South African Association of Personal Injury Lawyers v Heath and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokogoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga AJ
• Judgment Date: 28 November 2000
• Citation: 2001 (1) SA 883 (CC)
• Docket Number: CCT 27/00
• Hearing Date: 07 September 2000
• Counsel: W H Trengove SC (with M Chaskalson) for the appellant. No appearance for the first and second respondents. G J Marsuc SC (with A P H Cockrell and S M Lebala) for the third and fourth respondents.
• Court: Constitutional Court

Chaskalson P:

Introduction H

[1] The Special Investigating Units and Special Tribunals Act [1] (the Act) came into force in November 1996. According to the long title of the Act, its purpose is:

'To provide for the establishment of Special Investigating Units I for the purpose of investigating serious malpractices or maladministration in connection with the administration of State institutions, State assets and public money as well as any conduct which may seriously harm the interests of the public, and for

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the establishment of Special Tribunals so as to adjudicate upon civil A matters emanating from investigations by Special Investigating Units; and to provide for matters incidental thereto.'

[2] This appeal concerns the constitutionality of important provisions of the Act and of two proclamations issued by the President pursuant to its provisions. It reflects a tension that often exists B between the need on the part of government to confront threats to the democratic State and the obligation on it to do so in a manner that respects the values of the Constitution.

[3] The tension is evident in the affidavit of the Minister of Justice, the fourth respondent in the application, who said: C

'It is a regrettable and notorious fact that the levels of crime in South Africa are unacceptably high. One aspect of crime which requires special investigative measures relates to corruption and unlawful conduct involving State institutions, State property and public money. Very often, such conduct is perpetrated by public servants and State officials. The experience of other countries suggests that the investigation of conduct of this nature requires D special measures beyond the routine investigations conducted by conventional law enforcement agencies.'

[4] Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and E freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic State. There can be no quarrel with the purpose sought to be achieved by the Act or the importance of that purpose. That purpose must, however, be F pursued in accordance with the provisions of the Constitution. The appeal in the present case depends upon whether this has been done.

The background

[5] In March 1997 the President, acting under the provisions of the G Act, established a Special Investigating Unit (SIU), which is the second respondent in this appeal. The head of the SIU is the first respondent, who is a Judge of the High Court. I will deal later with the role of the head of the SIU and with the powers vested in the SIU by the Act. For the moment it is sufficient to say that the SIU has extensive powers, including powers to investigate allegations of corruption, maladministration and unlawful or improper conduct which is H damaging to State institutions, or which may cause serious harm to the interests of the public or any category thereof and to take proceedings to recover losses that the State may have suffered in consequence thereof.

[6] On 26 March 1999 an allegation was referred to the I second respondent for investigation in terms of the Act. The allegation was that there had been

'a failure by attorneys, acting on behalf of any person with regard to a claim for compensation from the Road Accident Fund, to pay over to such persons the total nett amount received in respect of compensation from the Road Accident J

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Fund after deduction of a reasonable and/or taxed amount in respect of attorney-client costs. . .'. [2] A

[7] The appellant is a voluntary association whose members are attorneys and advocates whose practices involve personal injury litigation. It contends that the investigative powers vested in the second respondent by the Act are highly intrusive, that the B exercise of such powers against any of its attorney members would constitute an invasion of their privacy and would cause irreparable damage to their professional reputation. Although the appellant denies that any of its members has ever acted unlawfully or improperly in connection with amounts received by them on behalf of their clients in respect of compensation from the Road Accident Fund (RAF), it says that C it has ascertained that the SIU is soliciting complaints against some of its members to enable the unit to investigate the way they deal with RAF claims.

[8] It was in these circumstances that the appellant brought proceedings in the Transvaal High Court. It asked for an order declaring certain provisions of the Act to be inconsistent with the D Constitution. Further, the appellant asked for orders reviewing and setting aside the proclamation under which the first respondent was appointed and the proclamation under which allegations concerning personal injury lawyers were referred to the second respondent for investigation. Other relief not relevant to this appeal was also claimed. E

[9] The application was dismissed by Coetzee AJ in the High Court [3] and, with leave granted in terms of Rule 18, the appellant has appealed directly to this Court against that order. The first and second respondents indicated in the High Court that they took a neutral stand in the matter and that they would abide the decision of that Court. They have made no representations to this F Court. The third and fourth respondents opposed the appeal.

The issues

[10] In the High Court the third and fourth respondents (the G respondents) raised a number of preliminary issues. They disputed the standing of the appellant to claim the relief sought by it and they contended that the application was premature. They also contended that the appellant lacked the capacity to litigate because it had more than 20 members, was an association formed for the purpose of carrying on a business for the acquisition of gain by its members, and in H contravention of the Companies Act 61 of 1973 [4] was not registered as a company under that Act. The preliminary objections were dismissed by Coetzee AJ. [5] Although the respondents raised the issues again in its written argument before this Court, we were informed at the hearing of the appeal that it no longer

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relied on these contentions and that it abandoned them. In the circumstances there is no need to say anything A more about this.

[11] Three separate issues are raised by the appellant in the appeal. It contends that:

(a)

s 3(1) of the Act and the appointment of the first respondent [6] as head of the SIU are inconsistent B with the Constitution because they undermine the independence of the Judiciary and the separation of powers that the Constitution requires;

(b)

the Proclamation referring the allegation concerning the conduct of attorneys dealing with RAF claims [7] was in any event beyond the scope of the Act and accordingly invalid; and C

(c)

the powers of search vested in the second respondent by the Act are contrary to the right to privacy which everyone has under s 14 of the Constitution and are accordingly invalid.

Before considering these contentions it will be convenient to set out the scheme of the Act and the provisions relevant to this appeal. D

The scheme and relevant provisions of the Act

[12] The President is empowered by the Act [8] to establish an SIU for the purpose of investigating allegations of maladministration or unlawful or improper conduct on any of the grounds specified in s 2(2) of the Act. The grounds referred to in ss (2) are any alleged E

'(a)

serious maladministration in connection with the affairs of any State institution;

(b)

improper or unlawful conduct by employees of any State institution;

(c)

unlawful appropriation or expenditure of public money or property; F

(d)

unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing upon State property;

(e)

intentional or negligent loss of public money or damage to public property;

(f)

corruption in connection with the affairs of any State institution; or

(g)

unlawful or improper conduct by any person which has caused or may cause serious harm to the interests of the public or any category thereof'. G

[13] Section 3(1) of the Act provides that the President must appoint a Judge or an Acting Judge of a High Court as head of the SIU. The head of the SIU appoints the staff of the unit which consists of 'as many . . . fit and proper persons' as in the opinion of the head of the unit are necessary for its effective functioning. [9] The SIU has extensive powers of H

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investigation, including the power to summon and interrogate persons A and to conduct searches for evidence that may be relevant to its investigations.

[14] If the SIU obtains evidence 'substantiating any allegation contemplated in s 2(2)' it may institute civil proceedings in respect of such matters in a Special Tribunal (ST) [10] B established in terms of the Act to deal with such matters.

[15] The Act vests the ST with jurisdiction to adjudicate upon any civil dispute emanating from the SIU's investigations and brought before it by the SIU. The ST may make any order which it deems appropriate to give effect to its decision. The ST functions in the same way as a court according to rules made by its President. C

The role of the first respondent as head of the SIU

[16] The SIU is a juristic person. [11] According to Mr Rheeder, who describes himself as the manager of a team D of investigators and the person in charge of the investigation...