Glenister v President of the Republic of South Africa and Others

JurisdictionSouth Africa
JudgeNgcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J, Yacoob J and Brand AJ
Judgment Date17 March 2011
CourtConstitutional Court
Docket NumberCCT 48/10
Date17 March 2011
Hearing Date02 September 2011
CounselRP Hoffman SC (with P St C Hazell SC) for the applicant. WRE Duminy SC (with S Poswa-Lerotholi) for the first to third respondents. DN Unterhalter SC (with M du Plessis) for the amicus curiae.
Citation2011 (3) SA 347 (CC)

Ngcobo CJ (Brand AJ, Mogoeng J and Yacoob J concurring): C

Introduction

[1] This is an application for leave to appeal against a decision of the Western Cape High Court, Cape Town (High Court) and an application D for direct access. These applications concern the constitutional validity of the National Prosecuting Authority Amendment Act [1] (NPAA Act) and the South African Police Service Amendment Act [2] (SAPSA Act). These two statutes, together, will be referred to as the impugned laws. The gravamen of the complaint relates to the disbanding of the Directorate of Special Operations (DSO), a specialised crime-fighting unit that was E located within the National Prosecuting Authority (NPA), and its replacement with the Directorate of Priority Crime Investigation (DPCI), which is located within the South African Police Service (SAPS). The impugned laws brought this about.

[2] The DSO was established in 2001 under s 7(1) of the National F Prosecuting Authority Act [3] (NPA Act). Its purpose was to supplement the efforts of existing law-enforcement agencies in addressing organised crime. The DSO was vested with powers to investigate and institute criminal proceedings relating to organised crimes or other specified offences. On 27 January 2009 the President signed into law the impugned laws. The combined effect of the impugned laws was to G disband the DSO and establish the DPCI. It is this effect of the impugned laws which is at the centre of the present constitutional challenge. The applicant, Mr Glenister, a businessman, challenged the impugned laws in the High Court on various grounds.

The background H

[3] These applications are a sequel to Glenister v President of the Republic of South Africa and Others (Glenister I). [4] In Glenister I, Mr Glenister and others unsuccessfully challenged the decision of the Cabinet to initiate the impugned laws. After they were signed into law, the applicant I challenged their validity on various grounds in the High Court. This

Ngcobo CJ (Brand AJ, Mogoeng J and Yacoob J concurring)

challenge, too, suffered the same fate, but on different grounds. The A applicant now seeks leave to appeal against the decision of the High Court, alternatively, an order granting him direct access.

[4] The President of the Republic of South Africa, the Minister for Safety and Security, now the Minister for Police, and the Minister for Justice and Constitutional Development, the first, second and third B respondents, respectively (respondents), are resisting both applications. Although the notice to oppose also cited the National Director of Public Prosecutions (NDPP), he did not play an active role in the proceedings. [5] In this court the Helen Suzman Foundation (amicus), a non-governmental organisation, applied for and was admitted as amicus curiae. Its C objectives are 'to defend the values that underpin . . . liberal constitutional democracy and to promote respect for human rights'. It joins the applicant in challenging the validity of the impugned laws, but did so on their alleged inconsistency with this country's international obligation to establish an independent anti-corruption unit.

[5] The full factual background giving rise to these proceedings is set out D in Glenister I. [6] It is therefore not necessary to repeat it, save so far as it is relevant to these proceedings.

[6] The DSO was established in 2001 to supplement the efforts of existing law-enforcement agencies in tackling organised crime. In due E course, concerns were raised within the criminal-justice system and the intelligence community relating to the role and functioning of the DSO. To respond to these concerns, on 1 April 2005 the President appointed Judge Khampepe to chair a commission of inquiry (Khampepe Commission) to investigate and report on aspects of the DSO, including the rationale for its establishment, its mandate, its location within the NPA as F opposed to the SAPS, and the relationship between the SAPS and the DSO. The resulting Khampepe Commission Report (Khampepe Report), signed on 3 February 2006, recommended that the DSO should continue to be located within the NPA, albeit with certain adjustments. Other recommendations related to the President's power to transfer oversight and responsibility over the law-enforcement component of the G DSO to the Minister for Safety and Security, and the need to tackle the unhealthy relationship between the DSO and the SAPS.

[7] Cabinet appeared to approve the Khampepe Report. A Cabinet statement of 29 June 2006 reveals that it endorsed the National Security H 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, among other things, that Cabinet had reviewed progress in implementing the recommendations of the Khampepe Commission. I

Ngcobo CJ (Brand AJ, Mogoeng J and Yacoob J concurring)

A [8] Meanwhile, the African National Congress (ANC), the ruling party, at its 52nd national conference, held in Polokwane in December 2007, adopted a resolution calling for a single police service and the dissolution of the DSO (Polokwane Resolution).

[9] On 12 February 2008, following the Polokwane Resolution, the B Minister for Safety and Security, speaking in the National Assembly, proposed the dissolution of the DSO and the creation of a new unit under the SAPS to deal with organised crime. In the same month the Director-General of the Department for Justice and Constitutional Development stated during a radio interview that the DSO would be C amalgamated with the SAPS. The legislative programme of the Department for Safety and Security for 2008 indicated that laws dealing with the DSO would be placed before Parliament during that year.

[10] Following a Cabinet meeting in April 2008, the Presidency issued a statement to the effect that Cabinet had approved the NPAA Bill and the D General Law Amendment Bill, later renamed the SAPSA Bill (the Bills). Among other things, these Bills proposed to dissolve the DSO and replace it with the DPCI. The stated purpose of the Bills was to strengthen the country's capacity to fight organised crime and to give effect to the decision to relocate the DSO from the NPA to the SAPS.

E [11] As I have indicated above, the applicant and others challenged the decision to initiate the Bills. The North Gauteng High Court held that it had no jurisdiction to hear the application. By the time the matter reached this court by way of an application for leave to appeal and an application for direct access, the Bills had not only been approved by F Cabinet, but were then before Parliament. In Glenister I this court dismissed the challenge, holding that it had not been established that it would be appropriate for this court to intervene in the affairs of Parliament, nor that material and irreversible harm would result if the court did not intervene at that stage. [7]

G [12] On or about 23 October 2008 the impugned laws were passed by Parliament, and on 27 January 2009 they were assented to and signed by the President. On 17 April 2009 the applicant challenged the constitutional validity of the impugned laws in the High Court.

Proceedings in the High Court

H [13] In the High Court the applicant based his constitutional challenge on several grounds. The one challenge was based on the absence of a rational basis for the enactment of the impugned laws. The others alleged failure to comply with various constitutional obligations relating to accountability; cultivating the principles of good human resource I management practices and good labour relations; upholding international obligations; facilitation of public involvement; protecting values enshrined in the Bill of Rights; and allowing the NPA to properly exercise its functions.

Ngcobo CJ (Brand AJ, Mogoeng J and Yacoob J concurring)

[14] The High Court dismissed all the grounds of attack based on A constitutional obligations. It held that, under s 167(4)(e) of the Constitution, only this court may 'decide that Parliament or the President has failed to fulfil a constitutional obligation'. [8] It accordingly concluded that it lacked jurisdiction to consider the constitutional challenges based on the alleged failure to fulfil constitutional obligations. B

[15] The High Court dismissed the challenge based on rationality. It held that the establishment of the DPCI within the framework of the SAPS 'is manifestly designed to enhance the capacity of the SAPS to prevent, combat and investigate national priority crimes and other crimes'; [9] this is a legitimate governmental purpose to pursue; and the C means by which this purpose is sought to be achieved 'appear to be rational' [10] It accordingly concluded that the decision to disband the DSO and establish the DPCI 'is rational and can certainly not be described as arbitrary'. [11]

Proceedings in this court D

[16] The application for leave to appeal is directed against these findings and conclusions of the High Court. Direct access is sought in the event we uphold the finding and conclusion of the High Court that it lacked jurisdiction in respect of the challenges based on constitutional obligations. E

[17] The gravamen of the applicant's constitutional complaint is the disbandment of the DSO, which, as indicated above, was located within the NPA, and its replacement by the DPCI, which is located within the F SAPS. The applicant contended that the scheme of the impugned laws which brought about these changes is unconstitutional. He submitted that it is irrational, unreasonable, unfair and undermines the structural independence of the NPA. He argued that, in enacting the impugned laws, the legislature violated a number of its constitutional obligations. The obligations...

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147 practice notes
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    ... ... Cases cited ... Southern Africa  A  ... Case and Another v Minister of Safety ... Coetzee v Government of the Republic of South Africa;  B  Matiso and Others v Commanding ... Glenister v President of the Republic of South Africa and Others ... ...
  • Earthlife Africa and Another v Minister of Energy and Others
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    ...(2003 (1) SACR 404; 2004 (9) BCLR 895; [2002] ZACC 29):referred toGlenister v President of the Republic of South Africa and Others 2011 (3) SA347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): referred toGrey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA313 (SCA) (2005 (10) B......
  • Justice Alliance of South Africa v President of the Republic of South Africa and Others
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    ...and Leblanc v TheQueen 2011 CMAC 2 at paras 38–39, 43–44 and 59.73Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347(CC) (2011 (7) BCLR 651; [2011] ZACC 6) at paras 222–223.74See [2] above.411JUSTICEALLIANCE OF SA v PRESIDENT OF THE RSATHE COURT 2011 (5) SA 388......
  • Democratic Alliance v Minister of International Relations and Cooperation and Others
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    • Invalid date
    ...(CC) (2009 (2) BCLR 136; [2008] ZACC 19): dictum in para [56]appliedGlenister v President of the Republic of South Africa and Others 2011 (3) SA347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): appliedGory v Kolver NO (Starke Intervening) 2007 (4) SA 97 (CC) (2007 (3)BCLR 249; [2006] ZACC 20): d......
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100 cases
  • S v Mlungwana and Others
    • South Africa
    • Invalid date
    ... ... Cases cited ... Southern Africa  A  ... Case and Another v Minister of Safety ... Coetzee v Government of the Republic of South Africa;  B  Matiso and Others v Commanding ... Glenister v President of the Republic of South Africa and Others ... ...
  • Earthlife Africa and Another v Minister of Energy and Others
    • South Africa
    • Invalid date
    ...(2003 (1) SACR 404; 2004 (9) BCLR 895; [2002] ZACC 29):referred toGlenister v President of the Republic of South Africa and Others 2011 (3) SA347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): referred toGrey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA313 (SCA) (2005 (10) B......
  • Justice Alliance of South Africa v President of the Republic of South Africa and Others
    • South Africa
    • Invalid date
    ...and Leblanc v TheQueen 2011 CMAC 2 at paras 38–39, 43–44 and 59.73Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347(CC) (2011 (7) BCLR 651; [2011] ZACC 6) at paras 222–223.74See [2] above.411JUSTICEALLIANCE OF SA v PRESIDENT OF THE RSATHE COURT 2011 (5) SA 388......
  • Democratic Alliance v Minister of International Relations and Cooperation and Others
    • South Africa
    • Invalid date
    ...(CC) (2009 (2) BCLR 136; [2008] ZACC 19): dictum in para [56]appliedGlenister v President of the Republic of South Africa and Others 2011 (3) SA347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): appliedGory v Kolver NO (Starke Intervening) 2007 (4) SA 97 (CC) (2007 (3)BCLR 249; [2006] ZACC 20): d......
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45 books & journal articles
  • 2011 index
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 16 August 2019
    ...327-328Glenister v President of the Republic of South Africa and Others 2011(3) SA 347 (CC) ............................................................................. 114Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) ...... 39-40,273-276Government of South Africa v Groo......
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    • 27 May 2019
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    • Sabinet Southern African Public Law No. 35-2, July 2020
    • 1 July 2020
    ...179(4) of the Constitution. The SAPS Act 1995 was declared unconstitutional in Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) para 251 for establishing the Directorate of Priority Crime Investigation, a crime busting body, without securing a degree of adequate in......
  • Citizenship by Naturalisation: Are Regulations 3(2)(b) and (c) to the South African Citizenship Act 88 of 1985 Invalid?
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    • 21 June 2021
    ...This is so because u nder regulation 3(2)(b), a foreigner cannot be absent 118 Gleniste r v President of the Rep ublic of South Afric a 2011 3 SA 347 (CC) para 55 119 New Natio nal Party of SA v G overnment o f the Republic of S A 1999 3 SA 191 (CC) para 24; Pharmaceutical Manufactur ers As......
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