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[2018] ZACC 23
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Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC and Others (CCT 333/17; CCT 13/18) [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) (13 August 2018)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 333/17 and CCT 13/18
Case
CCT 333/17
In
the matter between:
CORRUPTION
WATCH
NPC
First

Applicant
FREEDOM
UNDER LAW
NPC
Second

Applicant
COUNCIL
FOR THE ADVANCEMENT OF
THE
SOUTH AFRICAN
CONSTITUTION
Third

Applicant
and
PRESIDENT
OF THE REPUBLIC
OF
SOUTH
AFRICA
First

Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Second
Respondent
MXOLISI
SANDILE OLIVER
NXASANA
Third
Respondent
SHAUN
KEVIN
ABRAHAMS
Fourth
Respondent
DIRECTOR
GENERAL: DEPARTMENT OF
JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT
Fifth
Respondent
CHIEF
EXECUTIVE OFFICER OF THE NATIONAL
PROSECUTING
AUTHORITY
Sixth
Respondent
NATIONAL
PROSECUTING
AUTHORITY
Seventh
Respondent
DEPUTY
PRESIDENT OF THE REPUBLIC
OF
SOUTH
AFRICA
Eighth
Respondent
and
HELEN
SUZMAN
FOUNDATION
Amicus

Curiae
Case
CCT 13/18
In
the matter between:
MXOLISI
SANDILE OLIVER
NXASANA
Applicant
and
CORRUPTION
WATCH
NPC
First

Respondent
FREEDOM
UNDER LAW
NPC
Second
Respondent
COUNCIL
FOR THE ADVANCEMENT OF
THE
SOUTH AFRICAN
CONSTITUTION
Third
Respondent
PRESIDENT
OF THE REPUBLIC
OF
SOUTH
AFRICA
Fourth
Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Fifth
Respondent
SHAUN
KEVIN
ABRAHAMS
Sixth
Respondent
DIRECTOR
GENERAL: DEPARTMENT OF
JUSTICE
AND CONSTITUTIONAL DEVELOPMENT
Seventh
Respondent
CHIEF
EXECUTIVE OFFICER OF THE NATIONAL
PROSECUTING
AUTHORITY
Eighth
Respondent
NATIONAL
PROSECUTING
AUTHORITY
Ninth
Respondent
DEPUTY
PRESIDENT OF THE REPUBLIC
OF
SOUTH
AFRICA
Tenth
Respondent
and
HELEN
SUZMAN
FOUNDATION
Amicus

Curiae
Neutral
citation:
Corruption Watch NPC and Others v President of the
Republic of South Africa and Others
[2018] ZACC 23
Coram:
Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ,
Jafta J, Khampepe J, Madlanga J, Petse AJ
and
Theron J.
Judgments:
Madlanga J (majority): [1] to [94]
Jafta
J (minority): [95] to [129]
Heard
on:
28 February 2018
Decided
on:
13 August 2018
ORDER
Application
for confirmation of the order of the Gauteng Division of the High
Court, Pretoria and related appeals against the order
of the same
court:
1. The appeal of Mr
Mxolisi Sandile Oliver Nxasana is upheld with no order as to costs
and Mr Nxasana’s explanatory affidavit
is admitted.
2. The costs order
by the High Court of South Africa, Gauteng Division, Pretoria (High
Court) against Mr Nxasana is set aside.
3. The appeal of
Advocate Shaun Kevin Abrahams and the National Prosecuting Authority
is dismissed with costs, including the costs
of two counsel.
4. The declaration
by the High Court that the settlement agreement dated 14 May 2015
concluded by former President Jacob Gedleyihlekisa
Zuma, the Minister
of Justice and Correctional Services and Mr Nxasana in terms of
which Mr Nxasana’s incumbency as
the National Director of
Public Prosecutions (NDPP) was terminated is constitutionally invalid
is confirmed.
5. The declaration
by the High Court that the termination of the appointment of Mr
Nxasana as NDPP is constitutionally invalid is
confirmed.
6. The declaration
by the High Court that the decision to authorise payment to Mr
Nxasana of an amount of R17 357 233
in terms of the
settlement agreement is invalid is confirmed.
7. The declaration
by the High Court that the appointment of Advocate Abrahams as
NDPP is invalid is confirmed.
8. The declaration
by the High Court that
section 12(4)
of the
National Prosecuting
Authority Act 32 of 1998
is constitutionally invalid is confirmed.
9. The declaration
by the High Court that
section 12(6)
of the
National Prosecuting
Authority Act is
constitutionally invalid is confirmed only to the
extent that the section permits the suspension by the President of an
NDPP and
Deputy NDPP for an indefinite period and without pay.
10. The declaration
of constitutional invalidity contained in paragraph 9 is suspended
for 18 months to afford Parliament an opportunity
to correct the
constitutional defect.
11. During the
period of suspension—
(a)
a
section 12(6)(aA)
will be inserted after
section 12(6)(a)
and it
will read:
“
The period
from the time the President suspends the National Director or a
Deputy National Director to the time she or he decides
whether or not
to remove the National Director or Deputy National Director shall not
exceed six months.”
(b)
section 12(6)(e)
will read (with insertions and deletions reflected
within square brackets):
“
The National
Director or Deputy National Director provisionally suspended from
office shall receive, for the duration of such suspension,
[
no
salary or such salary as may be determined by the President
]
[her or his full salary].”
12. Should
Parliament fail to correct the defect referred to in paragraph 9
within the period of suspension, the interim relief
contained in
paragraph 11 will become final.
13. Decisions taken,
and acts performed, by Advocate Abrahams in his official capacity
will not be invalid by reason only of the
declaration of invalidity
contained in paragraph 7.
14. Mr Nxasana is
ordered to repay forthwith to the state the sum of R10 240 767.47.
15. The President is
directed to appoint an NDPP within 90 days of the date of this order.
16. The President,
the Minister of Justice and Correctional Services and the National
Prosecuting Authority are ordered to pay all
costs in this Court that
are additional to the costs referred to in paragraph 3, such costs to
include the costs of two counsel.
JUDGMENT
MADLANGA
J (Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ,
Khampepe J, and Theron J concurring):
Introduction
[1]
The applicants, Corruption Watch NPC (Corruption Watch),
Freedom Under Law NPC (FUL) and Council for the Advancement of the
South
African Constitution (CASAC), seek confirmation of orders of
constitutional invalidity made by the High Court of South Africa,
Gauteng Division, Pretoria (High Court).  What the High Court
declared constitutionally invalid are—
(a) a settlement
agreement concluded by former President Jacob Gedleyihlekisa Zuma,
the Minister of Justice and Correctional Services
(Minister) and the
former National Director of Public Prosecutions (NDPP), Mr Mxolisi
Sandile Oliver Nxasana who is the third
respondent in the
confirmation application in terms of which Mr Nxasana’s
incumbency as the NDPP was terminated;(b) the actual
termination of
Mr Nxasana’s incumbency as the NDPP;
(c) a decision to
authorise payment to Mr Nxasana of an amount of R17 357 233
(R17.3 million) in terms of the settlement
agreement;
(d) the appointment
of Advocate Shaun Kevin Abrahams as the NDPP in the position vacated
by Mr Nxasana;
(e)
section
12(4) of the National Prosecuting Authority Act
[1]
(NPA Act); and
(f) section 12(6) of
the NPA Act to the extent that it permits the President to suspend
the NDPP unilaterally, indefinitely and
without pay.
[2]
The
High Court’s order is two-legged and quite extensive.  To
do justice to its content, I think it best to render it
in full in a
footnote.
[2]
[3]
The confirmation application was consolidated with an appeal
by Mr Nxasana against the High Court’s refusal to grant
him condonation for the late filing of what he called “an
explanatory affidavit”.  As appears from the declarations

of constitutional invalidity just referred to and the quoted order,
Advocate Abrahams and the National Prosecuting Authority
(NPA)
were unsuccessful before the High Court.  Of particular note in
this regard, the appointment of Advocate Abrahams
as the NDPP
was declared constitutionally invalid and Advocate Abrahams and
the NPA were ordered to pay the applicants’
costs, including
the costs of two counsel.  Advocate Abrahams and the NPA
too brought an appeal before this Court against
the adverse orders.
They also oppose the confirmation proceedings insofar as they relate
to Advocate Abrahams.  Their
appeal was heard simultaneously
with the confirmation application and Mr Nxasana’s appeal.
[4]
Plainly
the matter is properly before us and nothing more need be said in
that regard.
[3]
The
questions are whether the orders of constitutional invalidity must be
confirmed and the appeals upheld.
[5]
The
applicants have cited a number of respondents.
[4]
Some have entered the fray, others not.
[5]
The Helen Suzman Foundation applied to be admitted as a friend of the
court (
amicus
curiae
).
It is admitted as there is no reason not to grant that application.
Background
[6]
The
events that are at the centre of these proceedings are in the public
domain.  The judgment of the High Court notes that
it was common
cause before that Court that since September 2007 the recent history
at the NPA “has been one of paralysing
instability”.
[6]
That judgment gives details of that history.
[7]
I do not propose doing the same.  I will commence with the
narrative from when Mr Nxasana, one of the people affected
by the
High Court’s orders, was appointed to the position of NDPP.
[8]
His appointment – which followed the short lived
incumbency of Mr Menzi Simelane – took

effect from 1 October 2013.  Mr Simelane’s
appointment had come after that of Mr Vusi Pikoli
who – following
a suspension, a commission of inquiry
into his fitness to hold office, some litigation and the conclusion
of a settlement agreement – had
also vacated office
in terms of that agreement without finishing his term of office.
[7]
In
July 2014 – within about only nine months of his
appointment – a process calculated to remove
Mr
Nxasana from office commenced.  The then President,
Mr Jacob Zuma, informed Mr Nxasana of his intention
to
institute an inquiry into his fitness to hold office.
[9]
This was followed by a notice that the former President was
considering suspending Mr Nxasana pending finalisation of the

inquiry.  The former President said that suspension was
necessary in order to maintain the integrity and good administration

of the NPA.  The notice also specified that the inquiry sought
to establish whether certain issues were “consonant with
the
conscientiousness and integrity of an incumbent in the office of
National Director of Public Prosecutions as required by the
[NPA]
Act”.  These issues were: Mr Nxasana’s previous
criminal conviction for “violent conduct”;
allegedly
unbecoming and divisive comments which had the effect of bringing the
NPA into disrepute made by Mr Nxasana and
reported in the media;
and alleged non-disclosure of facts and circumstances of prosecutions
which Mr Nxasana had faced previously.
The former President
called upon Mr Nxasana to give reasons “in this regard”.
Apparently this was an invitation
for representations on why
Mr Nxasana should not be suspended.
[10]
[8]
In a letter requesting an extension of the deadline for the
submission of representations, Mr Nxasana also requested
particularity
on the three issues itemised above to which the
intended inquiry related.  By the morning of the deadline,
former President
Zuma had not responded to either request.  Mr
Nxasana was forced to make preliminary representations so as to meet
the deadline.
His intention was to supplement them upon receipt
of the requested particulars.  When he followed-up on the
particularity,
the former President said it was not proper to discuss
these issues as they were the subject of the inquiry.  Mr
Nxasana approached
the High Court seeking an order: compelling
former President Zuma to provide the required particularity; and
interdicting
the former President from suspending him until he had
furnished him with this particularity.  That application was not
pursued
to finality.  The former President changed tack.
In late 2014 he proposed that the dispute between him and Mr Nxasana

be mediated.  Mr Nxasana acceded to this proposal.
[9]
It appears from a letter written on 10 December 2014 by
attorneys acting for Mr Nxasana that former President Zuma had
engaged
Mr Nxasana to get him to agree to vacate office.  In the
letter Mr Nxasana made it plain that he did not want to vacate office

as there was no basis for him to.  He stated that he would,
however, consider stepping down only if he was fully compensated
for
the remainder of the contract period.
[10]
In early 2015 the former President set up the long-threatened
commission that was to enquire into Mr Nxasana’s fitness

to hold office.  After some preliminary work, the commission set
11 May 2015 as the commencement date for the hearing.
Parallel
with this inquiry process, Mr Hulley – the former
President’s legal adviser – made
a promise that
Mr Nxasana would be paid a settlement amount from public coffers.
Over time that amount increased progressively.
An earlier offer
contained in a draft settlement agreement was R10 million.  Mr
Nxasana did not accept it.  Former President
Zuma was
undeterred.  Thereafter Mr Hulley sent Mr Nxasana another draft
settlement agreement with the amount left blank for
Mr Nxasana to
fill it in himself.  Nothing of moment came of this.
[11]
In the end the commission hearing never commenced as
settlement was eventually reached.  Mr Nxasana signed the
settlement agreement
on 9 May 2015.  The Minister and former
President did so on 14 May 2015.  In terms of this agreement
Mr Nxasana
would relinquish his position as NDPP and receive a
sum of R17.3 million as a settlement payment.  In the
event, Mr Nxasana
was paid an amount of R10 240 767.47 as the rest
was retained by the state for income tax.
[12]
It
must be noted that, right from the onset and throughout the entire
negotiation process that culminated in the settlement agreement,
Mr
Nxasana unequivocally stated that he did not wish to resign and that
he considered himself to be fit for office.  Instead
his
preference was for former President Zuma’s allegations that he
was no longer fit for office to be tested in a formal
inquiry as
proposed by the former President.  Throughout, he protested the
existence of a factual or legal basis for him to
vacate office.
Also, he disavowed any invocation by him of section 12(8) of the
NPA Act to voluntarily vacate office.
[11]
It is so, of course, that he did indicate that he would resign only
if he was paid the full salary for the remainder of his
term of
office.
[13]
On 18 June 2015 former President Zuma appointed
Advocate Shaun Abrahams who – to this
day – is
the incumbent NDPP.
[14]
Corruption
Watch and FUL approached the High Court seeking the review and
setting aside of the settlement agreement, an order that
Mr Nxasana
repay the R17.3 million settlement payout and the review and
setting aside of the appointment of Advocate
Abrahams.  In a
separate application which was later consolidated with the
application by Corruption Watch and FUL, CASAC
sought an order
declaring section 12(4) and (6)
[12]
of the NPA Act unconstitutional.
[13]
[15]
The High Court granted both applications, hence the present
confirmation proceedings.
Issues
[16]
The issues are whether—
(a) the settlement
agreement and, therefore, Mr Nxasana’s vacation of the office
of NDPP are constitutionally valid;
(b) Mr Nxasana
should be required to repay the R17.3 million settlement payout;
(c) the appointment
of Advocate Abrahams as NDPP is constitutionally invalid;
(d) section 12(4)
and (6) of the NPA Act is constitutionally invalid; and
(e) the High Court
erred in refusing to grant Mr Nxasana condonation for the late filing
of his affidavit.
[17]
I proceed to deal with these issues, but not necessarily in
this order.
The
validity of the settlement agreement and Mr Nxasana’s vacation
of office
[18]
The
importance of the office of NDPP in the administration of justice is
underscored and amplified by no less an instrument than
the
Constitution itself.  Section 179(4) of the Constitution
requires that there be national legislation which guarantees
the
independence of the prosecuting authority.  In terms of
section 179(1) the prosecuting authority consists of the
NDPP
who is its head, Directors of Public Prosecutions and
prosecutors.
[14]
Section 179(4) provides that national legislation must ensure
that the NPA exercises its functions without fear, favour
or
prejudice.  That legislation is the NPA Act.  Predictably,
section 32(1)(a) of the NPA Act requires members of the
prosecuting
authority to carry out their duties without fear, favour or
prejudice, and subject only to the Constitution and the
law.
[19]
This
Court has said of the NPA’s independence “[t]here is . .
. a constitutional guarantee of independence, and any
legislation or
executive action inconsistent therewith would be subject to
constitutional control by the courts”.
[15]
The reason why this guarantee of independence exists is not far to
seek.  The NPA plays a pivotal role in the administration
of
criminal justice.  With a malleable, corrupt or dysfunctional
prosecuting authority, many criminals – especially

those holding positions of influence – will rarely,
if ever, answer for their criminal deeds.  Equally,
functionaries
within that prosecuting authority may – as
CASAC submitted – “be pressured . . . into
pursuing
prosecutions to advance a political agenda”.  All
this is antithetical to the rule of law, a founding value of the
Republic.
[16]
Also,
malleability, corruption and dysfunctionality are at odds with the
constitutional injunction of prosecuting without
fear, favour or
prejudice.  They are thus at variance with the constitutional
requirement of the independence of the NPA.
[20]
At
the centre of any functioning constitutional democracy is a
well-functioning criminal justice system.  In
Democratic
Alliance
Yacoob ADCJ observed that the office of the NDPP “is
located at the core of delivering criminal justice”.
[17]
If you subvert the criminal justice system, you subvert the rule of
law and constitutional democracy itself.  Unsurprisingly,
the
NPA Act proscribes improper interference with the performance of
prosecutorial duties.  Section 32(1)(b) provides:
“
Subject to
the Constitution and this Act, no organ of state and no member or
employee of an organ of state nor any other person
shall improperly
interfere with, hinder or obstruct the prosecuting authority or any
member thereof in the exercise, carrying out
or performance of its,
his or her powers, duties and functions.”
[21]
Improper interference may take any number of forms.
Without purporting to be exhaustive, it may come as downright
intimidation.
It may consist in improper promises or
inducements.  It may take the form of corruptly influencing the
decision making
or functioning of the NPA.  All these forms
and others are proscribed by an Act that gets its authority to
guarantee prosecutorial
independence directly from the Constitution.
[22]
Another
guarantee of the NDPP’s independence is provision for security
of tenure.  In section 12(1) the NPA Act provides
that the NDPP
shall hold office for a 10 year non-renewable term of
office.
[18]
It is now
well established in terms of this Court’s jurisprudence that
security of tenure is an integral feature of
the constitutional
requirement of independence.  In
Justice
Alliance
this Court held that “
international
standards acknowledge that guaranteed tenure and conditions of
service, adequately secured by law, are amongst the
conditions
necessary to secure and promote the independence of judges”.
[19]
These necessary conditions must, of course, be true of the
independence of the NPA as well.  In a unanimous judgment
in
McBride
Bosielo AJ said that amongst the factors that are relevant to
the independence of offices or institutions which – in

terms of constitutional prescripts – must be
independent are “the method of appointment, the method of
reporting,
disciplinary proceedings and the method of removal . . .
from office, and security of tenure”.
[20]
[23]
The
NPA Act has two other salient features that help shield the NPA from
improper interference, namely: the non-renewability of
the 10-year
term of office of the NDPP;
[21]
and certain safeguards on the removal of the NDPP from office.
[22]
Section 12(8) provides for the voluntary vacation of office by
an NDPP.
[23]
This
section is of some significance.  It must be read in the context
of the constitutional guarantee that the office
of NDPP be
independent and, indeed, in the context of all the provisions of the
NPA Act that seek to give content to the provisions
of section 179(4)
of the Constitution.
[24]
Any act or conduct that purports to be a voluntary vacation of office
but which compromises or has the potential to compromise
the
independence of the NDPP is constitutionally invalid.  A
question that follows is whether the manner in which Mr Nxasana

vacated office is constitutionally compliant.
[24]
Crucially, at the hearing before us it was no longer in
dispute that Mr Nxasana had not vacated office in terms of
section 12(8).
The contest concerned the question whether
the manner in which he vacated office was lawful.  The
applicants argued that Mr
Nxasana vacated office in a manner that was
at odds with the Constitution and the law.  Advocate Abrahams
and the NPA argued
that an NDPP is not precluded from vacating office
voluntarily otherwise than under section 12(8).  Mr Nxasana, on
the other
hand, accepted that his vacation of office was not
constitutionally compliant.
[25]
The facts set out above point to one thing and one thing only:
former President Zuma was bent on getting rid of Mr Nxasana by

whatever means he could muster.  His was an approach that kept
on mutating: it was first a stick; then a carrot; a stick once
more;
and eventually a carrot.  There was first the notification that
Mr Nxasana would be subjected to an inquiry with
a view to
establishing whether he was still a fit and proper person to hold
office.  Concomitantly, there was a threat of
suspension pending
finalisation of the inquiry, albeit with full pay.  This was
followed by former President Zuma’s
proposal that there be
mediation.  When there was no progress on this, the inquiry was
instituted.  Whilst the inquiry
was in its preliminary stages,
the former President pursued a parallel process in which Mr Nxasana
was first offered – in
a draft settlement agreement – R10
million.  As indicated earlier, he did not accept it.  What
plainly
evinces how desperate former President Zuma was to get rid of
Mr Nxasana is that this was followed by a draft settlement in which

the amount was left blank.  Mr Nxasana was being told to pick
whatever figure.  Indeed, Mr Hulley said that he would

“await the
final amount
” from Mr Nxasana.
(Emphasis added.)
[26]
I
am not suggesting that the former President would have accepted any
amount Mr Nxasana inserted.  All I am saying is that
the very
idea that former President Zuma was willing, at least, to consider
whatever amount Mr Nxasana inserted speaks volumes.
To be more
direct, it lends credence to the view that he wanted to get rid of
Mr Nxasana at all costs.  If that
were not the case, why
else would he have given Mr Nxasana an opportunity to insert an
amount of his liking?  After all,
this all started because
former President Zuma overtly made all and sundry believe that he had
a basis for holding a view that
Mr Nxasana was no longer fit for
office.  It must have been a matter of relative ease, therefore,
to pursue the inquiry
instead of offering Mr Nxasana what – by
all accounts – was an extremely huge sum of money.

In its judgment the High Court notes that before it the parties were
agreed that the amount of R17.3 million “far exceeded
what
Mr Nxasana’s financial entitlement would have been had his
office been lawfully vacated in terms of section 12(8)(a)(ii)
of the
NPA Act”.
[25]
[27]
Instead of settling for so huge an amount, why did the former
President not simply pursue the inquiry?  Did he not believe
that the evidence that had motivated him to come up with the idea of
an inquiry was sufficiently cogent?  If so, why did he
not just
abandon the inquiry and leave Mr Nxasana in office?  After all,
he was exercising powers as President and not involved
in a personal
dispute which he could settle as he pleased.  It is difficult to
comprehend why he would have settled on so
huge an amount, and from
public coffers to boot.
[28]
The
inference is inescapable that he was effectively buying Mr Nxasana
out of office.  In my book, conduct of that nature compromises

the independence of the office of NDPP.  It conduces to the
removal of “troublesome” or otherwise unwanted NDPPs

through buying them out of office by offering them obscenely huge
amounts of money.  Although I deliberately eschew deciding
the
question whether an NDPP may vacate office outside of the provisions
of section 12(8) of the NPA Act, this much I do want to
say: it can
never be that vacating office outside of these provisions would ever
entitle an NDPP to more benefits than those set
out in
section 12(8).  Section 12(8) is specific on the
benefits.  It provides that when an NDPP vacates office
on the
basis of “continued ill-health”,
[26]
“he or she shall be entitled to such pension as he or she would
have been entitled to under the pension law applicable to
him or her
if his or her services had been terminated on the ground of continued
ill health occasioned without him or her
being instrumental
thereto”.
[27]
When
an NDPP vacates office for “any other reason which the
President deems sufficient”,
[28]
“he or she shall be deemed to have been retired in terms of
section 16(4) of the Public Service Act, and he or she shall
be
entitled to such pension as he or she would have been entitled to
under the pension law applicable to him or her if he or she
had been
so retired”.
[29]
All these are the usual public service benefits.  The problem
with benefits that are not capped by the section 12(8)
limit is
that they give rise to the real possibility of NDPPs being bought out
of office.  That, as I say, compromises the
independence of the
office of NDPP.  Whatever we are to make of the full import of
section 12(8), the manner of voluntary
vacation of office should
never undermine the constitutional imperative of the independence of
the NDPP.
[29]
The settlement agreement, Mr Nxasana’s vacation of
office and the obligation to pay the sum of R17.3 million are one
composite
whole.  In fact, the vacation of office and obligation
to pay and subsequent payment were in terms of the settlement
agreement.
I am led to the conclusion that all are
constitutionally invalid for having come about in a manner
inconsonant with the constitutionally
required independence of the
office of NDPP.
[30]
Although I have alluded to this, let me say it explicitly.
On the approach I have taken, it is not necessary to deal with the

argument by Advocate Abrahams and the NPA that an NDPP may vacate
office voluntarily outside the provisions of section 12(8).
Was
the appointment of Advocate Abrahams constitutionally invalid?
[31]
The
appointment of Advocate Abrahams as NDPP was an act consequential
upon the constitutionally invalid vacation of office by Mr
Nxasana.
Consequential acts which follow on constitutionally invalid conduct
are commonplace.  An interesting question
raised by the
oft cited statement of law in
Oudekraal
[30]
is the effect of the constitutional invalidity of Mr Nxasana’s
vacation of office on the consequential act of the appointment
of
Advocate Abrahams.
[31]
In that statement Howie P and Nugent JA said that until
administrative action is set aside by a court in review proceedings,

it continues to exist in fact and has legal consequences that cannot
simply be overlooked.
[32]
This pronouncement has been relied upon by this Court on a number of
occasions.
[33]
Does this
mean that – because Mr Nxasana’s vacation
of office had not yet been set aside when
Advocate Abrahams was
appointed NDPP – Advocate Abrahams was validly
appointed?
[32]
What
may lead some readers of what I have paraphrased from
Oudekraal
astray is reading it in isolation.  Later
Oudekraal
makes it clear that where a consequential act could be valid only as
a result of the factual existence – not legal validity
–
of the earlier act, the consequential act would be valid only for so
long as the earlier act had not been set aside.
[34]
In
Seale
Cloete JA for a unanimous Court put this beyond question.  He
held:
“
Counsel
for both Seale and the TYC sought to rely in argument on passages in
the decision of this court in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
which adopted the analysis by Christopher Forsyth of why an act which
is invalid may nevertheless have valid consequences and concluded:
‘
Thus
the proper enquiry in each case – at least at first – is
not whether the initial act was valid but rather whether
its
substantive validity was a necessary precondition for the validity of
consequent acts.  If the validity of consequent
acts is
dependent on no more than the factual existence of the initial act
then the consequent act will have legal effect
for
so long as the initial act is not set aside by a competent court
.’
.
. .
[T]he
reliance by counsel on the decision in
Oudekraal
,
[is] misplaced. As appears from the italicised part of the judgment
just quoted, the analysis was accepted by this court as being
limited
to a consideration of the validity of a second act performed
consequent upon a first invalid act, pending a decision whether
the
first act is to be set aside or permitted to stand. This court did
not in
Oudekraal
suggest that the analysis was relevant to that latter decision.”
[35]
(Footnotes omitted.)
[33]
The
Supreme Court of Appeal then concluded that “
it
is clear from
Oudekraal
. . . that
if the first act is set aside, a second act that depends for its
validity on the first act must
be invalid as the legal foundation for
its performance was non existent”.
[36]
[34]
In
Kirland
this Court accepted what was decided in
Seale
.
Writing for the majority, Cameron J had this to say:
“
In
Seale
. . . the Court, applying
Oudekraal
,
held that acts performed on the basis of the validity of a prior act
are themselves invalid if and when the first decision is
set
aside. . . .  [T]he Court rightly rejected
an argument, in misconceived reliance on
Oudekraal
,
that the later (second) act could remain valid despite the setting
aside of the first.”
[37]
[35]
Now that the manner in which Mr
Nxasana vacated office has been declared constitutionally invalid, it
follows that the appointment
of Advocate Abrahams is constitutionally
invalid.  The appeal by Advocate Abrahams and the NPA directly
countered the application
for confirmation of the order declaring the
appointment of Advocate Abrahams invalid.  As a consequence,
that appeal falls
to be dismissed.
The
validity of section 12(4) and (6) of the NPA Act
[36]
The challenge to the constitutional validity of this section
is not founded on any factual matrix.  Section 12(4) is about
the extension of the term of office of an NDPP who is otherwise
liable to retire on grounds of age.  In these proceedings nobody

was affected by the provisions of this section.  Section 12(6)
provides for the indefinite suspension of an NDPP by the President

without pay or with such pay as the President may determine.  Mr
Nxasana was suspended with full pay.  Nobody else was
suspended.
A preliminary issue that arises is whether we must entertain
this abstract challenge.
[37]
This Court has entertained abstract challenges in appropriate
circumstances.  In
Ferreira
in the context of an abstract
challenge arising from public interest litigation, O’Regan J
held that the relevant factors
are—
“
whether there
is another reasonable and effective manner in which the challenge can
be brought; the nature of the relief sought,
and the extent to which
it is of general and prospective application; and the range of
persons or groups who may be directly or
indirectly affected by any
order made by the court and the opportunity that those persons or
groups have had to present evidence
and argument to the court.”
[38]
[38]
In
Lawyers
for Human Rights
Yacoob J, writing for the majority, quoted this passage with
approval
[39]
and held that
even though O’Regan J was in the minority, the passage was not
inconsistent with anything said in the majority
judgment on
standing.
[40]
Crucially,
he then held that the factors set out by O’Regan J in respect
of public interest standing where there is
a live controversy are of
relevance even where there is none.  In other words, the factors
apply even in the case of abstract
public interest challenges.
This is how he articulated this:
“
It is
ordinarily not in the public interest for proceedings to be brought
in the abstract.  But this is not an invariable principle.

There may be circumstances in which it will be in the public
interest to bring proceedings even if there is no live case.
The
factors set out by O’Regan J help to determine this question.
The list of relevant factors is not closed.
I would add
that the degree of vulnerability of the people affected, the nature
of the right said to be infringed, as well
as the consequences of the
infringement of the right are also important considerations in the
analysis.”
[41]
[39]
I am of the view that – in
the present circumstances – it is imperative that the
abstract challenge
be entertained.  What stands out is the
nature of the unconstitutionality complained of and its
susceptibility to occurring
without detection.  CASAC argued
that when the alleged unconstitutionality relates to independence as
is the case with the
present challenges, abstract challenges are
vital.  It explained that “the problem is not only the
actual exercise of
unconstitutional powers, but the subtle ways in
which the mere existence of those powers undermines independence”.
An NDPP may refrain from acting independently because she or he fears
indefinite unpaid suspension and the factual matrix for the
challenge
not to be abstract may never arise.  As CASAC further argued,
rather than give the factual matrix an opportunity
to eventuate, it
is better to pre emptively challenge the relevant statutory
provision.
[40]
It
is, therefore, not surprising that the
Glenister
II
[42]
and
Helen
Suzman Foundation
[43]
challenges were determined in the absence of any factual predicate.
In sum, this is a fitting case to entertain an abstract
challenge.
[41]
I
next proceed to deal with the challenges to the two subsections one
after the other.
[44]
[42]
Section 12(4) empowers the President
to extend the term of office of an NDPP or a Deputy NDPP which must
ordinarily come to an end
at age 65 beyond that age, but not for a
period which exceeds, or periods which in the aggregate exceed, two
years provided that
an NDPP’s term of office shall not exceed
10 years.  The President’s power to extend an NDPP’s
term of office
undermines the independence of the office.  Here
is how this was explained in
Justice
Alliance
:
“
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 won institutional
attribute of impartiality and the
public confidence that goes with it.”
[45]
(Footnotes omitted.)
[43]
In similar vein, Mogoeng CJ held in
Helen Suzman Foundation
:
“
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.”
[46]
[44]
There is no basis for this reasoning
not to apply to section 12(4).  The High Court’s
declaration of constitutional
invalidity must be confirmed.
[45]
Coming to section 12(6), two aspects
that make the President’s power to suspend particularly
egregious are the facts that
she or he may suspend with or without
pay and for an indefinite period.  Of importance, suspending
without pay is the default
position: the section says that for the
duration of the suspension, an NDPP or Deputy NDPP “shall
receive no salary or such
salary as may be determined by the
President”.  There is no guidance whatsoever on how and on
what bases the President
may exercise the discretion to (a) allow
receipt of a salary and (b) determine its quantum.  This tool is
susceptible to abuse.
It may be invoked to cow and render
compliant an NDPP or Deputy NDPP.  The prospect of not earning
an income may fill many
with dread and apprehension.  The
possibility of this enduring indefinitely exacerbates the situation.
This is not a
tool that should be availed to the Executive.  It
has the potential to undermine the independence and integrity of the
offices
of NDPP and Deputy NDPP and, indeed, of the NPA itself.
[46]
In
Helen
Suzman Foundation
this Court held:
“
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 the withholding of
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 cries
out against
its retention.  It is also the employer’s duty to expedite
the inquiry to avoid lengthy suspensions on pay.”
[47]
[47]
There
is the question of “unilateral suspension”
[48]
on which the challenge is also pegged.  I read Mogoeng CJ for
the majority in
Helen
Suzman Foundation
to say there is nothing inherently wrong with a unilateral
suspension.  What he has a problem with are the possibility of

suspension without pay and benefits and the use of the words “as
the Minister deems fit” in section 17DA(2)(a) of the
South
African Police Service Act.
[49]
In
McBride
,
on the other hand, Bosielo AJ, writing for a unanimous Court, says:
“
To my mind,
the cumulative effect of the impugned sections has the potential to
diminish the confidence the public should have in
IPID [the
Independent Police Investigative Directorate].  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.”
[50]
(Emphasis added.)
[48]
I do not think this is a proper case
in which I need grapple with the import of the content of the two
judgments on “unilateral
suspension”.  There is
enough to invalidate section 12(6) based on the above reasoning.
In that regard, I conclude
that section 12(6) is constitutionally
invalid for empowering the President to suspend an NDPP and Deputy
NDPP without pay and
for an indefinite duration.
Mr
Nxasana’s appeal
[49]
This appeal concerns the High
Court’s refusal of condonation of the late filing of an
affidavit Mr Nxasana labelled as an
“explanatory affidavit”.
He was the third respondent in the application brought by Corruption
Watch and FUL and
the fourth in CASAC’s.  He filed the
explanatory affidavit out of turn; that is, he did not file it when
answering affidavits
by respondents were due.  In fact, it was
so out of time that he filed it after all affidavits had been filed
even in the
CASAC application which had been launched later.  Mr
Nxasana accepts that – even though he styles the
affidavit
as an explanatory affidavit – it is in fact
an answering affidavit in both applications.  The affidavit was

filed under cover of a notice that was headed “notice to
abide”.  In addition to saying Mr Nxasana would abide
the
decision of the Court, the notice said that the affidavit would be
used to explain “the position of the third respondent”.

Reference to the third respondent was to Mr Nxasana.
[50]
The former President opposed the
application for condonation.
[51]
The
fundament of Mr Nxasana’s grievance in the appeal is that the
High Court made certain adverse findings against him without

considering his version and thus contrary to the
audi
alteram partem
(loosely, hear both sides) rule.  He argues that in the
circumstances, the High Court’s order is not just and equitable

within the meaning of section 172(1)(b) of the Constitution.
[51]
[52]
He “notes” that he was
never served with any of the papers in the CASAC application until
April 2017 and that in the
application by Corruption Watch and FUL he
received only the founding papers.  By April 2017 all affidavits
in both applications
had been filed.  He filed the explanatory
affidavit on 11 April 2017.  He explains filing out of time in
these terms:
“
I
accept that my waiting until the conclusion of the rule 30/30A
proceedings was not in strict compliance with the Rules.

However, I submit that it was a pragmatic approach given the delay
inevitably caused by the President’s failure to comply
with
rule 53 and my desire to only provide a single affidavit to Court.”
[53]
The
High Court refused condonation for two reasons.  The first was
that the explanation for the delay was not persuasive.
I
agree.  The second was that “it is generally accepted that
when evidence is presented so late in proceedings, there
is the
danger of it having been tailored to fit a particular position”.
[52]
On this, the question that arises is: how real was this danger in the
instant matter?
[54]
Before dealing with this second
reason, let me touch on Mr Nxasana’s apparent complaint that he
did not always receive proper
service of the papers.  Mr Nxasana
says that service of the application papers on him was haphazard at
best.  I do not
want to make much of this.  He seems to
have been aware of what was going on.  This is especially so
with regard to the
application by Corruption Watch and FUL.  He
assisted these applicants closely with the compilation of the rule 53
record.
That being the case, if he was ever intent on acting
expeditiously, he could have taken the initiative and insisted on
being served
with the papers.  After all, he is an experienced
attorney.
[55]
The explanatory affidavit first
deals with the “background”.  Here Mr Nxasana
begins with discussing facts
around his appointment as NDPP.
Nothing contentious arises from that.
[56]
It next deals with acrimony between
Mr Nxasana, on the one hand, and Advocate Jiba, the former
Acting NDPP, and Advocate Mrwebi,
the Special Director: Specialised
Commercial Crime Unit, on the other.  The acrimony allegedly
erupted soon after Mr Nxasana’s
appointment.  These are
allegations that were not coming to the fore for the first time.
In the explanatory affidavit
Mr Nxasana was repeating allegations he
had made previously in his founding affidavit in the application to
interdict former President
Zuma from suspending him.  That
affidavit was before the High Court in the present proceedings.
It had been filed by
CASAC before the explanatory affidavit was
filed.  Mr Nxasana had also made these same allegations as far
back as 1 August
2014 in the letter in which he made
representations as to why the former President should not suspend
him.  That letter too
had already been filed of record in the
present proceedings by the time Mr Nxasana filed the explanatory
affidavit.
[57]
The
explanatory affidavit then deals with various steps that Mr Nxasana
says he took to address the instability that existed at
the NPA.
In a context that had nothing to do with Mr Nxasana’s
condonation application, the High Court’s judgment
itself
noted
that it was common cause before it that since September 2007 the
recent history at the NPA “ha[d] been one of paralysing

instability”.
[53]
The
steps that Mr Nxasana says he took are also nothing we were
seeing for the first time in the explanatory affidavit.
For
example, in the papers filed of record there is earlier mention of:
the fact that Mr Nxasana obtained an opinion from senior
counsel
regarding adverse findings that had been made by the High Court and
Supreme Court of Appeal against Advocate Jiba,
Advocate Mrwebi
and Advocate Mzinyathi;
[54]
the appointment of retired Justice Yacoob to enquire into the
instability at the NPA; a memorandum prepared by Mr Willie Hofmeyr

addressed to the Minister for onward transmission to former President
Zuma in which the former President was being requested to

provisionally suspend Advocates Jiba, Mrwebi and Mzinyathi; and
Mr Nxasana’s requests for a meeting with former
President
Zuma for the former President to intervene and address the
instability at the NPA.
[58]
The rest of what is dealt with under
background is so uncontentious as not to require any discussion.
[59]
After the background the explanatory
affidavit deals with the circumstances that led to Mr Nxasana’s
resignation.  On
this, correspondence that is contemporaneous
with those circumstances lends support to what Mr Nxasana is now
saying in the explanatory
affidavit.  To an extent the
settlement agreement itself also records why it was concluded; and
that too is supportive of
Mr Nxasana’s version in the
explanatory affidavit.
[60]
The explanatory affidavit next
asserts – and substantiates extensively – that
the settlement agreement
was not concluded pursuant to a request by
him to vacate office.  I need not say much on this because the
High Court – relying
on objective material filed as
part of the rule 53 record before the explanatory affidavit was
deposed to –found likewise.
[61]
I now revert to the High Court’s
view that “it is generally accepted that when evidence is
presented so late in proceedings,
there is the danger of it having
been tailored to fit a particular position”.  Based on my
analysis of the content of
the explanatory affidavit, it seems that
the High Court applied the view without a close look at the specific
facts of this case.
That is, it did not consider how real the
danger of the evidence having been tailored in a particular way was
in this specific
instance.  Looking at the content of the
explanatory affidavit, I think very little in it was surfacing for
the first time
when it was filed.  And nothing in that is
crucial to the determination of the issues.  That to me
substantially minimises,
if not eliminates, the danger identified by
the High Court.  Does that entitle us to interfere with the
High Court’s
exercise of discretion in refusing
condonation?
[62]
The
High Court’s decision entailed the exercise of a discretion “in
the strict sense”
[55]
or “true sense”.
[56]
As such, there are limited bases for us to interfere.  In
National
Coalition
this Court held:
“
A court of
appeal is not entitled to set aside the decision of a lower court
granting or refusing a postponement in the exercise
of its discretion
merely because the court of appeal would itself, on the facts of the
matter before the lower court, have come
to a different conclusion;
it may interfere only when it appears that the lower court had not
exercised its discretion judicially,
or that it had been influenced
by wrong principles or a misdirection on the facts, or that it had
reached a decision which in the
result could not reasonably have been
made by a court properly directing itself to all the relevant facts
and principles.”
[57]
(Footnotes omitted.)
[63]
To my mind, the view that the High
Court took on the danger of improperly tailoring evidence amounts to
a misdirection on the facts.
That view was a central pillar in
the High Court’s exercise of discretion.  The other pillar
was the lack of a satisfactory
explanation for the delay.
Because of the misdirection on the facts, one of the central pillars
collapses.  I do not
see how the edifice can remain standing on
only one of the central pillars.  We are thus entitled to
interfere with the exercise
of discretion.  Must we then grant
condonation and accept Mr Nxasana’s explanatory affidavit?
[64]
In
Brummer
this Court held that it is the interests of justice that are
paramount in considering whether to grant condonation.  On how

interests of justice are determined it held:
“
T
he
interests of justice must be determined by reference to all relevant
factors, including the nature of the relief sought, the
extent and
cause of the delay, the nature and cause of any other defect in
respect of which condonation is sought, the effect on
the
administration of justice, prejudice and the reasonableness of the
applicant's explanation for the delay or defect.”
[58]
[65]
Although the explanation for the
delay is weak, Mr Nxasana is strong on the merits of what the
explanatory affidavit was –
in the main – meant to
achieve; that is to counter former President Zuma’s version.
For me, another factor that
should count in Mr Nxasana’s favour
is that, although he delayed in filing his own affidavit, he expended
time and effort
towards the compilation of a proper rule 53 record
and was thus of great assistance not only to Corruption Watch and FUL
but to
the Court as well.  Also, based on the possible relief
that may be granted and the likely bases for it, a lot is at stake in

this matter; that tends to tilt the scales towards giving a hearing
to all disputants.  Lastly, I am not aware of prejudice
that was
suffered by any party as a result of the late filing of the
explanatory affidavit; and none was suggested.
[66]
On balance, I am of the view that
condonation must be granted and the explanatory affidavit accepted.
[67]
Reverting to the declarations of
invalidity, what must follow them?
Remedy
General
[68]
There is no preordained consequence that must flow from our
declarations of constitutional invalidity.  In terms of section

172(1)(b) of the Constitution we may make
any
order that is
just and equitable.  The operative word “any” is as
wide as it sounds.  Wide though this jurisdiction
may be, it is
not unbridled.  It is bounded by the very two factors stipulated
in the section – justice and equity.
This Court has laid
down certain principles in charting the path on the exercise of
discretion to determine a just and equitable
remedy.
[69]
What
must be paramount in the relief that a court grants is the
vindication of the rule of law.
[59]
The effect of that is the reversal of the consequences of the
constitutionally invalid conduct.  Ordinarily, therefore,
Mr
Nxasana would have to resume office as he did not vacate it validly.
This is analogous to the situation of an employee
whose dismissal was
invalid.  About that this is what Zondo J, writing for the
majority, said in
Steenkamp
:
“
An invalid
dismissal is a nullity.  In the eyes of the law an employee
whose dismissal is invalid has never been dismissed.
If, in the
eyes of the law, that employee has never been dismissed, that means
the employee remains in his or her position
in the employ of the
employer.  In this Court’s unanimous judgment in
Equity
Aviation
, Nkabinde J articulated the meaning of the word
‘reinstate’ in the context of an employee who has been
dismissed.  She
said, quite correctly, it means to restore the
employee to the position in which he or she was before he or she was
dismissed.
With that meaning in mind, the question that arises
in the context of an employee whose dismissal has been found to be
invalid
and of no force and effect is: how do you restore an employee
to the position from which he or she has never been moved?  That

a dismissal is invalid and of no force and effect means that it is
not recognised as having happened.  It is different from
a
dismissal that is found to be unfair because that dismissal is
recognised in law as having occurred.
When
a dismissal is held to be unfair, one can speak of a reinstatement
but not in the case of an invalid dismissal.  This,
therefore,
means that an order of reinstatement is not competent for an invalid
dismissal.
”
[60]
(Footnotes omitted.)
[70]
So, effectively this means Mr Nxasana remains in office as his
vacation was invalid.  All that would have to happen is for him

to physically resume office.  A natural consequence of that
would be that Advocate Abrahams would have to be removed from

office.  But must all that – that is the resumption and
vacation of office by Mr Nxasana and Advocate Abrahams, respectively

– follow inexorably?
[71]
The
specific circumstances of a given matter may displace what should
ordinarily be the position.  In
Mhlope
we
granted just and equitable relief
that
was at odds with extant statutory provisions
.
Mogoeng CJ held that the failure of the Electoral Commission to
compile a voters’ roll in accordance with section
16(3) of the
Electoral Act
[61]
was
at
“odds with the strictures not just of the law but also of the
rule of law”.
[62]
When it came to a choice between scuppering the local government
elections which – in terms of the Constitution –
had to
take place by a certain date
[63]
and upholding the strictures of the law, the Court opted for allowing
the elections to go ahead.
[72]
What
starkly helps illuminate why section 172(1)(b) of the Constitution
empowers us – where justice and equity dictate –
to go so
far as to make orders that are at odds with extant law is the
Canadian Supreme Court’s decision in the
Manitoba Language Rights
case.
[64]
Without suggesting that – for a fact – this case informed
the inclusion of section 172(1)(b) in our Constitution,
it typifies
difficult situations that explain why the framers of our Constitution
may have decided to avert those situations by
expressly including
this expansive remedial power.  Very briefly on this case, since
1890 the Manitoba Parliament had enacted
statutes in English only.
This was contrary to constitutional prescripts that required that
statutes be enacted in English
and French.
[73]
These
statutes were held to be invalid, and this holding was made in 1985,
some 95 years from the time the Manitoba Parliament started
enacting
statutes in this manner.  Realising that a declaration of
invalidity without more would take Manitoba back 95 years
in that the
declaration would: undo post 1890 amendments to statutes that
continued to exist; revive pre 1890 statutes
that had since been
repealed; and leave without statutory governance situations that were
not provided for statutorily before 1890
but which, as at the date of
the judgment, plainly required statutory governance, the Canadian
Supreme Court decided to deem the
invalid statutes temporarily valid
for the period necessary for translation to French, re enactment,
printing and publication.
The Court held that not to do so
would result in the Province of Manitoba “being without a valid
and effectual legal system
for the present and future”,
[65]
something that would be at odds with the rule of law.
Crucially, without the equivalent of section 172(1)(b), the Court was

able to keep in force laws that were unconstitutional.
[74]
The relevance of this is that – despite the fact that
ordinarily the Canadian Supreme Court had to invalidate all

the affected laws without more – it did not do so because
justice, equity and indeed the rule of law dictated otherwise.
[75]
The fact that in terms of our declaration of invalidity Mr
Nxasana is ordinarily entitled to resume office is the default legal
position.  As such, it is a legal position like any other.
It enjoys no place in law that is more special than –
say –
the provisions of section 16(3) of the Electoral Act that were in
issue in
Mhlope
.  Despite the continued validity of those
provisions we were able – in the exercise of the
section 172(1)(b) power
– to make an order at variance
with them.
[76]
I
have had the pleasure of reading the judgment by Jafta J (second
judgment).  I disagree with much that it says.  After
some
preliminary issues, it begins the debate by making an observation
that “
Mhlope
is not authority for the proposition that an employee whose dismissal
has been declared unlawful cannot resume his or her duties”.
[66]
Of course, that is so.  But that is not the end of the matter.
The principle laid down by
Mhlope
is that – if justice and equity so require – an existing
law may not be adhered to.
Steenkamp
does not purport to say anything at odds with that.  It merely
declared what the legal position was.  Statutory provisions
do
something similar, if not more; they create law.  We were able
to depart from one of them in
Mhlope
.
[77]
Another
basis of distinction by the second judgment is that “[i]t is
true that the order that was issued in
Mhlope
suspended the operation of a valid statute.  But this was linked
to the suspension of the declaration of invalidity.”
[67]
For present purposes, what difference there may be between
Mhlope
and the present matter is not in substance, but in context only.
In the present matter as well there is a declaration of
invalidity.
That is the invalidity of Mr Nxasana’s vacation of office.
So, there is nothing magical about the
fact that we made a
declaration of invalidity in
Mhlope
.
The ordinary effect of declaring Mr Nxasana’s vacation of
office invalid is that – in accordance with the
Steenkamp
principle – Mr Nxasana should return to office.  As was
the case with section 16(3) of the Electoral Act in
Mhlope
,
this principle is the extant legal position that must ordinarily
carry the day.  The question is: why – as seems to
be the
suggestion of the second judgment – this principle must be
immune from the courts’ just and equitable remedial

jurisdiction under section 172(1)(b) of the Constitution?  Why
must it inexorably take precedence?  If in
Mhlope
we were able to hold that “the duty imposed by section 16(3) is
. . . suspended for purposes of the August 2016 elections”,

here as well we should – by parity of reasoning – be able
to suspend the applicability of the
Steenkamp
principle.
[78]
In paragraphs 106 to 112 the second judgment deals at length
with considerations that moved this Court to order suspensions of
declarations
of invalidity in other matters and concludes that
nothing similarly calls for that in the instant matter.  I will
not deal
with all those considerations.  Suffice it to say that
in those other matters this Court never purported to lay down a
closed
list of scenarios where suspensions of declarations of
invalidity may be ordered.  The question is whether – in a
given
case – justice and equity demand that a suspension be
made.  Here they do.  After all, although Mr Nxasana may
have been under pressure from former President Zuma, he did not
cover himself in glory; more on this later.
[79]
My
reasoning in this regard applies equally to the second judgment’s
discussion of section 12 of the NPA Act.
[68]
The second judgment underscores the detail that has to be followed
for an NDPP to be removed from office.  I do not
see why –
in comparison to section 16(3) of the Electoral Act – section
12 of the NPA Act must have some superior force.
The second
judgment emphasises the fact that section 12 is “umbilically
linked to the Constitution”.  So
is section 16(3) of the
Electoral Act which – as we held in
Mhlope
– helps enhance so important a fundamental right as the right
to vote; a right that is at the centre of constitutional democracy.

Indeed, in our constitutional dispensation universal adult suffrage
is one of the founding values.
[69]
Thus the detail of the procedure that would normally have to be
followed in order to remove Mr Nxasana from office makes
no
difference.  The point of substance is that – like section
16(3) of the Electoral Act – section 12 of the NPA
Act may be
departed from if justice and equity so dictate.
[80]
I
do not see the inconsistency adverted to in the second judgment with
regard to reliance on section 12 in declaring the vacation
of office
invalid but then not holding that it is obligatory, in terms of
section 12, that Mr Nxasana be allowed to return to office.
[70]
The very quotation by the second judgment from
Mhlope
[71]
also says that the Electoral Commission had not complied with section
16(3).  Therefore, section 16(3) was central to the
ultimate
declaration of constitutional invalidity.  And yet the Court
then proceeded to suspend the duty imposed by section
16(3).
Where then is the distinction that the second judgment seeks to draw
in this regard?  I do not see it.
[81]
In sum, I see no legal impediment to us being able to depart
from what is nothing other than another legal position; that is the

default legal position that Mr Nxasana should ordinarily resume
office.  Likewise, I do not understand why we should
treat
section 12 of the NPA Act differently from how we treated section
16(3) of the Electoral Act.  The question is: must
we depart
from the default position dictated by the
Steenkamp
principle
and the process imposed by section 12?  What is just and
equitable for us to order?  That is what I next deal
with both
with regard to Mr Nxasana and Advocate Abrahams.
The resumption of
office by Mr Nxasana or retention of Advocate Abrahams
[82]
In
the context of the just and equitable remedial jurisdiction provided
for in section 8 of the Promotion of Administrative Justice
Act,
[72]
Moseneke DCJ said that “at a broader level [the purpose of a
public law remedy is] to entrench the rule of law”.
[73]
In the same context in
Bengwenyama
Froneman J said:
“
I do not
think that it is wise to attempt to lay down inflexible rules in
determining a just and equitable remedy following upon
a declaration
of unlawful administrative action.  The rule of law must never
be relinquished, but the circumstances of each
case must be
examined”
[74]
[83]
Where
necessary, the aim is to ameliorate the effect of vindicating the
rule of law.
[75]
I say
where necessary because in a given case it may be fitting to undo –
without any qualification – everything
that came about as a
result of the constitutionally invalid conduct.  But the
injustice and inequity arising from this may
be of such a nature that
the reversal – if there must be any at all – may have to
be tempered.  That is a judgment
call to be made based on the
circumstances of each case.
[84]
In the present context, relief that upholds the rule of law is
one that helps vindicate the integrity of the office of NDPP.
[85]
Starting with Mr Nxasana, I have a lot of sympathy for him for
the undue, persistent pressure to which he was subjected.  That

said, based on the objectively available material, quite early on he
indicated his preparedness to vacate office if he was paid
in full
for the remainder of his contract period.  He made this demand
when he had been in office for just over a year.
And yet he
wanted a payout for close to nine years, the unexpired period of his
term of office.  Some of the objectively available
material was
obtained by Corruption Watch and FUL from Mr Nxasana himself
when he was assisting them with collating the rule
53 record.
Effectively, although Mr Nxasana strongly protested his fitness for
office, he was saying he was willing to be
bought out of office if
the price was right.  As much as I sympathise with him, I do not
think that is the reaction expected
of the holder of so high and
important an office; an office the holder of which – if she or
he is truly independent –
is required to display utmost
fortitude and resilience.  Even allowing for human frailties –
because Mr Nxasana is human
after all – I do not think the
holder of the office of NDPP could not reasonably have been expected
to do better.  His
conduct leads me to the conclusion that a
just and equitable remedy is not to allow him to return to office.
[86]
I
do agree with the second judgment that exercising our just and
equitable remedial jurisdiction in a manner that perpetuates
non-compliance
with an extant legal position must be done only in
exceptional circumstances.
[76]
In
Mhlope
what was exceptional was the fact that, but for not adhering to the
strictures of section 16(3) of the Electoral Act, there would
have
been a constitutional crisis.  In
Black
Sash
if we had not allowed the constitutionally invalid contract to
continue, the vulnerable social grant beneficiaries would have been

subjected to untold hardship and suffering.  What we held in
these two judgments does not create a closed list of what constitutes

exceptional circumstances.  What is exceptional depends on the
circumstances of each case.  The question is whether there
are
exceptional circumstances in the present case.  There are, and
here is why.
[87]
The narrative at the beginning of this judgment shows that for
a few years there has been instability in the office of NDPP and,

therefore, in the leadership of the NPA.  With the court
challenge to Mr Nxasana’s vacation of office and to the
appointment
of Advocate Abrahams, that instability persists to this
day.  The second judgment accepts – correctly – that
it
would be open to the President to initiate an inquiry into whether
the manner in which Mr Nxasana vacated office renders him unfit
to
hold office.  The order proposed by the second judgment thus has
the effect of prolonging the instability.  Surely,
this unending
instability is deleterious not only to the office of NDPP, but also
to the NPA as an institution.  The sooner
it is brought to an
end the better.  In the circumstances, an order that has the
potential of prolonging the instability cannot
be just and
equitable.  To all this, we must add the fact that Mr Nxasana is
not free of blame in the manner in which he vacated
office.
[88]
I next deal with Advocate Abrahams.  As a point of
departure, I must state that not a single party has suggested that he
is
not a fit and proper person to hold office.  As was to be
expected, Advocate Abrahams seeks to get a lot of mileage out
of
this.  Must he succeed?  I think not.  Former
President Zuma appointed Advocate Abrahams following his
unlawful removal of Mr Nxasana.  That removal was an abuse of
power.  Advocate Abrahams benefitted from this abuse
of
power.  It matters not that he may have been unaware of the
abuse of power; the rule of law dictates that the office of
NDPP be
cleansed of all the ills that have plagued it for the past few years.
It would therefore not be just and equitable
to retain him as
this would not vindicate the rule of law.
Suspension
of declarations of invalidity
[89]
With the exception of the declaration in respect of section
12(6), I see no need to suspend any of the declarations of
invalidity.
The extent to which we are confirming the High
Court’s declaration of the invalidity of section 12(6) means
the power to
suspend an NDPP or Deputy NDPP will continue in
existence.  Like the High Court, I think it proper to afford
Parliament an
opportunity to address the shortcomings we have
identified with the section.  I consider a period of 18 months’
suspension
to be sufficient for this purpose.
[90]
It would be downright inconsonant with the requirement of the
independence of the NDPP, the Deputy NDPP and the NPA itself for the

power to suspend to continue in its present form.  For that
reason, there is a need for relief that is to apply in the interim.

I will not reinvent the wheel.  I am happy with the interim
relief crafted by the High Court.  I set it out in the order

below.
Repayment of the
sum of R10 240 767.47
[91]
Mr Nxasana did not resist paying back the money.  And
nobody has suggested that he should not.  Paying back the money
is a natural consequence of the declaration of constitutional
invalidity of the manner in which Mr Nxasana vacated office.
I
can conceive of no reason why repayment should not follow as a matter
of course.
Appointment of a
new NDPP
[92]
A new NDPP must be appointed expeditiously.  But the
President must be afforded a sufficient opportunity to make a
suitable
choice.  I think 90 days is enough for that purpose.
Decisions taken
and acts performed by Advocate Abrahams
[93]
The setting aside of decisions taken, and acts performed, by
Advocate Abrahams in his official capacity before his appointment was

declared invalid would result in untold dislocation in the work of
the NPA and in the administration of justice itself.  It
is thus
necessary to appropriately preserve these acts and decisions.
Order
[94]
The following order is made:
1. The appeal of Mr
Mxolisi Sandile Oliver Nxasana is upheld with no order as to costs
and Mr Nxasana’s explanatory affidavit
is admitted.
2. The costs order
by the High Court of South Africa, Gauteng Division, Pretoria (High
Court) against Mr Nxasana is set aside.
3. The appeal of
Advocate Shaun Kevin Abrahams and the National Prosecuting Authority
is dismissed with costs, including the costs
of two counsel.
4. The declaration
by the High Court that the settlement agreement dated 14 May 2015
concluded by former President Jacob Gedleyihlekisa
Zuma, the Minister
of Justice and Correctional Services and Mr Nxasana in terms of
which Mr Nxasana’s incumbency as
the National Director of
Public Prosecutions (NDPP) was terminated is constitutionally invalid
is confirmed.
5. The declaration
by the High Court that the termination of the appointment of Mr
Nxasana as NDPP is constitutionally invalid is
confirmed.
6. The declaration
by the High Court that the decision to authorise payment to Mr
Nxasana of an amount of R17 357 233
in terms of the
settlement agreement is invalid is confirmed.
7. The declaration
by the High Court that the appointment of Advocate Abrahams as
NDPP is invalid is confirmed.
8. The declaration
by the High Court that
section 12(4)
of the
National Prosecuting
Authority Act 32 of 1998
is constitutionally invalid is confirmed.
9. The declaration
by the High Court that
section 12(6)
of the
National Prosecuting
Authority Act is
constitutionally invalid is confirmed only to the
extent that the section permits the suspension by the President of an
NDPP and
Deputy NDPP for an indefinite period and without pay.
10. The declaration
of constitutional invalidity contained in paragraph 9 is suspended
for 18 months to afford Parliament an opportunity
to correct the
constitutional defect.
11. During the
period of suspension—
(a)
a
section 12(6)(aA)
will be inserted after
section 12(6)(a)
and it
will read:
“
The period
from the time the President suspends the National Director or a
Deputy National Director to the time she or he decides
whether or not
to remove the National Director or Deputy National Director shall not
exceed six months.”
(b)
section 12(6)(e)
will read (with insertions and deletions reflected
within square brackets):
“
The National
Director or Deputy National Director provisionally suspended from
office shall receive, for the duration of such suspension,
[
no
salary or such salary as may be determined by the President
]
[her or his full salary].”
12. Should
Parliament fail to correct the defect referred to in paragraph 9
within the period of suspension, the interim relief
contained in
paragraph 11 will become final.
13. Decisions taken,
and acts performed, by Advocate Abrahams in his official capacity
will not be invalid by reason only of the
declaration of invalidity
contained in paragraph 7.
14. Mr Nxasana is
ordered to repay forthwith to the state the sum of R10 240 767.47.
15. The President is
directed to appoint an NDPP within 90 days of the date of this order.
16. The President,
the Minister of Justice and Correctional Services and the National
Prosecuting Authority are ordered to pay all
costs in this Court that
are additional to the costs referred to in paragraph 3, such costs to
include the costs of two counsel.
JAFTA
J (Petse AJ concurring):
[95]
I have had the benefit of reading the judgment prepared by my
colleague Madlanga J (first judgment).  I agree with it except

in relation to one issue.  This is whether Mr Nxasana is
entitled to resume office in light of the declaration that his
purported
removal was invalid.  The first judgment concludes
that he may not.  I think he may.
[96]
With
reference to the decision of this Court in
Steenkamp
,
the first judgment accepts that the termination of Mr Nxasana’s
appointment as the NDPP amounted to a nullity in the eyes
of the
law.
[77]
This principle
was laid down by this Court in
Steenkamp
where the Court emphasised that a dismissal which is invalid has no
force and effect, hence it constitutes a nullity.
[97]
While
accepting this to be the position in law, the first judgment holds
that it does not follow that Mr Nxasana may resume office.
[78]
I disagree.
[98]
Steenkamp
tells us that an invalid termination of
employment or a dismissal has no legal consequences.  In that
matter Zondo J declared:
“
An invalid
dismissal is a nullity.  In the eyes of the law an employee
whose dismissal is invalid has never been dismissed.
If, in the
eyes of the law, that employee has never been dismissed, that means
the employee remains in his or her position in the
employ of the
employer.”
[79]
[99]
Therefore
on the authority of
Steenkamp,
Mr Nxasana must be taken as if he has not been dismissed.  Since
his dismissal constituted a nullity, there is nothing further
that
may be done in the law to vindicate his rights arising from the
dismissal.
Steenkamp
informs us that, in his case, reinstatement is incompetent because he
cannot be reinstated to the post he had not vacated in terms
of the
law.
[80]
This means that
he may report for duty and resume his work.
[100]
To make the position clearer, Zondo J held that it is open to
an employee whose dismissal has been declared invalid on the ground

of unlawfulness to report for work.  And if the employer
prevents him or her from entering the workplace, the employee may

seek a court interdict against the employer.  In this regard,
our colleague said:
“
An employee
whose dismissal is invalid does not need an order of reinstatement.
If an employee whose dismissal has been declared
invalid is prevented
by the employer from entering the workplace to perform his or her
duties, in an appropriate case a court may
interdict the employer
from preventing the employee from reporting for duty or from
performing his or her duties.  The court
may also make an order
that the employer must allow the employee into the workplace for
purposes of performing his or her duties.”
[81]
[101]
It is apparent from the judgment of the High Court that that
Court proceeded from a mistaken premise with regard to whether Mr
Nxasana
could resume office.  The High Court assumed that his
reinstatement was necessary; hence it withheld such an order on the
ground that it was not just and equitable to reinstate him.  The
High Court stated:
“
Mr Nxasana
too must have known that the bargain he was driving was unlawful.
First, he was after all the NDPP and the NPA
Act was ultimately his
charge to administer; he must have been aware of its provisions.
Second, his attorney’s letter
of 10 December 2014 shows that he
was fully aware of the specific statutory provisions relative to his
financial entitlement; but
that he thought that since he was not
offering voluntarily to resign, they did not apply to him – the
President was at large
to agree to his demands.  Third, he
abided the decision of the Court as to the lawfulness of the
settlement agreement, but
was not prepared to say when the
realisation of potential unlawfulness came to him.
As in the case of
the President, the inference that Mr Nxasana knew that he was acting
without lawful foundation is strong; but,
as in the case of the
President, for the reason there articulated, we prefer to conclude
that he was reckless as to whether his
demand was lawful.
In our view, given
then the conduct of these two main protagonists and the
considerations to which we have alluded, it is not just
and
equitable, in the context of vindicating the Constitution and the
independence of the prosecutorial authority, to reinstate
Mr
Nxasana.”
[82]
[102]
It does not appear from the record that the decision of this
Court in
Steenkamp
was brought to the attention of the High
Court.  Being bound by
Steenkamp
, it is doubtful that the
High  Court could have reached the same conclusion if it was
aware of this decision.  But more
importantly, the order issued
by the High Court did not prevent Mr Nxasana from resuming office.
Strictly speaking and on
the authority of
Steenkamp
, he could
have reported for duty after the High Court had delivered its
judgment because the order did not preclude him from going
back to
work.  All that was said by the High Court was that it was not
just and equitable to reinstate him.  But now
we know that
reinstatement was not competent in his case.  Therefore, what
was stated by the High Court was irrelevant.
Mhlope
[103]
The
question that arises is whether the decision of this Court in
Mhlope
[83]
alters the legal position in
Steenkamp
.
I think not.
Mhlope
is not authority for the proposition that an employee whose dismissal
has been declared unlawful cannot resume his or her duties.

That case dealt with a wholly different situation.
[104]
In
Mhlope
the Electoral Commission had failed to comply
with a statutory injunction, emanating from a provision that was held
to be valid.
The issue that arose for determination was the
consequential effect of the order that declared unlawful the
Electoral Commission’s
non-compliance with a valid statute.
Declaring the Commission’s failure to comply with a statute to
be invalid there
could put at risk the entire municipal elections
which were scheduled to take place in August 2016.
[105]
To avoid this Mogoeng CJ opted for suspending the declaration
of invalidity.  The Chief Justice said:
“
[t]he
invalidation of the unlawful conduct, which is essentially the
production of the national common voters’ roll that does
not
comply with section 16(3) of the Electoral Act, has to be
suspended.  That suspension will allow the IEC to proceed
with
the August 2016 elections and correct the defective voters’
roll.  The suspension of the declaration of invalidity
of the
IEC’s unlawful conduct has the effect of suspending the duty
imposed by section 16(3) on the IEC which, if carried
out, there
would have been no invalidity.  The non-compliance with section
16(3) is in terms of our just and equitable remedial
powers condoned
and the duty imposed by section 16(3) is itself suspended for
purposes of the August 2016 elections.”
[84]
[106]
It
is true that the order that was issued in
Mhlope
suspended the operation of a valid statute.  But this was linked
to the suspension of the declaration of invalidity.
This much
is clear from the statement cited above.  It is usual for this
Court to declare an Act of Parliament to be invalid
and suspend the
declaration for a fixed period so as to avoid serious disruptions in
the administration of government.  The
effect of the suspension
is that an invalid Act continues to operate as if it is valid.
[85]
[107]
However,
the need to suspend the operation of the declaration of invalidity
arises where its immediate coming into effect would
result in serious
dislocation or disruption in the administration of government.
It is the interests of justice and good
government which may justify
an order that allows an invalid law or conduct to continue to operate
for a fixed period of time.
[86]
[108]
That
this Court has the power to direct that an unconstitutional law will
continue to have force and effect is beyond question.
But that
power may be exercised where there are compelling reasons to allow an
invalid law or conduct to continue to operate.
[87]
In
Ferreira
this Court held:
“
The
provisions of section 98(5) and (6), which permit the Court to
control the result of a declaration of invalidity, may give temporary

validity to the law and require it to be obeyed and persons who
ignore statutes that are inconsistent with the Constitution may
not
always be able to do so with impunity.”
[88]
[109]
In the present matter, unlike in
Mhlope
, the
declaration of invalidity pertaining to the termination of Mr
Nxasana’s appointment is not suspended.  Its operation
is
immediate.  Nor are the requirements of section 12 of the NPA
Act suspended.  The reasons that compelled this Court
in
Mhlope
to suspend section 16(3) of the Electoral Act do not exist here.
In fact, no interests of good government have been put forward
which
warrant the suspension of section 12 of the NPA Act.  It is
doubtful that such suspension may be granted without suspending
the
declaration of invalidity on the termination of the appointment and
also condoning the unlawful termination as was done in
Mhlope
.
[110]
But more importantly, the suspended operation of the relevant
statutory provision in
Mhlope
did not adversely affect the
rights of anybody.  On the contrary, that suspension enabled
millions of voters to exercise their
right to vote.  The
suspension of section 12 of the NPA Act here will hugely prejudice Mr
Nxasana by depriving him of the
protections that the section affords,
in circumstances where there are no reasons compelling suspension of
the operation of a valid
legislation.  Instead, compliance with
section 12 will enhance the promotion of the independence of the NPA
and the rule of
law.
[111]
In
Mhlope
the suspension of the relevant statutory provision was justified by
the exceptional circumstances of that case which were regarded
as
crying out “for an exceptional solution or remedy to avoid a
constitutional crisis”.
[89]
Similarly, in
Black Sash
the
emphasis was placed on the extraordinary circumstances of the case
and the catastrophic consequences which could likely have
ensued if
the unconstitutional contract was not allowed to continue to
operate.  Cautioning that the just and equitable remedial
power
has limits, Froneman J said:
“
It is
necessary to be frank about this exercise of our just and equitable
remedial power.  That power is not limitless and
the order we
make today pushes at its limits.  It is a remedy that must be
used with caution and only in exceptional circumstances.
But
these are exceptional circumstances.  Everyone stressed that
what has happened has precipitated a national crisis.
The order
we make imposes constitutional obligations on the parties that they
did not in advance agree to.  But we are
not ordering something
that they could not themselves have agreed to under our supervision
had an application been brought earlier,
either by seeking an
extension to the contract that would have expired on 31 March 2017 or
by entering into a new one.”
[90]
[112]
In the present matter there is nothing exceptional or
extraordinary that warrants the exercise of remedial power to prevent
Mr Nxasana
from returning to office.  His return will certainly
not cause a constitutional crisis or a national crisis.  On the
contrary, his return would enable the President to follow the law if
he wishes to remove him from office and Parliament would play
a vital
part in that process.  And more importantly, preventing Mr
Nxasana from returning to office without pronouncing on
the validity
of his employment contract would not only be unfair to him but would
also create considerable uncertainty on the parties’
rights and
interests.  This would be antithetical to the rule of law which
promotes certainty.
Section
12
[113]
As
the first judgment rightly points out, the purpose of the NPA Act is
to protect both the institutional independence of the NPA
and the
individual independence of its head.
[91]
The section seeks to achieve this by securing the tenure of office,
conditions of service and other benefits.
[92]
But more importantly, section 12(5) provides that the National
Director “shall not be suspended or removed from office
except
in accordance with the provisions of subsections (6), (7) and (8)”.
This is a potent guarantee, deliberately
chosen by Parliament to
protect the NPA’s independence as required by section 179(4) of
the Constitution.
[93]
[114]
Therefore,
section 12 of the NPA Act is umbilically linked to the
Constitution.
[94]
Suspending its operation will not only subvert its purpose but will
also be antithetical to the Constitution.  Such
suspension would
be in conflict with the principle of separation of powers and a
number of provisions in the Constitution.
These include:
section 1(c) which lists the supremacy of the Constitution and the
rule of law; section 2 which underscores the
supremacy of the
Constitution by declaring that conduct inconsistent with it is
invalid; section 165(2) that guarantees the independence
of courts
“subject to the Constitution and the law, which they must apply
impartially and without fear, favour or prejudice”;
and section
179(4).
[115]
Ironically
the first judgment impliedly suspends the operation of section 12(5)
of the NPA Act in order to uphold the rule of law
and secure “the
integrity of the office of the NDPP”.
[95]
I disagree.  Suspending the operation of section 12(5) would
attain quite the opposite.  It would mean that Mr Nxasana’s

removal from office is achieved by means other than the procedure
prescribed in section 12.  In that procedure Parliament
plays a
crucial part.  Barring a voluntary resignation, there can be no
removal of a National Director from office without
the involvement
and approval of Parliament.  A suspension of the operation of
section 12 will be subversive of this and will
deny Parliament the
role it had constitutionally given to itself.
[116]
What is more, this denial will occur in circumstances where
the Court would have taken inconsistent positions in relation to the

enforcement of section 12.  It will be recalled that
non-compliance with section 12 was the basis on which the decision
that
the termination of Mr Nxasana’s appointment and the
settlement agreement were invalid, rested.  The section could
not
be enforced and at the same time its operation be suspended.
This is another factor that distinguishes the present matter
from
Mhlope
.
[117]
In terms of section 12(6) and (7), a National Director may be
removed from office only if one of the grounds listed in subsection

(6)(a) has been established, following an inquiry into the matter.
In this case no enquiry was held and no pronouncement
on the
existence of one or more of the listed grounds has been made.
This underlines the inappropriateness of holding that
Mr Nxasana
should not return to office.  Allowing him to return to office,
does not mean that he is fit to continue in the
office.  If his
involvement in the conclusion of the settlement agreement renders him
unfit, it would be open to the President
to invoke section 12(6) and
establish an enquiry to determine his fitness to hold office.
If found unsuitable, Parliament
will be involved in his removal.
[118]
This approach does not do violence to the will of Parliament
and the continuing operation of section 12 of the NPA Act.  It

is also consonant with the various provisions of the Constitution
mentioned earlier.  Adhering to the requirements of section
12
will, in addition, be consistent with the jurisprudence of this
Court.  In
Steenkamp
Zondo J remarked:
“
When a
dismissal is held to be unfair, one can speak of a reinstatement but
not in the case of an invalid dismissal.  This,
therefore, means
that an order of reinstatement is not competent for an invalid
dismissal.  An employer against which an order
has been made
declaring the dismissal of its employees invalid and who does not
want to continue or cannot continue the employment
relationship with
those employees will have to dismiss them again.  Otherwise,
they remain in its employ and, if they tender
their services or are
prevented by the employer from performing their duties, will be
entitled to payment of their remuneration.”
[96]
[119]
The instability in the NPA relied in the first judgment for
not following section 12 does not constitute a constitutional or
national
crises referred to in
Mhlope
and
Black Sash
.
Nor was that instability created by compliance with that section.
In fact the section may be employed in manner that
would not result
in the immediate return to office by Mr Nxasana.  The President
may suspend him before such return if the
requirements of the section
are met.  And if he is to blame for instability, the enquiry
envisaged in the section is the best
forum to determine this issue.
But significantly, the instability is not the reason advanced for
preventing his return to
office.
[120]
Section 16(3) which was considered in
Mhlope
did not
provide a remedy for non compliance.  Yet section 12
prescribes in mandatory terms what should be done in order
to remove
a National Director from office.  Therefore there is no need to
search for a remedy in section 172(1) of the Constitution.
[121]
Of course section 12 need not be followed in the case of
Advocate Abrahams.  This is because the section guarantees
the
independence of and secures the tenure of a National Director
whose appointment was valid.  Since Advocate Abrahams’

appointment was invalid, the protections of section 12 are not
available to him.
Just
and equitable order
[122]
I
need briefly to address this issue because the conclusion reached in
the first judgment is based on it.
[97]
The concept of a just and equitable order is sourced from section
172(1)(b) of the Constitution.
[98]
It is an equivalent of section 98 of the interim Constitution
mentioned in the statement from
Ferreira
quoted in paragraph 108.  The power to make a just and equitable
order does not mean that a court may do whatever it thinks
would be
just and fair in a given case, even if the order it intends issuing
is unlawful or inconsistent with the Constitution.
On the
contrary, the just and equitable order must be lawful and consistent
with the Constitution.  This is because when a
court makes such
order, it exercises judicial power.
[123]
In terms of section 165(2) of the Constitution courts are
entrusted to exercise judicial power subject to the Constitution and
the
law.  Moreover, courts are duty bound to apply the law
“impartially and without fear, favour or prejudice”.

A court may not evade the obligation to apply a valid statute by
simply suspending its operation and do so only for purposes of
a
particular order in circumstances where that statute was enforced.
[124]
The
just and equitable remedial powers enable a court to regulate
consequences flowing from the declaration of invalidity.

Section 172(1)(b) of the Constitution mandates courts to preserve
temporarily the validity of a law or conduct that is inconsistent

with the Constitution.  This is usually achieved by suspending
the declaration of invalidity.  A suspension becomes necessary

only if the information placed before the court shows that the
interests of justice or good government warrant that the invalid
law
or conduct should continue to operate, pending the correction of the
defect by the competent authority.
[99]
[125]
A
just and equitable order must invariably be fair to all persons
affected by it.  A court that contemplates issuing such order

must weigh up the interests of all parties to a litigation and where
appropriate, the balancing must also take into account the
interests
of the public.
[100]
[126]
In the context of employment this Court has outlined the
requirements of a just and equitable order in these terms:
“
In the
context of our Constitution, ‘appropriate relief’ must be
construed purposively, and in the light of section
172(1)(b), which
empowers the Court, in constitutional matters, to make ‘any
order that is just and equitable’.
Thus construed,
appropriate relief must be fair and just in the circumstances of the
particular case.  Indeed, it can hardly
be said that relief that
is unfair or unjust is appropriate.  As Ackermann J remarked, in
the context of a comparable provision
in the interim Constitution,
‘[i]t can hardly be argued, in my view, that relief which was
unjust to others could, where
other available relief meeting the
complainant’s needs did not suffer from this defect, be
classified as appropriate’.
Appropriateness, therefore,
in the context of our Constitution, imports the elements of justice
and fairness.
Fairness requires a
consideration of the interests of all those who might be affected by
the order.  In the context of employment,
this will require a
consideration not only of the interests of the prospective employee
but also the interests of the employer.
In other cases, the
interests of the community may have to be taken into consideration.
In the context of unfair discrimination,
the interests of the
community lie in the recognition of the inherent dignity of every
human being and the elimination of all forms
of discrimination.”
[101]
[127]
What emerges from this statement is that the interests of all
those who may be affected by the just and equitable order must be
considered in the process leading up to issuing the order.
Furthermore, an order that is unjust to some must be avoided where

the interests of the party seeking relief may be met by an
alternative order.  In this matter, to require Mr Nxasana to pay

back the money in circumstances where he is not allowed to go back to
office, cannot be fair to him.  This is especially so
in light
of the fact that the former President was hell-bent to remove him
from office at any price and had put Mr Nxasana under
intolerable
pressure to leave.  As the first judgment points out, the former
President used stick and on other occasions carrot
in an attempt to
get rid of him.
[128]
As mentioned, allowing Mr Nxasana to go back to his job would
also meet the objects of the Constitution and the rule of law.

If his involvement in the impugned settlement agreement brought his
fitness to hold office into question, he may be removed in
terms of
section 12 of the NPA Act.
[129]
For all these reasons, I do not support the conclusion that Mr
Nxasana ought not to resume office, following the setting aside of

the invalid and unlawful termination of his appointment.
For
the First Applicant in CCT 333/17 and the First Respondent in
CCT 13/18:
M Chaskalson SC and P Ramano
instructed by Webber Wentzel.
For
the Second Applicant in CCT 333/17 and the Second Respondent in
CCT 13/18:
W Trengove SC instructed by Webber
Wentzel.
For
the Third Applicant in CCT 333/17 and the Third Respondent in
CCT 13/18: G Budlender SC, M Bishop and E Webber
instructed
by Legal Resources Centre.
For
the Fourth and Seventh Respondents in CCT 333/17 and the Sixth and
Eighth Respondents in CCT 13/18:
H Epstein
SC, M Osborne and T Mabuda instructed by the State Attorney,
Pretoria.
For
the Third Respondent in CCT 333/17 and Applicant in CCT 13/18:
M M Le Roux, J L Griffiths and O Motlhasedi
instructed by Delaney Attorneys.
For
the Amicus Curiae: M du Plessis and B Manentsa instructed by Webber
Wentzel.
[1]
32 of 1998.
[2]
Corruption
Watch (RF) NPC v President of the Republic of South Africa
[2017]
ZAGPPHC 743;
[2018] 1 All SA 471
(GP);
2018 (1) SACR 317
(GP) (High
Court judgment) at paras 128-9.  The first leg of the order
granted in respect of an application brought by Corruption
Watch and
FUL jointly reads:
“
In the
result we make the following order on the application of Corruption
Watch and Freedom Under Law:
1. The settlement
agreement between the President, the Minister of Justice and Mr
Nxasana dated 14 May 2015, is reviewed, declared
invalid and set
aside.
2. The termination
of the appointment of Mr Nxasana as National Director of Public
Prosecutions is declared unconstitutional and
invalid.
3. The decision to
authorise payment to Mr Nxasana of an amount of R17 357 233, in
terms of the settlement is reviewed, declared
invalid and set aside.
4. The appointment
of Adv Abrahams as National Director of Public Prosecutions is
reviewed, declared invalid and set aside.
5. Decisions taken
and acts performed by Adv Abrahams in his capacity as the National
Director of Public Prosecutions are not
invalid merely because of
the invalidity of his appointment.
6. Mr Nxasana is
ordered forthwith to repay to the State all the money he received in
terms of the settlement.
7. It is declared
that, in terms of section 96(2)(b) of the Constitution, the
incumbent President may not appoint, suspend or
remove the National
Director of Public Prosecutions or someone in an Acting capacity as
such.
8. It is declared
that, as long as the incumbent President is in office, the Deputy
President is responsible for decisions relating
to the appointment,
suspension or removal of the National Director of Public
Prosecutions or, in terms of
section 11(2)(b)
of the
National
Prosecuting Authority Act, someone
in an Acting capacity as such.
9. The orders of
invalidity in paragraphs 2 and 4 above are suspended for a period of
60 days or until such time as the Deputy
President has appointed a
National Director of Public Prosecutions in terms of paragraph
8 above, whichever is the shorter
period.
10. The costs of
this application must be paid jointly and severally by the
President, the Minister of Justice, Adv Abrahams and
the National
Prosecuting Authority.”
Here
is the second leg which was granted in respect of an application
launched by CASAC:
“
In the
result we make the following order on the application of Council for
the Advancement of the South African Constitution:
1. It is declared
that
section 12(4)
of the
National Prosecuting Authority Act 32 of
1998
is unconstitutional and invalid.
2. It is declared
that
section 12(6)
of the
National Prosecuting Authority Act is
unconstitutional and invalid to the extent that it permits the
President to suspend the National Director of Public Prosecutions

unilaterally, indefinitely and without pay.
3. The order of
invalidity in paragraph 2 is suspended for 18 months.
4. During the
period of suspension:
4.1 An additional
subsection shall be inserted after
section 12(6)(a)
that reads:
‘
(aA) The
period from the time the President suspends the National Director or
a Deputy National Director to the time he or she
decides whether or
not to remove the National Director or Deputy National Director
shall not exceed six months.’; and
4.2
Section
12(6)(e)
shall read:
‘
The National
Director or a Deputy National Director provisionally suspended from
office shall receive, for the duration of such
suspension, his or
her full salary [
no salary or such salary as may be
determined by the President
].’
5. Should
Parliament fail to enact legislation remedying the defect identified
in paragraph 2, the interim order in paragraph
4 shall become final.
6. The President,
the Minister of Justice and the National Prosecuting Authority shall
pay the applicant's costs, including the
costs of two counsel.
7. The orders of
invalidity made above relating to the
National Prosecuting Authority
Act are
referred to the Constitutional Court in terms of section
165(5) of the Constitution for confirmation.”
The
High Court heard and determined the two applications simultaneously.
[3]
Section 172(2)(a) of the Constitution provides:
“
The
Supreme Court of Appeal, the High Court of South Africa 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.”
[4]
Respectively, the first to ninth respondents are the President of
the Republic of South Africa, the Minister of Justice, Mr Nxasana,

Advocate Shaun Abrahams, the Director General: Department of Justice
and Constitutional Development, the Chief Executive Officer:

National Prosecuting Authority, the National Prosecuting Authority
and the Deputy President of the Republic of South Africa.
[5]
The respondents listed above in n 4 participated before the High
Court.  Before this Court the respondents that have
participated
throughout are Mr Nxasana, Advocate Abrahams, the
Director General: Department of Justice and Constitutional
Development, the
Chief Executive Officer: National Prosecuting
Authority and the National Prosecuting Authority.  When the
proceedings were
launched before this Court, former President Zuma
was the incumbent President.  Before the oral hearing, he
resigned and
President Cyril Ramaphosa became President.
Thirteen days before the hearing and after President Ramaphosa had
taken over,
the President’s participation in the proceedings
was terminated.
[6]
High Court judgment above n 2 at para 19.
[7]
Id at paras 18-46.
[8]
In this narrative I borrow copiously from, and am indebted to, the
High Court’s summary of the facts.
[9]
In terms of section 12(6)(a)(iv) of the NPA Act the President may
remove an NDPP from office if the NDPP is no longer a fit and
proper
person to hold office.
[10]
Indeed, this is how Mr Nxasana understood what was required of him.
This appears from a letter in which Mr Nxasana
requested an
extension of the deadline for giving the reasons and a letter that
contained the reasons or representations themselves.
This was
put beyond question by the content of later correspondence from the
former President.
[11]
This section – which I deal with more fully later –
provides for the voluntary vacation of office by the NDPP.
[12]
The section is quoted at n 44 below.
[13]
The relief sought by the applicants in both applications was more
extensive than what I have captured here.  That is apparent

from the two-legged High Court order quoted above n 2.
[14]
Section 179 of the Constitution provides:
“
(1) There is
a single national prosecuting authority in the Republic, structured
in terms of an Act of Parliament, and consisting
of—
(a) a National
Director of Public Prosecutions, who is the head of the prosecuting
authority, and is appointed by the President,
as head of the
national executive; and
(b) Directors of
Public Prosecutions and prosecutors as determined by an Act of
Parliament.
. . .
(4) National
legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice.”
[15]
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) at
para 146.
[16]
Section 1 of the Constitution provides:
“
The Republic
of South Africa is one, sovereign, democratic state founded on the
following values:
(a) Human dignity,
the achievement of equality and the advancement of human rights and
freedoms.
(b) Non-racialism
and non-sexism.
(c) Supremacy of
the Constitution and the rule of law.
(d) Universal adult
suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.”
[17]
Democratic
Alliance v President of the Republic of South Africa
[2012] ZACC 24
;
2013 (1) SA 248
(CC);
2012 (12) BCLR 1297
(CC) at
para 26.
[18]
Section 12(1) provides:
“
The National
Director shall hold office for a non-renewable term of 10 years, but
must vacate his or her office on attaining the
age of 65 years.”
[19]
Justice
Alliance of South Africa v President of the Republic of South Africa
[2011]
ZACC 23
;
2011 (5) SA 388
(CC);
2011 (10) BCLR 1017
(CC) (
Justice
Alliance
)
at para 38.
[20]
McBride
v Minister of Police
[2016] ZACC 30
;
2016 (2) SACR 585
(CC);
2016 (11) BCLR 1398
(CC)
at para 31.
[21]
Section 12(1).
[22]
Section 12(5).
[23]
Section 12(8) provides:
“
(a) The
President may allow the National Director or a Deputy National
Director at his or her request, to vacate his or her office—
(i) on account of
continued ill-health; or
(ii) for any other
reason which the President deems sufficient.
(b) The request in
terms of paragraph (a)(ii) shall be addressed to the President at
least six calendar months prior to the date
on which he or she
wishes to vacate his or her office, unless the President grants a
shorter period in a specific case.
(c) If the National
Director or a Deputy National Director—
(i) vacates his or
her office in terms of paragraph (a)(i), he or she shall be entitled
to such pension as he or she would have
been entitled to under the
pension law applicable to him or her if his or her services had been
terminated on the ground of continued
ill-health occasioned without
him or her being instrumental thereto; or
(ii) vacates his or
her office in terms of paragraph (a)(ii), he or she shall be deemed
to have been retired in terms of section
16(4) of the
Public Service Act, and he or she shall be entitled to
such pension as he or she would have been entitled
to under the
pension law applicable to him or her if he or she had been so
retired.”
[24]
To recapitulate, this is the section that provides that “[n]ational
legislation must ensure that the prosecuting authority
exercises its
functions without fear, favour or prejudice”.
[25]
High Court judgment above n 2 at para 3.
[26]
Section 12(8)(a)(i).
[27]
Section 12(8)(c)(i).
[28]
Section 12(8)(a)(ii).
[29]
Section 12(8)(c)(ii).
[30]
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[2004] ZASCA 48
;
2004 (6) SA 222
(SCA) (
Oudekraal
).
[31]
The fact that
Oudekraal
concerned administrative action should not lead to the conclusion
that I am suggesting that former President Zuma’s conduct

relative to Mr Nxasana’s vacation of office was administrative
action.  As appears above from how I resolved the question
of
the lawfulness of Mr Nxasana’s vacation of office, it is not
necessary for me to decide the issue whether the former
President’s
conduct was administrative action.  That said, there is no
reason in principle why
Oudekraal
should not apply to the conduct of the Executive.
[32]
Oudekraal
above
n 30 at para 26.
[33]
See
Department
of Transport v
Tasima
(Pty) Ltd
[2016]
ZACC 39
;
2017 (2) SA 622
(CC);
2017 (1) BCLR 1
(CC) at para 88;
Merafong
City v AngloGold Ashanti Limited
[2016] ZACC 35
;
2017 (2) SA 211
(CC);
2017 (2) BCLR 182
(CC) at para
36;
MEC
for Health, Eastern Cape v Kirland
Investments
(Pty) Ltd
t/a
Eye & Lazer Institute
[2014] ZACC 6
;
2014 (3) SA 481
(CC);
2014 (5) BCLR 547
(CC)
(
Kirland
)
at para 103;
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources
(Pty)
Ltd
[2010] ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC)
(
Bengwenyama
)
at para 82; and
Camps
Bay Ratepayers’ and Residents Association v Harrison
[2010]
ZACC 19
;
2011 (4) SA 42
(CC);
2011
(2) BCLR 121
(CC) at para 62.
[34]
Oudekraal
above
n 30 at para 31.
[35]
Seale
v Van Rooyen N.O.; Provincial Government, North West Province v Van
Rooyen N.O
.
[2008] ZASCA 28
;
2008 (4) SA 43
(SCA) at para 13.
[36]
Id.
[37]
Kirland
above n 33 at fn 74.
[38]
Ferreira
v Levin N.O.; Vryenhoek v Powell N.O.
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para
234.
[39]
Lawyers
for Human Rights v Minister of Home Affairs
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR 775
(CC) at para
16.
[40]
Id at para 17.
[41]
Id at para 18.
[42]
Glenister
v President of the Republic of South Africa
[2011]
ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) (
Glenister
II
).
[43]
Helen
Suzman Foundation v President of the Republic of South Africa;
Glenister v President of the Republic of South Africa
[2014]
ZACC 32
;
2015 (2) SA 1
(CC);
2015 (1) BCLR 1
(CC) (
Helen Suzman
Foundation
).
[44]
Section 12(4) and (6) provides:
“
(4) If the
President is of the opinion that it is in the public interest to
retain a National Director or a Deputy National Director
in his or
her office beyond the age of 65 years, and—
(a) the National
Director or Deputy National Director wishes to continue to serve in
such office; and
(b) the mental and
physical health of the person concerned enable him or her so to
continue,
the President may
from time to time direct that he or she be so retained, but not for
a period which exceeds, or periods which
in the aggregate exceed,
two years:  Provided that a National Director’s term of
office shall not exceed 10 years.
. . .
(6) (a) The
President may provisionally suspend the National Director or a
Deputy
National Director
from his or her office, pending such enquiry into his or her fitness
to hold such office as the President 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 Director or a Deputy National Director, the reason
therefor and the representations of the National
Director or Deputy
National Director (if any) shall be communicated by message 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) Parliament
shall, within 30 days after the message referred to in paragraph (b)
has been tabled in Parliament, or as soon
thereafter as is
reasonably possible, pass a resolution as to whether or not the
restoration to his or her office of the National
Director or Deputy
National Director so removed, is recommended.
(d) The President
shall restore the National Director or Deputy National Director to
his or her office if Parliament so resolves.
(e) The National
Director or a Deputy National Director provisionally suspended from
office shall receive, for the duration of
such suspension, no salary
or such salary as may be determined by the President.”
[45]
Justice
Alliance
above n 19 at para 75.
[46]
Helen
Suzman Foundation
above n 43 at para 81.
[47]
Helen
Suzman Foundation
above n 43 at para 85.
[48]
Ordinarily, suspensions are unilateral acts.  In the context of
a functionary who is constitutionally required to be independent
the
question may arise whether the power to suspend may be exercised by
the member of the Executive on whom that power vests
without the
involvement of Parliament; with the involvement of Parliament the
exercise of the power would be bilateral.
[49]
68 of 1995.
[50]
McBride
above n 20 at para 43.
[51]
Section 172(1) 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;
and
(b) may make any
order that is just and equitable, including—
(i) an order
limiting the retrospective effect of the declaration of invalidity;
and
(ii) an order
suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority
to correct the defect.”
[52]
High Court judgment above n 2 at para 8.
[53]
High Court judgment above n 2 at para 19.
[54]
Those findings were not made in the present proceedings.
[55]
South
African Broadcasting Corporation Limited v National Director of
Public Prosecutions
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at para
39.
[56]
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) at
paras 84-5.
[57]
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National
Coalition
)
at para 11.  See also
Mathale
v Linda
[2015]
ZACC 28
;
2016 (2) SA 461
(CC);
2016 (2) BCLR 226
(CC) at para 40.
[58]
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[2000]
ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
See also
Aurecon
South Africa (Pty) Ltd v City of Cape Town
[2015] ZASCA 209
;
2016 (2) SA 199
(SCA) at para 17.
[59]
See
Electoral
Commission v Mhlope
[2016] ZACC 15
;
2016 (5) SA 1
(CC);
2016 (8) BCLR 987
(CC) (
Mhlope
)
at para 130.
[60]
Steenkamp
v Edcon Limited
[2016]
ZACC 1
;
2016 (3) SA 251
(CC);
2016 (3) BCLR 311
(CC) at
paras 189 90.
[61]
73 of 1998.
[62]
Mhlope
above n 60 at para 122.
[63]
Section 159 of the Constitution provides:
“
(1) The term
of a Municipal Council may be no more than five years, as determined
by national legislation.
(2) If a Municipal
Council is dissolved in terms of national legislation, or when its
term expires, an election must be held within
90 days of the date
that Council was dissolved or its term expired.”
[64]
Re
Manitoba Language Rights
[1985] 1 SCR 721
;
1985 CanLII 33
(SCC).
[65]
Id at 758.
[66]
See [103].
[67]
See [106].
[68]
See [113] to [119].
[69]
The founding values are quoted in n 16 above.
[70]
See [116].
[71]
See [105].
[72]
3 of 2000.  I think the pronouncements in that context are of
relevance to the just and equitable jurisdiction provided
for in
section 172(1)(b) of the Constitution.
[73]
Steenkamp
N.O. v Provincial Tender Board of the Eastern Cape
[2006] ZACC 16
;
2007 (3) SA 121
(CC);
2007 (3) BCLR 300
(CC) at para
29.
[74]
Bengwenyama
above
n 33 at para 85.
[75]
Compare id at para 85.
[76]
Compare
Black
Sash Trust v Minister of Social Development
[2017] ZACC 8
;
2017 (3) SA 335
(CC);
2017 (5) BCLR 543
(CC) at para
51.
[77]
Steenkamp
above n 60.
[78]
See [85].
[79]
Steenkamp
above n 60 at para 189.
[80]
Id.
[81]
Id at para 192.
[82]
High Court judgment above n 2at paras 92-4.
[83]
Mhlope
above
n 59.
[84]
Id at para 133.
[85]
See
Ramuhovhi
v President of the Republic of South Africa
[2017] ZACC 41
;
2018 (2) SA 1
(CC);
2018 (2) BCLR 217
(CC);
Estate
Agency Affairs Board v Auction Alliance (Pty) Ltd
[2014] ZACC 3; 2014 (3) SA 106 (CC); 2014 (4) BCLR 373 (CC).
[86]
S
v Bhulwana; S v Gwadiso
[1995]
ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 30.
[87]
Mvumvu
v Minister of Transport
[2011]
ZACC 1
;
2011 (2) SA 473
(CC);
2011 (5) BCLR 488
(CC) at paras 45-6.
[88]
Ferreira
above
n 38 at para 28.
[89]
Mhlope
above n 59 at para 137.
[90]
Black
Sash
above
n 76 at para 51.
[91]
See [21] to [23].
[92]
Section 12 must be read with section 18 of the NPA Act.
[93]
Section 179(4) reads:
“
National
legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice”.
[94]
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at
para 53.
[95]
See [75].
[96]
Steenkamp
above n 60 at para 190.
[97]
See [71] to [72].
[98]
Section 172(1)(b) provides:
“
(1) When
deciding a constitutional matter within its power, a court—
. . .
(b)
may make any order that is just and equitable, including
—
(i)
an order limiting the retrospective
effect of the declaration of invalidity; and
(ii)
an order suspending the declaration of
invalidity for any period and on any conditions, to allow the
competent authority to correct
the defect.”
[99]
Mvumvu
above n 87 at paras 44-6.
[100]
Allpay
Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer
of the South African Social Security Agency (No 2)
[2014] ZACC 12
;
2014 (4) SA 179
(CC);
2014 (6) BCLR 641
(CC) and
Millennium
Waste Management (Pty) Ltd v Chairperson of the Tender Board:
Limpopo Province
[2007] ZASCA 165
;
2008 (2) SA 481
SCA at paras 22-9.
[101]
Hoffmann
v South African Airways
[2000]
ZACC 17
;
2001 (1) SA 1
;
[2000] 12 BLLR 1365
(CC) at paras 42-3.