The supreme court of appeal of south africa

[55] The court dealt very cursorily with the DA’s charge that the President acted with an ulterior or improper purpose on the basis that this ground is linked to the other grounds of challenge on which he had already made the findings referred to above.
[56] Interestingly, in para 100 of the judgment of the court below, the following appears:

‘I am not persuaded that, if regard is had to all the averments made in the papers, that he is not a controversial person and one with an unblemished background or that he is one of the most experienced persons who could have been taken into consideration for appointment.’

Conclusions
[57] In order to fully appreciate the importance of the NPA and the NDPP in our constitutional democracy it is necessary first, to bear in mind that the Constitution empowers those who govern and imposes limits on their power and second, to consider the wider constitutional scheme in which both the institution and the individual are dealt with. A good starting place is an examination of the founding provisions of the Constitution. Section 1(c) of the Constitution states that the Republic of South Africa is one, sovereign, democratic state founded amongst other values on the supremacy of the Constitution and the rule of law. Section 1(d), commits government to democracy and to accountability, responsiveness and openness. Section 2 of the Constitution reaffirms that the Constitution is the supreme law of the Republic and that law or conduct inconsistent with it is invalid and that the obligations imposed by it must be fulfilled. Thus, every citizen and every arm of government ought rightly to be concerned about constitutionalism and its preservation.
[58] The constitutional scheme is deliberate. Chapter 1 sets out the founding provisions and deals with founding values, citizenship, the national anthem, the national flag and languages. Chapter 2 states that the Bill of Rights is a cornerstone of democracy in South Africa and that it enshrines rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The State is obliged to respect, protect, promote and fulfil the rights referred to in the Bill of Rights. Chapter 3 of the Constitution deals with co-operative government and dictates that all spheres of government must adhere to constitutional principles in this regard and must conduct their activities within constitutional parameters. Chapter 4 sets out the composition of Parliament and its legislative authority. Section 48 provides that before members of the National Assembly begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution. Section 62(6) provides that before permanent delegates to the National Council of Provinces begin to perform their functions they must swear or affirm faithfulness to the Republic and obedience to the Constitution. Chapter 5, which is of importance to the present case, deals with the President and the National Executive. Section 83 of the Constitution provides:

‘The President –

(a) is the Head of State and head of the national executive;

(b) must uphold, defend and respect the Constitution as the supreme law of the Republic; and

(c) promotes the unity of the nation and that which will advance the Republic.’

Section 84 sets out powers and functions of the President. Section 85 provides:

‘(1) The executive authority of the Republic is vested in the President.

(2) The President exercises the executive authority, together with the other members of the Cabinet, by -

(a) implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;

(b) developing and implementing national policy;

(c) co-ordinating the functions of state departments and administrations;

(d) preparing and initiating legislation; and

(e) performing any other executive function provided for in the Constitution or in national legislation.’
[59] Section 87 of the Constitution provides that within five days of his election the President must assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution. In President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) para 65, Kriegler J said of the relationship between the President and the Constitution:

‘Ultimately the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands.’

[60] Chapter 6 deals with the provinces and their legislative authority. Before members of a provincial legislature begin their functions they too must swear or affirm faithfulness to the Republic and obedience to the Constitution. Section 118 of the Constitution obliges a provincial legislature to facilitate public involvement in the legislative process. Section 127 sets out the powers and functions of Premiers who also must swear or affirm faithfulness to the Republic and obedience to the Constitution. Members of an Executive Council of a province are collectively and individually accountable to the legislature for the exercise of their powers and the performance of their functions and can only act in accordance with the Constitution. Section 140 provides that a decision by a Premier of a province must be in writing if it is taken in terms of legislation or has legal consequences.
[61] Chapter 7 of the Constitution deals with local government. In terms of s 151 of the Constitution a municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation as provided for in the Constitution. Section 152 deals with the objects of local government and provides, amongst others, that local government must provide democratic and accountable government for local communities. I shall deal with Chapter 8, which deals with courts and the administration of justice, including providing for a National Prosecuting Authority, last. Chapter 9 sets out which state institutions are supportive of our constitutional democracy. They include the office of the Public Protector, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General and the Electoral Commission. Section 181(2) states:

‘These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.’

Section 181(3) obliges other organs of state, through legislative and other measures, to assist and protect these institutions to ensure their independence and impartiality, dignity and effectiveness. The listed institutions are all accountable to the National Assembly and must report on the activities and the performance of their functions to the Assembly at least once a year.
[62] Chapter 10 deals with Public Administration. Section 195(1) dictates that public administration must be governed by the democratic values enshrined in the Constitution. Section 195(1)(f) provides that public administration must be accountable. The PSC, referred to earlier in this judgment, is established by s 196 of the Constitution. It is required to be independent and impartial and must exercise its powers and perform its functions without fear, favour or prejudice in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the public service. The PSC is also accountable to the National Assembly and is required to report to it at least once a year.
[63] Chapter 11 deals with security services. Section 198 sets out the governing principles and states, amongst others, that national security must be pursued in compliance with the law, including international law. National security is subject to the authority of Parliament and the National Executive. Chapter 11 contains provisions dealing with the defence force, the police and the intelligence services.
[64] Chapter 12 of the Constitution recognises the status and role of traditional leaders according to customary law, subject to the Constitution. Chapter 13 deals with treasury control and financial matters, including the remuneration of persons holding public office. It also establishes a Financial and Fiscal Commission which, in terms of s 220(2), is required to be independent and impartial and subject only to the Constitution and the law.
[65] Chapter 14 contains general provisions and embraces subjects such as international agreements, the application of international law, funding for political parties and transitional arrangements.
[66] Before dealing with Chapter 8 of the Constitution, which contains the provisions that relate to the courts and the administration of justice, including the NPA, it is necessary to consider the full and necessary import of the Chapters and provisions of the Constitution referred to in the preceding paragraphs. All the institutions, organs of state and public office bearers referred to are essential for the functioning of our constitutional democracy. The rule of law is a central and founding value. No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.
[67] As we look back on 17 years of existence as a constitutional democracy and as we view what the constitutional compact means, we must all as a nation breathe more easily in the knowledge that we have truly broken with an authoritarian past in which government served the interests of a few and was unresponsive to the needs of the majority of its citizens and where no safeguards existed to ensure that power was not abused. See S v Makwanyane 1995 (3) SA 391 (CC) para 262. Professor Mureinik explained (in the context of the interim Constitution) the fundamental change brought about because of a shift from a ‘culture of authority’ to a ‘culture of justification’. He described it as ‘a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command’.⁶
[68] It is now necessary to turn to consider that Chapter of the Constitution dealing with the administration of justice and which encompasses, not only judicial authority, but also the NPA. Section 165, which is located in Chapter 8 of the Constitution, provides that the judicial authority of the Republic is vested in the courts, which are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. Importantly, organs of state, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. The hierarchy of courts is established and listed in this chapter. Section 174(1) provides that any appropriately qualified woman or man who ‘is a fit and proper person’ may be appointed as a judicial officer.
[69] Section 179 deals with the NPA. It is necessary to quote it in full:

‘(1) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of –

(a) a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and

(b) Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.

(2) The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.

(3) National legislation must ensure that the Directors of Public Prosecutions –

(a) are appropriately qualified; and

(b) are responsible for prosecutions in specific jurisdictions, subject to subsection (5).

(4) National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.

(5) The National Director of Public Prosecutions –

(a) must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;

(b) must issue policy directives which must be observed in the prosecution process;

(c) may intervene in the prosecution process when policy directives are not complied with; and

(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

(i) The accused person.

(ii) The complainant.

(iii) Any other person or party whom the National Director considers to be relevant.

(6) The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.

(7) All other matters concerning the prosecuting authority must be determined by national legislation.’
[70] As can be seen the same theme that suffuses all the other Chapters of the Constitution permeates Chapter 8 as well, namely, that institutions of state integral to the well-being of a functioning democracy have to be above reproach, have to be independent and have to serve the people without fear, favour or prejudice.
[71] The national legislation envisaged in s 179(3) of the Constitution is the Act. That fact is expressly recognised in the preamble to the Act. Section 2 of the Act provides for a single national prosecuting authority, as envisaged in s 179(3) of the Constitution. Section 3 sets out the structure of the prosecuting authority, namely, the office of the National Director and the offices of the prosecuting authority at the seat of each high court, established in terms of s 6. Section 5 establishes the National Office of the prosecuting authority which consists of the National Director, who is the head of and controls the office, Deputy National Directors and other members of the prosecuting authority appointed at or assigned to the office. Section 10 states that the President ‘must’ in accordance with section 179 of the Constitution appoint the NDPP. The crucial section for present purposes is s 9(1) of the Act, which sets out the qualifications for appointment of the NDPP. Section 12 of the Act provides a fixed non-renewable period of ten years for a National Director to hold office. Section 12(5) can rightly be viewed as a protective provision to guard against political interference. It provides that a National Director cannot be suspended or removed from office, except in accordance with the provisions of subsections 6, 7 and 8.
[72] To understand the importance of the office of the NDPP and the power that he or she wields, regard should be had first, to the provisions of s 179(2) of the Constitution, set out in para 68 above. The prosecuting authority has the power to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental to instituting criminal proceedings. This power is echoed in s 20(1) of the Act. Section 20(1)(c) of the Act gives the prosecuting authority the power to discontinue criminal proceedings. It hardly needs stating that these are awesome powers and that it is central to the preservation of the rule of law that they be exercised with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.
[73] Section 22(1) of the Act provides:

‘The National Director, as the head of the prosecuting authority, shall have authority over the exercising of all the powers, and the performance of all the duties and functions conferred or imposed on or assigned to any member of the prosecuting authority by the Constitution, this Act or any other law.’

[74] Section 22(2) gives the National Director the power to determine prosecution policy and to issue policy directives. It enables him or her to intervene in any prosecution process when policy directives are not complied with. In terms of s 22(2)(c) the National Director may review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations of an accused person, a complainant or any other relevant party.
[75] Section 22(3) gives the National Director the power to direct that investigations and criminal proceedings in respect of an offence be moved territorially, within the Republic. Section 22(4) empowers a National Director to conduct any investigation he or she may deem necessary in respect of a prosecution or prosecution process, or directives, directions or guidelines issued by a director. Section 22(4)(a)(iii) provides that the National Director may advise the Minister of Justice and Constitutional Development on all matters relating to the administration of justice.
[76] It is against that constitutional and statutory background that s 9(1)(b) of the Act ultimately has to be construed. Before turning to those provisions it is necessary for a brief conspectus of views on prosecutorial independence in comparable jurisdictions.
[77] Addressing the Portuguese Prosecutors Association, Jessica de Grazia, a prosecutor in the Manhattan District Attorneys’ Office and a former New York chief-assistant District Attorney, said the following:

‘Prosecutorial independence is both difficult to establish and difficult to maintain. It is under greatest threat when civil society is weak, justice institutions fragile, when countries are experiencing or emerging from security crises, when a single political party is dominant, when a country is poor, jobs are few, out-migration high, when a free media is suppressed, or when prosecutors target the top tier of economic or organized crime and there is a nexus to members of the political elite.’⁷

Ms de Grazia rightly observed that every democracy has its own ways of insulating prosecutors from political pressure.
[78] In a seminar organised by The European Commission for Democracy Through Law (Venice Commission), conducted at Trieste, Italy, between 28 February and 3 March 2011, under the title ‘The Independence of Judges and Prosecutors: Perspectives and Challenges’, Mr James Hamilton, a substitute member of the Venice Commission and Director of Public Prosecutions, Ireland, noted that in common law systems the prosecution is invariably a part of the executive, in some civil law systems it is part of the executive and in others it is part of the judiciary. Under the subheading ‘Responsibilities of Public Prosecutors in ensuring due process and the rule of law’ Mr Hamilton stated the following:⁸

‘It is clear that a prosecutor’s office which displays a respect for fair procedures will operate as a bulwark against human rights abuses, whereas a prosecutor’s office which is not concerned with such matters will make it more likely that the rule of law will not be observed. In this connection it should be noted that the prosecutor not only acts on behalf of the people as a whole, but also has duties to particular individual citizens.’

[79] The following part of the paper presented by Mr Hamilton is apposite:⁹

‘The Venice Commission Report on the independence of the prosecution service also lays emphasis on the qualities of prosecutors, in particular at paragraphs 14 to 19 of the Report. Having referred to the importance of the prosecutor acting to a higher standard than a litigant in a civil matter because he or she acts on behalf of society as a whole and because of the serious consequences of criminal conviction, and having referred to duties to act fairly and impartially, as well as the duty to disclose all relevant evidence to the accused, the Commission points to the necessity to employ as prosecutors suitable persons of high standing and good character, having qualities similar to those required of a judge, and they require that suitable procedures for appointment and promotion are in place.’

[80] Two paragraphs later Mr Hamilton states:¹⁰

‘The Venice Commission goes on to talk about political interference in prosecution. The Report points out that if modern western Europe has largely avoided the problem of abusive prosecution in recent times this is largely because mechanisms have been adopted to ensure that improper political pressure is not brought to bear in the matter of criminal prosecution. The Commission points out that in totalitarian states or in modern dictatorships criminal prosecution has been and continues to be used as a tool of repression and corruption.’

[81] Mr Hamilton pointed out that procedures to guarantee a proper selection of prosecutors and to prevent their arbitrary dismissal are very important in safeguarding prosecutorial independence. In this regard he referred to an opinion by the Venice Commission on the regulatory concept of the Constitution of the Hungarian Republic:¹¹

‘It is important that the method of selection of the general prosecutor should be such as to gain the confidence of the public and the respect of the judiciary and the legal profession. Therefore professional, non-political expertise should be involved in the selection process. However it is reasonable for the government to wish to have some control over the appointment, because of the importance of the prosecution of crime in the orderly and efficient functioning of the state, and to be unwilling to give some other body, however distinguished, carte blanche in the selection process. It is suggested, therefore that consideration might be given to the creation of a commission of appointment comprised of persons who would be respected by the public and trusted by the government.’

[82] In his conclusion Mr Hamilton stated the following:¹²

‘Despite the variety of arrangements in prosecutor’s offices, the public prosecutor plays a vital role in ensuring due process and the rule of law as well as respect for the rights of all the parties involved in the criminal justice system. The prosecutor’s duties are owed primarily to the public as a whole but also to those individuals caught up in the system, whether as suspects or accused persons, witnesses or victims of crime. Public confidence in the prosecutor ultimately depends on confidence that the rule of law is obeyed.’

[83] Writing on prosecutorial independence in the (2001) 45 Criminal Law Quarterly 272, Bruce A MacFarlane QC, the then Deputy Attorney General for the Province of Manitoba, Canada, considered models intended to ensure independence in England, Australia, New Zealand, the USA and Canada. He states:¹³

‘[I]rrespective of the laws or structures in place in a jurisdiction, principles of independence ultimately depend upon the integrity of the person occupying the office of Attorney General.’