID. This Court dealt with
this issue of public confidence in
Glenister II
,
[49]
and reiterated it in
Helen Suzman Foundation
, where it stated:
“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.”
[50]
[43] To my mind, the cumulative effect of the impugned sections has
the potential to diminish the confidence the public should
have in
IPID. As the amicus curiae emphasised in its submissions, both
the independence and the
appearance
of an independent IPID are
central to this matter. The manner in which the Minister dealt
with Mr McBride demonstrates, without
doubt, how invasive the
Minister’s powers are. What exacerbates the situation is
that he acted unilaterally.
This destroys the very confidence
which the public should have that IPID will be able, without undue
political interference, to
investigate complaints against the police
fearlessly and without favour or bias. IPID must therefore not
only be independent,
but must be seen to be so. Without
enjoying the confidence of the public, IPID will not be able to
function efficiently as
the public might be disinclined or reluctant
to report their cases to it.
[44] Based on the above exposition, I conclude that the impugned
sections do not pass constitutional muster. It follows that
the
order of constitutional invalidity by the High Court must be
confirmed.
What is a just and equitable remedy?
[45] As I indicated earlier, the Minister conceded that the decisions
to suspend and institute disciplinary proceedings against
Mr McBride
are invalid. However, he pleaded that they should not be set
aside but rather be allowed to continue to finality
as if they were
undertaken by the relevant Portfolio Committee of the National
Assembly. The main submission is that the
Minister took this
decision in good faith as, when he took it, he considered it to be
constitutional as the relevant section had
not been declared
unconstitutional. Furthermore, it was submitted that to set it
aside would be disruptive. It would
thus not be a just and
equitable remedy as the disciplinary proceedings against Mr McBride
had already commenced and were partly
heard before an independent
chairperson. The Minister submitted that setting aside these
proceedings would permit Mr McBride
to continue working as the
Executive Director notwithstanding the fact that there is a prima
facie case of gross misconduct against
him.
[46] On the contrary, Mr McBride argued that the decisions by the
Minister must be set aside. In the main, he contended that
it
would infringe the rule of law for this Court to preserve the
Minister’s actions which have been proved to be
unconstitutional.
In other words it would be untenable, if not
invidious, for this Court to countenance an act which has been
declared unconstitutional.
In essence, he submits that no court
can make an unlawful act lawful.
[47] As a counter, the Minister argued that this Court has in the
past endorsed the principle that administrative decisions taken
under
a valid law that is subsequently declared unconstitutional are not
automatically invalid but rather “[t]he rule of
law requires
their preservation”. Three decisions of this Court were
cited in support of this claim:
Van Rooyen
,
[51]
Democratic Alliance
[52]
and
Kruger
.
[53]
[48] I will briefly deal with the three cases to demonstrate that the
reliance on them was misguided.
[49] In
Cross-Border Road Transport Agency
, this Court held
that the legal consequence which ordinarily flows from a declaration
of constitutional invalidity is that the
impugned law is invalid from
the date of its promulgation.
[54]
This is the so-called default position. In other words,
the order of invalidity will have immediate retrospective effect
unless the order is varied by an order of court. This can be
done for a variety of reasons provided it is just and equitable.
[50] In
Van Rooyen
, it is true that, although several
provisions of the Magistrates’ Courts Act were declared to be
invalid, the decisions taken
under them were preserved.
[55]
This is because the interests of justice demanded this, as it would
have caused chaos if all previous magistrates’
courts’
decisions were overturned. No comparable interests of justice
considerations exist in the present case.
[51] Similarly, in
Democratic Alliance
, the invalid decisions
by Mr Simelane were preserved as it would have brought about
confusion and disorder if all the decisions
taken by Mr Simelane were
set aside as nullities. Yacoob ADCJ therefore rightly preserved these
decisions.
[56]
[52] The Minister incorrectly contends that
Kruger
supports
the proposition that “an act done pursuant to invalid statutory
provisions must nonetheless remain valid in the interests
of
certainty and to avoid disruption”. But the case supports
no such general proposition. In
Kruger
, the Court
preserved the conduct of the Road Accident Fund that had relied on
invalid proclamations. This was to avoid disruption
and
disorder. There must be an interests of justice consideration that
overrides the presumption of objective constitutional invalidity.
[57]
[53] It is worth noting that Mr McBride is not opposed to his
suspension followed by disciplinary proceedings. Furthermore,
he has declared his willingness to participate in any process
provided it is constitutionally compliant.
[54] In an attempt to obviate the disruption which the Minister
feared might ensue if his decisions to suspend and discipline Mr
McBride are set aside, the High Court made an order that the
declaration of invalidity of the Minister’s decision to suspend
and institute disciplinary proceedings against Mr McBride be
suspended for 30 days in order for the National Assembly and the
Minister, if they so choose, to exercise their powers in terms of the
provisions referred to in paragraph 3.1 of its order.
Mr
McBride is amenable to this. I find this to be just and
equitable for both parties. It affords the Minister the
opportunity, if he so wishes, to restart the process but on a proper
basis. At the same time it ensures that Mr McBride’s
suspension is reasonable as he is still protected by the
constitutionally protected presumption of innocence in his favour.
[55] I thus confirm the High Court’s reading-in of the relevant
provisions of the SAPS Act to operate on an interim basis.
Furthermore, I regard a notional severance of the relevant
provisions of the Public Service Act and the IPID regulations
to be
fair and equitable. This is intended to secure the independence
of the IPID on an interim basis, until Parliament remedies
the
defects identified. During this time, the impugned provisions
of the IPID Act, the Public Service Act and the IPID Regulations
–
to the extent that they allow the Minister to suspend, remove or
institute disciplinary proceedings against the Executive
Director –
will remain inoperative.
[56] The High Court gave adequate consideration to what a just and
equitable remedy should be as required by section 172 of the
Constitution. Its conclusion was well-reasoned and fully
supported by the facts of the case. Accordingly, I confirm
the
orders of the High Court.
Costs
[57] The general principle is that costs must follow the result.
In other words a successful party must be awarded costs.
At the
hearing, the Minister submitted that, because he made some legal
concessions, no costs order should be made in this
Court. But
he still opposed the matter until late in the proceedings. The
Minister’s draft order was served and
filed at the proverbial
eleventh hour, after the parties had already finalised their
preparation and incurred high costs.
I am therefore of the view
that there is no reason to depart from the general rule, costs must
follow the result.
[58] In the result, the following order is made:
1. It is declared that the following provisions are invalid to the
extent that they authorise the Minister of Police to suspend,
take
any disciplinary steps pursuant to suspension, or remove from office
the Executive Director of the Independent Police Investigative
Directorate—
1.1.
section 6(3)(a) and 6(6) of the Independent Police Investigative
Directorate
Act 1 of 2011;
1.2.
sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act,
Proclamation 103 of 1994;
1.3.
regulation 13 of the IPID Regulations for the Operation of the
Independent Police Investigative Directorate (GN R98 of Government
Gazette 35018 of 10 February 2012), (IPID Regulations).
2. Parliament is directed to cure the defects in the legislation
within 24 months from the date of this order.
3. Pending the correction of the defect(s):
3.1.
Section 6(6) of the Independent Police Investigative Directorate Act
1 of 2011 is to be read as providing as follows:
“Subsections
17DA(3) to 17DA(7) of the
South African Police Service Act 68 of 1995
apply to the suspension and removal of the Executive Director of
IPID, with changes as may be required by the context.”
3.2.
Sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act,
Proclamation 103 of 1994 and regulation 13 of the IPID Regulations
are declared inconsistent with section 206(6) of the Constitution and
shall not apply to the Executive Director of the Independent
Police
Investigative Directorate.
4. It is declared that the decision of the Minister of Police to
suspend Mr Robert McBride from his position as Executive
Director of the Independent Police Investigative Directorate is
invalid and is set aside.
5. The order in paragraph 4 is suspended for 30 days in order for the
National Assembly and the Minister of Police, if they so
choose, to
exercise their powers in terms of the provisions referred to in
paragraph 3.1 above.
6. It is declared that the decision of the Minister of Police to
institute the disciplinary inquiry against Mr Robert McBride,
which
was to commence on 21 May 2015, is invalid and is set aside.
7. The Minister of Police is directed to pay the costs of Mr Robert
McBride, including the costs of two counsel.
For the Applicant: S Budlender and J Bleazard instructed by Adams &
Adams Attorneys
For the First Respondent: W Mokhari SC, T Ngcukaitobi, F Hobden
and J Raizon instructed by Hogan Lovells (South Africa) incorporated
as Routledge Modise Incorporated
For the Amicus Curiae: C Steinberg instructed by Webber Wentzel
Attorneys
[1]
Section 172(1), in relevant part, provides:
“
When deciding a
constitutional matter within its power, a court—
(a) must declare that any law
or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency.”
[2]
1 of 2011.
[3]
Proclamation 103 of 1994.
[4]
Independent Police Investigative Directorate Act, 2011 Regulations
for the Operation of the Independent Police Investigative
Directorate, GN 98,
GG
35018, 10 February 2012.
[5]
McBride v Minister of
Police and Another
[2015] ZAGPPHC 830;
[2016] 1 All SA 811
(GP);
2016 (4) BCLR 539
(GP)
(High Court judgment).
[6]
Section 172(2)(a) reads:
“
The Supreme Court of
Appeal, a High Court or a court of similar status may make an order
concerning the constitutional validity
of an Act of Parliament, a
provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional Court.”
[7]
Section 206(6) of the Constitution reads:
“
On receipt of a
complaint lodged by a provincial executive, an independent police
complaints body established by national legislation
must investigate
any alleged misconduct of, or offence committed by, a member of the
police service in the province.”
[8]
Section 4 of the IPID Act reads:
“
(1) The Directorate
functions independently from the South African Police Service.
(2) Each organ of state must
assist the Directorate to maintain its impartiality and to perform
its functions effectively.”
[9]
Section 206(1) of the Constitution provides:
“
A member of the Cabinet
must be responsible for policing and must determine national
policing policy after consulting the provincial
government and
taking into account the policing needs and priorities of the
provinces as determined by the provincial executives.”
[10]
Section 6(3) provides:
“
In the event of an
appointment being confirmed—
(a) the successful candidate is
appointed to the office of Executive Director subject to the laws
governing the public service
with effect from a date agreed upon by
such person and the Minister; and
(b) such appointment is for a
term of five years, which is renewable for one additional term
only.”
[11]
Section 6(6) reads:
“
The Minister may, remove
the Executive Director from office on account of—
(a)
misconduct;
(b)
ill health; or
(c)
inability
to perform the duties of that office effectively.”
[12]
68 of 1995. Section 17DA reads, in relevant part:
“
(3)
(a) The National Head of the
Directorate may be removed from office on the ground of misconduct,
incapacity or incompetence on
a finding to that effect by a
Committee of the National Assembly.
(b) The adoption by the
National Assembly of a resolution calling for that person’s
removal from office.
(4) A resolution of the
National Assembly concerning the removal from office of the National
Head of the Directorate shall be
adopted with a supporting vote of
at least two-thirds of the members of the National Assembly.
(5) The Minister—
(a) may
suspend the National Head of the Directorate from office at any time
after the start of the proceedings of a Committee
of the National
Assembly for the removal of that person;
and
(b) shall remove the National
Head of the Directorate from office upon adoption by the National
Assembly of the resolution calling
for the National Head of the
Directorate’s removal.
(6) The Minister may allow the
National Head of the Directorate, at his or her request, to vacate
his or her office—
(a) on
account of continued ill-health; or
(b) for any
other reason which the Minister deems sufficient.
(7) The request in terms of
subsection (6) shall be addressed to the Minister at least six
calendar months prior to the date on
which the National Head of the
Directorate wishes to vacate his or her office, unless the Minister
grants a shorter period in
a specific case.”
[13]
Section 16A(1) reads:
“
An executive authority
shall—
(a)
immediately take appropriate disciplinary
steps against a head of department who does not comply with a
provision of this Act
or a regulation, determination or directive
made thereunder;
(b)
immediately report to the Minister the
particulars of such non-compliance; and
(c)
as soon
as possible report to the Minister the particulars of the
disciplinary steps taken.”
[14]
Section 16B reads:
“
Discipline
(1) Subject to subsection (2),
when a chairperson of a disciplinary hearing pronounces a sanction
in respect of an employee found
guilty of misconduct, the following
persons shall give effect to the sanction:
(a) In the case of a head of
department, the relevant executive authority; and
(b) in the case of any other
employee, the relevant head of department.
(2)
Where an employee may lodge an internal appeal provided for
in a collective agreement or in a determination in terms of section
3(5), a sanction referred to in subsection (1) may only be given
effect to—
(a)
if an internal appeal is lodged, after the
appeal authority has confirmed the sanction pronounced by the
chairperson of a disciplinary
hearing; or
(b)
if no internal appeal is lodged, after the
expiry of the period within which the appeal must have been lodged.
(3)
The Minister shall by regulation make
provision for—
(a)
a power for chairpersons of disciplinary
hearings to summon employees and other persons as witnesses, to
cause an oath or affirmation
to be administered to them, to examine
them, and to call for the production of books, documents and other
objects; and
(b)
travel, subsistence and other costs and
other fees for witnesses at disciplinary hearings.
(4)
If an employee of a department (in this
subsection referred to as ‘the new department’), is
alleged to have committed
misconduct in a department by whom he or
she was employed previously (in paragraph (b) referred to as ‘the
former department’),
the head of the new department—
(a)
may institute or continue disciplinary
steps against that employee; and
(b)
shall institute or continue such steps if
so requested—
(i)
by the former executive authority if the
relevant employee is a head of department; or
(ii)
by the head of the former department, in
the case of any other employee.
(5)
In order to give effect to subsection (4),
the two relevant departments shall co-operate, which may include
exchanging documents
and furnishing such written and oral evidence
as may be necessary.
(6)
If
notice of a disciplinary hearing was given to an employee, the
relevant executive authority shall not agree to a period of
notice
of resignation which is shorter than the prescribed period of notice
of resignation applicable to that employee.”
[15]
Section 17(1) reads:
“
(a) Subject to paragraph
(b), the power to dismiss an employee shall vest in the relevant
executive authority and shall be exercised
in accordance with the
Labour Relations Act.
(b) The power to dismiss
an employee on account of misconduct in terms of subsection
(2)(d) shall
be exercised as provided
for in section 16B(1).”
[16]
Section 17(2) reads:
“
An employee of a
department, other than a member of the services, an educator or a
member of the Intelligence Services, may be
dismissed on account of—
(a)
incapacity due to ill health or injury;
(b)
operational requirements of the department
as provided for in the Labour Relations Act;
(c)
incapacity due to poor work performance;
or
(d)
misconduct.”
(e)
[17]
High Court judgment above n 5 at paras 15-6.
[18]
Id at para 20.
[19]
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
).
[20]
High Court judgment above n 5 at para 17.
[21]
Id at para 21.
[22]
Id at para 24.
[23]
Id at para 46.
[24]
The full order of the High Court was as follows:
1. It is declared that the
following provisions are unconstitutional and unlawful to the extent
that they purport to authorise
the Minister of Police to suspend,
take any disciplinary steps pursuant to suspension, or to remove
from office the Executive
Director of the Independent Police
Investigative Directorate:
1.1 Sections 6(3)(a) and 6(6)
of the Independent Police Investigative Directorate Act, No. 1 of
2011;
1.2 Sections 16A(1), 16B, 17(1)
and 17(2) of the Public Service Act, 1994; and
1.3 Regulation 13 of the IPID
Regulations for the Operation of the Independent Police
Investigative Directorate (GNR 98 of Government
Gazette 35018 of 10
February 2012) (“IPID Regulations”).
2. The declaration of
invalidity in paragraph 1 is suspended for a period of 12 months
from the date of the order to enable Parliament
to correct the
constitutional defect(s).
3. Pending the correction of
the defect(s), or the expiry of the 12-month period, whichever
occurs first:
3.1 Section 6(6) of the
Independent Police Investigative Directorate Act, No. 1 of 2011 is
to be read as providing as follows:
“
Sub-sections 17DA(3) to
17DA(7) of the SAPS Act apply to the suspension and removal of the
Executive Director of IPID, with such
changes as may be required by
the context”; and
3.2 Sections 16A(1), 16B, 17(1)
and 17(2) of the Public Service Act, 1994 and regulation 13 of the
IPID Regulations, shall be
read as having no application to the
Executive Director of the Independent Police Investigative
Directorate.
4. It is declared that the
decision of the Minister of Police to suspend the Applicant from his
position as Executive Director
of the Independent Police
Investigative Directorate is unlawful and invalid and the decision
is set aside.
5. It is declared that the
decision of the Minister of Police to institute the disciplinary
inquiry against the Applicant, which
was to commence on 21 May 2015,
is unlawful and invalid and the decision is set aside.
6. The order in paragraph 4 is
suspended for 30 days in order for the National Assembly and the
Minister of Police, if they so
choose, to exercise their powers in
terms of the provisions referred to in paragraph 3.1 above.
7. All of the above orders are
referred to the Constitutional Court for confirmation and shall have
no force unless and until
confirmed by the Constitutional Court.
8. The First Respondent is
directed to pay the costs of the Applicant, including the costs of
two counsel.
9. The First Respondent is
ordered to pay the costs of the Helen Suzman Foundation, including
the costs of two counsel.
10. The First Respondent is
ordered to pay the costs of the Council for the Advancement of the
South African Constitution.
11.
[25]
Matatiele
Municipality and Others v President of the RSA and Others
[2006]
ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at paras 66-7.
Notably, in
CUSA v
Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at para
68, this Court held:
“
Where a point of law is
apparent on the papers, but the common approach of the parties
proceeds on a wrong perception of what
the law is, a court is not
only entitled, but is in fact also obliged,
mero motu
, to
raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised on an
incorrect
application of the law. That would infringe the principle of
legality.”
[26]
One of the objects of the IPID Act is set out in section 2(g) as
follows:
“
to enhance
accountability and transparency by the South African Police Service
and Municipal Police Services in accordance with
the principles of
the Constitution.”
[27]
Section 7(11).
[28]
Section 7(2).
[29]
Section 7(3)(a).
[30]
Section 7(3)(e)(i)-(iii).
[31]
Section 7(4). In terms of section 7(5), the NPA must notify
the Executive Director of its intention to prosecute, whereafter
the
Executive Director must notify the Minister thereof and provide a
copy to the Secretary.
[32]
Section 7(6).
[33]
Section 7(7).
[34]
1 of 1999.
[35]
Section 7(1)(a)-(c).
[36]
Glenister II
above n 19 at para 216.
[37]
Helen Suzman
Foundation v President of the Republic of South Africa and Others
[2014] ZACC 32
;
2015
(2) SA 1
(CC);
2015 (1) BCLR 1
(CC) (
Helen
Suzman Foundation
).
[38]
Glenister II
above
n 19 at para 125.
[39]
Id at para 121. See also High Court judgment above n 5 at para
28.
[40]
High Court judgment above n 5 at para 36.
[41]
It calls for independent bodies or persons (specialised in combating
corruption through law enforcement) that can “carry
out their
functions effectively and without any undue influence”
(article 36). For this, the independent body should
have
complete discretion in the performance or exercise of its functions
and not be subject to the direction or control of a
minister or any
other party. In principle, it should give an account after its
work has been performed when it reports
to parliament (rather than
the executive).
[42]
The Council of Europe’s Commissioner for Human Rights’
Opinion on the
Independent and Effective Determination of Complaints Against the
Police
(2009),
similarly found that:
“
An independent and
effective complaints system is essential for securing and
maintaining public trust and confidence in the police,
and will
serve as a fundamental protection against ill-treatment and
misconduct. An independent police complaints body
. . . should
form a pivotal part of such a system.”
[43]
The AU Resolution on Police Reform, Accountability and Civilian
Police Oversight in Africa, 2006, calls upon State Parties “to
establish independent civilian policing oversight mechanism[s]”.
In relevant part, the AU Resolution reads:
“
[A]ccountability and the
oversight mechanisms for policing forms the core of democratic
governance and is crucial to enhancing
the rule of law and assisting
in restoring public confidence in police.”
[44]
Available at: http://www.oecd.org/dataoecd/7/4/39971975.pdf,
accessed on 6 June 2016.
[45]
Glenister II
above n 19 at para 187.
[46]
Id at paras 119 and 188.
[47]
Glenister II
above
n 19 at para 207.
[48]
Id at para 210.
[49]
Glenister II
above n 19 at para 207.
[50]
Helen Suzman
Foundation
above n
37 at para 31.
[51]
Van Rooyen and Others
v the State and Others (General Council of the Bar of South Africa
Intervening)
[2002]
ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC) (
Van
Rooyen
).
[52]
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)
(
Democratic
Alliance
).
[53]
Kruger v President of
Republic of South Africa and Others
[2008] ZACC 17
;
2009 (1) SA 417
(CC);
2009 (3) BCLR 268
(CC)
(
Kruger
).
[54]
Cross-Border Road
Transport Agency v Central African Road Services (Pty) Ltd and
Another
[2015] ZACC
12
;
2015 (5) SA 370
(CC);
2015 (7) BCLR 761
(CC) at para 20.
[55]
Van Rooyen
above
n 51 at para 260.
[56]
Democratic Alliance
above n 52 at para
93.
[57]
Kruger
above
n 53 at paras 69-70.