Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judgment Date: 08 December 2017
• Citation: 2018 (1) SACR 317 (GP)

Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others
2018 (1) SACR 317 (GP)

2018 (1) SACR p317

Citation	2018 (1) SACR 317 (GP)
Case No	62470/2015; 93043/2015
Court	Gauteng Division, Pretoria
Judge	Mlambo JP, Ranchod J and Van Der Linde J
Heard	November 20, 2017; November 21, 2017
Judgment	December 8, 2017
Counsel	M Chaskalson SC (with P Ramano and M Bodlani) for the first applicant.; W Trengove SC (with H Rajah) for the second applicant.; G Budlender SC (with M Bishop, E Webber and L Zikalala) for applicant (case No 93043/2015), instructed by Legal Resources Centre.; IAM Semenya SC (with AL Platt SC) for the first respondent.; TAN Makhubela SC (with NR Choeu) for the second respondent.; M le Roux for the third/fourth respondents.; H Epstein SC (with M Osborne and T Mabuda) for the fourth/seventh respondents, and third/fifth respondents.; B Manentsa for the first amicus curiae (Helen Suzman Foundation).; I Jamie SC for the second amicus curiae (Centre for Defending Democratic Rule).

Flynote : Sleutelwoorde

Prosecution — National Director of Public Prosecutions — Appointment and removal from office of — Request by NDPP to vacate office — What constitutes such request — Required to emanate from NDPP and not from C persuasion by payment of greater sum of money than permitted by law.

Prosecution — National Director of Public Prosecutions — Appointment and removal from office of — Effect of setting-aside of settlement agreement by means of which former NDPP left office on appointment of successor where President conflicted — Provisions of s 90 of National Prosecuting Authority Act 32 of 1998 applied and Deputy President to make appointment. D

Prosecution — National Director of Public Prosecutions — Appointment and suspension of — Extension of term of office of NDPP in terms of s 12(4) of National Prosecuting Authority Act 32 of 1998 — Open-ended discretion by President to extend 10-year term unconstitutional and invalid. E

Prosecution — National Director of Public Prosecutions — Appointment and suspension of — Suspension from office of NDPP in terms of s 12(6) of National Prosecuting Authority Act 32 of 1998 — Open-ended discretion by President to suspend NDPP without pay for indefinite period unconstitutional and invalid. F

Headnote : Kopnota

In two separate applications the applicants sought orders to set aside a written settlement agreement in terms of which the former National Director of Public Prosecutions (the NDPP) and the President of South Africa agreed that the NDPP would vacate his office just 21 months into his 10-year term. The agreement provided for a payment to the former NDPP of R17 million G in compensation.

The applicants also sought the setting-aside of the former NDPP's vacating of his office and an order reinstating him; alternatively, a declaration that the office was vacant and directing the Deputy President to appoint a permanent NDPP on the basis that the President himself was declared 'unable' in H terms of s 90(1) of the Constitution to act because of his conflict of interest.

The applicant in the second matter sought in addition an order declaring ss 12(4) and (6) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act) unconstitutional.

In support of the contention that the settlement agreement was invalid, the applicants contended that ss 12(8)(a) and (a)(ii) of the NPA Act, in terms I of which the President had purportedly acted in accepting a request by the former NDPP to leave office, had to be interpreted strictly, so that it fitted the constitutional imperative of prosecutorial independence. In accordance with this approach, a 'request' to leave office in terms of s 12(8)(a)(ii) had to be interpreted as an incentive that emanated wholly and bona fide from the office holder, and not as referring simply to a negotiated attitude of the NDPP, procured and compromised by a promise of reward. They contended J

2018 (1) SACR p318

that, A given the evidence of the events leading up to the 'request', no such request had emanated from the former NDPP.

Held, that the reasons furnished by the President for the decision that was being reviewed did not fit the record of the decision being reviewed and the President's mere say-so could not suffice. The evidence indicated that it had never been the former NDPP's intention to resign from office, because he B regarded himself as a fit and proper person for the office. (See [66].)

Held, further, on the facts, that there was no request at all: there was a negotiated agreement in terms of which the former NDPP would vacate the office if he was paid a price not permitted by the NPA Act. The settlement agreement was accordingly invalid because the former NDPP did not request to be C allowed to vacate the office as required by s 12(8)(a) of the NPA Act, but rather because he was persuaded to vacate the office by the unlawful payment of an amount of money substantially greater than that permitted by law. (See [81] – [82].)

In respect of the issue that then arose, namely whether the court should order reinstatement of the former NDPP and that the current NDPP be requested to D vacate the post,

Held, that, given the broader pattern of the President's conduct in litigation — of defending the indefensible and banking on any advantage that the passage of time may bring, together with his knowledge that he could only act within the law, as well as the strong inference that the former NDPP also knew that he was acting without lawful foundation — it would not be just and E equitable, in the context of vindicating the Constitution and the independence of the prosecutorial authority, to reinstate the former NDPP. Nor would it be just and equitable to leave the current NDPP untouched in the office because, if the vindication of the Constitution was paramount, an order which left the current NDPP position intact would not serve that objective. F The President would have achieved, through unlawful means, precisely what he had wished to attain all along. (See [88] – [94].)

Held, further, that it would be just and equitable if the position were declared vacant for a short period of 60 days, for it to be filled by appropriate appointment within that period. (See [106].)

In respect of the question whether the President was conflicted and could not be G permitted to appoint a successor, and that the Deputy President should therefore make the appointment in terms of s 90 of the Constitution, given the raft of criminal charges the President was facing,

Held, that the President's argument that he was not conflicted was gainsaid by the fact that he had told the Supreme Court of Appeal that he had every intention to continue to use such processes as were available to resist H prosecution. It was incongruous in those circumstances that he should then be seen to be appointing the NDPP, since his conflict, both actual and perceived, was self-evident. (See [114] – [115].)

In respect of the argument by the applicant in the second matter, that the open-ended discretion in s 12(4), to extend the 10-year term of the NDPP, I and the power to suspend the NDPP without pay for an indefinite period in s 12(6), raised a reasonable apprehension that the independence of the office of the NDPP could be undermined, and were unconstitutional,

Held, that these issues were not merely academic as contended for by the respondents. Both provisions were objectionable features of a unilateral presidential power, and both versions had to be declared unconstitutional J and invalid. (See [123], [126] and [128].) Order is granted as prayed for.

2018 (1) SACR p319

Cases cited

Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd A and Others 2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26) dicta in para [85] applied

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): referred to B

Booysen v Acting National Director of Public Prosecutions and Others 2014 (2) SACR 556 (KZD) (2014 (9) BCLR 1064; [2014] 2 All SA 391): considered

Democratic Alliance v Acting National Director of Public Prosecutions and Others C 2016 (2) SACR 1 (GP) (2016 (8) BCLR 1077; [2016] 3 All SA 78): referred to

Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) (2012 (12) BCLR 1297; [2012] ZACC 24): referred to

Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA) (2012 (3) BCLR 291; [2012] 1 All SA 243; [2011] ZASCA 241): considered

Economic Freedom Fighters v Speaker, National Assembly and Others D 2016 (3) SA 580 (CC) (2016 (5) BCLR 618; [2016] ZACC 11): referred to

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) ([2006] ZASCA 52): dicta in paras [55] – [56] applied

Freedom Under Law v National Director of Public Prosecutions and Others E 2014 (1) SACR 111 (GNP) (2014 (1) SA 254; [2013] 4 All SA 657): compared

General Council of the Bar of South Africa v Jiba and Others 2017 (1) SACR 47 (GP) (2017 (2) SA 122; [2016] 4 All SA 443; [2016] ZAGPPHC 833): referred to

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): dicta in paras [222] and [247] applied F

Government Employees Pension Fund v Strydom 2001 (3) SA 856 (SCA) ([2001] 3 All SA 263; [2001] ZASCA 49): distinguished

Helen Suzman Foundation v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC) (2015 (1) BCLR 1; [2014] ZACC 32): dictum in para [81] applied

Johannesburg Local Road Transporation Board and Others v David Morton Transport (Pty) Ltd G 1976 (1) SA 887 (A): dictum at 895 applied

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