Glenister v President of the Republic of South Africa and Others

• Jurisdiction: South Africa

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

2011 (3) SA p347

Citation	2011 (3) SA 347 (CC)
Case No	CCT 48/10
Court	Constitutional Court
Judge	Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J, Yacoob J and Brand AJ
Heard	September 2, 2011
Judgment	March 17, 2011
Counsel	RP 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.

Flynote : Sleutelwoorde B

Constitutional law — The State — Duties — Duty to create independent body to fight corruption — Such obligation emanating from Constitution itself and from State's constitutional obligation to comply with binding international C agreements regulating fight against corruption — Legislation creating Directorate for Priority Crime Investigation (and disbanding Directorate of Special Operations) not ensuring adequate independence for DPCI in sense of sufficient insulation from political interference in its structure and functioning — Offending legislation declared invalid — South African Police Services Act 68 of 1995, Ch 6A. D

Constitutional law — Legislation — Validity — South African Police Services Act 68 of 1995, Ch 6A — Chapter creating Directorate for Priority Crime Investigation (and disbanding Directorate of Special Operations) — Legislation in question unconstitutional due to its failure to ensure adequate independence for DPCI in sense of sufficient insulation from political E interference in its structure and functioning.

Headnote : Kopnota

Corruption is a constitutional and human-rights issue, and the State accordingly has an obligation emanating from the Constitution itself, and in particular from its constitutional obligation to comply with binding international agreements in this regard, to take all reasonable measures to create an F independent body to combat corruption and organised crime. (Paragraphs [163] – [202] and [205] at 397C – 410H and 411D – E.)

The legislation providing for the establishment of the Directorate for Priority Crime Investigation does not, due to the envisioned degree of political oversight over both its structure and functioning, comply with the above-mentioned obligation. (Paragraphs [164] and [208] – [210] at 397E – F and G 412F – 413C.)

2011 (3) SA p348

A The DPCI's vulnerability to political interference is rooted in two causes: (1) its members, and particularly its head, will lack adequate security of tenure (paras [217] – [227] at 414D – 417C); and (2) its activities are to be coordinated by a Cabinet committee (paras [228] – [250] at 417D – 423G).

The impugned legislation, namely Ch 6A of the South African Police Services Act 68 of 1995, B is therefore invalid to the extent that it does not secure adequate independence for the DPCI. (Paragraph [251] at 423J.) Order of invalidity suspended for 18 months to give Parliament the opportunity to remedy the defect.

Cases Considered

Annotations:

Reported cases C

Southern Africa

Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8) BCLR 1015): referred to

Bel Porto School Governing Body and Others v Premier, Western Cape, and Another D 2002 (3) SA 265 (CC) (2002 (9) BCLR 891): referred to

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) (2000 (5) BCLR 465): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995): dictum in para [44] applied

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399): referred to E

Glenister v President of the Republic of South Africa and Others 2009 (1) SA 287 (CC) (2009 (2) BCLR 136): referred to

Matatiele Municipality and Others v President of the RSA and Others (No 2) 2007 (6) SA 477 (CC) (2007 (1) BCLR 47): referred to

Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others 2008 (5) SA 171 (CC) (2008 (10) BCLR 969): referred to F

New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC) (1999 (5) BCLR 489): referred to

Pan American World Airways Incorporated v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 (A): referred to

Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC) (1997 (10) BCLR 1337): referred to G

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241): referred to

Poverty Alleviation Network and Others v President of the Republic of South Africa and Others 2010 (6) BCLR 520 (CC): referred to H

Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759): referred to

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301): referred to

S v Kwatsha 2004 (2) SACR 564 (E): referred to I

S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) (1997 (2) SACR 540; 1997 (10) BCLR 1348): referred to

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): dictum in paras [34] – [35] applied

S v Pennington and Another 1997 (4) SA 1076 (CC) (1999 (2) SACR 329; 1997 (10) BCLR 1413): referred to J

2011 (3) SA p349

S v Sadler 2000 (1) SACR 331 (SCA): referred to A

S v Salcedo 2003 (1) SACR 324 (SCA): referred to

S v Shaik and Others 2007 (1) SA 240 (SCA) (2007 (1) SACR 247; [2007] 2 All SA 9): dictum in para [223] applied

S v Shaik and Others 2008 (5) SA 354 (CC) (2008 (8) BCLR 834): dictum in para [72] applied

South African Association of Personal Injury Lawyers v Heath and Others B 2001 (1) SA 883 (CC) (2001 (1) BCLR 77): dictum in para [4] applied

South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) ((1999) 20 ILJ 2265; 1999 (6) BCLR 615): referred to

Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC) (2010 (8) BCLR 741): referred to C

Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) (2002 (2) SACR 222; 2002 (8) BCLR 810): dictum in para [32] applied

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) (2008 (4) BCLR 442): referred to

Women's Legal Centre Trust v President of the Republic of South Africa and Others D 2009 (6) SA 94 (CC): referred to.

Australia

Minister for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273: referred to. E

Canada

Baker v Canada (Minister of Citizenship and Immigration) 174 DLR (4th) 193 ([1999] 2 SCR 817): referred to

Capital Cities Communications Inc v Canadian Radio-Television & Telecommunications Commission F [1978] 2 SCR 141: referred to

R v Valente (1985) 24 DLR (4th) 161 (SCC) ((1986) 19 CRR 354): dictum at 172 applied.

England

R v Secretary of State for the Home Department, Ex parte Brind and Others [1991] 1 AC 696 (HL) ([1996] 1 All ER 720): referred to. G

Ireland

Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97: referred to.

New Zealand

Ashby v Minister of Immigration [1981] 1 NZLR 222 (HC): referred to. H

Unreported cases

Glenister v President of the Republic of South Africa and Others (WCC case No 7798/09, 26 February 2010): reversed on appeal

S v Thunzi and Others [2010] ZACC 12: referred to. I

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, ss 7(2), 39(1)(b) and 231: see Juta's Statutes of South Africa 2009/10 vol 5 at 1-34, 1-40 and 1-69

The South African Police Services Act 68 of 1995, Ch 6A: see Juta's Statutes of South Africa 2009/10 vol 1 at 3-402. J

2011 (3) SA p350

Case Information

A Application for leave to appeal against a decision of the Western Cape High Court and for direct access to the Constitutional Court.

RP 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. B

Cur adv vult.

Postea (March 17).

Judgment

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...