Chagi and Others v Special Investigating Unit

• Jurisdiction: South Africa

Chagi and Others v Special Investigating Unit
2009 (1) SACR 339 (CC)

2009 (1) SACR p339

Citation	2009 (1) SACR 339 (CC)
Case No	CCT 101/07
Court	Constitutional Court
Judge	Langa CJ, Kroon J, Madala J, Mokgoro J, Nkabinde J, O'Regan J, Van der Westhuizen J and Yacoob J
Heard	May 15, 2008
Judgment	December 3, 2008
Counsel	M Tshiki (attorney) for the applicants.; W Trengove SC (with M Chaskalson and K McLean) for the respondent.

Flynote : Sleutelwoorde

Special investigating units — Special investigating unit established in terms of Special Investigating Units and Special Tribunals Act 74 of 1996 — obligations and liabilities — Vicarious liability for conduct of employees — effect of disbandment of unit and establishment of successor unit — C whether original unit remaining liable for conduct of employees — Semble: Provisions of s 13(2) of Act precluding plaintiffs from suing Minister as nominal defendant in terms of s 2 of State Liability Act 20 of 1957.

Headnote : Kopnota

The applicants instituted action in the High Court for damages for defamation D and iniuria arising out of certain alleged conduct on the part of representatives of a special investigation unit, established pursuant to the provisions of the Special Investigating Units and Special Tribunals Act 74 of 1996 (SIU Act), during the course of an investigation. By the time summons was issued, however, the unit had been disestablished by presidential proclamation and a new unit established in its stead. Although the head of the first E unit was cited in the summons as nominal defendant, the new/second unit defended the proceedings and, indeed, the parties proceeded throughout on the assumption that the second unit had been cited in the summons. The second unit raised the defence that since the applicants relied on conduct of members of the first unit, on a proper construction of the proclamation that disestablished the first unit and established the second unit, F the second unit had not assumed the liabilities of the first. The High Court upheld the special plea and the Supreme Court of Appeal (SCA) confirmed that decision. The SCA held that the applicants were not left without remedy since it was permissible for them to claim their damages from the Minister of Justice as nominal defendant, in terms of s 2 of the State Liability Act 20 of 1957. The applicants approached the Constitutional Court (CC) for G

2009 (1) SACR p340

A leave to appeal against a decision of the SCA. Before the CC, the applicants argued that the proclamation, properly construed, burdened the second unit with the obligations of the first unit.

Held, that the application raised a constitutional issue since the applicants were contending for a meaning of the disputed provision that would result in its unconstitutionality, there was a reasonable prospect that the interpretation B contended for was wrong, and there was another construction on which the provision would be constitutional. Furthermore, it was in the interests of justice for the court to consider the appeal. (Paragraphs [14] and [16] at 346e-g and 347c.)

Held, further, that the SCA's finding that the applicants could have cited the Minister as the nominal defendant in terms of s 2 of the State Liability Act, C was inconsistent with the provisions of s 13(2) of the SIU Act (a provision not expressly considered by the SCA). In terms of s 13(2) of the SIU Act, the applicants could only have cited the head of an investigation unit as the nominal defendant. The SCA was accordingly wrong in its view that the Minister could be sued by the applicants in terms of the State Liability Act. (Paragraphs [20] and [21] at 348d-h.)

D Held, further, that s 13 of the SIU Act impliedly provided that an investigation unit was liable for the unlawful conduct of its members acting within the course and scope of their duties. The President had no power to extinguish that liability by proclamation since to do so would be in conflict with the Act. In the present case, therefore, the only possible consequence of the silence of the proclamation on the question of the fate of the liabilities that E might have been incurred by the first unit was that those liabilities could not have been, and had not been, extinguished. They remained alive. (Paragraphs [28] and [29] at 350d-h.)

Held, further, that s 12(2) of the Interpretation Act 33 of 1957 was of application because the proclamation that created the first unit had been repealed and F replaced by the proclamation under consideration. Section 12(2)(c) specifically provided that rights accrued and liabilities incurred under the repealed law would remain unaffected by the repeal of the law. (Paragraphs [31]-[32] at 351b-d.)

Held, further, that neither the right of the applicants to institute proceedings nor the potential liability of the first unit to compensate for damage arising out of the unlawful conduct of its members had therefore been extinguished by G the proclamation. (Paragraph [36] at 352b.)

Held, further, that in the same way that the President had no power to extinguish the liabilities that the first unit might have incurred, the SIU Act conferred no power upon the President to transfer the liabilities of the first unit to the second unit. The SCA was accordingly correct in holding that there was H no warrant for any inference that the liabilities of the first unit had been transferred to the second unit. It followed that it was appropriate for the applicants to have cited the head of the first unit as nominal defendant despite the fact that the first unit had been disestablished. The true party, the one that would satisfy the judgment, was the State. (Paragraphs [40]-[42] at 353a-e.)

Held, further, that the High Court and the SCA had considered the case on the I hypothesis that the second unit had been cited, and that it was on this basis that the second unit's special plea was upheld by the High Court and the applicants' appeal against that decision to the SCA was dismissed. That premise was incorrect. The special plea should have been dismissed because the second unit was not cited in the summons or the particulars of claim. In the circumstances, the appeal had to succeed and the orders of the High J Court and the SCA had to be replaced by an appropriate order. That order

2009 (1) SACR p341

required the High Court to deal with this matter on the basis that the first A unit had, at all times, been cited in the summons and particulars of claim. (Paragraph [48] at 354g-i.)

Annotations:

Cases cited

Reported cases

Chagi and Others v Special Investigating Unit 2008 (1) SACR 329 (SCA) B ([2008] 2 All SA 8): reversed on appeal

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079): dictum in para [23] applied

Oudebaaskraal (Edms) Bpk en Andere v Jansen van Vuuren en Andere C 2001 (2) SA 806 (SCA): referred to

R v Sillas 1959 (4) SA 305 (A): referred to.

Unreported cases

Chagi and Others v Special Investigating Unit and Others (EC case No 1062/2001, 28 April 2005): set aside D

Twani v Special Investigating Unit and Another (EC case No CA 234/2000, 28 September 2001): distinguished.

Legislation cited

Statutes

The Interpretation Act 33 of 1957, ss 12(2) and 12(2)(c): see Juta's Statutes of South Africa 2007/8 vol 1 at 1-823 E

The Special Investigating Units and Special Tribunals Act 74 of 1996, s 13(2): see Juta's Statutes of South Africa 2007/8 vol 1 at 1-211

The State Liability Act 20 of 1957, s 2: see Juta's Statutes of South Africa 2007/8 vol 5 at 1-103.

Case Information

Application for leave to appeal against a decision of the Supreme F Court of Appeal. The facts appear from the judgment of Yacoob J.

M Tshiki (attorney) for the applicants.

W Trengove SC (with M Chaskalson and K McLean) for the respondent. G

Cur adv vult.

Postea (December 3).

Judgment

Yacoob J:

Introduction

[1] Mr Chagi H and 29 other applicants request the leave of this court to appeal against a judgment and order of the Supreme Court of Appeal. [1] The case concerns the interpretation and effect of a Proclamation I published on 31 July 2001 [2] (the 2001 proclamation) that effectively

2009 (1) SACR p342

Yacoob J

A disestablished one Special Investigation Unit (the First Unit) and established another in its place (the Second Unit). Both the First Unit and the Second Unit were established pursuant to a provision of the Special Investigating Units and Special Tribunals Act (the SIU Act). [3] And both were charged by the President with, amongst other things, B investigating the affairs of a State institution known as the Transkei Agricultural Corporation Limited (Tracor). [4]

[2] The First Unit was established in 1997 by Proclamation (the 1997 proclamation). [5] The President commissioned the First Unit to C investigate the affairs of Tracor on 30 June 1998 [6] and it can safely be assumed that the investigation commenced shortly after this date. The applicants were employed by Tracor at the time of the investigation. They later sued an Investigation Unit [7] in the High Court for damages in delict arising out of the alleged conduct of the representatives of the First D Unit in the course of that investigation. I do not at this stage identify the investigation unit against which proceedings were brought because, as will appear later, one of the issues in the application before us has turned out to be the identity of that Special Investigation Unit. All that needs to be said at this stage is that the Second Unit entered the fray and defended the case throughout its journey through the High Court, the E Supreme Court of...