Ntlemeza v Helen Suzman Foundation and Another

• Jurisdiction: South Africa
• Citation: 2017 (5) SA 402 (SCA)

Ntlemeza v Helen Suzman Foundation and Another
2017 (5) SA 402 (SCA)

2017 (5) SA p402

Citation	2017 (5) SA 402 (SCA)
Case No	402/2017; [2017] ZASCA 93
Court	Supreme Court of Appeal
Judge	Navsa JA, Ponnan JA, Majiedt JA, Dambuza JA and Mathopo JA
Heard	June 9, 2017
Judgment	June 9, 2017
Counsel	N Dukada SC (with Z Madlanga) for the applicant.; D Unterhalter SC (with C Steinberg) for the respondents.

Flynote : Sleutelwoorde

Appeal — Execution — Application to execute pending appeal — May precede lodging of appeal — Dismissal of application for leave to appeal not removing jurisdictional underpinning for execution order — Superior Courts Act C 10 of 2013, s 18(1).

Headnote : Kopnota

Section 18 of the Superior Courts Act 10 of 2013 regulates the suspension of decisions pending appeal. Final judgments are suspended (s 18(1)) while interlocutory judgments remain operational (s 18(2)), but in both cases the court may order differently if certain requirements are met (s 18(3)). D The present appeal was against an execution order made by a three-judge High Court in a review application by the appellant (General Ntlemeza). The High Court ruled that its order setting aside the appointment of General Ntlemeza as head of the Directorate for Priority Crime Investigation (the Hawks) on the ground of unfitness (the principal order) would E continue to be operational and be executed in full during the appeal process (the execution order). In the present appeal against the execution order General Ntlemeza argued in a jurisdictional point that the respondents' application for execution was prematurely granted because at the time there was no appeal pending against the principal order, and that this point was dispositive of the appeal. It was common cause that if the jurisdictional F point were unfounded, the next issue was whether the court had due regard to the requirements of s 18(1) when it granted the order to execute.

Held

As to the jurisdictional point: The purpose of s 18(1) was to reiterate the common-law position on the ordinary effect of the appeal process — the suspension of the order being appealed — and not to nullify it (see [28]). G This appeared from its wording: s 18(1) did not say that the court's power to reverse the automatic suspension of a decision was dependent on the decision being subject to an application for leave to appeal or an appeal, but that, unless the court ordered otherwise, such a decision was automatically suspended (see [29]). Moreover, the High Court's execution order reasonably anticipated the inevitable further appeal processes, thereby avoiding an undesirable multiplicity of actions (see [31] – [32]). There was thus no merit H in the jurisdictional point (see [32]).

As to compliance with s 18(1): The High Court could not be faulted in its finding that the respondents proved exceptional circumstances in the sense intended in s 18(1) and the public, not General Ntlemeza, would suffer irreparable harm if the order were not granted (see [45] – [47]). The reputation of the Hawks, the foremost corruption- and crime-fighting unit in I South Africa, was a matter of great importance, and correctly held by the High Court to constitute an exceptional circumstance (see [45]). Appeal dismissed with costs against the appellant personally (see [50] – [51]).

Cases cited

Copthall Stores Ltd v Willoughby's Consolidated Co Ltd (1) 1913 AD 305: J dictum at 308 applied

2017 (5) SA p403

Democratic Alliance v President of the Republic of South Africa and Others A 2013 (1) SA 248 (CC) (2012 (12) BCLR 1297; [2012] ZACC 24): discussed

Fismer v Thornton 1929 AD 17: referred to

Helen Suzman Foundation and Another v Minister of Police and Others GP 23199/16: confirmed on appeal

Incubeta Holdings (Pty) Ltd and Another v Ellis and Another B 2014 (3) SA 189 (GJ): dictum in para [16] applied

Minister of Social Development Western Cape and Others v Justice Alliance of South Africa and Another WCC 20806/13: distinguished

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) ([1996] ZASCA 2): referred to

MV Ais Mamas: Seatrans Maritime v Owners, MV Ais Mamas, and Another C 2002 (6) SA 150 (C): dictum at 156I – 157C applied

Nova Property Group Holdings Ltd and Others v Cobbett and Another 2016 (4) SA 317 (SCA) ([2016] ZASCA 63): referred to

Philani-Ma-Afrika and Others v Mailula and Others 2010 (2) SA 573 (SCA) ([2009] ZASCA 115): compared

S v Western Areas Ltd and Others 2005 (5) SA 214 (SCA) (2005 (1) SACR 441; D [2005] ZASCA 31): referred to

Sibiya v Minister of Police and Others [2015] ZAGPPHC 135: discussed

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A): applied

University of the Free State v Afriforum and Another [2017] 1 All SA 79 (SCA) ([2016] ZASCA 165): distinguished. E

Legislation cited

The Superior Courts Acts 10 of 2013, s 18(1): see Juta's Statutes of South Africa 2016/17 vol 1 at 2-266.

Case Information

N Dukada SC (with Z Madlanga) for the applicant. F

D Unterhalter SC (with C Steinberg) for the respondents.

An appeal against a decision of the Pretoria High Court in which it directed that its principal order be put into operation pending appeal.

Order G

1.

The appeal is dismissed with costs, including the costs of two counsel.

2.

The appellant is ordered to pay the costs personally.

Judgment

Navsa JA (Ponnan JA, Majiedt JA, Dambuza JA and Mathopo JA concurring):

[1] This appeal is concerned with whether the appellant, Lieutenant General Mthandazo Berning Ntlemeza (General Ntlemeza), ought to be permitted to continue in his post as national head of the Directorate for I Priority Crime Investigation (DPCI), pending the finalisation of an application for leave to appeal filed in this court. It might appear strange and perhaps even confusing that there are two parallel processes being conducted in an appeal court in one case, but that is on account of the provisions of s 18 of the Superior Courts Act 10 of 2013, which gives an aggrieved party an automatic right of appeal 'to the next highest court' J

2017 (5) SA p404

Navsa JA

against A a decision of the High Court ordering the execution of an earlier ruling issued by it, pending the finalisation of an appeal or an application for leave to appeal. The background culminating in the present appeal appears hereafter.

[2] General Ntlemeza was appointed national head of the DPCI on B 10 September 2015 by the erstwhile Minister of Police, Mr Nkosinathi Phiwayinkosi Thamsanqa Nhleko. [1] Before his aforesaid permanent appointment, General Ntlemeza had served as acting national head of the DPCI [2] for a period of approximately one year.

[3] At this early stage it is necessary to locate the DPCI in its constitutional C and statutory setting. The South African Police Service Act 68 of 1995 (the Act), in terms of which the DPCI was established, has its genesis in s 205 of the Constitution, which provides that the National Police Service must be structured to function in the national, provincial and, where appropriate, local spheres of government. Section 205(2) of the Constitution provides:

'(2) D National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.'

Section E 205(3) sets out the objects of the police service, which are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of our country and their property and to uphold and enforce the law. The political responsibility for the South African Police Service, in terms of s 206 of the Constitution, vests in the Minister of Police. Moreover, the Minister is, in terms of that section, F responsible for determining the national policing policy.

[4] The DPCI was established in terms of s 17C of the Act, which is in part the legislation contemplated by the Constitution. The material part of s 17C reads as follows:

'(1) The Directorate for Priority Crime Investigation is hereby G established as a Directorate in the Service.

(1A) The Directorate comprises —

(a)

the Office of the National Head of the Directorate at national level; and

(b)

the Office of the Provincial Directorate in each province.

(2) The Directorate consists of —

(a)

the National Head of the Directorate at national level, who shall manage and direct H the Directorate and who shall be appointed by the Minister in concurrence with Cabinet; . . . .'

For present purposes we need not concern ourselves with the other personnel that comprise the directorate. The DPCI's functions are set out I as follows in s 17D of the Act:

2017 (5) SA p405

Navsa JA

'(1) The functions of the Directorate are to prevent, combat and A investigate —

(a)

national priority offences, which in the opinion of the National Head of the Directorate need to be addressed by the Directorate . . .

(aA)

selected offences not limited to offences referred to in Chapter 2 and section 34 of the Prevention and Combating of Corrupt B Activities Act 12 of 2004 . . . .'

As can be seen from all of the above, the national head of the DPCI occupies a pivotal position within the statutory scheme.

[5] General Ntlemeza's appointment as national head of the DPCI by Minister Nhleko was purportedly effected in terms of s 17CA(1) of the C Act, read with s 17C(2)(a). Section 17CA(1) reads:

'(1) The Minister, with the concurrence of Cabinet, shall appoint a person who is —

(a)

a South African citizen; and

(b)

a fit and proper person, D

with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the...