Democratic Alliance v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Dolamo J
• Judgment Date: 23 May 2016
• Citation: 2016 (2) SACR 494 (WCC)
• Docket Number: 17782/2015
• Counsel: S Rosenberg SC (with TS Sidaki and M Bishop) for the applicant. H Epstein SC (with M Osborne and T Mabuda) for the first, second and third respondents. N Arendse SC (with S Fergus) for the fourth respondent.
• Court: Western Cape Division, Cape Town

Dolamo J: H

Introduction

[1] This is an application by the Democratic Alliance (DA), the official opposition party in the Parliament of the Republic of South Africa, I seeking to review and to set aside the decision of the State President not to invoke the provisions of s 12(6)(a) of the National Prosecuting Authority Act [1] (the NPA Act) to suspend the Deputy National Director of Public Prosecution (DNDPP), Adv Jiba, and to institute an enquiry into

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her alleged misconduct so as to determine her fitness to hold office. The A DA is also seeking an order substituting the decision of the President with one suspending Adv Jiba, pending an enquiry into her fitness to hold office to be conducted in terms of s 12(6)(a) of the NPA Act.

[2] In terms of s 12(6)(a) of the NPA Act, the President may suspend a National Director or Deputy National Director of Public Prosecutions B from office pending such enquiry into his/her fitness to hold office on the ground inter alia of alleged misconduct. At first blush this appears to be a straightforward review application into the failure to exercise, alternatively the unlawful exercise by the President of, the powers vested upon him. Beneath this, however, are layers of intrigue involving allegations of C career sabotage, power struggles and political interference in the National Prosecuting Authority (NPA), an institution supposed to be independent and which is mandated by the Constitution of the Republic of South Africa to prosecute without fear, favour or prejudice, in the protection and advancement of our democracy.

[3] I shall, however, steer clear of any enquiry into these allegations of D political power plays and struggles and instead charter a course which would provide answers to the questions whether the President, in deciding not to suspend Adv Jiba and hold an inquiry into her fitness to hold office, was motivated by ulterior political motives, as alleged by the DA, or whether he had properly applied his mind and concluded that it E was best to await the outcome of the application to court by the General Council of the Bar (the GCB application) to have Adv Jiba struck off the roll of advocates.

The parties F

[4] As already stated supra, the applicant is the DA, a duly registered political party which enjoys representation at national, provincial and local levels of government. In terms of its federal constitution the DA was established as a body corporate with perpetual succession and capable of suing and being sued in its own name. The DA avers that it has a G constitutional duty to challenge the alleged unlawful and unconstitutional decision by the President and that, in doing so, it is not only acting in its own interests as a political party but also in the interests of its members and the public.

[5] The first respondent is the President of the Republic of South Africa H (the President) who is cited in his official capacity and as the member of the executive with the power in terms of s 12 of the NPA Act to suspend and enquire into the fitness to hold such office by the DNDPP. The second respondent is the Minister of Justice and Correctional Services (the Minister) who is also cited in his official capacity as the member of I the executive responsible for the NPA in terms of s 179(6) of the Constitution.

[6] The third respondent is the National Director of Public Prosecutions (NDPP). He is the head of the NPA and, though no relief is sought against him, he is cited herein for any interest which he may have in this J

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A matter. At present the incumbent NDPP is Adv Shaun Abrahams (Abrahams). He was appointed by the President on 18 June 2015 to replace the former NDPP, Mr Nxasane, who resigned on 1 June 2015, before an enquiry into his fitness to hold office could be held, after it came to light that he did not disclose his previous criminal record. Prior to the appointment of Adv Abrahams or Mr Nxasana, the fourth B respondent, Adv Jiba, served as an Acting National Director of Public Prosecutions. It was while she was acting in that capacity that the incidents giving rise to this application took place. She is currently head of the National Prosecuting Services (NPS). Although directly affected in her position, as the applicant seeks her suspension and an enquiry into C her fitness to hold office, no relief is sought against her. Unless the context indicates the contrary I shall refer to the President, the Minister and Adv Abrahams collectively as the respondents.

[7] The fifth respondent is the General Council of the Bar (GCB), another party against whom the applicant is seeking no relief. It is D averred by the applicants that the GCB is cited herein because of its potential interest in the matter, considering that its pending application to have Adv Jiba removed from the roll of advocates was the sole reason the President had advanced for not suspending her.

[8] Before dealing with the vexed question of whether the President E acted irrationally or unlawfully I shall first attend to and dispose of two points in limine raised by the respondents which, in my view, should not be a bar to a full enquiry into the merits of the application. [2] In the enquiry into the merits I shall outline the constitutional provisions and the imperative national legislation which was promulgated to provide for F an independent prosecuting authority; the qualification required to hold office as a National or Deputy National Director of Public Prosecutions and the circumstances under which an NDPP or DNDPP may be removed from office. I shall thereafter deal with the circumstances which preceded and led to the present application and the DA's call for the President to suspend Adv Jiba. With reference to the applicable legal principles, I G shall pay particular attention to the argument by the DA that the President's decision not to suspend Adv Jiba, pending an enquiry into her fitness to hold office, was irrational and unlawful. I shall thereafter deal with the response to the DA's case by the President, the Minister and Adv Abrahams. I shall also deal with Adv Jiba's response to the allegations and her position regarding this application, insofar as a call H for her suspension is concerned.

Lack of jurisdiction

[9] I now deal with the first point in limine raised by the respondents, namely that this court has no jurisdiction to deal with this matter since I it involved the obligations of the President under the Constitution, such jurisdiction being exclusively reserved for the Constitutional Court in terms of s 167(4)(c) of the Constitution. Section 167(4)(e) provides that:

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'(4) Only the Constitutional Court may — A

. . .

(e)

decide that Parliament or the President has failed to fulfil a constitutional obligation . . . .'

[10] The question in casu is whether the alleged failure by the President to employ the provision of s 12(6)(a) of the NPA Act can properly be characterised as a failure to discharge a constitutional obligation. B

[11] In the interpretation of s 167(4)(e) our courts have held that this phrase 'fulfil a constitutional obligation' must be given a 'narrow' meaning. In Doctors for Life International v Speaker of the National Assembly and Others [3] the applicant approached the Constitutional Court C directly, alleging that it was the only court that had jurisdiction over the dispute because it concerned the question whether Parliament had fulfilled its constitutional obligations as conferred by s 167(4)(e) of the Constitution. In determining the question whether the court has exclusive jurisdiction, the court focused on the proper meaning of the phrase 'constitutional obligation' in s 167(4)(e), which it found to be difficult to D resolve. The court, per Ngcobo J (as he then was), however, held that what all of this points to is that the phrase 'a constitutional obligation' in s 167(4)(e) should be given a narrow meaning to avoid it being in conflict with the powers of the Supreme Court of Appeal (SCA) and the High Courts to make orders concerning the validity of Acts of Parliament, which are made in pursuit of constitutional obligations. [4] E

[12] A similar view was expressed in President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU). [5] In Von Abo v President of the Republic of South Africa [6] Moseneke DCJ held that it remains a complex question whether a F specific power exercised by the President under the Constitution or any other law amounts to a constitutional obligation which only the Constitutional Court may decide. The Deputy Chief Justice was of the view, however, that it was neither prudent nor pressing to describe what amounts to a constitutional obligation under s 167(4)(e) of the Constitution, but that ready examples of constitutional obligations specifically G entrusted to the President may be found in s 84(2) of the Constitution, [7] which rest in him as the head of state and the head of the national executive.

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A [13] The Constitution clearly does not confer on the President an obligation to suspend or enquire into the fitness of a DNDPP to hold office. The Constitution only requires that national legislation be promulgated which must ensure that the prosecuting authority exercised its function without fear or favour. It is in the NPA Act, which was promulgated B pursuant to the mandate given by the Constitution, where the President is granted the powers to suspend and enquire into a DNDPP's fitness to hold office. Since this matter involves the question whether the President has exercised his powers, acquired through the provisions of s 12(6)(a) of the NPA Act, rationally and lawfully (and not whether he has C obligations in terms of the Constitution to enquire into the fitness of the NDPP to...