Glenister v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 22 October 2008
• Citation: 2009 (1) SA 287 (CC)
• Docket Number: CCT 41/08
• Hearing Date: 20 August 2008
• Counsel: DN Unterhalter SC (with A Cockerell) for the applicant. No appearance for the first respondent. LT Siberko SC (with Adv Malindi and L Gcabashe) for the second and third respondents. M Osborne (with N Mangcu-Lockwood) for the eleventh respondent. P Hoffman SC (with N de Havilland) for the Amicus Curiae.
• Court: Constitutional Court

Langa CJ:

Introduction D

[1] The Directorate of Special Operations (DSO), commonly known as the Scorpions, was established in terms of s 7(1) of the National Prosecuting Authority Act 32 of 1998 (NPA Act), [1] and came into existence in 2001. Its purpose is to deal with national priority crimes and to supplement the efforts of existing law enforcement agencies in tackling E serious crime. It is located within the National Prosecuting Authority (NPA) and, as a specialist unit, is vested with powers of investigation, including the power to gather, keep and analyse information, and the power to institute criminal proceedings, where appropriate, relating to organised crime or other specified offences. In April 2008 Cabinet approved draft legislation [2] which, among other things, proposed to F relocate the DSO and amalgamate it with the South African Police Service (SAPS).

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A [2] The applicant has chosen to challenge Cabinet's decision to initiate this legislation in the courts. He approached the Pretoria High Court (High Court) as a matter of urgency on 18 March 2008 for a final order, alternatively for an interim order, interdicting and restraining the President, the Minister of Safety and Security and the Minister for Justice and B Constitutional Development (first, second and third respondents respectively) from initiating legislation that seeks to disestablish the DSO. Subsequently, once Cabinet had in fact approved draft legislation to be introduced in Parliament, the applicant amended his notice of motion to seek an order interdicting the respondents 'from persisting with the C passage of legislation' that seeks to disestablish the DSO. In his judgment handed down on 27 May 2008, Van der Merwe J held that the High Court had no jurisdiction to hear the application in the circumstances and struck it from the roll. He held that the Constitutional Court might have jurisdiction to consider the matter.

D [3] The applicant now applies to this court on two bases. In Part A of his notice of motion he seeks leave to appeal, on an urgent basis, against the judgment and order of the High Court. Part B contains an application for direct access and seeks, on an urgent basis, an order: (1) declaring that the decision taken by Cabinet on or about 30 April 2008 to initiate E legislation disestablishing the DSO (to which I will refer as the decision) is unconstitutional and invalid; and (2) directing the relevant ministers to withdraw the National Prosecuting Authority Amendment Bill of 2008 (NPAA Bill) and the South African Police Service Amendment Bill of 2008 (SAPSA Bill) (collectively referred to as the Bills) from the F National Assembly.

[4] By the time this court heard argument in this matter, the Bills were before Parliament. Parliament's Portfolio Committees on Justice and Constitutional Development and on Safety and Security had called for comment on the Bills and had held public hearings regarding their G content.

The parties

[5] The applicant approaches this court by virtue of his own interest in the matter as a South African businessman who has a vested interest in H the survival and growth of the economy which, he alleges, is threatened by crime and thus by legislation that results in the disbanding of an effective crime-fighting unit (such as the DSO). He also approaches this court in the interest of a group or class of persons and in the public interest. [3]

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[6] The first respondent is the President of the Republic of South Africa, A cited in his official capacity, who abides the decision of the court. The second respondent is the Minister of Safety and Security, also cited in his official capacity as the minister responsible for the SAPS. The third respondent is the Minister for Justice and Constitutional Development, cited in her official capacity as the minister responsible for the NPA, B within which authority the DSO is currently located. The second and third respondents will be referred to collectively as the respondents as they are the two respondents who oppose the application. The fourth respondent is the National Director of Public Prosecutions (NDPP), in whose office the DSO is located by virtue of s 7(1)(a) of the NPA Act, while the fifth respondent is the Head of the DSO. Both the fourth and C fifth respondents abide the decision of the court. The fourth respondent lodged an affidavit in the High Court including certain factual information to assist the court. The sixth and seventh respondents are also cited in their official capacities and are, respectively, the Speaker of the National Assembly and the Chairperson of the National Council of D Provinces. No relief is sought against the fourth, fifth, sixth and seventh respondents; they are cited by virtue of the interest they might have in the matter. They have taken no part in these proceedings.

[7] The eighth to twelfth respondents are all political parties who are cited as respondents in this matter by virtue of their admittance in the E High Court as amici curiae. They are, respectively, the African Christian Democratic Party, the Democratic Alliance, the Independent Democrats, the United Democratic Movement and the Inkatha Freedom Party. Of these, only the eleventh respondent, the United Democratic Movement (UDM), appeared in this court to support the application. The Centre for Constitutional Rights (CFCR) was admitted as amicus F curiae in this court. The CFCR is a unit of the FW de Klerk Foundation, a charitable trust. The stated mission of the Centre is to uphold the Constitution and to assist in litigation in which constitutional issues arise.

Applications for condonation G

[8] The second and third respondents filed their answering affidavits two days late and the UDM filed its written submissions two days late. The delays were minimal and plausible reasons were given for both. No material prejudice was caused to the other litigants or to the court. I consider that condonation should be granted in both instances. The H CFCR also applied for condonation in light of the fact that, at the time of its application to be admitted as amicus curiae, it had not obtained the consent of the fourth and fifth respondents. These two respondents have however not made any submissions to this court and, as already indicated, [4] the applicant seeks no relief against them. Condonation I should thus also be granted in this instance.

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A Directions of this court

[9] In setting down the application for leave to appeal, the directions issued by the Chief Justice specify as the only issue to be decided:

(W)hether, in the light of the doctrine of the separation of powers, it is B appropriate for this court, in all the circumstances, to make any order setting aside the decision of the National Executive that is challenged in this case.

The sole question for decision is therefore whether it is appropriate for this court to intervene at this stage of the legislative process. This C question goes to the relief sought both in Part A, the application for leave to appeal, and Part B, the application for direct access. If judicial intervention is inappropriate, both applications must fail.

Factual background

D [10] The application relies upon the following background facts, which are either common cause or undisputed. Since its establishment in 2001, the DSO has undertaken a number of high-profile investigations, some of which have involved prominent members of the African National Congress (ANC). On 1 April 2005 the first respondent appointed Judge Sisi Khampepe to chair a commission of inquiry (Khampepe Commission) E to investigate and report on certain aspects of the DSO. The issues to be considered by the Khampepe Commission included the rationale for the establishment of the DSO, its mandate, the question whether the DSO should be located within the NPA or the SAPS, and the systems for coordination and cooperation between the SAPS and the intelligence F agencies on the one hand and the DSO on the other. The Khampepe Commission's report (Khampepe Report) was signed on 3 February 2006, presented to the first respondent on 22 May 2006, and published on 5 May 2008. It recommended that the DSO should continue to be located within the NPA and under the Minister for Justice and Constitutional Development, [5] albeit with certain adjustments. Other G recommendations related to the President's power to transfer oversight and responsibility over the law enforcement component of the DSO to the Minister of Safety and Security [6] and the need to tackle the evidently

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unhealthy relationship between the DSO and the SAPS. [7]

[11] Although Judge Khampepe made a number of recommendations A for change, she approved of the work of the DSO in general. She found that there was nothing unconstitutional in the DSO and the SAPS sharing a mandate, nor in the DSO's methodology, which combines the skills of prosecutors to direct investigations, analysts to interpret information, B and investigators to collate information for successful prosecutions. She regarded the combination of these skills as an effective tool in addressing complex and organised crime.

[12] Cabinet appeared to approve the Khampepe Report. A Cabinet statement of 29 June 2006 reveals that Cabinet endorsed the National C Security Council's decision to accept, in principle, the recommendations of the Khampepe Commission, including the retention of the DSO within the NPA. A further statement of 7 December 2006 stated that, at its meeting of the previous day, Cabinet had reviewed progress in implementing the recommendations of the Khampepe Commission, D noted the tension between the DSO and the SAPS, and decided that legal instruments must be put in place to ensure greater coordination and cooperation between the two agencies.

[13] However, the...