Glenister v The Speaker of the National Assembly
| Jurisdiction | South Africa |
| Judge | Yekiso J |
| Judgment Date | 13 January 2009 |
| Docket Number | 17259/2008 |
| Court | Cape Provincial Division |
| Hearing Date | 22 October 2008 |
| Citation | 2009 JDR 0037 (C) |
Yekiso J:
[1] On the 22nd October 2008 I granted an order dismissing with costs the applicant's application instituted out of this Court on an urgent basis. I held that no case had been made out for the relief sought in terms of the notice of motion. I did not then give reasons for the order I gave but I pointed it out to the parties that reasons therefore would be furnished on request.
[2] The applicant, who describes himself as a businessman residing at 18 Kitui Road, Sunninghill, Ext 2, Gauteng, instituted proceedings out of this Court, on notice of motion, seeking relief on two basis, these being:
In part A of the notice of motion the applicant sought an order, on an urgent basis, interdicting and restraining the Speaker of the National Assembly (the first respondent) from calling, permitting or recording any vote in the National Assembly on the National Prosecuting Authority Amendment Bill (which was being processed in the legislative process in the National Assembly under reference [B23-2008]), and the South African Police Services Amendment Bill (processed in the legislative process under reference [B30-2008]), pending the determination of the relief which the
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applicant would seek, on a date to be arranged with the Registrar of this Court, in Part B of its notice of motion.
In part B of the notice of motion the applicant, on a date to be arranged with the Registrar of this Court, which presumably would have been on the same papers, would seek an order in the following terms:
Permanently interdicting the first respondent from calling, permitting or recording a vote in the National Assembly on the bills referred to in paragraph [2.1] until:
The Joint Committee on Ethics & Members' Interests would have been duly convened, pursuant to item 17 of the Code of Conduct for Assembly & Permanent Council Members ("the Code"), and would have elicited the Members' disclosures as required under the Code, and properly heard the applicant with respect to his complaint, as lodged on 5 September 2008, which complaint alleged that Members of Parliament implicated in the so-called "Travelgate" matter, involving the fraudulent obtaining and utilisation of Members' parliamentary travel vouchers, must, in terms of the Code, withdraw from all proceedings in which the aforementioned bills were considered; or
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In the event of the Chairperson, Joint Committee on Ethics & Members' Interests (the eighth respondent) or anyone acting in his or her stead and on his or her behalf, refusing or failing to decide to convene the said Committee for the said purpose, and in the further event that applicant, within five(5) days of any such refusal, institutes proceedings to set aside such refusal, or seeking other appropriate relief, pending the final determination of such proceedings.
[3] In effect, what I was being asked to determine, in terms of submissions on behalf of the applicant, was whether, under the standards established in Parliament's own Code of Conduct, and the fundamental principles of constitutional democracy, the vote on the bills in the National Assembly should have been permitted to proceed without the Joint Committee having applied its mind as to whether the Members implicated in the so-called "Travelgate" matter should have been compelled to withdraw from further consideration of, and indeed, voting on the said bills.
[4] The matter was argued before me on Wednesday, 22 October 2008. After hearing argument, which lasted somewhat four and a half hours (4hr 30min), I dismissed the application with costs and, as regards the eighth, ninth and tenth respondents, I ordered that such costs would include costs consequent upon employment of two counsel. As has already been pointed
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out I did not give reasons for the order I gave but did point out to the parties that the reasons for the order I gave would be furnished on request provided that such request would be filed with the Registrar within the time limits as provided for in the Rules of Court. A request for such reasons has since been filed on behalf of the applicant. In the judgment which follows is included reasons for the order I gave.
THE PARTIES
[5] Apart from The Speaker of the National Assembly, who has been cited as the first respondent, and apart from The Chairperson, Joint Committee on Ethics & Members Interests, who has been cited as the eighth respondent, eight other State organs have been cited as respondents, and these are: The Chairperson of the National Council of Provinces, who has been cited as the second respondent; the Registrar, Joint Committee on Ethics & Members Interests, who has been cited as the third respondent; the Chairperson of the Portfolio Committee on Safety & Security, cited as the fourth respondent; the Chairperson of the Portfolio Committee on Justice & Constitutional Development, cited as the fifth respondent; the National Director of Public Prosecutions, cited as the sixth respondent; the Head of the Directorate of Special Operations, cited as the seventh respondent; the Minister of Safety & Security, cited as the ninth respondent; and the Minister of Justice & Constitutional Development, who has been cited as the tenth respondent.
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The first, second, third, fourth, fifth, eighth and the tenth respondent opposed the relief sought whilst the rest of the respondents filed notices to abide.
FACTUAL BACKGROUND
[6] In setting out the background of material facts relied upon by the applicant for the relief sought, I shall always be mindful of the fact that this application was brought on extremely urgent basis. Initially, it was anticipated that the application would be heard on Tuesday, 21 October 2008 at 15h00 or soon thereafter. The founding papers, consisting as they are of the notice of motion, the founding affidavit together with annexures thereto, and the supporting affidavit are fairly voluminous, consisting of somewhat 271 pages. Answering affidavits in respect of those respondents who opposed the relief sought, were filed in the mid-afternoon on 22 October 2008, some two hours before the hearing of the matter commenced. Voting on the bills, which the applicant sought to prevent from occurring, was scheduled for Thursday, 23 October 2008 at 14h00. It therefore came as no surprise, because of time constraints, that those of the respondents who opposed the relief sought, confined themselves to taking issue with the basic elements of the relief sought rather than responding to each and every factual background material relied upon by the applicant for the relief it sought.
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[7] The applicant relies on the following background material for the relief it sought in terms of Part A and, ultimately, and presumably on the same papers duly supplemented, if the need would have arisen, which the applicant would seek in terms of Part B of its notice of motion: The starting point is the Directorate of Special Operations (DSO) which was established in the office of the National Director of Public Prosecutions to investigate and prosecute offences committed in an organised fashion. The objectives of the Directorate of Special Operations, commonly known as the Scorpions, are set out in section 7(1) of the National Prosecution Authority Act [1] . Amongst others, these are to investigate and to carry out functions incidental to investigations; to gather, keep and analyse information; and, where appropriate, to institute criminal proceedings relating to offences or any criminal or unlawful activities committed in an organised fashion or such other offences or category of offences as determined by the President by proclamation in the Government Gazette from time to time [2] .
[8] The DSO was established within the office of the National Director of Public Prosecutions in 2001. Since its establishment the DSO has undertaken a number of high profile investigations some of which have involved prominent members of the African National Congress (ANC). The
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applicant sets out in his founding affidavit what he terms an extremely successful record in combating organised crime. He proceeds to set out the conviction rate achieved by the Scorpions as follows:
For the period 2004/2005 the conviction rate was 88%; for the period 2005/2005 the conviction rate was 82%; for the period 2006/2007 the conviction rate was 85%; and for the period 2007/2008 the conviction rate was similarly 85%.
The number of investigations finalised by the Scorpions for the period 2004/2005 was 325; for the period 2005/2006 the number of investigations finalised was 318; for the period 2006/2007 the number was 267; and for the period 2007/2008 the number of investigations finalised was 122.
In as far as the number of successful prosecutions is concerned, the applicant sets out the following success record: for the period 2004/2005 the number was 234; for the period 2005/2006 the number was 243; for the period 2006/2007 the number was 214; and for the period 2007/2008 the number was 122 [3] .
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The applicant goes on to record that the former President recognised that organised crime presented a threat to national security, and that the DSO had been effective in dealing with organised crime as is evident in a letter by the former President addressed to the National Director of Public Prosecutions, Advocate Vusi Pikoli, dated 23 September 2007.
[9] Of a number of high profile investigations undertaken by DSO the applicant mentions high profile investigations involving Members of Parliament and of various political parties including the ANC in the so-called "Travelgate" matter. With regards to the so-called "Travelgate" matter the applicant refers to...
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