CASE NO: CCT09/2014 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 THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Fourth Respondent GOVERNMENT OF THE REPUBLIC OF SOUTH
AFRICA Fifth Respondent
RESPONDENTS’ 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.
(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
(i) 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 342 CC (“Glenister II”);
(ii) 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;
(iii) 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) The issue is not whether the Directorate has full independence, but whether it has an adequate level of structural and operational autonomy, secured through institutional and legal mechanisms, to prevent undue interference. What is required is not insulation from political accountability, but only insulation from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the Directorate. The legislation should not leave open inhibitions on effective anti-corruption activities.
(ii) Criticism of Chapter 6A, as it existed at that time, in Glenister II had two foci. Firstly, the Court found that the
legislation failed to afford the Directorate an adequate measure of autonomy because it was insufficiently insulated from political influence in its structure and functioning.
Secondly, the Court 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 vast powers of a Ministerial Committee under s17I of the Act. This committee was authorised to determine policy guidelines in respect of the functioning of the Directorate; and it was also required to oversee the functioning of the Directorate. The first- mentioned power was untrammeled and allowed the Committee to specify categories of the offences that it was not appropriate for the Directorate to investigate, or categories of political office bearers whom the Directorate was prohibited from investigating. 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.
Under the present dispensation those powers no longer exist. The Committee’s power is limited to coordinating activities of the Directorate and other relevant Government department and institutions.
(iv) The second criticism by this Court was derived from the fact that members of the Directorate enjoyed no specially
entrenched employment security. They were in the same position as other members of the Force with regards to their appointment and dismissal. They were not sufficiently shielded from political influence. Terms of office were renewable. Statutorily secured remuneration levels were absent. 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. Non-renewal fixed terms of office for the Heads apply. 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 third’s majority). 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 also require submission to Parliament for approval.
(v) Furthermore, the Directorate is established by s17D(1)(aA) as a dedicated anti-corruption unit which must investigate corrupt activities as defined in PRECCA. Such policy as the
Minister may make under Chapter 6A does not relate to this mandate.
(vi) If, as we submit, the two grounds of criticism have been addressed, it follows that the applicant’s criticism must relate to phenomena that this Court overlooked or that the State has been hoisted by the petard of provisions it introduced to establish a more independent Directorate.
(vii) This Court found that the creation of a separate corruption fighting unit within the SAPS was not unconstitutional and that the legislation, as it existed, could not be invalidated on that ground alone (paragraph 162). The legislation was therefore invalidated on the other grounds referred to above.
The applicant does not accept this situation.
(viii) Applicant argues that because s207(2) of the Constitution provides that the National Commissioner has management and control over the service, and must report to the Minister, it is impossible without a constitutional amendment to that section to create a structure in which the Directorate can function within the service with the necessary degree of independence required by Glenister II. The applicant
misconceives the meaning of the relevant provisions of the Constitution and the judgment of this Court.
(ix) The prevention, combating and investigation of corruption constitute policing under the Constitution (s205(3)).
Constitutionally, the Minister of Police is responsible for policing and must determine policing policy (s206(1)). The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and directions of the Minister (s207(2)). This management and control is therefore not absolute, but subject to policy – of which the impugned legislation is part – as well as Ministerial direction. Responsibility by the Minister and qualified management and control by the Commissioner over the Directorate are therefore constitutionally endorsed.
When Chapter 6A of the SAPS Act, as it currently exists, is properly analysed no undue influence of the Directorate by the Minister or the Commissioner is possible. Amenability to such influence is the touchstone for the necessary independence for the Directorate and the validity of the impugned legislation.
(g) LIST OF AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED
1. Glenister v President of the RSA 2011 (3) SA 347 CC
2. Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC)
______________________
MICHAEL DONEN SC
______________________
THABANI MASUKU
______________________
HERMIONE CRONJE Counsel for Respondents Chambers
CAPE TOWN 4 APRIL 2014
