CCT CASE NO: 07/2014 In the matter between:
HELEN SUZMAN FOUNDATION Applicant
and
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA First Respondent
MINISTER OF POLICE Second Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Third Respondent NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Fourth Respondent
GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA Fifth Respondent
FIRST RESPONDENT’S PRACTICE NOTE IN TERMS OF CLAUSE 5 OF THE PRACTICE DIRECTION OF 17 MAY 2010
(a) Name and number of matter
The names of the parties and number of the case appear above.
(Please note that the differences in content from the other Respondents have been put in bold for the convenience of the reader).
(b) Nature of proceedings
The applicant seeks confirmation of the declaration of invalidity by the Western Cape Division of the High Court of ss16, 17A, 17CA, 17D, 17DA and 17K(4) to (9) of the South African Police Service Act (“the SAPS Act”), in terms of Rule 16(4). Furthermore, in terms of Rule 19, the applicant seeks leave to appeal the High Court’s failure to declare unconstitutional and invalid sections 17E(8), 17G, 17H, 17I, and 17K(1) to (2B) of the Act, to the extent that they fail to secure an adequate degree of independence for the Directorate for Priority Crime Investigation (“the Directorate”).
(c) The issues that will be argued
Whether the provisions of the SAPS Act, as amended by the South African Police Service Amendment Act 2012, have remedied the constitutional defects identified in the SAPS Act by this Court in
Glenister v President of RSA 2011 (3) SA 347; and whether the individual sections referred to above, fail to secure an adequate degree of structural and operational independence for the Directorate as determined by this Court. In particular it will be argued on behalf of the First Respondent that the GLENISTER decision provides no basis for an attack on individual Sections of the Amendment given the premises of that decision. The striking down of the individual Sections thus does not accord with the GLENISTER approach and trenches on the Separation of Powers doctrine.
(d) Relevant portions of the record
In the opinion of counsel only the judgment of the Court a quo, the applicant’s application for confirmation of the High Court’s order, the applicant’s application for leave to appeal, respondents’ reply thereto and respondents’ notice of appeal, as well as the parties’
heads of argument are necessary for the determination of the matter.
(e) Duration of oral argument One day.
(f) SUMMARY OF ARGUMENT
(i) GLENISTER is premised on the Government’s failure to establish a specialised anti-corruption entity. Chapter 6 of the SAPS Act (in the structure and operation of the DPCI) fell substantially short of creating a specialised agency with adequate independence so as to safeguard against improper Government control and manipulation.
(ii) A roundabouts and swings assessment revealed significant deficiencies not sufficiently ameliorated by some features advancing independence. The main yardsticks of the repealed DSO legislation (and the provisions governing the NPA), indicated lack of security of tenure of the DPCI main officials and ready government control via policy guidelines with Parliament having insufficient direct active participation as a matter of structure, to save the legislation.
(iii) The specific concerns voiced in GLENISTER were carefully considered and addressed in the 2012 Amendment. On an overall analysis this bestowed adequate independence. How the legislature balances Executive control and accountability for the conduct of
the DPCI, with the demands of independence, is a policy issue within its province.
(iv) If there is a substantial failure to accord independence, there is indeed no compliance and nothing for the legislature and the Executive to defend as their province.
(v) This overall basis was not how the Applicant(s) approached it or how the Court a quo answered the challenge to Constitutionality.
(vi) Such conclusion of wholly substantial failure to accord independence, is not realistic given the specific responsive Amendments made. A section by section striking down does not fit a failure to comply with an overarching constitutional obligation to create an end result. It in effect closes off policy choices and becomes a blue print for legislation.
(g) Authorities on which particular reliance will be placed
1. MASETLHA v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER 2008 (1) SA 566 (CC)
2. GLENISTER v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 2011 (3) SA 347 (CC)
3. SOUTH AFRICAN ASSOCIATION OF PERSONAL INJURY LAWYERS v HEATH AND OTHERS 2001 (1) SA 883 (CC)
4. VAN ROOYEN AND OTHERS v THE STATE AND OTHERS (GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA INTERVENING) 2002 (5) SA 246 (CC)
5. MAZIBUKO AND OTHERS v CITY OF JOHANNESBURG AND OTHERS 2010 (4) SA 1 (CC).
KJ KEMP SC T MASUKU
Chambers, Durban and Cape Town 13th April 2014.
