CCT CASE NO: 09/2014 In the matter between:
HUGH GLENISTER 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 case number are set out in the heading 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 leave to appeal against a judgment of the Western Cape High Court declaring ss 16, 17A, 17CA, 17D, 17DA and 17K(4) to (9) contained in Chapter 6A of the South African Police Service Act (“the SAPS Act”), as amended by the South African Police Service Amendment Act No.10 of 2012 (“the 2012 Amendment Act”) to be inconsistent with the Constitution and invalid to the extent that they failed to secure an adequate degree of independence for the Directorate for Priority Crime Investigation (“the Directorate”). The applicant alleges that this judgment does not go far enough and that Chapter 6A as a whole should be declared invalid. The application for leave to appeal is set down to be heard on the same day as a similar application brought by the
Helen Suzman Foundation and the confirmation hearing following upon the order in the Court a quo.
(c) The issues that will be argued
Whether the dispensation under the 2012 Amendment Act remedied the defects in Chapter 6A of the SAPS Act that were identified in the majority judgment in Glenister v President of the RSA & Others; Helen Suzman Foundation as amicus curiae 2011 (3) SA 347 CC (“GLENISTER”). 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.
(i) Whether or not the entire scheme, providing for the establishment of the Directorate and introduced by the 2012 Amendment Act, is invalid and inconsistent with the Constitution for want of securing the necessary
independence of the Directorate and its freedom from executive control;
(ii) Whether one or more of the provisions of the SAPS Act mentioned in (b) above and ss17G, 17H, 17I and 17K(1) to (2B) thereof are unconstitutional and whether individually or collectively they fail to secure the necessary independence and freedom from executive control required for an effective anti-corruption entity.
(d) Portions of the record necessary for determination of the matter
The constitutionality of the impugned provisions could be decided by reference only to the judgment of the Court a quo, the applicant’s application for leave to appeal and respondents’
answer, respondents’ notice of appeal and the parties’ heads of argument. However, an order by the High Court that part of the applicant’s papers be struck out, and a further costs order, are also in issue. These necessarily involve consideration of the affidavits and annexures contained in the record, more particularly those that were struck out.
(e) Estimate of duration of oral argument
This matter is capable of being completed in 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.
(i) The strike out application was fully justified and that order and the costs order should not be altered.
(g) LIST OF AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED
1. GLENISTER v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 2011 (3) SA 347 (CC)
2. MASETLHA v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER 2008 (1) SA 566 (CC)
3. MAZIBUKO AND OTHERS v CITY OF JOHANNESBURG AND OTHERS 2010 (4) SA 1 (CC)
4. SOUTH AFRICAN ASSOCIATION OF PERSONAL INJURY LAWYERS v HEATH AND OTHERS 2001 (1) SA 883 (CC)
5. VAN ROOYEN AND OTHERS v THE STATE AND OTHERS (GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA INTERVENING) 2002 (5) SA 246 (CC)
KJ KEMP SC T MASUKU
Chambers, Durban and Cape Town 13th April 2014.
