CASE NO: CCT07/2014 In the matter between:
THE HELEN SUZMAN FOUNDATION Applicant
and
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA First Respondent MINISTER OF POLICE Second Respondent
HEAD OF THE DIRECTORATE FOR PRIORITY CRIME
INVESTIGATION Third Respondent
GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA Fourth Respondent
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.
(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.
(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) The legislation under scrutiny constitutes, firstly, an attempt to align the provisions relating to the Directorate with the judgment of this Court in Glenister 2; and secondly, an attempt to amend the provisions of the South African Police Service Act, as it existed during Glenister 2, in order to ensure that the Directorate has the necessary operational independence to fulfil its mandate without undue influence.
(ii) To this end the two foci of the criticism in Glenister 2 have been fully addressed. The main reason that this Court found that the Directorate previously failed to afford the Directorate an adequate measure of autonomy was that the Directorate was insufficiently
insulated from political influence in its structure and functioning.
The Court also rested its conclusion on the conditions of service that pertained to members and in particular its head, which made it vulnerable to an undue measure of political influence.
(iii) The first criticism was precipitated by the powers of the Ministerial Committee under s17I of the Act. The Committee was authorised to determine policy guidelines in respect of the functioning of the Directorate; and it was required to oversee the functioning of the Directorate. The first power was untrammelled. The second power allowed the Committee to oversee the Directorate when of necessity its members were part of the operational field within which the Directorate was supposed to function.
(iv) Those powers have been removed. Under the present dispensation the Committee’s power is limited to coordinating activities of the Directorate and other relevant Government departments or institutions.
(v) The second criticism in Glenister 2 was derived from the fact that the Directorate enjoyed no specially entrenched employment security. Members were in the same position as other members
of the Force with regards their appointment (which was not sufficiently shielded from political influence), and dismissal. The terms of office were renewable. Statutorily secured remuneration levels were absent.
(vi) Presently appointment is regulated by various criteria, (including fit and proper) as jurisdictional facts, the objective existence of which are a prelude to the appointment of the Heads of the Directorate. Renewable terms of office for the Heads no longer exist. Dismissal of the Head is subject to objectively verifiable criteria, which may be applied by the Minister (subject to a prior judicial enquiry) or by the National Assembly (subject to a two thirds majority vote). Remuneration levels of the Heads are entrenched with reference to salary levels of Police Commissioners. The scales must be submitted to Parliament for approval. Regulations involving remuneration, allowances and other conditions of service of members are not merely regulated by the Minister but also require submission to Parliament for approval.
(vii) Furthermore, the Directorate is established by s17D(1)(aA) as a dedicated anti-corruption unit which is required to investigate
corruption as defined in PRECCA. Such policy as the Minister may make under Chapter 6A of the SAPS Act does not involve this mandate.
(viii) If, as we submit, the two grounds of criticism have been addressed it follows that the applicant’s criticism must either relate to provisions that this Court overlooked, or that the State was hoisted by the petard of the very provisions it introduced to establish an independent Directorate. That is not the case.
(ix) Of the sections declared to be invalid, s17A is a definition section.
Sub-sections 17CA(8), (9), (10), (11), (12), (13), (17), (18), (19), (20), (21), (22) and 17K(4) to (9) were not considered in the judgment. Section 16 deals with national priority offences rather than corruption as defined. Sub-section 16(3) and (4) reinforce the mandate of the Directorate and do not create inhibitions on effective anti-corruption activities. Section 17CA(1) establishes jurisdictional facts for the appointment of the Heads which preclude undue influence. Appointments are for fixed non- renewable periods. Section 17CA(3) creates a check and balance on appointment of the Heads in that the Minister is obliged to report to Parliament. Section 17D establishes the
Directorate as a dedicated anti-corruption unit and limits the power of the Minister to make policy over the selection by the Head of corruption offences for investigation by the Directorate.
Section 17DA entrenches objective criteria for the removal of the Head and a system of checks and balance on the Executive by Parliament in that regard. Section 17H ensures that the Directorate has access to funds reasonably required to enable it to perform its functions i.e. it ensures financial independence when read with ss17K(2) to (2B).
(x) Of the challenged sections not declared invalid, s17E(8) was part of the previous dispensation and has never been criticised by this Court. Regulations on the conditions of service of members in term of s17G must be submitted to Parliament for approval in terms of s17CA(18). The present s17I is presently entirely innocuous. Sections 17K(1) requires a Parliamentary check on the functioning of the Directorate.
(xi) Therefore none of the impugned sections leave open any inhibitions on effective anti-corruption activities or threaten imminently to stifle the independent functioning and operations of the Directorate.
(g) Authorities on which particular reliance will be placed
1. Glenister v President of the RSA 2011 (3) SA 347 CC
2. Van Rooyen & Others v The State & Others (General Council of the Bar of South Africa intervening) 2005 (5) SA 246 CC
3. DA v President of RSA 2012 (1) SA 417 SCA
4. DA v President of the RSA 2013 (1) SA 248 CC
______________________
MICHAEL DONEN SC
______________________
THABANI MASUKU
______________________
HERMIONE CRONJE Counsel for Respondents Chambers
CAPE TOWN 4 APRIL 2014
