Helen Suzman Foundation v President of the Republic of South Africa and Others; In Re: Glenister v President of South Africa and Others (23874/2012, 23933/2012) [2013] ZAWCHC 189; [2014] 1 All SA 671 (WCC); 2014 (4) BCLR 481 (WCC) (13 December 2013)

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[2013] ZAWCHC 189
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Helen Suzman Foundation v President of the Republic of South Africa and Others; In Re: Glenister v President of South Africa and Others (23874/2012, 23933/2012) [2013] ZAWCHC 189; [2014] 1 All SA 671 (WCC); 2014 (4) BCLR 481 (WCC) (13 December 2013)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 23874/2012
DATE:
13 DECEMBER 2013
In
the matters between:
THE
HELEN SUZMAN
FOUNDATION
.........................................................................
Applicant
v
THE
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
...............................
First
Respondent
THE
MINISTER OF
POLICE
........................................................................
Second
Respondent
THE
HEAD OF THE DIRECTORATE FOR
PRIORITY
CRIME
INVESTIGATION
..................................................................
Third
Respondent
THE
GOVERNMENT OF THE REPUBLIC OF
SOUTH
AFRICA
............................................................................................
Fourth
Respondent
AND
Case
No. 23933/2012
HUGH
GLENISTER
.........................................................................................................
Applicant
v
THE
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
...................................
First
Respondent
THE
MINISTER OF POLICE/SAFETY AND
SECURITY
.....................................
Second
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
..................................................................
Third
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
...............................
Fourth
Respondent
THE
GOVERNMENT OF THE REPUBLIC OF
SOUTH
AFRICA
................................................................................................
Fifth
Respondent
Court:
Justice Desai, Justice Le Grange et Justice Cloete
Heard:
22 and 23 August 2013, 16 and 17 September 2013 and 14 October 2013
Delivered:
13 December 2013
JUDGMENT
DESAI
J, LE GRANGE J et CLOETE J:
Introduction
[1] In
Glenister v President of the Republic of South Africa and Others
2011
(3) SA 347
(CC), hereinafter referred to as ‘Glenister 2’,
the Constitutional Court (‘CC’) declared Chapter 6A of
the South African Police Service Act 68 of 1995 (‘the 2008 SAPS
Act’) to be unconstitutional and invalid to the extent
that it
failed to secure an adequate degree of independence for the state’s
anti-corruption unit, the Directorate for Priority
Crime
Investigation (‘DPCI’).
[2] The
CC, however, suspended the declaration of invalidity for 18 months to
afford Parliament an opportunity to remedy the constitutional
defects
in the 2008 SAPS Act.
[3] In
purported compliance with Glenister 2 Parliament enacted the South
African Police Service Amendment Act 10 of 2012 (‘the
SAPS
Amendment Act’) on 14 September 2012.
[4] The
applicants submit that the SAPS Amendment Act does not remedy the
constitutional defects identified by the CC in Glenister
2. The Helen
Suzman Foundation (‘HSF’) challenges the impugned
legislation on a purely objective, legal basis in keeping
with the
approach of our courts to invalidity: see New National Party of South
Africa v Government of the Republic of South Africa
and Others
[1999] ZACC 5
;
1999
(3) SA 191
(CC) at paras [22] to [24] where it was held that:
‘
Consistent
with this objective approach to statutory invalidity, the
circumstances which become apparent at the time when the validity
of
the provision is considered by a Court are not necessarily irrelevant
to the question of its consequential invalidity. However,
a statute
cannot have limping validity, valid one day, invalid the next,
depending upon changing circumstances…
As
pointed out in the previous paragraph, it might well happen that the
right may be infringed or threatened because a governmental
agency
does not perform efficiently in the implementation of the statute.
This will not mean that the statute is invalid. The remedy
for this
lies elsewhere…
Courts
do not review provisions of Acts of Parliament on the grounds that
they are unreasonable. They will do so only if they are
satisfied
that the legislation is not rationally connected to a legitimate
government purpose…If the legislation…
is rational the
Act of Parliament cannot be challenged on the grounds of
“unreasonableness”. Reasonableness will only
become
relevant if it is established that the scheme, though rational, has
the effect of infringing the right of citizens to vote.
The question
would then arise whether the limitation is justifiable under the
provisions of s 36 of the Constitution and it is
only as part of this
s 36 enquiry that reasonableness becomes relevant. It follows that it
is only at that stage of enquiry that
the question of reasonableness
has to be considered.’
[5] Glenister
however, while aligning himself with the arguments of the HSF, has
adopted a different approach. His case is largely
devoted to
illustrating what he contends are the current levels of corruption in
South Africa, and seems to suggest that these
‘factual
circumstances’ mean that the threshold for the validity of the
SAPS Amendment Act has been raised. In particular,
he targets the
President, the Minister of Police, the South African Police Service,
the Head of the DPCI and the DPCI as all being
corrupt. In adopting
this approach he relies on Rail Commuters Action Group v Transnet Ltd
t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at para
[88]
. That case concerned
whether the state had implemented reasonable measures to protect rail
commuters in accordance with its positive
constitutional obligation
as the sole shareholder of Transnet Ltd. Clearly, therefore, the
prevailing circumstances were relevant.
No attack was made on the
validity of any legislation.
[6] In
Ferreira v Levin
1996 (1) SA 984
(CC) at para [27] it was held that:
‘
The
issue of whether a law is invalid or not does not in theory therefore
depend on whether, at the moment when the issue is being
considered,
a particular person’s rights are threatened or infringed by the
offending law or not.’
[7] All
of the respondents oppose the relief sought, save for the Head of the
DPCI and the National Director of Public Prosecutions,
both of whom
abide the decision of the court. Glenister’s approach resulted
in all of the respondents who oppose threatening
striking-out
applications. The Minister of Police (‘the Minister’) has
followed through on his threat. The Minister
has also raised the
issue of non-joinder of Parliament. We will deal with these two
preliminary aspects before turning to the merits
of the challenge to
the impugned legislation.
The
application to strike
[8] The
Minister argues that 31 paragraphs in Glenister’s papers, the
annexures referred to in these paragraphs, the report
of Prof Gavin
Woods, and the affidavit of Gareth Newham, which are annexures to the
papers, fall to be struck out on the basis
that they constitute
irrelevant, scandalous and vexatious matter and/or hearsay. The
objection to Woods’ report and Newham’s
affidavit is well
founded. The Woods report is constituted entirely of hearsay and is
irrelevant for purposes of these proceedings;
indeed, in the
affidavit to which the report is annexed, Woods does not even confirm
that the contents of the report are true and
correct. The Newham
affidavit motivates for an anti-corruption unit located outside the
structure of the SAPS, an issue that has
already been decided by the
CC as will appear more fully below.
[9] Insofar
as Glenister’s allegations are concerned, they may briefly be
summarised as follows:
9.1 That
at an unspecified date prior to 2009 the then Deputy Minister of
Justice, Adv J de Lange, conceded that South Africa’s
criminal
justice system was ‘dysfunctional’.
9.2 That
Mr Clem Sunter, a ‘well known and well respected scenario
planner’, has recently revised his predictions for
the future
of South Africa and has concluded that there is a one in four chance
that it will become a failed state.
9.3 That
from ‘public utterances’ made by the President he is
‘less than pleased’ with the findings in Glenister
2.
This inference is drawn, inter alia, from the President’s
‘failure to repudiate the scurrilous opinion’ of
his
Deputy Minister of Correctional Services, published in a newspaper
article on 1 September 2011.
9.4 That
corruption is rife can safely be accepted in light of comments made
by winning entrants in a competition about anti-corruption
strategies
sponsored by Glenister himself, as well as comments made by the
Institute for Accountability in Southern Africa (whose
members
include Glenister’s legal team) and who have been ‘particularly
vocal’ about the available strategies
for the implementation of
the findings in Glenister 2.
9.5 That
Mr David Lewis of Corruption Watch has ‘found’ that the
Police Service is at present the most corrupt institution
in South
Africa.
9.6 That
the last three National Police Commissioners are all ‘loyal
deployees’ of the ruling party, which is ‘illegal
and
unconstitutional’.
9.7 That
the ruling party’s website reflects that its goal is the
‘hegemonic control of all of the levers of power in
society’.
9.8 That
the DPCI is corrupt and inefficient and finds itself,
constitutionally, ‘under the control of a Minister (who is

himself compromised) who serves in a Cabinet that is not without its
own challenges when it comes to issues of corruption and
corruptibility’.
9.9 That
the National Head of the DPCI is ‘another employed cadre’
of the ruling party and that his track record ‘is
not
unblemished’ if regard is had to various newspaper articles
attached to support this allegation. Various other political
figures
are also vilified; and parliamentary exchanges and the like are
included to indicate levels of corruption and inefficiency.
9.10 The
respondents and the court are referred to seven separate websites
which apparently support the aforementioned allegations.
[10] The
crucial consideration of course is whether the Minister is prejudiced
in the conduct of his case if the offending material
is allowed to
stand. Mr Hoffman, Glenister’s lead counsel, adopted the view
that there could be no possible prejudice to
the Minister since he
could quite easily have dealt with these allegations. He went
further, and urged us to accept them as uncontested
because the
Minister had not done so. In our view, however, this approach
overlooks what is required of a litigant in motion proceedings,

namely that: (a) the facts or allegations must be set out simply,
clearly, in chronological sequence and without argumentative
matter;
and (b) it is not open to a party to merely annex documentation and
to request the court to have regard to it, given that
what is
required is the identification of the portions thereof on which
reliance is placed, and an indication of the case which
is sought to
be made out on the strength thereof. If this were not so the essence
of our established practice would be destroyed,
and a party would not
know what case must be met: see Swissborough Diamond Mines (Pty) Ltd
v Government of the Republic of South
Africa
1999 (2) SA 279
(T) at
324D-G. There can be little doubt that Glenister in making sweeping
allegations based on unverified opinion has failed to
meet these
requirements; and that the Minister has been severely prejudiced in
the conduct of his case as a result.
[11] Regarding
the relevance of this material, Mr Hoffman sought to persuade us that
the clear and unequivocal finding in Glenister
2 about the scourge of
corruption has no bearing on the issues before us because it is the
‘current factual matrix’
which dictates how we are to
determine this matter. It was thus necessary to inform this court,
all over again as it were, about
Glenister’s view of the levels
of corruption in South Africa. We cannot agree. The present
applications have their origin
in the order in Glenister 2. In
reaching its conclusion in that case, the CC dealt comprehensively
with the issue of corruption.
We are required to determine the
applications before us against the framework, findings and order made
by that court. It is the
constitutional validity of the SAPS
Amendment Act that is under scrutiny and not the reasonableness
thereof. Put differently, the
rationale of adequate independence of
the DPCI is the protection against potential manipulation by corrupt
politicians through
political control. This rationale stands,
irrespective of the absence or presence of actually corrupt
politicians in the power
structure at any given time. As stated in
Glenister 2 at para [234]:
‘
Again,
we should not assume, and we do not assume, that the power will be
abused. Our point is different. It is that senior politicians
are
given competence to determine the limits, outlines and contents of
the new entity’s work. That in our view is inimical
to
independence.’
[12] It
follows that the Minister’s application to strike must succeed.
Non-joinder
of Parliament
[13] The
Minister contends that the joinder of Parliament is unavoidable
because of the ‘unusual’ order in Glenister
2. The
relevant portions of the order are as follows:
‘
5. It
is declared that Ch 6A of the
South African Police Service Act 68 of
1995
is inconsistent with the Constitution and invalid to the extent
that it fails to secure an adequate degree of independence for the

Directorate for Priority Crime Investigation.
6. The
declaration of constitutional invalidity is suspended for 18 months
in order to give Parliament the opportunity to remedy
the defect.’
[14] The
Minister contends that the joinder of Parliament is a matter of
necessity rather than convenience. Para [6] of the CC order
means
that the question is whether Parliament has remedied the defects.
However, as the papers stand, Parliament is not before
the court to
defend its position.
[15] In
Glenister 2 one of the challenges was directed at Parliament, it
being contended that the latter had failed to comply with
its
constitutional obligation to facilitate public involvement in its
legislative process. At para [29] the CC held that both the
National
Assembly and the National Council of Provinces had a direct and
substantial interest in the outcome of that challenge.
They should
therefore have been joined in the proceedings. As it turned out the
challenge was dismissed on the basis that Glenister
had not made out
a case for failure to facilitate public involvement.
[16] The
Government is a party to these proceedings. In Independent Electoral
Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC) at para
[25]
the CC held that:
‘
the
national sphere of government comprises at least Parliament, the
President and the Cabinet all of which must exercise national

legislative and executive authority within the functional areas to
which the national sphere of government is limited. These state

organs comprise the national sphere of government and are within it.’
[17] The
government thus includes Parliament, and the involvement of the
former in these proceedings includes the involvement of
the latter.
The Minister relied on Mabaso v Law Society, Northern Provinces and
Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC) at para
[13]
. There it was held that, in
a constitutional democracy, a court should not declare the acts of
another arm of government unconstitutional
without the latter having
a proper opportunity to consider the constitutional challenge and to
make representations. This reliance
is misplaced, as Mabaso concerned
only the failure to join a member of the executive responsible for
the administration of the
impugned statute, i.e., the Minister of
Justice. Notably, the court in Mabaso did not take issue with the
absence of Parliament
from the proceedings, despite the fact that an
Act of Parliament – its own ‘work’ as the Minister
terms it –
was under challenge.
[18] Rule
10A of the uniform rules of court is consistent with the above
position, and unambiguously provides as follows:
‘
If
in any proceedings before the court, the constitutional validity of a
law is challenged, the party challenging the validity of
the law
shall join the provincial or national executive authorities
responsible for the administration of the law in the proceedings.’
[Emphasis
supplied.]
[19] The
Minister also placed reliance on Doctors for Life International v
Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC).
This reliance is misconceived. As in that portion of Glenister 2 to
which we have already referred, Doctors for Life concerned
a
constitutional challenge based only on the alleged failure of
Parliament to facilitate public involvement in the legislative

process. Clearly, Parliament has an interest in defending its own
procedural conduct, over which its principal officers –
the
Speaker of the National Assembly and the Chairperson of the National
Council of Provinces – have authority and responsibility.
It is
for that reason that those officers and only those officers are
required to be cited when the procedural conduct of Parliament
is
impugned. There is a difference, however, between procedure and
substance. The officers of Parliament are not responsible for

substance, which is deliberated and adopted collectively by the
members of Parliament, yet is researched, initiated, introduced
and –
after adoption – administered by the Executive.
[20] Neither
applicant impugns the procedure followed by Parliament when adopting
Chapter 6A of the SAPS Act through the SAPS Amendment
Act. Rather, it
is the content of the impugned provisions that is challenged, in the
same way that the substance of any statute
may be constitutionally
challenged.
[21] It
is also of note that neither the President nor the Government has
suggested that Parliament should have been joined. And,
in oral
argument, Ms Williams, lead counsel for the Government, contended
that since the parliamentary process was not being challenged,
there
was no need to join Parliament.
[22] In
addition, rule 5(1) of the CC rules provides that anyone who
challenges the constitutional validity of an Act of Parliament
must
join the responsible executive authority as a party to the
proceedings, not Parliament.
[23] It
is for these reasons that we are satisfied that the joinder of
Parliament in these proceedings is not required.
The
framework against which this court must determine the constitutional
validity of the SAPS Amendment Act
[24] In
Glenister 2 the CC found that the creation and location of a separate
anti-corruption unit within the South African Police
Service (‘SAPS’)
is not in itself unconstitutional. The essential question is whether
the anti-corruption unit enjoys
sufficient structural and operational
autonomy so as to shield it from undue political influence.
Accordingly, at issue in this
case is not the location of the DPCI
within the SAPS structure, but whether the SAPS Amendment Act
provides the DPCI with sufficient
insulation from undue political
interference.
[25] In
Glenister 2 the CC found that the DPCI structure in the 2008 SAPS Act
did not enjoy sufficient structural and operational
autonomy so as to
shield it from undue political influence, essentially for two main
reasons:
25.1 The
lack of security of tenure and remuneration; and
25.2 The
degree of accountability and oversight by the Ministerial Committee.
[26] As
to lack of security of tenure and remuneration the CC found these to
lie in the following:
26.1 The
appointment of members was not sufficiently shielded from political
influence;
26.2 The
existence of renewable terms of office;
26.3 The
existence of flexible grounds for dismissal that did not rest on
objectively verifiable grounds like misconduct or ill
health; and
26.4 The
absence of statutorily secured remuneration levels.
[27] As
to the degree of accountability and oversight by the Ministerial
Committee, the CC found these to lie in the following:
27.1 The
untrammelled power of the Ministerial Committee to determine policy
guidelines in respect of the functioning of the DPCI
as well as the
selection of national priority offences;
27.2 Parliament’s
oversight function was undermined by the level of involvement of the
Ministerial Committee;
27.3 The
complaints system involving a retired judge regarding past incidents
did not afford sufficient protection against future
interference.
Test
to be applied
[28] In
assessing the attacks on the SAPS Amendment Act we must: (a) have
regard to the findings already made by the CC in Glenister
2; and (b)
apply the test of objective validity as set out in the New National
Party case. Insofar as public perception or opinion
is concerned, the
question is not what the populace believes a proper unit should be.
It is what the Constitution demands it should
be. As pointed out in S
v Makwanyane and Another 1995 (3) SA 391 (CC) at paras [88] and [89]:
‘
Public
opinion may have some relevance to the enquiry, but, in itself, it is
no substitute for the duty vested in the courts to
interpret the
Constitution and to uphold its provisions without fear or favour. If
public opinion were to be decisive, there would
be no need for
Constitutional adjudication… This Court cannot allow itself to
be diverted from its duty to act as an independent
arbiter of the
Constitution by making choices on the basis that they will find
favour with the public.’
[29] This
must be balanced against public confidence, given that in Glenister 2
the CC had the following to say at para [207]:
‘
This
Court has indicated that the appearance or perception of independence
plays an important role in evaluating whether independence
in fact
exists… By applying this criterion we do not mean to impose on
Parliament the obligation to create an agency with
a measure of
independence appropriate to the Judiciary. We say merely that public
confidence in mechanisms that are designed to
secure independence is
indispensible. Whether a reasonably informed and reasonable member of
the public will have confidence in
an entity’s
autonomy-protecting features is important to determining whether it
has the requisite degree of independence…
This is because
public confidence that an institution is independent is a component
of, or is constitutive of, its independence.’
[30] The
present matter, entirely understandably, is a highly emotive one. It
goes to the root of public perception. That is why
it is necessary to
remind ourselves that, just as we must fulfil our duty to declare
invalid laws which fail to pass constitutional
muster, we must
equally guard against falling into the trap of seeking to satisfy
hypersensitivity or paranoia. The very location
of the DPCI within
the SAPS has already been found by the CC to be constitutionally
permissible. As a lower court it is not for
us to take issue with
that or to entertain debates about whether the DPCI should be located
elsewhere. What we are required to
do is to assess, objectively,
whether Ch 6A of the SAPS Amendment Act provides the DPCI with
‘insulation from a degree of
management by political actors
that threatens imminently to stifle the independent functioning and
operations of the unit’
(Glenister 2 at para [216]). This is
the yardstick to determine whether the DPCI ‘has an adequate
level of structural and
operational autonomy secured through
institutional and legal mechanisms, to prevent undue influence’
(Glenister 2 at para
[206]). If it does, then public confidence
should follow. If it does not, the converse applies.
[31] The
legislature has recognised that the test is one of adequate
independence. This much is evident from the preamble to the
SAPS
Amendment Act which provides as follows:
‘
AND
WHEREAS there is a need to provide for a Directorate in the Service
that is dedicated to the prevention, investigation and combatting
of
national priority offences, in particular serious organised and
transnational crime, serious commercial crime and serious corruption,

and that enjoys adequate independence to enable it to perform its
functions.’
[Emphasis
supplied.]
The
attacks on the SAPS Amendment Act
[32] The
HSF’s main challenges (and these were the challenges focused on
during argument) relate to:
32.1 Appointment;
32.2 Extension
of tenure;
32.3 Suspension
and removal;
32.4 Jurisdiction;
and
32.5 Financial
control.
[33] Glenister’s
challenges appear to be as follows:
33.1 That
the drafters of the SAPS Amendment Act have substituted the previous
overt executive control that the 2008 SAPS Act allowed
over the DPCI
with more subtle and less visible control, which still does not
address the real difficulties identified by the CC.
The complaint –
although difficult to understand in the somewhat convoluted form in
which it is presented – appears
to be directed at the unit
being located in the SAPS structure and thus under the political
responsibility of the Minister. Given
that this is an issue which has
already been decided by the CC, it requires no further comment; and
33.2 The
amended provisions do not sufficiently insulate the DPCI from
political influence in its structure and functioning in relation
to:
(a) operational independence; (b) resourcing; (c) conditions of
service; and (d) determination of the nature of crimes to be

investigated.
[34] To
all intents and purposes, therefore, the constitutional challenges of
the respective applicants are otherwise the same.
Appointment
The
lack of adequate criteria
[35] In
s 17C of the 2008 SAPS Act there were no criteria stipulated for the
appointment of the Head of the DPCI, other than that
the Head had to
be a Deputy National Commissioner appointed by the Minister in
concurrence with Cabinet.
[36] The
complaint is that the new s 17CA(1) merely requires that the
appointee be a person who is: (a) a South African citizen;
and (b) a
fit and proper person, with ‘due regard to his or her
experience, conscientiousness and integrity, to be entrusted
with the
responsibilities of the office concerned’. This is
unjustifiably broad; it does not provide sufficient guidelines
to the
delegee (in this case, the Minister) in compliance with the
requirement of lawful delegation under the Constitution.
[37] The
importance of adequate criteria has been emphasised by our courts in
a number of situations: see for instance Dawood v
Minister of Home
Affairs
[2000] ZACC 8
;
2000 (3) SA 936
(CC) at paras [54] to [57].
[38] In
Freedom of Expression Institute and Others v President, Ordinary
Court Martial N.O. and Others
1999 (2) SA 471
(C), which involved a
constitutional challenge to the provisions of the Defence Act 44 of
1957, the court found at para [19] that:
‘
There
are no criteria laid down as to what a fit and proper person would be
to be so appointed. More particularly, the appointee
is not required
to have any legal qualifications whatsoever. The convening authority
is therefore at large to appoint anybody that
it wants to. But the
convening authority does not only appoint the prosecutor, his
discretion is limited by their powers…
It is therefore
self-evident that not only is the convening authority able to appoint
somebody who is ill-equipped to perform the
function of a prosecutor,
but that such prosecutor does not exercise an independent discretion
and judgment. The law as it stands
invites arbitrariness as it allows
executive interference into judicial process.’
[39] The
CC reiterated this principle in Affordable Medicines Trust v
Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at para
[34]
when it said the
following:
‘
[T]he
delegation must not be so broad or vague that the authority to whom
the power is delegated is unable to determine the nature
and the
scope of the powers conferred. For this may well lead to the
arbitrary exercise of the delegated power. Where broad discretionary

powers are conferred, there must be some constraints on the exercise
of such power so that those who are affected by the exercise
of the
broad discretionary powers will know what is relevant to the exercise
of those powers or in what circumstances they are
entitled to seek
relief from an adverse decision. These constraints will generally
appear from the provisions of the empowering
statute as well as the
policies and objectives of the empowering statute.’
[40] There
is confusion among the respondents about whether a discretion is
conferred by s 17CA(1). Mr Donen, lead counsel for the
Minister,
contends that the Minister has no discretion – if the criteria
are satisfied, then the Minister must appoint, because
of the word
‘shall’. But that is contradicted by Mr Kemp, lead
counsel for the President, who accepts that there is
a discretion –
which he is right to have conceded, since obviously it is the
Minister who decides, subjectively, whether
the person is fit and
proper. This is entirely separate from the fact that a court may
later test the Minister’s chosen appointee,
and enquire
whether, objectively, the person so appointed is fit and proper.
[41] The
President argues that the criteria ‘are objective criteria
which can be implemented through court challenge’,
submitting
that the judgments of the Constitutional Court and the Supreme Court
of Appeal in Democratic Alliance v President of
the Republic of South
Africa and Others
2013 (1) SA 248
(CC); Democratic Alliance v
President of the Republic of South Africa and Others
2012 (1) SA 417
(SCA) – commonly referred to as the Simelane case – show
the judicial control extant to ensure that persons of integrity
are
appointed. In our view, however, Simelane is actually authority for
the proposition that the fit and proper criterion contained
in a
specific statutory provision must be considered with due regard to
its statutory purpose, measured against constitutional
values and
norms: see the SCA judgment in Simelane at para [120]. Accordingly,
properly applied, the fit and proper criterion for
the appointment of
the Head of the DPCI finds itself in a different context than that of
Simelane. In addition, Mr Kemp’s
submission is at odds with the
view expressed by the CC in Dawood, to which we refer below.
[42] Simelane
concerned s 9(1) of the National Prosecuting Authority Act 32 of 1998
(‘the NPA Act’) which stipulates
a criterion additional
to those set out in s 17CA(1) of the SAPS Amendment Act, despite Mr
Donen having informed us that the words
in the respective sections
are identical. This additional criterion is that the appointee must
‘possess legal qualifications
that would entitle him or her to
practice in all courts in the Republic’. This criterion thus
fetters the appointment power
of the President, while the appointment
power of the Minister in respect of the Head of the DPCI is
comparatively unguided and
unrestrained. Moreover, s 179(3)(a) of the
Constitution states that the National Director of Public Prosecutions
must be ‘appropriately
qualified’, which likewise fetters
the President’s discretion. Simelane is thus distinguishable
from the present case;
and demonstrates the degree to which the
Minister’s appointment power of the Head of the DPCI is far
wider than it could
(and should) be. This is also highlighted by the
fact that
s 6(1)
of the
Independent Police Investigative Directorate
Act
(‘the IPID Act’) stipulates that the Executive
Director of that Directorate, who is constitutionally required to be

independent, must be ‘suitably qualified’.
[43] In
Dawood the CC made it clear that the availability of ex post facto
judicial review does not absolve the legislature from
providing
appropriate ex ante direction. That court had the following to say at
para [48]:
‘
[T]hat
the exercise of a discretionary power may subsequently be
successfully challenged on administrative grounds, for example,
that
it was not reasonable, does not relieve the legislature of its
constitutional obligation to promote, protect and fulfil the
rights
entrenched in the Bill of Rights. In a constitutional democracy such
as ours the responsibility to protect constitutional
rights in
practice is imposed both on the legislature and on the Executive and
its officials. The legislature must take care when
legislation is
drafted to limit the risk of an unconstitutional exercise of the
discretionary powers it confers.’
[Emphasis
supplied.]
[44] It
is thus the primary duty of the legislature, and not the judiciary,
to limit that risk. This is entirely consistent with
the doctrine of
separation of powers enshrined in our Constitution.
[45] Both
the cardinal importance of ensuring the DPCI’s adequate
independence, and the relative ease with which Parliament
is able to
determine more detailed criteria, militate for the constitutional
imperative that such criteria be included. Nor can
it be said that
there is any legislative purpose to be achieved by not supplying such
guidance: see Dawood at para [56].
[46] The
respondents’ contention that the current criteria are adequate,
given that ‘fit and proper’ was held
in Simelane to be an
‘objective’ standard, is misplaced. The imperative of
including, in any empowering statute, sufficient
guidance to guard
against the infringement of rights in the exercise of the power
conferred, is not a question of the objectivity
but rather of the
clarity and specificity of the criteria prescribed. This is precisely
because, as the CC has recognised, the
legislation, in the manner in
which it is drafted, must limit the risk of the unconstitutional
exercise of the discretionary power
conferred. This risk is not
limited by the mere ability to test the exercise of that power on an
objective basis in a review.
The
necessity for Parliamentary oversight
[47] The
complaint is that because the Minister, with Cabinet, appoints the
Head of the DPCI, this does not sufficiently insulate
the Head from
political interference. Having regard to the constitutional mandate
of an anti-corruption unit and the imperative
for its adequate
independence, the appointment of its Head cannot be entrusted to the
Executive alone, even more so where the legislation
sets out
inadequate guidelines for the delegee to exercise his or her
statutory power.
[48] In
Glenister 2 it was held that the public perception of independence is
an important criterion is assessing whether the anti-corruption
unit
is sufficiently independent. The question that arises is whether the
ordinary, reasonable citizen can trust the DPCI to investigate
state
corruption fully and fearlessly if the Head is appointed, without any
meaningful guidelines or constraints, by the Minister
with Cabinet.
Indeed, Cabinet comprises the political heads of all of the
government departments that the DPCI might have to investigate.
[49] In
its present form, s 17CA(3) of the SAPS Amendment Act only obliges
the Minister to report to Parliament on the appointment
of the Head.
Parliament has no veto power.
[50] The
respondents rely on Van Rooyen and Others v The State and Others
(General Council of the Bar of South Africa Intervening)
2002 (5) SA
246
(CC) at paras [108] – [109] where the CC endorsed the
principle that appointment by the Executive (or in combination with

Parliament) is constitutionally acceptable. Of course Van Rooyen
dealt with the power of the Minister of Justice to appoint
magistrates.
In our view, the respondent’s reliance on Van
Rooyen is misplaced. First, magistrates apply the law. They do not
investigate
corruption. Second, and more importantly, magistrates,
like judges, are constitutionally fully independent. Further, having
regard
to public perception, it is vital that the person appointed
has no taint – whether perceived or otherwise – that he

or she occupies office due to ministerial preference. One immediately
apparent solution would be to require that Parliament approves
the
appointment. This would ensure that such appointment is subject to
sufficient scrutiny, by a transparent and representative
institution,
to safeguard both the actual and perceived independence of the Head.
[51] The
importance of Parliament’s involvement is illustrated by s 193
of the Constitution, which requires a special majority
of Parliament
to approve the appointment of the Public Protector and
Auditor-General. While these institutions are squarely placed
in
Chapter 9 of the Constitution, in Glenister 2 the CC had no
difficulty in measuring the 2008 SAPS Act against these institutions

in order to test the constitutional requirement of independence. At
para [211] the court said the following:
‘
As
the main judgment observes, the international instruments require
independence within our legal conceptions. Hence it is necessary
to
look at how our own constitutionally created institutions manifest
independence. To understand our native conception of institutional

independence, we must look to the Courts, to Ch 9 institutions, to
the NDPP and in this context also to the now defunct DSO. All
these
institutions adequately embody or embodied the degree of independence
appropriate to their constitutional role and functioning.
Without
applying a requirement of full judicial independence, all these
institutions indicate how far the DPCI structure falls
short in
failing to attain adequate independence.’
[52] The
respondents also rely on the process by which judges are appointed in
an attempt to illustrate that there is nothing fundamentally
wrong
with the absence of Parliamentary oversight. While it is true that
judges are appointed without the approval of Parliament,
this is a
false comparison. First, the appointment criteria for judges are much
stricter than those for the Head of the DPCI. S
174(1) of the
Constitution makes one of the criteria for the appointment of judges
to be that of appropriate qualification. Further,
the appointment of
judges follows a special process created in the Constitution itself.
The HSF points out that the Judicial Service
Commission is a
multi-party body that scrutinises judicial candidates and makes
recommendations to the President before he is even
permitted to
exercise his appointment powers. Indeed, the HSF argues that this
process ensures a considerable degree of representative
and
transparent scrutiny and places substantial fetters on the powers of
the President. Finally, there is no apparent purpose in
excluding
Parliamentary oversight from the appointment process of the Head of
the DPCI.
The
insufficiency of consultation
[53] Mr
Donen informed us that the appointment process of the Head is
consistent with one of the main features of independence identified

by the Organisation for Economic Co-operation and Development
(‘OECD’) in its 2008 report, Specialised Anti-Corruption

Institutions: Review of Models. We cannot agree. The relevant extract
from the OECD report reads as follows:
‘
Appointment
and Removal of the Director
The
symbolic role played by the Head of an anti-corruption institution
should not be underestimated. In many ways the Director represents
a
pillar of the national integrity system. – The selection
process for the Head should be transparent and should facilitate
the
appointment of a person of integrity on the basis of high-level
consensus among different power-holders (e.g. the President
and the
Parliament; appointment through a designated multi-disciplinary
selection committee on the proposal of the Government,
or the
President, etc.) Appointment by a single political figure (e.g. a
Minister or a President) is not considered good practice.
The
Director’s tenure in office should also be protected by law
against unfounded dismissals.’
[Emphasis
supplied.]
[54] Ss
17CA(4) and (6) provide that the Deputy National Head and the
Provincial Heads are appointed by the Minister, in consultation
with
the Head, and with the concurrence of Cabinet.
[55] Essentially
the same complaints are levelled at the appointment process of the
Deputy National Head and the Provincial Heads,
and it is contended
that, although consultation with the Head is required, his or her
input may be ignored.
[56] The
Government argues that, in addition to the reasons already advanced
in respect of the appointment of the Head, this complaint
is
ill-founded. The Government relies on Unlawful Occupiers, School Site
v City of Johannesburg
2005 (4) SA 199
(SCA) at para [13] where, in
summarising the appellants’ argument, the court referred to
various authorities in which it
was found that a decision ‘in
consultation with’ another functionary requires the concurrence
of that functionary;
whereas a decision ‘after consultation
with’ another functionary requires no more than that the
decision must be taken
in good faith after consulting and giving
serious consideration to the views of the other functionary: see
Premier, Western Cape
v President of the Republic of South Africa
[1999] ZACC 2
;
1999 (3) SA 657
(CC) at para
[85]
; President of the Republic of South
Africa and Others v South African Rugby Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para
[63]
.
[57] The
HSF nonetheless sought to persuade us that on a proper reading of s
17CA(4) we should place a different interpretation
thereon, given
that the phrase ‘in consultation with’ the Head on the
one hand, and ‘with the concurrence of’
Cabinet on the
other, must have been intended by the legislature to have two
different and distinct meanings. In our view, not
much turns on this
in light of the clear CC authority to which the respondents referred.
[58] The
more fundamental problems presented by the current appointment
process of the Head contained in s 17CA(1), if properly
addressed by
the legislature, may well neutralise the concerns raised by the HSF
in respect of the appointment of the Deputy Head
and National Heads
because it will follow logically that the requirement of sufficient
consultation will have to be met in respect
of the latter process as
well. In any event, the CC has already provided us with the meaning
of ‘in consultation with’
and we do not believe that it
is appropriate to stretch that meaning as the HSF suggests.
Extension
of tenure
[59] The
2008 SAPS Act was silent as to any specially entrenched term of
office for the Head of the DPCI.
[60] S
17CA(1) now stipulates that the Head shall be appointed for a
‘non-renewable fixed term of not shorter than seven years
and
not exceeding 10 years’. S 17CA(2) stipulates that the term is
fixed at the time of appointment.
[61] S
17CA(15) provides that the Minister shall, with the consent of the
Head, retain him or her in office beyond the age of 60
years for such
period that shall not: (a) exceed the period determined in s 17CA(1);
and (b) exceed two years subject to the approval
of Parliament.
Similar provisions pertain to the Deputy Head and what is set out
hereunder should thus be taken to apply to both
the Head and the
Deputy Head.
[62] In
Glenister 2 the CC held at paras [222] – [223] that:
‘
In
our view, adequate independence requires special measures entrenching
[the DPCI’s] employment security to enable them to
carry out
their duties vigorously.
This
is exacerbated by the fact that the appointment of the National
Commissioner of the SAPS is itself renewable. By contrast,
the
appointment of the National Director of Public Prosecutions (NDPP) –
who selected the Head of the DSO from amongst the
deputy NDPPs –
is not. A renewable term of office, in contradistinction to a
non-renewable term, heightens the risk that
the office-holder may be
vulnerable to political and other pressures.’
[Emphasis
supplied.]
[63] The
complaint is that the Minister may extend the tenure of the Head,
subject only to the consent of the Head, for up to 2
years after
retirement age of 60 years, and even beyond 2 years with the approval
of Parliament. It is contended that this kind
of untrammelled power
strikes at the heart of a non-renewable term of tenure, which is a
fundamental principle of independence.
[64] In
Justice Alliance of South Africa v President of the Republic of South
Africa and Others
2011 (5) SA 388
(CC) (‘JASA’), the CC,
in considering the extension of the term of office of the Chief
Justice, held as follows at
paras [73] and [75]:
‘
It
is well established on both foreign and local authority that a
non-renewable term of office is a prime feature of independence.

Indeed, non-renewability is the bedrock of security of tenure and a
dyke against judicial favour in passing judgment. Section 176(1)

gives strong warrant to this principle in providing that a
Constitutional Court judge holds office for a non-renewable term.
Non-renewability
fosters public confidence in the institution of the
judiciary as a whole, since its members function with neither threat
that their
terms will not be renewed nor any inducement to seek to
secure renewal…
In
approaching this question it must be borne in mind that the extension
of a term of office, particularly one conferred by the
executive or
by Parliament, may be seen as a benefit. The judge or judges upon
whom the benefit is conferred may be seen as favoured
by it. While it
is true, as counsel for the President emphasised, that the
possibility of far-fetched perceptions should not dominate
the
interpretive process, it is not unreasonable for the public to assume
that extension may operate as a favour that may influence
those
judges seeking it. The power of extension in s 176(1) must therefore,
on general principle, be construed as far as possible
to minimise the
risk that its conferral could be seen as impairing the precious
institutional attribute of impartiality and the
public confidence
that goes with it.’
[65] The
President argues that the power of the Minister to extend the Head’s
term of office is not unfettered, as it is subject,
firstly, to the
consent of the Head himself or herself; and secondly, to a period of
a maximum of 2 years unless otherwise approved
by Parliament. It is
argued that the power to extend is necessary for an effective DPCI.
[66] The
Minister submits that the exercise of the power cannot be construed
as a benefit capable of impairing the constitutional
independence of
the DPCI, as it is necessary, in light of the statutorily prescribed
maximum age of retirement of 60 years, for
the Minister to be
permitted to consider deserving candidates for appointment for the
prescribed non-renewable term who are older
than 53 years at the time
of appointment.
[67] The
Government argues that the subsections, in their current form, must
be interpreted to mean that the duration of the term
of appointment
is fixed at the time of appointment in light of the clear wording to
that effect in s 17CA(2); that in line with
the Minister’s
argument, this is entirely compatible with the requirement of
adequate independence; and that accordingly
the complaint is without
substance.
[68] In
our view the respondents’ arguments cannot be sustained.
Whatever the practical advantages of the power to extend
the Head’s
tenure, the renewability of the term at the behest of the Minister is
intrinsically inimical to independence.
It is clear from the CC’s
judgments in Glenister 2 and JASA that it is renewability as such,
rather than the insufficiency
of conditions or constraints imposed on
renewability, which jeopardises independence. Renewability thus has
no valid place in the
scheme of a unit that is constitutionally
required to be adequately independent.
[69] S
17CA(15) specifically refers to ‘retain’. One cannot
retain a person in his or her position if he or she has
not already
been appointed.
[70] The
same subsection injects a clear element of ministerial discretion
into the extent, if not the fact, of the extension, in
that it states
that the further term ‘shall not exceed’ certain fixed
periods, thus clearly implying that it may, at
the discretion of the
Minister, be shorter than those fixed periods. This gives rise to the
potential for favouritism or, at the
very least, public perception of
potential favouritism.
[71] In
addition, s 17CA(16), expressly employing the permissive word ‘may’,
provides that extension may only take place
if: (a) the incumbent
wishes to continue to serve in that office; and (b) the mental and
physical health of the incumbent ‘enables
him or her so to
continue’. It is apparent from (a) that the willingness of the
incumbent is only one condition for the extension
rather than the
sole source and basis for it. This is fortified by the use of the
word ‘consent’ in s 17CA(15) itself,
which conveys the
clear impression that the Head is not intended to initiate or
exercise an election to extend his or her own tenure,
but rather to
accept or reject the Minister’s election. It is, furthermore,
evident from (b) that the extension is also conditional
upon an
assessment of the incumbent’s capabilities. This assessment
cannot be conducted by the incumbent personally, since
that
construction would not only be absurd, but would render (b) a wholly
redundant repetition of (a). The only reasonable construction
of (b)
therefore is that the power to assess the incumbent’s
suitability for extension vests in the Minister.
[72] Consequently,
a contextual interpretation of the impugned provisions reveals that
they purport to vest the Minister with the
power to extend the tenure
of the Head. The latter’s term is thus renewable at the
pleasure of the Minister, and to that
extent the Head’s
independence is eroded. This erosion is not saved by the fact that
the Minister’s power is subject
to conditions, namely a maximum
time limit, the incumbent’s consent and the incumbent’s
health (as assessed by the
Minister).
[73] Further,
the power of Parliament to extend the tenure of Constitutional Court
judges is specifically conferred by the Constitution
itself. Such
conferral thus cannot be construed as reflecting any general
principle that a Parliamentary power to extend tenure
does not impair
an institution’s independence. Indeed, in JASA, the CC
described this power (at para [67]) as ‘an exception’
to
the rule that a Constitutional Court judge’s term is fixed. At
para [75] of JASA the CC made it plain that extension,
even by
Parliament, presents the risk or at least the perception of
inadequate independence; and at para [67] alluded to fundamental

differences in constitutional character between the Executive and
Parliament:
‘
It
is so that s 276(1) of the Constitution creates an exception to the
requirement that a term of a Constitutional Court judge is
fixed.
That authority, however, vests in Parliament and nowhere else. It is
notable that s 176(1) does not merely bestow a legislative
power, but
by doing so also marks out Parliament’s significant role in the
separation of powers and protection of judicial
independence. The
nature of this power cannot be overlooked, and the Constitution’s
delegation to Parliament must be restrictively
construed to realise
that protection.’
Suspension
and removal
[74] In
the 2008 SAPS Act members of the DPCI were subject simply to the SAPS
disciplinary procedures set out in s 34 and s 35 thereof.
Now, s
17CA(19) of the SAPS Amendment Act stipulates that any disciplinary
action against a Deputy National Head, Provincial Head,
member or
employee in the service of the DPCI shall be considered and finalised
‘within the Directorate’s structures
subject to the
relevant prescripts’; and s 17CA(20) stipulates that no Deputy
Head, Provincial Head, member or administrative
staff member of the
DPCI may be transferred or dismissed except after approval by the
Head. The powers of suspension and removal
in respect of the Head
personally are, however, in stark contrast to these provisions.
[75] During
the course of argument the respondents conceded that s 17DA, in its
current form, provides for two separate and distinct
processes for
the removal from office of the Head, notwithstanding the wording in s
17DA(1) to the effect that the Head shall not
be removed from office
except in accordance with the provisions of ss (2), (3) and (4)
thereof.
[76] The
first removal process vests in the Minister in terms of s 17DA(1) and
(2). These provide that the Minister may provisionally
suspend the
Head pending such inquiry into his or her fitness to hold office ‘as
the Minister deems fit’; and that
the Minister may ‘thereupon’
remove him or her from office on one of four grounds. These are: (a)
misconduct; (b) continued
ill-health; (c) incapacity to carry out his
or her duties ‘efficiently’; and (d) that he or she is no
longer a fit
and proper person to hold office.
[77] There
is no obligation on the Minister to obtain Parliament’s
approval. All that he is required to do is to furnish Parliament

within 14 days with the reasons for his decision, and the Head’s
representations. The inquiry is to be led by a judge or
retired
judge, appointed by the Minister after consultation with the Minister
of Justice and the Chief Justice. The inquiry shall
perform its
functions in accordance with the Promotion of Administrative Justice
Act 3 of 2000 (‘PAJA’).
[78] The
second removal process is contained in ss 17DA(3) and (4). There,
Parliament is separately empowered to permanently remove
the Head by
a two-thirds majority, but only on the grounds of: (a) misconduct;
(b) incapacity; or (c) incompetence, on a finding
to that effect by a
Committee of the National Assembly.
[79] The
complaint is that the CC in Glenister 2 held at para [222] that
‘adequate independence requires special measures
entrenching
[DPCI members’] employment security to enable them to carry out
their duties vigorously’. The impugned
provisions do not
provide sufficient security of tenure for the Head to ensure his or
her independence.
[80] The
Minister is empowered to suspend the Head without a hearing and
without specific grounds for doing so, pending a disciplinary
inquiry
initiated by the Minister himself. The Minister is given the sole
discretion to decide whether to suspend the Head with
or without pay.
The Minister is granted the sole power to remove the Head, after an
inquiry conducted by a judge or a retired judge.
The terms of
reference of the inquiry are not specified and may be determined by
the Minister. The findings of the inquiry are
not binding on the
Minister whose own decision is final and not subject to approval by
Parliament. The Head may be removed on the
basis that he or she is
unable to carry out his or her duties ‘efficiently’,
which is not defined, and affords the
Minister an unduly subjective
and broad discretion.
[81] The
respondents assert that the power of the Minister to remove the Head
is constrained by the requirement that the inquiry
into the fitness
of the Head to hold that office must be conducted by a judge and,
further, that such inquiry is subject to PAJA.
[82] Yet
the power to remove is plainly vested in the Minister who, for some
inexplicable reason, is not similarly required to conduct
the process
in accordance with PAJA. It is only the inquiry process that is
subject to PAJA. The Minister thus, in his sole discretion,

determines the scope of the inquiry, appoints the judge to preside at
the inquiry, is not bound by the findings of the inquiry,
and retains
the ultimate discretion to decide whether one of the grounds for
dismissal exist.
[83] Further,
suspension is a threatening power. There is no hearing required; no
time periods stipulated; and the Minister is given
sole discretion to
decide whether the Head receives pay or not during the suspension
period. Not receiving a salary during the
period of suspension may be
a significant handbrake on the ability to fund litigation against
suspension; and the mere risk that
the Head may not receive a salary
during the suspension period may itself be reasonably perceived to be
a threat to adequate independence.
[84] The
Minister contends that PAJA is implied. But if Parliament intended
this to be the case it would have said so. Indeed, it
explicitly
provided that the inquiry was to perform its functions subject to
PAJA. It is a well-known canon of interpretation of
statutes that
Parliament has chosen its words carefully and deliberately –
and here it has expressly chosen not to stipulate
that a suspension
decision is similarly subject to PAJA.
[85] Of
course, even the exercise of executive power is subject to
constitutional control, yet only on the narrow ground of rationality

review. This however only operates after the fact.
[86] The
CC in Glenister 2 at paras [246] – [247] explicitly held that
review after the fact is no substitute for sufficient
safeguards
before the fact:
‘
[A]n
ex post facto review, rather than insisting on a structure that ab
initio prevents interference, has in our view serious and
obvious
limitations. In some cases irreparable harm may have been caused
which judicial review and complaints can do little to
remedy. More
importantly, many acts of interference may go undetected, or
unreported, and never reach the judicial review or complaints
stage.
Only adequate mechanisms designed to prevent interference in the
first place would ensure that these never happen. These
are signally
lacking.’
[Emphasis
supplied.]
[87] During
argument Mr Donen suggested that both avenues for removal exist for
the specific reason that, if the Minister does not
do his job
properly, then Parliament will have the power to do so.
[88] But
that cannot be. The two sections are palpably different. Ministerial
removal is allowed for misconduct, ill-health, incapacity
or
inefficiency, or because the person is no longer fit and proper. This
is a far broader power of removal (and unconstrained by
comparison)
to the powers afforded to Parliament, which are to remove on grounds
of misconduct, incapacity or incompetence. In
addition, the Minister
may remove without Parliamentary oversight, yet removal by Parliament
requires a two-thirds majority, which
is the same majority required
to amend certain sections of the Constitution, a high hurdle indeed.
Simply put, it cannot be accepted
that the two processes are
meaningfully complementary, given that they do not actually
complement each other in substance. The
two processes differ from
each other in an arbitrary manner, and it is inconceivable to us
that, in its present form, the ‘process’
for the
suspension and removal of the Head can pass constitutional muster.
Jurisdiction
[89] In
the 2008 SAPS Act the functions of the DPCI were limited to
preventing, combatting and investigating: (a) national priority

offences; and (b) any other offence referred to it by the National
Commissioner; both however subject to policy guidelines issued
by the
Ministerial Committee. These provisions were located in s 17D of that
Act.
[90] The
current legislation defines a ‘national priority offence’
in s 17A as being ‘organised crime, crime that
requires
national prevention or investigation, or crime which requires
specialised skills in the prevention and investigation thereof,
as
referred to in section 16(1)’. The latter subsection details
the ‘circumstances’ that amount to criminal conduct,
or
an ‘endeavour thereto’, and which inter alia require
national prevention or specialised skills in the prevention
and
investigation thereof.
[91] The
HSF referred us to s 16(4)(a) as read with s 16(4)(b) which provide
as follows:
‘
(4)
(a) Notwithstanding the provisions of subsections (1), (2) and (3),
the Provincial Commissioner shall be responsible for the
prevention
and investigation of all crimes or alleged crimes committed in the
province concerned.
(b)
Where an investigation of a crime or alleged crime reveals that the
circumstances referred to in subsection (2) are present,
the
Provincial Commissioner shall report the matter to the National Head
of the Directorate of Priority Crime Investigation as
soon as
possible.’
[92] The
HSF contends that these place the discretion on the Provincial
Commissioner to decide whether or not an offence is a national

priority offence before it even has to be reported to the Head, in
order for him or her to determine whether the DPCI should
investigate.
The complaint is that the duty to report is located in
the incorrect place and that the DPCI must have optionality over
jurisdiction.
[93] The
respondents however argue that the new s 17AA makes Ch 6A (including
s 17D which deals with the mandate of the DPCI) applicable
to the
exclusion of ‘any section’ within the Act. S 16 therefore
cannot affect the Directorate’s mandate to investigate

corruption, and receive complaints for investigation.
[94] While
at first blush s 17AA purports to make Ch 6A a stand-alone chapter
which relates exclusively to the DPCI, when it comes
to the DPCI’s
jurisdiction to investigate this is not in fact the case. Despite the
wording of s 17AA, the impugned legislation
does not ensure that the
DPCI’s jurisdiction is exclusive or primary or even that
certain key crimes, such as corruption
and organised crime, must be
referred to the DPCI by the SAPS if they are perpetrated in more than
one province. Indeed, there
is nothing to prevent the SAPS from
investigating such crimes without the involvement or even the
knowledge of the DPCI. It is
self-evident that the Head cannot accede
to a request from a Provincial Commissioner to investigate if no such
request has been
made. This undermines the finding in Glenister 2
that the Constitution requires that corruption is investigated by a
body that
is sufficiently independent, both functionally and
institutionally.
[95] S
17D(1) provides as follows:
‘
(1) The
functions of the Directorate are to prevent, combat and investigate –
(a) National
priority offences, which in the opinion of the National Head of the
Directorate need to be addressed by the Directorate,
subject to any
policy guidelines issued by the Minister and approved by Parliament;
(aA) Selected
offences not limited to offences referred to in Chapter 2 of section
34 of the Prevention and Combatting of Corruption
Activities Act 2004
(Act No 12 of 2004) [‘PRECCA’]; and
(b) Any
other offence or category of offences referred to it from time to
time by the National Commissioner, subject to any policy
guidelines
issued by the Minister and approved by Parliament.
[96] The
complaint is that, now, only one member of the Executive, as opposed
to a Ministerial Committee, is empowered to impose
guidelines as to
how, where and when the DPCI should act. This is still, in the words
of the CC at para [234], ‘inimical
to independence’.
[97] The
precise purpose of these ‘guidelines’ is not made clear.
The requirement for guidelines, coupled with the ‘crept
in’
provisions in s 16, have the very real potential to constrain the
DPCI’s work or even to direct the DPCI towards,
or away from,
particular targets. This is antithetical to the very purpose of the
DPCI as well as the constitutional requirement
for an adequately
independent corruption and organised crime fighting unit. It also
militates against a unit that is reasonably
perceived to be
sufficiently independent.
[98] The
respondents contend that the complaint is ill-founded for the
following reasons. First, the policy guideline authority
is not
vested in the Minister, but is subject to the approval of Parliament.
Second, the previous ‘default’ position
has been removed
(i.e. that the policy guidelines issued by the Ministerial Committee
would automatically be deemed to have been
approved by Parliament if
the latter did not approve them within a 3 month period after
submission). Third, the SAPS Amendment
Act has also amended s 34 of
PRECCA. The effect of that amendment has been to statutorily entrench
power in the DPCI to prevent,
combat and investigate ‘selected
offences’ not limited to offences referred to in Ch 2 and s 34
of PRECCA.
[99] Part
1 of Ch 2 of PRECCA deals with the general offence of corruption; and
Part 2 with offences in respect of corrupt activities
relating to
specific persons. These ‘persons’ are public officers,
foreign public officials, agents, members of the
legislative
authority, judicial officers and members of the prosecuting
authority. Parts 3 to 6 detail an array of offences that
qualify as
falling under the jurisdiction of the DPCI. S 34 of PRECCA deals with
the duty to report corrupt transactions and provides
that any person
who holds a position of authority has such a duty. The respondents
accordingly argue that virtually every conceivable
offence which
relates to corruption automatically falls under the exclusive
jurisdiction of the DPCI; and that the policy guidelines
thus in any
event have very limited application.
[100] In
our view the respondents’ argument overlooks the finding in
Glenister 2 at para [232]:
‘
The
competence vested in the Ministerial Committee to issue policy
guidelines puts significant power in the hands of senior political

executives. It cannot be disputed that those very political
executives could themselves, were the circumstances to require, be

the subject of anti-corruption investigations. They “oversee”
an anti-corruption entity when of necessity they are
themselves part
of the operational field within which it is supposed to function.
Their power over it is unavoidably inhibitory.’
[101] That
Parliament must now, by a simple majority, approve the guidelines,
does not solve the problem. Parliament is also a political
body and
it should not be tasked with deciding on what cases the DPCI should
or should not pursue where its own members may be
subject to
investigation. The nub of the matter is this: the DPCI’s
mandate, i.e. to fight corruption, is a constitutional
requirement.
It is not something which should ultimately be left to politicians to
determine. The statutes governing the work of
the NDPP, the
Auditor-General and the Public Protector – all of which were
found in Glenister 2 to be instructive in considering
the requirement
of adequate independence – do not permit similar external
interference by political actors. While it is so
that the Minister
must determine policing policy in terms of s 206(1) of the
Constitution, it is nonetheless incumbent upon the
legislature to
find a way to meaningfully address the constitutional requirement of
adequate independence for the jurisdiction
of the DPCI.
[102] The
respondents’ argument also overlooks s 17D(1)(aA), which
stipulates that the DPCI is to investigate ‘selected
offences
not limited to offences referred to in Chapter 2 and section 34’
of PRECCA. It is not clear by whom, when and on
what basis the
selection is to be made. Indeed, the respondents themselves are at
odds about who makes that determination.
[103] In
his affidavit the President avers that it is the Minister who will
determine the ‘selected offences’:
‘
The
Applicant contends that this provision is unconstitutional because it
is unclear from the provision “by whom, when and
on what basis
the selection is made”. The Minister who is responsible for
determining the National Policing Policy will determine
the selected
crimes. This is in terms of section 206(1) read with section 207(2)
of the Constitution. The scope of authority of
the DPCI cannot extend
to determining on its own scope of authority over the criminal
matters that it can investigate.’
[Emphasis
supplied.]
[104] The
Minister, on the other hand, avers in his affidavit that:
‘
As
the National Head is entrusted with the “responsibilities of
the office concerned” (see s 17CA(1)) it is he or she
who will
make the selection [of the selected offences] with due regard to his
or her experience.’
[Emphasis
supplied.]
[105] During
argument the Minister however adopted a different approach. Mr Donen
suggested that the Minister (his own client) is
wrong, and that in
fact the selection is done by legislation, i.e. PRECCA. This does not
make sense given that s 17D(1)(aA) stipulates,
in terms, that
‘selected offences’ are not limited to the offences
referred to in PRECCA.
[106] A
further difficulty with the interpretation proffered by Mr Donen is
that s 34 of PRECCA refers (in addition to offences
in Ch 2) to the
following offences, namely ‘theft, fraud, extortion, forgery or
uttering a forged document’. Therefore,
this would, on Mr
Donen’s interpretation, mean that the DPCI is now mandated to
investigate crimes such as theft and forgery
– hardly the work
of a supposedly dedicated corruption fighting unit. But the confusion
goes further, given that, in argument,
Ms Williams, lead counsel for
the Government, disagreed with Mr Donen, and submitted that the
correct interpretation of the section
is that it is indeed the Head
who will make the selection.
[107] The
position therefore is that in relation to this crucial aspect of the
legislation – the very mandate of the DPCI
to investigate
corruption – not even the respondents are at one with each
other.
Financial
control
[108] S
17H of the 2008 SAPS Act placed all financial control over the DPCI
with the National Commissioner as the accounting officer.
The
respondents concede that a considerable degree of financial power was
thus wrongly placed, but point out that the CC in Glenister
2 made no
adverse comment.
[109] The
CC in Glenister 2 did however highlight the lack of security of
remuneration for the Head of the DPCI and its members;
and found that
this was one of the reasons why the unit did not enjoy sufficient
structural and operational autonomy so as to shield
it from undue
political influence.
[110] The
HSF does not take issue with the remuneration provisions now
incorporated in the SAPS Amendment Act. Glenister complains
that
although the CC’s concerns relating to the security of tenure
and service conditions have ‘by and large’
been remedied
by the amended provisions, only the Head, and to a lesser degree the
Deputy and Provincial Heads, have especially
entrenched employment
security. He contends that to secure sufficient independence the
‘conditions of service’ of all
of the members of the DPCI
should be statutorily entrenched, but does not explain where, in his
view, the deficiencies lie.
[111] However,
as pointed out by the respondents:
111.1 The
remuneration, allowances, other terms and conditions of service and
service benefits of the Head are now determined by
the Minister with
the concurrence of the Minister of Finance; and of the Deputy
National Head and Provincial Heads by the Minister
after consultation
with the National Head and with the concurrence of the Minister of
Finance (s 17CA(8)). Under the 2008 SAPS
Act (the old s 17G) the
remuneration, allowances and other conditions of service of members
of the DPCI were regulated in terms
of s 24 of the SAPS Act, which in
turn provided that these would be determined in accordance with
regulations made by the Minister;
111.2 In
addition, the salary of the Head shall not be less than the salary of
the highest paid Deputy National Commissioner; that
of the Deputy
Head shall not be less than the salary level of the highest paid
Divisional Commissioner; and that of the Provincial
Head shall not be
less than the salary level of the highest paid Deputy Provincial
Commissioner (s 17CA(8));
111.3 The
Minister must submit the remuneration scale payable to the National
Head, the Deputy and Provincial Heads to Parliament
for approval, and
such remuneration scale may not be reduced except with the
concurrence of Parliament (s 17 CA(9));
111.4 In
terms of s 17DB the Head determines the fixed establishment of the
DPCI and the number and grading of posts, in consultation
with the
Minister and the Minister for Public Service, and appoints the staff
of the DPCI;
111.5 In
terms of s 17G the remuneration, allowances and other conditions of
service of members of the DPCI must be regulated by
the Minister in
terms of s 24; but in terms of s 17CA(18) these regulations must now
be submitted to Parliament for approval.
[112] In
our view, the upshot is that statutorily secured remuneration levels
now exist; members benefit from special provisions
securing their
emoluments; and the secured remuneration levels are indicative of the
special status of the new entity.
[113] The
HSF’s complaint is that s 17H of the SAPS Amendment Act
requires the Head to ‘prepare and provide the National

Commissioner with the necessary estimate of revenue and expenditure
of the Directorate for incorporation on the estimate and expenditure

of the [SAPS]’. If the Commissioner and the Head are unable to
agree on the estimate of revenue and expenditure for the DPCI,
the
Minister shall mediate between the two. It is unclear how the matter
will be resolved if mediation is unsuccessful.
[114] The
HSF argues that it is essential for the DPCI’s independence
that its funds are sufficient for it to fulfil all of
its
constitutional functions, and that it should not be ‘dependent’
for its funding on favour from the SAPS or the
Executive. Adequate
independence requires that Parliament appropriate the necessary funds
specifically for the DPCI based on the
DPCI’s own estimate and
submissions.
[115] The
Minister argues that s 17H adequately insulates the DPCI from
financial control and interference by virtue of the fact
that the
Head is responsible for preparing and providing the Commissioner with
the DPCI’s estimate of revenue and expenditure;
and further
that funds appropriated by Parliament for purposes of the DPCI’s
expenditure must be regarded as specifically
and exclusively for that
purpose and may only be utilised for that purpose (s 17H(5)).
[116] Both
the HSF and the respondents relied on the New National Party case in
support of their respective contentions, although
obviously for
different reasons. In that case it was held at paras [98] –
[99] that:
‘
In
dealing with the independence of the [Independent Electoral]
Commission, it is necessary to make a distinction between two
factors,
both of which, in my view, are relevant to “independence”.
The first is “financial independence”. This implies
the
ability to have access to funds reasonably required to enable the
Commission to discharge the functions it is obliged to perform
under
the Constitution and the Electoral Commission Act. This does not mean
that it can set its own budget. Parliament does that.
What it does
mean, however, is that Parliament must consider what is reasonably
required by the Commission and deal with requests
for funding
rationally, in light of other national interests. It is for
Parliament, and not the Executive arm of Government, to
provide for
funding reasonably sufficient to enable the Commission to carry out
its constitutional mandate. The Commission must
accordingly be
afforded an adequate opportunity to defend its budgetary requirements
before Parliament or its relevant committees.’
[Emphasis
supplied.]
[117] In
our view the answer to this is the following. The Head provides the
National Commissioner with its estimate for incorporation
in the SAPS
estimate. The Commissioner does not have the final say. The Head must
agree with him. If they cannot agree, the Minister
mediates. If the
mediation is successful, then that is the end of the dispute. If the
mediation is unsuccessful, the Minister does
not have the final say.
The dispute has to go before Parliament. S 17K(2B) explicitly
provides that the Head shall make a presentation
to Parliament on the
budget of the DPCI.
[118] Accordingly
the DPCI is now afforded an adequate opportunity to defend its
budgetary requirements before Parliament in accordance
with the
requirement for adequate independence referred to in the New National
Party case.
Summary
[119] In
summary, therefore, s 16 as well as ss 17A, 17CA, 17D, 17DA and
17K(4) to (9) contained in Ch 6A of the SAPS Amendment
Act do not
pass constitutional muster for the following reasons:
119.1 The
appointment process of the Head lacks adequate criteria for such
appointment and vests an unacceptable degree of political
control in
the Minister and Cabinet, which is also in conflict with the standard
of international best practice;
119.2 The
power vested in the Minister to extend the tenure of the Head and
Deputy Head is intrinsically inimical to the requirement
of adequate
independence;
119.3 The
suspension and removal ‘process’ not only vests an
inappropriate degree of control in the Minister, but also
allows for
two separate and distinct processes, determined on the basis of
arbitrary criteria, each able to find application without
any
reference to the other; and
119.4 There
is an unacceptable degree of political oversight in the jurisdiction
of the DPCI, and the relevant provisions are themselves
so vague that
not even those responsible for their implementation are able to agree
on how they should be applied.
Nature
of relief to be granted
[120] In
its notice of motion the HSF sought an order declaring s 16 and Ch 6A
of the SAPS Amendment Act inconsistent with the Constitution
and
invalid to the extent that they fail to secure an adequate degree of
independence for the DPCI; together with an order suspending
the
declaration of constitutional invalidity for 12 months in order for
Parliament to remedy the defects.
[121] During
argument the HSF adopted a more narrow approach, and sought an order
that the specific sections impugned be declared
inconsistent with the
Constitution and thus invalid. Having regard to the history of this
litigation, it seems to us that the latter
route is the more
appropriate one to follow, given that Parliament is always at liberty
to redraft any legislation, and does not
require a court order to do
so. Put differently, if Parliament finds, when correcting the
impugned sections, that consequential
amendments are required to
other sections, it is of course entitled to amend those sections as
it deems fit. Indeed, even though
the CC in Glenister 2 struck down
Ch 6A of the 2008 SAPS Act, Parliament in turn made amendments also
to s 16 (which did not fall
within Ch 6A). It is also a pragmatic way
to move the legislative process forward to finality.
Costs
[122]
The HSF has been substantially successful and accordingly it is
entitled to its costs. As regards Glenister, however, the
position is
somewhat different. For the reasons already advanced, it is
appropriate that he be ordered to bear the costs of the
Minister’s
striking-out application on the punitive scale of attorney and
client. There can also be little doubt that Glenister
has been lucky
to piggy-back on the HSF’s well-presented case and the lucid
and helpful arguments of its counsel, Mr Unterhalter
and Mr Du
Plessis. Unfortunately, the arguments advanced on behalf of Glenister
did little to assist his case and accordingly,
even though the
outcome is the one sought by him, it cannot be said that his
contribution was in any way meaningful. In these circumstances,
and
save for the order that we intend to make in respect of the
striking-out application, it is our view that Glenister should
pay
his own costs.
Conclusion
[123]
In the result the following order is made:
1.
It is declared that s 16 as well as ss 17A, 17CA, 17D, 17DA and
17K(4) to (9) contained in Ch 6A of the
South African Police Service
Amendment Act No 10 of 2012
are inconsistent with the Constitution
and invalid to the extent that they fail to secure an adequate degree
of independence for
the Directorate for Priority Crime Investigation.
2.
The declaration of constitutional invalidity in paragraph 1 above is
suspended for 12 (twelve) months in order for Parliament
to remedy
the defects.
3.
The orders in paragraphs 1 and 2 above are referred, in terms of
s
8(1)(a)
of the
Constitutional Court Complementary Act No 13 of 1995
,
to the Constitutional Court for confirmation.
4.
The respondents in case no 23874/2012 are ordered to pay the costs of
the applicant in that matter, namely the Helen Suzman Foundation,

jointly and severally, on the scale as between party and party, and
including the costs of three counsel where employed.
5.
The applicant in case no 23933/2012, namely Hugh Glenister, is
ordered to pay the costs of the application to strike out of the

second respondent, namely the Minister of Police (also referred to by
the applicant therein as the Minister of Safety and Security),
on the
scale as between attorney and client.
6.
Save as aforesaid, there shall be no order as to costs.
DESAI
J
LE
GRANGE J
CLOETE
J