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

• Jurisdiction: South Africa
• Citation: 2012 (1) SA 417 (SCA)

Democratic Alliance v President of the Republic of South Africa and Others
2012 (1) SA 417 (SCA)

2012 (1) SA p417

Citation	2012 (1) SA 417 (SCA)
Case No	263/11; [2011] ZASCA 241
Court	Supreme Court of Appeal
Judge	Navsa JA, Heher JA, Mhlantla JA, Majiedt JA and Plasket AJA
Heard	October 31, 2011
Judgment	December 1, 2011
Counsel	O Rogers SC (with A Katz SC, D Borgström and N Mayosi) for the appellant.; N Cassim SC (with V Notshe SC and M Sello) for the first respondent.; M Moerane SC (with L Gcabashe) for the second respondent.; No appearance for the third respondent.; G Malindi SC (with I Goodman) for the fourth respondent.

Flynote : Sleutelwoorde G

Criminal procedure — Prosecution — Prosecuting authority — National Director H of Public Prosecutions — Appointment — Objective of prosecutorial independence paramount — Fitness of candidate (experience, conscientiousness and integrity) to be objectively assessed by President as jurisdictional fact — Where appointment made in absence of proper enquiry into whether legal requirements met, such unconstitutional and subject to annulment by court — Constitution, s 179 read with National Prosecuting Authority Act 32 of 1998, s 9(1)(b). I

Constitutional law — Constitution — Foundational values — Rule of law — Judicial control of exercise of public power — Legislative and executive arms of State bound by legal prescripts — Judiciary may scrutinise actions and decisions of Executive branch to assess their legality. J

2012 (1) SA p418

Headnote : Kopnota

A The appointment of the National Director of Public Prosecutions by the President is an executive act that is subject to judicial scrutiny in accordance with the rule of law. The empowering provisions are s 179 of the Constitution and s 9 of the National Prosecuting Authority Act 32 of 1998, which have as their object the safeguarding of prosecutorial independence. The appointee must, having regard to the importance of the office, be above B reproach, independent, and ready to serve without fear, favour or prejudice. In order to ensure that the candidate is such a person, the President must establish that he or she is possessed of the qualities of 'experience, conscientiousness and integrity' required by s 9(1)(b) of the NPA Act. These qualities are jurisdictional facts that must be objectively assessed to exist before an appointment can be made, and the President is at the very C least required to have regard to the relevant factors that are brought to his knowledge, or which can be reasonably ascertained by him. The President may not have preconceived views regarding the fitness of a candidate, nor rely on personal knowledge of the candidate, nor conclude that a candidate is fit merely because there is no evidence to the contrary, nor disregard relevant evidence as to his or her fitness. Failure by the President to D undertake a proper enquiry as to whether a candidate satisfies the objective requirements of s 9(1)(b) will render the resulting appointment subject to annulment by the courts. (Paragraphs [66], [70], [72], [77], [92] – [96], [107] – [109], [112] – [118] and [121] – [122] at 438A – D, 439H, 440C – E, 441B – C, 444G – 446D, 447J – 449A, 449F – 451F and 451I – 452F.)

Cases Considered

Annotations: E

Reported cases

Southern Africa

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) F (2005 (6) BCLR 529): dictum in para [49] applied

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391): referred to

Ex parte Attorney-General, Namibia: In re the Constitutional Relationship between the Attorney-General and the Prosecutor-General 1998 NR 282 (SC) ([1995] 3 LRC 507; 1995 (8) BCLR 1070): compared

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253): dictum in para [146] applied G

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458): dictum in para [58] applied

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC): referred to H

Government Employees Pension Fund and Another v Buitendag and Others 2007 (4) SA 2 (SCA): referred to

Jasat v Natal Law Society 2000 (3) SA 44 (SCA) ([2000] 2 All SA 310): referred to

Kudo v Cape Law Society 1977 (4) SA 659 (A): dictum at 675H applied I

Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) (2008 (1) BCLR 1): dictum in para [81] applied

Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) (2002 (10) BCLR 1033): referred to

Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) ([2003] 3 All SA 21): referred to J

2012 (1) SA p419

Pharmaceutical Manufacturers Association of SA and Another: A In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241): dictum in paras [84] – [85] applied

Pikoli v President of the Republic of South Africa and Others 2010 (1) SA 400 (GNP): dictum at 406E – F applied

President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) (1997 (1) SACR 567; 1997 (6) BCLR 708): dictum in para [65] applied B

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): dictum in para [148] applied

Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA 385 (SCA): referred to

S v Makwanyane and Another C 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): dictum in para [262] applied

South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 31 (C): applied.

Canada

Krieger v Law Society of Alberta [2002] 3 SCR 372: compared. D

England

Sharma v Brown-Antoine and Others [2007] 1 WLR 780 (PC): compared.

United States

Imbler v Pachtman, District Attorney 424 US 409 (1976): compared. E

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, s 179: see Juta's Statutes of South Africa 2010/11 vol 5 at 1-52

The National Prosecuting Authority Act 32 of 1998, s 9(1)(b): see Juta's Statutes of South Africa 2010/11 vol 1 at 2-548.

Case Information

Appeal against a decision in the North Gauteng High Court, Pretoria F (Van der Byl AJ).

O Rogers SC (with A Katz SC, D Borgström and N Mayosi) for the appellant.

N Cassim SC (with V Notshe SC and M Sello) for the first respondent.

M Moerane SC (with L Gcabashe) for the second respondent. G

No appearance for the third respondent.

G Malindi SC (with I Goodman) for the fourth respondent.

Cur adv vult.

Postea (December 1). H

Order

1.

The appeal succeeds and the first, second and fourth respondents are ordered jointly and severally, the one paying the others to be absolved, to pay the appellant's costs, including the costs of three counsel. I

2.

The order of the court below is set aside and substituted as follows:

'(a)

It is declared that the decision of the President of the Republic of South Africa, the first respondent, taken on or about Wednesday 25 November 2009, purportedly in terms of s 179 of the Constitution of the Republic of South Africa (the J

2012 (1) SA p420

A Constitution), read with ss 9 and 10 of the National Prosecuting Authority Act 32 of 1998, to appoint Mr Menzi Simelane, the fourth respondent, as the National Director of Public Prosecutions (the appointment), is inconsistent with the Constitution and invalid.

(b)

The appointment is reviewed and set aside.

(c)

B The first, second and fourth respondents are ordered jointly and severally, the one paying the others to be absolved, to pay the appellant's costs, including the costs of two counsel.'

Judgment

Navsa JA (Heher JA, Mhlantla JA, Majiedt JA and Plasket AJA C concurring):

The issue

[1] This appeal is a matter of national and constitutional importance. It involves an institution integral to the preservation and maintenance of D the rule of law, namely the National Prosecuting Authority (the NPA), which consists of the National Director at the head of prosecutorial offices, located at High Courts, and further comprises Deputy National Directors, Directors and prosecutors. [1] This case is about whether the fourth respondent, Mr Menzi Simelane, was properly appointed as National Director of Public Prosecutions (NDPP) by the first respondent, E Mr Jacob Zuma, the President of the Republic of South Africa (the President). Put simply, the question for decision is whether the President, in appointing Mr Simelane on 25 November 2009, complied with the prescripts of the Constitution and s 9(1)(b) of the National Prosecuting Authority Act 32 of 1998 (the Act). I will in due course deal with F the wording of that section read against constitutional provisions, values and norms and in conjunction with related provisions of the Act.

The background

[2] The litigation culminating in the present appeal was launched in G December 2009 in the North Gauteng High Court, Pretoria, by the appellant, the Democratic Alliance (the DA), a registered political party, which is also the official opposition in Parliament.

[3] The High Court was approached on an urgent basis for an order declaring that the President's decision, purportedly taken in terms of H s 179 of the Constitution read with ss 9 and 10 of the Act, was inconsistent with the Constitution and invalid. The High Court was asked to review and set aside the appointment. The Minister of Justice and Constitutional Development was cited as second respondent, for such...