Glenister v President of the Republic of South Africa and Others (14386/2008) [2008] ZAGPHC 143 (28 May 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 28/05/2008

Case No: 14386/2008

UNREPORTABLE

In the matter between:

HUGH GLENISTER APPLICANT

And

THE PRESIDENT OF THE REPUBLIC

OF SOUTH AFRICA 1ST RESPONDENT

THE MINISTER OF SAFETY & SECURITY 2ND RESPONDENT

THE MINISTER OF JUSTICE &

CONSTITUTIONAL DEVELOPMENT 3RD RESPONDENT

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS 4TH RESPONDENT

THE HEAD OF THE DIRECTORATE

OF SPECIAL OPERATIONS 5TH RESPONDENT

THE SPEAKER OF THE NATIONAL

ASSEMBLY 6TH RESPONDENT

THE CHAIRPERSON OF THE NATIONAL

COUNCIL OF PROVINCES 7TH RESPONDENT

And as amicii curiae:

THE AFRICAN CHRISTIAN DEMOCRATIC PARTY

THE DEMOCRATIC ALLIANCE

THE INDEPENDENT DEMOCRATS

THE UNITED DEMOCRATIC FRONT

THE INKATHA FREEDOM PARTY

JUDGMENT

VAN DER MERWE, J

This matter comes before me as a matter of urgency. The papers are voluminous. The legal questions involved are fairly difficult. It is a matter of great importance for various reasons. I would have preferred to have had more time to formulate this judgment. In the interest of justice I decided to give this judgment as soon as possible.

On 18 March 2008 the applicant launched an application against the president of the Republic of South African (first respondent), and the six other respondents referred to in the heading of this judgment in terms of which he claims the following relief:

“A2. Interdicting and restraining the first, second and third respondents from initiating legislation that seeks to disestablish the Directorate of Special Operations established in terms of section 7(1)(a) of the National Prosecuting Authority Act 32 of 1998;

A3. Ordering the first, second and third respondents to pay the costs of this application on a joint and several basis;”

In the alternative:

“B2. Interdicting and restraining the first, second and third respondents from initiating legislation that seeks to disestablish the Directorate of Special Operations established in terms of section 7(1)(a) of the National Prosecuting Authority Act 32 of 1998, pending the final determination of the application alternatively the action as envisaged in paragraph B3 below;

B3 Directing the applicant to institute an application alternatively an action against the respondents within 30 days of the grant of this order for final relief as set forth in paragraph A2 above;

B4. Directing that the costs of this application be costs in the cause of the application or the action as envisaged in paragraph B3 above;”

At present only the second and third respondents oppose the application. All the other respondents will abide the decision of this court. The fourth respondent filed an affidavit (supported by the fifth respondent) in which he sets out facts “in order to assist the court in reaching a just decision”.

The African Christian Democratic Party, the Democratic Alliance, the Independent Democrats, the United Democratic Movement and the Inkatha Freedom Party (the political parties) applied in terms of rule 16A of the Uniform Rules of Court for:

1. Leave to be admitted in the proceedings as amicii curiae;

2. Leave to lodge written argument; and

3. Leave to present oral argument provided that such argument does not repeat matter set forth in the argument of the other parties.

The political parties also sought condonation for not complying with the time limits in rule 16A.

The applicant consented to the political party’s admission as amicii curiae. The second and third respondents opposed the political party’s application.

Condonation and the other relief sought by the political parties were granted. At the time I said that the reasons for the granting of these orders would be given at the appropriate time.

It is not necessary to furnish detailed reasons. In my judgment the political parties had shown that they indeed have an interest in the outcome of this application, that their submissions would be relevant and could assist me in coming to a just conclusion. In my judgment the political parties’ application was well founded and the orders sought were therefore granted.

This application concerns the Directorate of Special Operations (DSO), also known as “the Scorpions”, which was established in terms of section 7(1) of the National Prosecuting Authority Act, 32 of 1998 (the NPA Act) with the aim to:

“(i) investigate, and to carry out any functions incidental to investigations;

(ii) gather, keep and analyse information; and

(iii) where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings,

relating to –

(aa) offences or any criminal or unlawful activities committed in an organised fashion; or

(bb) such other offences or categories of offences as determined by the President by proclamation in the Gazette.”

It is common cause that the DSO was established “to deal with all national priority climes, including police corruption” and that it would supplement the efforts of existing law enforcement agencies in fighting national priority climes”. It was said that the DSO “will have a unique function and will face extraordinary challenges in executing their duties” and that therefore the “most talented corps of personnel available” and “people with experience and high levels of technical skill” would be recruited. It was foreseen that the DSO would function as “a specialist unit that must be able to take on and deal with increasingly sophisticated levels of criminality” and that the personnel would include chemists, forensic auditors, computer specialists and would undertake prosecution-led and intelligence driven investigations.

The DSO eventually came into being on 12 January 2001.

It is furthermore common cause that the DSO has been extremely successful in combatting crime and that it has been involved in a number of high profile investigations involving prominent leaders and members of the ruling political party, the African National Congress (ANC). I do not find it necessary to again mention the names of the various individuals that were and are being investigated.

On 1 April 2005 the first respondent, acting in terms of section 84(2)(f) of the Constitution of the Republic of South Arica, 1996 (Act 108 of 1996) (the Constitution) appointed the honourable justice SV Khampepe as chairperson of a commission of enquiry into the mandate and location of the DSO on the following terms of reference:

“1. The Commission shall inquire into, make findings, report on and make recommendations concerning the following, taking into consideration the Constitution and relevant legislation, policies and guidelines:

(a) The rationale behind the establishment of the DSO and its location;

(b) The mandate of the DSO and an evaluation of the implementation thereof;

(c) The systems for management, control, communication, oversight and accountability by the DSO;

(d) The accountability, effectiveness, efficiency and oversight in respect of the intelligence operations of the DSO;

(e) The Constitutional and legislative mandates of the South African Police Service (SAPS) and the intelligence agencies, with particular reference to their roles in respect of organised and high level priority crimes;

(f) The systems for coordination and cooperation between the SAPS and the intelligence agencies on the one hand and the DSO on the other;

(g) The efficacy of coordinating systems that exist between the above structures (DSO and the SAPS), including matters related to (1) the rationalisation of resources; (2) approaches to and standards related to training (3) minimising undue duplication; (4) the coordination of operations; (5) priority setting mechanisms; (6) liaison with foreign law enforcement and intelligence structures and where relevant private sector entities; and (7) the impact of locating investigators and prosecutors within the National prosecuting Authority; and

(h) The need to review the present legislative framework and to make recommendations on; (a) remedial actions, if any, to address deficiencies identified in line with the terms of reference; (b) various options regarding the suitable location of the DSO including the appropriate legislative framework.

2. …

3. …

4. …

5. …”

I will hereinafter refer to the Commission as the Khampepe Commission. The Khampepe Commission’s report was signed on 3 February 2006 and handed to the first respondent. I will hereinafter refer to the report as the Khampepe report. The Khampepe report was released by the first respondent on 5 May 2008.

The applicant relies not only on the findings of the Khampepe Commission but also on the fact that the Khampepe report was referred to the national security counsel who made certain recommendations to cabinet and who, in turn, accepted the Khampepe Commission’s report in principle.

It is common cause that the Khampepe Commission inter alia made the following recommendations:

“RECOMMENDATIONS REGARDING THE LOCATION OF THE DSO

47. Having considered the evidence and the submissions presented to me, as well as my findings I have the following recommendations to make with regard to this term of reference:

47.1 Until such time as there is cogent evidence that the mandate of the Legislature (to create a specialised instrument with limited investigative capacity to prosecute serious criminal or unlawful conduct committed in an organised fashion) is demonstrably fulfilled, I hold the view that it is inconceivable that the Legislature will see it fit to repeal the provisions of the NPA Act that relate to the activities and location of the DSO.

47.2 I am satisfied that the rationale for locating the DSO under the NDPP and the Minister for Justice and Constitutional Development in 2002 still pertains. As already submitted, this was a logical locos where the DSO could be situated since the NPA already had investigative directorates (Independent Directorate: Serious Economic Offences and Independent Directorate: Organised Crime) and because the DSO was to be prosecution led, its concomitant location could only be with the prosecuting authority, which constitutionally, is authorised to institute prosecutions.

47.3 The two institutions, namely the SAPS and the DSO still do not appreciate the legal imperative for co operation. There will therefore be need for decided executive action to compel a realignment of attitudes by these institutions.

47.4 Having considered the totality of the evidence and the law relevant to the terms of reference, it is my considered view, for reasons that have already been comprehensively canvassed, that the DSO should continue to be located within the NPA.

47.5 I have considered the totality of the evidence and argument and am satisfied that the DSO should remain within the NPA but certainly with such adjustments as are recommended in the body of the report including the recommendation relating to the power of the President under section 97(b) of the Constitution to transfer political oversight and responsibility over the law enforcement component of the DSO to the Minister of Safety and Security in order to clear the anomaly already alluded to herein.”

Cabinet had a meeting on 6 December 2006 where the Khampepe report was discussed. The “Statement on the Cabinet meeting of 6 December 2006” was published on the South African Government website on 7 December 2006, part of which reads as follows:

“The meeting reviewed progress in implementing the recommendations of the Khampepe Commission regarding the location of the Directorate of Special Operations (DSO), otherwise known as the Scorpions. The tensions between the South African Police Service (SAPS) and the DSO were noted and the meeting decided that legal instruments must be put in place to ensure greater co ordination between these two agencies. These legal instruments will also outline the roles and responsibilities of the Minister of Safety and Security and the Minister of Justice and Constitutional Development regarding the political oversight over the DSO. Amendments to the legislation in this regard will be tabled before Cabinet in the new year in order to institutionalise the Khampepe Commission recommendations.”

In June 2007 the ANC held its national policy conference. The following draft resolution was inter alia then prepared:

“SINGLE POLICE SERVICE

6. the constitutional imperative that there be a Single Police Service under the command and control of the National Commissioner of the South African Police Service be implemented so that the municipal/metro police, and the Directorate Special Operations (Scorpions) be located within the South African Police Service.

7. The DSO (Scorpions) be a special unit to deal with organised crime within the police.

8. The relevant law be promulgated as a matter of urgency to give effect to the fore going resolution.”

The ANC’s fifty second national conference was held at Polokwane (Polokwane Conference) in December 2007 where inter alia the following resolution (the Polokwane resolution) was taken:

6. The constitutional imperative that there be a Single Police Service should be implemented.

7. The municipal, metro and traffic police, be placed under the command and control of the national Commissioner of the South African Police Service, as a force multiplier.

8. The Directorate of Special Operations (Scorpions) be dissolved.

9. Members of the DSO performing policing functions must fall under the South African Police Services.

10. The relevant legislative changes be effected as a matter of urgency to give effect to the foregoing resolution.”

Following on the Polokwane Conference the Acting National Director of Public Prosecutions, Advocate Mpshe, in a communique during January 2008 to members of the DSO reported as follows:

“A decision has been taken about the Investigative unit of the DSO. As already highly publicized, it has been resolved that this process must be finalized by June 2008. I will be attending this workshop.”

In his state of the nation address on 8 February 2008 the first respondent referred to the recommendations of the Khampepe Commission as follows:

“Informed by the imperative to intensify the offensive against organised crime, as well as the recommendations of the Khampepe Judicial Commission on the functioning and location of the Directorate of Special Operations and continuing reflections on this matter, including the reform of the Criminal Justice System, we shall by the end of March this year, interact with Parliament on legislation and other decisive measures required further to enhance our capacity to fight organised crime.”

Advocate Mpshe’s statement that a decision “had been taken about the investigative unit of the DSO” was confirmed by the Director General of Justice, Mr Menzi Simelane, the deponent to the opposing affidavits, during an interview conducted on 702 Talk Radio during February 2008 where he clearly stated that the DSO would be amalgamated with the SAPS.

The legislative programme for 2008 for the Department for Safety and Security makes it clear that a general law amendment bill would be dealt with as the enabling legislation to effect amendments to the South African Police Service Act, 1995, the NPA Act and possibly other laws as well in dealing with the DSO. In speeches in parliament, the second and third respondents confirmed that there was an intention to dissolve the DSO and to incorporate it in a new amalgamated unit which will be created.

The applicant complains that various members of the ANC’s National Executive Committee have made it clear that government is expected to give effect to the resolutions that were adopted at the Polokwane Conference. It is not necessary for purposes of this judgment to quote the statements made by these members of the National Executive Committee of the ANC. What is of importance though is that it appears that it was said that the first respondent must take “guidelines, mandates and instructions from the ANC” as “there is only one centre of power and that is the highest decision making structure of the ANC”. It was apparently also stated that the President and the Cabinet must account to the National Executive Committee of the ANC “as any other structure of Government does”.

The applicant relies on other similar statements in press reports. It is not necessary to burden this judgment with reference to those reports.

It is the applicant’s case that the disestablishment of the DSO will harm the fight against crime. For this allegation the applicant relies on the outstanding track record of the DSO and the alleged dismal record of the SAPS in their crime fighting activities as highlighted in a number of publications.

It is further the applicant’s case that once legislation to disestablish the DSO is initiated it will bring about the de facto destruction of the DSO, even before the legislation is enacted. This contention is based on statements made by, inter alia, Advocate Mpshe that a vast number of members of the DSO are seeking employment elsewhere.

It is necessary to very briefly refer to certain events after the application was launched.

As stated earlier the application was issued on 18 March 2008. An intention to oppose was filed on behalf of the first, second and third respondents. The remaining respondents filed notices of intention to abide. The first respondent later withdrew his notice of intention to oppose and also filed a notice of intention to abide.

It is the applicant’s case that on or about 14 April 2008 the second and third respondents’ attorneys requested an extension of time within which to file the respondents’ answering affidavit. It appears that the applicant’s attorney was not opposed to an extension of time but requested the second and third respondents’ attorney for an undertaking from the respondents that pending the determination of the application the proposed legislation would not be initiated.

The respondents’ attorney refused to give such an undertaking.

On 17 April 2008 the parties’ legal representatives met with the Acting Deputy Judge President and it was then arranged that the matter would be heard on 20 to 22 May 2008. A timetable was also agreed for the filing of further affidavits. As agreed the respondents filed their answering affidavit on 30 April 2008.

In the answering affidavit the deponent, Mr Simelane, denied that any decision whatsoever was taken to initiate legislation to disestablish the DSO. This answering affidavit was signed on 29 April 2008. The second and third respondents filed confirmatory affidavits which were also signed on 29 April 2008.

In a statement issued by Government Communications regarding the Cabinet meeting of 30 April 2008, it appears that Cabinet, on the date of service of the answering affidavit, namely 30 April 2008, approved the General Law Amendment Bill and the National Prosecuting Authority Bill which were inter alia aimed at relocating the DSO from the NPA to the SAPS. The statement by Government Communications reads as follows:

“The General Law Amendment Bill and National Prosecuting Authority Bill were approved. The Bills are aimed at strengthening country’s capability to fight organised crime and give effect to the decision to relocate the Directorate of Special Operations from the National Prosecuting Authority to the South African Police Service. The Bills will be tabled in Parliament.

The meeting noted that the Khampepe Commission Report will be gazetted and released on the 05 May 2008. The Report laid the basis for the analysis and review of the criminal justice system.”

The applicant expresses his surprise that not only Mr Simelane but also the second and third respondents did not know that the legislation referred to was to be placed before Cabinet on 30 April 2008 when they signed their affidavits on 29 April 2008. It is not necessary for purposes of this judgment to make any finding on this aspect. Having said that, it does come as a surprise to me that all three persons were totally unaware of the decision to be taken by Cabinet the very next day, more so in view of the fact that Adv Msphe states in his affidavit:

“3.1 Over the past four months I have been involved in discussions with representatives of the second and third respondents concerning proposals for the restructuring of the DSO. The proposals in question have been in the form of a series of draft Bills (three in all excluding the most recent one).

3.2 That there have been calls for the ‘disbandment’ or ‘dissolution’ of the DSO from various quarters is a matter of public record. However, until the publication of the most recent Bill a few days ago, the precise nature of the proposals had not been publicly disclosed.

3.3 In the discussions that have taken place over the past four months referred to in paragraph 3.1 above, I have not been permitted to disclose to the members of the DSO, the precise details of the draft Bills, nor was I in a position to convey to them the reasons behind the proposed changes.”

From the second and third respondents’ supplementary affidavit it now appears that the National Prosecuting Authority Amendment Bill was published in Government Gazette number 31037 of 8 May 2008 and that the General Law Amendment Bill was published in Government Gazette number 31016 on 9 May 2008.

As a result of the decision taken by Cabinet on 30 April 2008 and the publication of the two Bills, the applicant applies for an amendment of his notice of motion to include a prayer that the respondents be interdicted from persisting with the passage of legislation.

The aforegoing is a very brief summary of some salient facts in the application.

The respondents suggested that in view of the proposed amendment to the applicant’s notice of motion some other parties may have an interest in the outcome of this application. That argument was not persisted with. I am of the view that the applicant is entitled to the amendment sought.

The respondents filed a supplementary answering affidavit. It was filed at a very late stage and no condonation for the late filing was sought. Mr Unterhalter SC consented to the supplementary affidavit being allowed provisionally.

I am of the view that the supplementary affidavit contains facts relevant to a just decision in this matter and will therefore be admitted.

It is now necessary to consider the legal position and in particular the question whether this court is entitled to entertain this matter and to grant the orders prayed for.

In what is to follow all references to sections are to sections of the Constitution.

Section 1 provides that the Republic of South Africa is one, sovereign democratic state founded on inter alia the supremacy of the Constitution and the Rule of Law. Section 2 in turn provides that “this Constitution is the Supreme Law of the Republic, law or conduct inconsistent with it is invalid, and the obligation imposed by it must be fulfilled”.

Chapter 2 of the Constitution deals with the Bill of Rights. In terms of section 7(2) the state must respect, protect, promote and fulfil the rights in the Bill of Rights. Section 8(1) provides that the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. The applicant complains that the initiation of the proposed legislation to disestablish the DSO or the passage thereof will violate his right to life (section 11), to dignity (section 10), to freedom and security of the person (section 12) and to property (section 25).

In terms of section 85 the executive authority of the Republic is vested in the President. The executive authority is exercised by the President together with the members of the Cabinet by inter alia preparing and initiating legislation. [Section 85(2)(d)]

Section 167(4)(b) provides that “only the Constitutional Court may decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in sections 79 or 121. Section 167(4)(e) in turn provides that only the Constitutional Court may decide that parliament or the President has failed to fulfil a constitutional obligation.

Only section 79 referred to is of relevance and provides that if the president has reservations about the constitutionality of a Bill he may refer it back to the National Assembly for reconsideration and may after such reconsideration refer it to the Constitutional Court for a decision on its constitutionality.

Section 169 provides that a High Court may decide any constitutional matter except a matter that only the Constitutional Court may decide.

As stated earlier the notice of motion and the founding affidavit were initially only concerned with the executives power to prepare and initiate legislation whereas the amended notice of motion concerns the passing of legislation, ie from the time it has be initiated until the Bill has been signed and put into operation.

As appears from the aforegoing, legislation had already been initiated and two Bills had already been published in the Government Gazettes of 8 and 9 May 2008.

In Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) the following is said at page 443, para 57:

“[57] In its notice of motion the applicant sought an order declaring that the conduct of the NCOP and the provincial legislatures was invalid, and any other consequential relief. The effect of a successful constitutional challenge to the Sterilisation Amendment Bill would be to render that Bill invalid. This Court would have been precluded by the provisions of s 167(4)(b) read with s 79 from making an order declaring the Sterilisation Amendment Bill invalid. The fact that the Bill has since been enacted into law and this Court has jurisdiction to pronounce on the constitutional validity of the Sterilisation Amendment Act matters not. The question whether this Court has jurisdiction must be determined as at the time when the present proceedings were instituted and not at the time when the Court considers the matter. The crucial time for determining whether a court has jurisdiction is when the proceedings commenced.”

In casu no legislation had been initiated when the application was lodged but before the hearing of this application two Bills had come into existence. In what is to follow I will first consider this court’s jurisdiction to hear this matter on the basis that there are Bills in existence. Thereafter I will consider this court’s jurisdiction as at the time the application was lodged, ie at the time when no legislation had been initiated.

In the Doctors for Life case (supra) parliament has enacted four health statutes. When the application was launched the applicant was under the mistaken belief that the legislation was still in Bill form. At that stage, however, three of the Bills had already been signed by the President and had been promulgated. The fourth Bill was subsequently signed and became an Act.

Before the hearing of the matter the Honourable Chief Justice issued a number of directions of which only the following are relevant for present purposes:

“7. Written argument must address the merits of the application including the following issues:

(a) …

(b) is it competent under our constitutional order for declaratory relief to be granted by a court in respect of the proceedings of Parliament

(i) before Parliament has concluded its deliberations on a Bill, or

(ii) after it has passed the Bill, but before the Bill has been signed by the President, or

(iii) after it has been signed by the President but before it has been brought into force.”

In the course of his judgment Justice NGCOBO states as follows in paragraph 40 of the judgment:

“[40] There are three identifiable stages in the law making process, and these are foreshadowed in the questions on which the parties were called upon to submit argument: first, the deliberative stage, when Parliament is deliberating on a Bill before passing it; second, the Presidential stage, that is, after the Bill has been passed by Parliament but while it is under consideration by the President; and third, the period after the President has signed the Bill into law but before the enacted law comes into force. …”

In casu the Bills are not really at the so called presidential stage. It appears from the papers that though the two Bills had been published it must still go through the deliberative stage.

It is, however, clear and so it was found by the learned justice NGCOBO, that once a Bill has been passed by Parliament but before it is signed by the President, only the Constitutional Court may decide on the constitutionality of the Bills and then only in the circumstances anticipated in section 79 or section 121 of the Constitution.

The second question in the Doctors for Life case (supra), namely whether it is competent for the Constitutional Court to grant relief in respect of an act of Parliament that has not yet been brought into force, need not be discussed as it is not relevant for present purposes.

The third question in the Doctors for Life case (supra) is of great importance in the present matter. At page 445 to 449, paras 67 to 71 of the judgment the following is said:

“[67] The question whether it is competent for this Court to grant a declaratory relief to the effect that Parliament has failed to comply with its constitutional obligation to facilitate public involvement in the legislative process before the parliamentary legislative process is completed is more complex. There is no express constitutional provision that precludes this Court from doing so. On the one hand, it raises the question of the competence of this Court to interfere with the autonomy of Parliament to regulate its internal proceedings and, on the other, it raises the question of the duty of this Court to enforce the Constitution, in particular, to ensure that the law making process conforms to the Constitution.

[68] Courts in other jurisdictions, notably in the Commonwealth jurisdictions, have confronted this question. Courts have traditionally resisted intrusions into the internal procedures of other branches of government. They have done this out of comity and, in particular, out of respect for the principle of separation of powers. But at the same time they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution. To reconcile their judicial role to uphold the Constitution, on the one hand, and the need to respect the other branches of government, on the other hand, Courts have developed a ‘settled practice’ or general rule of jurisdiction that governs judicial intervention in the legislative process.

[69] The basic position appears to be that, as a general matter, where the flaw in the law making process will result in the resulting law being invalid, Courts take the view that the appropriate time to intervene is after the completion of the legislative process. The appropriate remedy is to have the resulting law declared invalid. However, there are exceptions to this judicially developed rule or ‘settled practice’. Where immediate intervention is called for in order to prevent the violation of the Constitution and the rule of law, courts will intervene and grant immediate relief. But intervention will occur in exceptional cases, such as where an aggrieved person cannot be afforded substantial relief once the process is completed because the underlying conduct would have achieved its object.

[70] The primary duty of the Courts in this country is to uphold the Constitution and the law ‘which they must apply impartially and without fear, favour or prejudice’. And, if the process of performing their constitutional duty, Courts intrude into the domain of other branches of government, that is an intrusion mandated by the Constitution. What courts should strive to achieve is the appropriate balance between their role as the ultimate guardians of the Constitution and the rule of law, including any obligation that Parliament is required to fulfil in respect of the passage of laws, on the one hand, and the respect which they are required to accord to other branches of government as required by the principle of separation of powers, on the other hand.

[71] That said, however, it is not necessary to reach any firm conclusion on whether it is competent for this Court to interfere in the deliberative process of Parliament to enforce the duty to facilitate public involvement. Although the parties were called upon to address this question, none of the statutes involved in this case were at a deliberative stage of Parliament when this litigation commenced. Notwithstanding the importance of this question, I consider that it is not desirable to answer it in these proceedings.

It is a question that must be answered with regard to a specific challenge raising it pertinently. This not such a case. It is better to leave it open for consideration when an occasion to consider it arises.”

As appears from para [71] quoted above, the Constitutional Court did not find it necessary to give an answer to the question. In footnotes 52 and 53 to the judgment, reference is made to judgments in other jurisdictions. The summary of those judgments in the footnotes is very helpful. It is, however, informative to consider the reasoning of the judges in those judgments. I will refer thereto very briefly.

In Rediffusion (Hong Kong) Ltd v Attorney General of Hong Kong and Another [1970] AC 1136 (PC) the following is said at p 1157:

“The immunity from control by the courts, which is enjoyed by members of a legislative assembly while exercising their deliberative functions is founded on necessity. The question of the extent of the immunity which is necessary raises a conflict of public policy between the desirability of freedom of deliberation in the legislature and the observance by its members of the rule of law of which the courts are the guardians. If there will be no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object, the argument founded on necessity in their Lordships’ view leads to the conclusion that there must be a remedy available in a court of justice before the result has been achieved which was intended to be prevented by the law from which a legislature which is not fully sovereign derives its powers.”

It appears that the existence of an alternative remedy is a major and relevant factor in the exercise of a court’s discretion to interfere in the deliberative process of Parliament or not. It is worded as follows at p 1156H to 1157A:

“The existence of an alternative remedy is always a relevant consideration in the exercise of a discretion whether to grant or withhold relief at an earlier stage.”

In Bahamas District of the Methodist Church in the Caribbean and the Americas v Symonette [2000] JCJ 31, 26 July 2000 (PC) the whole of the paragraph partially referred to in the Doctors for Life case (supra) reads as follows:

“Their Lordships consider that this approach points irresistibly to the conclusion that, so far as possible, the courts of The Bahamas should avoid interfering in the legislative process. The primary and normal remedy in respect of a statutory provision whose content contravenes the Constitution is a declaration, made after the enactment has been passed, that the offending provision is void. This may be coupled with any necessary, consequential relief. However, the qualifying words ‘so far as possible’ are important. This is no place for absolute and rigid rules. Exceptionally there may be a case where the protection intended to be afforded by the Constitution cannot be provided by the courts unless they intervene at an earlier stage. For instance, the consequences of the offending provision may be immediate and irreversible and give rise to substantial damage or prejudice. If such an exceptional case should arise, the need to give full effect to the Constitution might require the courts to intervene before the Bill is enacted. In such a case parliamentary privilege must yield to the courts’ duty to give the Constitution the overriding primacy which is its due.”

It is also necessary to refer to a few observations made by the judges in the matter of Cormack and Another v Cope and Others [1974] HCA 28; 131 CLR 432 (HCO). The facts are sufficiently summarised in footnote 53 at p 447 of the Doctors for Life case (supra).

At p 453 of the Cormack case, BARWICK CJ said:

“Whilst it may be true the Court will not interfere in what I would call the intra mural deliberative activities of the Parliament, it has both a right and a duty to interfere if the constitutionally required process of law making is not properly carried out.”

See also p 454 where the following is said by BARWICK CJ:

“It seems to me that in an appropriate, though no doubt unusual, case when moved by parties who have an interest in the regularity of the steps of the law making process at the time intervention is sought, the Court is able, and indeed in a proper case bound, to interfere.”

MENZIES J had a different view as appears from pages 464 to 465:

“It is a firmly established principle that this Court may declare or treat as invalid any law of the Parliament made without the authority of the Constitution. The exercise of this authority assumes the completion of the parliamentary process to turn a bill into an Act. It is no part of the authority of his Court, however, to restrain Parliament from making unconstitutional laws. It is of course convenient to speak of an unconstitutional law but the phrase means merely that the purported law is not a law at all. This Court does not consider in advance whether if Parliament were to pass a particular bill it would result in a valid law. Another aspect of the same matter is that the introduction of a bill does not affect rights; it is the making of a law that does that. Then a person who has the requisite interest may challenge the validity of the law.

Closely associated with these principles is another principle of great constitutional importance, namely that the Court will not interfere with the proceedings of Parliament or the Houses of Parliament. The validity of the law that follows from what Parliament has done is one thing. The proceedings of Parliament that lead to a valid or an invalid law are another. It is not for this Court to prevent Parliament from doing what, in the opinion of this Court, will result in an invalid law.”

Reference can also be made to the opinions of GIBBS J at pages 466 to 467; STEPHEN J at 472 and MASON J at 474.

It is therefore clear from the aforegoing that, as was stated in the Doctors for Life case supra at p 446, para 69, that a court will only in exceptional cases consider interfering with the deliberative process of Parliament.

As will be seen later herein I was asked to consider the present matter as an exceptional case. In doing so much emphasis was placed on the judgment in the matter of The Queen on the Application of Corner House Research and Campaign Against Arms Trade v The Director of the Serious Fraud Office and BAE Systems PLC as Interested Party, in the High Court of Justice, Queens Bench Divisions, Administrative Court, delivered on 10 April 2008.

The facts of the matter are summarised it the introduction to the judgment which reads as follows:

“2. Between 30 July 2004 and 14 December 2006 a team of Serious Fraud Office lawyers, accountants, financial investigators and police officers carried out an investigation into allegations of bribery by BAE Systems PLC (BAE) in relation to the A1 Yamamah military aircraft contracts with the Kingdom of Saudi Arabia. On 14 December 2006 the Director of the Serious Fraud Office announced that he was ending the SFO’s investigation.

3. In October 2005 BAE sought to persuade the Attorney General and the SFO to stop the investigation on the grounds that its continued investigation would be contrary to the public interest: it would adversely affect relations between the United Kingdom and Saudi Arabia and prevent the united Kingdom securing what it described as the largest export contract in the last decade. Despite representations from Ministers, the Attorney General and the Director stood firm. The investigation continued throughout the first half of 2006.

4. In July 2006 the SFO was about to obtain access to Swiss bank accounts. The reaction of those described discreetly as ‘Saudi representatives’ was to make a specific threat to the Prime Minister’s Chief of Staff, Jonathan Powell: if the investigation was not stopped, there would be no contract for the export of Typhoon aircraft and the previous close intelligence and diplomatic relationship would cease.

5. Ministers advised the Attorney General and the Director that if the investigation continued those threats would be carried out; the consequences would be grave, both for the arms trade and for the safety of British citizens and service personnel. In the light of what he regarded as the grave risk to life, if the threat was carried out, the Director decided to stop the investigation.

6. The defendant in name, although in reality the Government, contends that the Director was entitled to surrender to the threat.

The law is powerless to resist the specific and, as it turns out, successful attempt by a foreign government to pervert the course of justice in the United Kingdom, by causing the investigation to be halted. The court must, so it is argued, accept that whilst the threats and their consequences are ‘a matter of regret’, they are a ‘part of life’.

7. So bleak a picture of the impotence of the law invites at least dismay, if not outrage. The danger of so heated a reaction is that it generates steam; this obscures the search for legal principle. The challenge, triggered by this application, is to identify a legal principle which may be deployed in defence of so blatant a threat. However abject the surrender to the threat, if there is no identifiable legal principle by which the threat may be resisted, then the court must itself acquiesce in the capitulation.”

The conclusion of the court is as follows:

“170. The claimants succeed on the ground that the Director and Government failed to recognise that the rule of law required the decision to discontinue to be reached as an exercise of independent judgment, in pursuance of the power conferred by statute. To preserve the integrity and independence of that judgment demanded resistance to the pressure exerted by means of a specific threat.

That threat was intended to prevent the Director from pursuing the course of investigation he had chosen to adopt. It achieved its purpose.

171. The court has a responsibility to secure the rule of law. The Director was required to satisfy the court that all that could reasonably be done had been done to resist the threat. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted. No one, whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of Government and the defendant to bear that essential principle in mind that justifies the intervention of this court. We shall hear further argument as to the nature of such intervention. But we intervene in fulfilment of our responsibility to protect the independence of the Director and of our criminal justice system from threat. On 11 December 2006, the Prime Minister said that this was the clearest case for intervention in the public interest he had seen. We agree.”

On behalf of the applicant I was asked to find that the President and members of Cabinet did not take the decision to initiate legislation themselves but merely followed an instruction from the ANC leadership after the Polokwane Conference. By not taking the decision themselves, it was argued on behalf of the applicant that the President and members of Cabinet were in breach of their obligations and duties in terms of the Constitution and also in breach of the Rule of Law. I was therefore asked to follow the decision in the BAE Systems case supra.

From the papers it appears that the question of the disestablishment of the DSO is a highly politicised matter. This is emphasised by the fact that five political parties decided to intervene as amicii curiae. NGCOBO J dealt in the Doctors for Life case supra at p 433, para 21 with a situation where a “crucial political” question had to be considered. The following was said:

“[21] In King the Supreme Court of Appeal had to consider whether it had jurisdiction to decide a constitutional challenge to a statute where the challenge was based on the alleged failure by the National Assembly to facilitate public involvement in its legislative and other processes as envisaged by s 59(1)(a) of the Constitution. The Supreme Court of Appeal concluded that neither it nor the High Court has jurisdiction to consider a constitutional challenge to the validity of a statute where the challenge is based on the alleged failure by Parliament to fulfil an obligation envisaged in 2 59(1)(a) of the Constitution. The basic reasoning of the Supreme Court of Appeal was that the question whether Parliament has fulfilled its obligation to facilitate public involvement is ‘pre eminently a “crucial political” question, and s 167(4)(e) reserves it for only the Constitutional Court to make’. I agree with this reasoning and conclusion.”

Of the utmost importance in a matter like the present is the separation of powers and therefore the judicial deference to the legislature.

In Ferreira v Levin NO and Others 1996 1 SA 984 (CC) 1090 para 183 CHASKALSON P stated as follows:

“In a democratic society the role of the Legislature as a body reflecting the dominant opinion should be acknowledged. It is important that we bear in mind that there are functions that are properly the concern of the Courts and others that are properly the concern of the Legislature. At times these functions may overlap. But the terrains are in the main separate, and should be kept separate.”

See also National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2002 2 SA 1 where ACKERMANN J stated as follows at p 38 para 66:

“[66] The other consideration a Court must keep in mind is the principle of the separation of powers and, flowing therefrom, the deference it owes to the Legislature in devising a remedy for a breach of the Constitution in any particular case. It is not possible to formulate in general terms what such deference must embrace, for this depends on the facts and circumstances of each case. In essence, however, it involves restraint by the Courts in not trespassing onto that part of the legislative field which has been reserved by the Constitution, and for good reason, to the Legislature. Whether, and to what extent, a Court may interfere with the language of a statute will depend ultimately on the correct construction to be placed on the Constitution as applied to the legislation and facts involved in each case.”

Earlier in this judgment I referred to the fact that two Bills have already been published. It is not necessary for me to decide whether those published Bills are Parliamentary Bills as referred to in section 167(4)(b) of the Constitution. If the two Bills qualify as Bills as referred to in the section referred to, this court has no jurisdiction to hear the application as it is a matter that only the Constitutional Court may decide as discussed earlier herein.

If the two Bills as published do not qualify as Bills in terms of the section referred to, and if the publication thereof forms part of the process of initiating legislation, I am of the view that this court, on the principle of separation of powers, has no jurisdiction to decide the application. I say that in spite of a strong argument on behalf of the applicant that this is an exceptional case where the separation of powers should be ignored and where a court should interfere with the right of the executive to initiate legislation and/or the deliberative process of the legislation in Parliament.

In my view a High Court should only in very exceptional circumstances so interfere. What those special circumstances should be is not for me to decide at this stage. It is, however, clear to me that the facts in the present matter do not make it such an exceptional case.

It was stated not only in the papers before me but also in argument, that the mere initiation of legislation would have the effect of rendering the DSO a totally incompetent and ineffective institution. On the other hand it was said in the papers and also in argument that methods have been considered over a long period of time to create an institution which will fight serious crime even better than the existing institutions. I am unable to conclude that the respondents’ contentions are wrong. In any event, in my judgment this court has no jurisdiction to interfere with the executive powers of the President and Cabinet or with the process in Parliament. This is so even if it may be said that the initiation of legislation or the passing thereof may detrimentally affect the DSO in that it will lose expertise and its ability to fight serious crime. This court can only deal with the constitutionality of an Act.

I am furthermore of the opinion that this matter involves crucial and important political matters in which a High Court has no jurisdiction but only the Constitutional Court.

I am therefore of the view that this court has no jurisdiction to decide the matter but that it is a matter that could possibly fall within the jurisdiction of the Constitutional Court.

The amendment of the applicant’s notice of motion is granted and the late filing of the respondents’ supplementary affidavit is condoned.

As far as costs are concerned all the parties were ad idem that this was a matter, not only of urgency but of such constitutional importance that no order as to costs should be made.

The matter is removed from the roll. No order as to costs is made.

W J VAN DER MERWE

JUDGE OF THE HIGH COURT

14386/2008