IN THE NORTH GAUTENG HIGH COURT. PRETORIA (REPUBLIC OF SOUTH AFRICA) 

CASE NO. 26912/12 

In the matter between: 

Freedom Under Law - Applicant 

And

The National Director of Public Prosecutions - First Respondent 

The National Commissioner South African Police Service - Second Respondent 

The Head: Specialised Commercial Crime Unit - Third Respondent 

The inspector General of Intelligence - Fourth Respondent 

Richard Naggie MdIuli - Fifth Respondent 

Minister of Safety and Security - Sixth Respondent 

Applicant's Replying Affidavit 

I, the undersigned, 

Dr Mamphela Aletta Ramphele 

do hereby make oath and state the following 

A. Introduction 

1.1. I am a member of the International Advisory Board of Trustees of Freedom Under Law ("FIlL"), and have previously deposed to the founding affidavit in these proceedings. I make this affidavit on behalf of FIlLS and have been authorised to do so by Its Board of Trustees. 

1.2. The facts I describe fall within my personal knowledge, unless I state otherwise or the context of what I say makes it clear that they do not. I confirm that those facts are, to the best of my knowledge and belief, true and correct 

1.3. Insofar as I make legal submissions, I do so on the advice of the legal representatives of FUL which I believe to be correct 

2. 1 have read the answering affidavit of the second respondent as well as its annexures. I make this short replying affidavit In circumstances of  considerable urgency in response to what I am advised are the more 

relevant factual averments and legal contentions advanced. I shall not respond to each of the averments made in the individual paragraphs of the answering affidavit, but will deal with each of the issues arising from those averments. 1 state at the outset that any matter I do not address which is inconsistent with either the founding affidavit or this affidavit is, to the extent it may be relevant, denied as if separately set out and traversed. 

3. I understand the central issues arising from the answering affidavit to be: whether the applicant has made out a case to approach this Honourable Court by way of urgency; whether the applicant has established a case for the interim relief sought in Part A of the notice of motion; whether the suspension of the fifth respondent pursuant to the decision taken by the second respondent on 13 May 2012 dispenses with the need for the relief sought in Part A of the notice of motion; and the costs of the application for interim relief. I deal with each of these issues in turn. But first I address the important matter of the general approach adopted by all of the respondents, but particuiarly the second respondent. 

B. The approach of the respondents 

4. All the respondents were served with the application on 15 or 16 May 

2012. Service is confirmed in the returns of service by the Deputy Sheriff of this Honourable Court, which have been filed on record. 

5. Except for the second respondent, none of the respondents has delivered any answering affidavit in order to oppose the application or to adduce any facts other than those put up by the applicant All the respondents were required to deliver any answering affidavits within seven days of service of the application on them. 

6. The second respondent delivered his answering affidavit on 30 May 

2012. It is immediately striking that he disputes not one of the factual allegations made by me in support of the relief sought in Part A of the notice of motion. I have been advised and respectfully submit that this Honourable Court will therefore be entitled to accept that the contents of the founding affidavit and Its annexures are not in dispute, for the purposes of the determination of Part A of the notice of motion. 

7. In the answering affidavit, the second respondent also confirms that the fifth respondent was suspended not once, but twice. The first suspension and the events that gave rise to it have been described by me in the founding affidavit, and are not placed in dispute by the second respondent; the second suspension was effected by or on behalf of the second respondent on 28 May 2012, pursuant to the decision made in terms of annexure "AA3 to the answering affidavit. 

8. Despite these facts, the second respondent nevertheless opposes the relief sought in Part A of the notice of motion, purporting to raise the issues outlined in paragraph 3 above. I deal with each of those issues more fully below. For now I say that the second respondent's version does not disclose any justifiable ground to oppose the interim relief: In fact, that version reinforces the grant of that relief. 

C. Urgency 

9. The second respondent claims, without any factual foundation, that the applicant was not entitled to approach this Court by way of urgency, because the fifth respondent was reinstated as the head of Crime Intelligence in SAPS on 31 March 2012, after the withdrawal of the criminal and disciplinary charges against him. The second respondent claims that the applicant waited for six weeks before It instituted the present proceedings, and presumably should have done so earlier. 

10. I respectfully submit that the denial of the second respondent that Part A of the notice of motion deserves urgent attention is contrived for the following reasons: 

10.1. The second respondent himself acted with a reasonable degree of urgency in order to bring about the suspension of the fifth respondent, as a result of allegations of unlawful and improper conduct made against him. On his version, it is clear that he took urgent steps to give notice of the intention to suspend the fifth respondent and thereafter the decision to put him on suspe ns ion. 

10.2. The degree of urgency with which the second respondent brought about the suspension of the fifth respondent is justified in the circumstances of the controversy surrounding the ill- fated reinstatement of the fifth respondent I submit therefore that there was a justifiable need to approach this Court by way of urgency to seek the relief described in Part A of the notice of motion. 

10.3. Secondly, whilst the reinstatement of the fifth respondent took effect on 31 March 2012, the applicant only became aware of that reinstatement well after 31 March 2012, from the press reports which followed. 

10.4. On the version of the second respondent, in particular given his concession In paragraph 16, it was not possible for the applicant to prepare and institute the present proceedings immediately after 31 March 2012. It follows therefore that the claim that the applicant waited for six weeks to launch these proceedings is unfounded. 

10.5. Thirdly, in the founding affidavit, more particularly at paragraph 122, 1 referred to the article published in the Sunday Times of 6 May 2012 (annexure MFA9) in which the fifth respondent confirmed that he had resumed duties as the head of Crime Intelligence of SAPS. in the light of that fact the applicant immediately instituted the present proceedings for the interim relief and review of the impugned decisions. 

10.6. 1 respectfully submit that the time taken by the applicant to launch the present proceedings, after it acquired knowledge of the unlawful reinstatement of the fifth respondent was not unreasonable. 

10.7. Fourthly, all of the respondents have been afforded an adequate opportunity to respond to the averments in the founding affidavit. None of them has complained about the Inadequacy of the opportunity afforded to them. The second respondent himself has in fact responded, and has not raised any prejudice to him, as a result of the opportunity afforded to him, in the notice of motion, to respond to the relief sought In Part A of the notice of motion. 

10.8. Finally, the applicant has made it clear that the relief sought in Part A of the notice of motion is based on the continuing harm to it and the public, arising from the unlawful and unconstitutional decisions to withdraw the criminal and disciplinary charges against fifth respondent and thereafter to re-instate him. It is an inherently urgent concern that a person holding the rank of the fifth respondent, with the considerable authority that gives him over others, and vested with the statutory powers of his office should not perform a single function as a policeman while the body of evidence against him, that he has committed crimes ranging from murder and kidnapping to corruption and money- laundering, remains, as it does, unanswered. 

10.9. In the founding affidavit, I made it clear that the reinstatement of the fifth respondent was not only unlawful and unconstitutional, but also undermined the morale of other members of SAPS, in their efforts to fulfil their constitutional and statutory duties to effectively prevent and combat crime. and protect the inhabitants of the Republic. Again, these averments are not disputed by the second respondent. 

10.10. Ironically, the second respondent has relied on, amongst others, the adverse impact on the morale of other hard-working and law-abiding members of SAPS, in order to bring about thc second suspension of the fifth respondent, which he did, on 28 May 2012. 

11. For the above reasons, I respectfully submit that this Honourable Court is entitled to treat the matter as one of urgency. 

D. The case for interim relief 

12. The second respondent accepts that the fifth respondent was earlier put on suspension as a result of allegations of criminal conduct levelled against him. That admission is made in paragraph 10 of the answering affidavit. I emphasise that the second respondent does not deny at all the facts, circumstances and reasons I have set out in the founding affidavit which justified the earlier suspension. I therefore submit that the version of the applicant on this aspect of the interim relief stands unchallenged. 

13. The second respondent also does not deny the prima fade case for the review of the impugned decision as is described in paragraphs 36 to 56 of the founding affidavit. Similarly, he does not deny the version I have put up, in paragraphs 5.2 to 5.7, and 53 to 55 of the founding affidavit;, regarding the justification for the Interim relief sought in Part A of the notice of motion. 

14. In the light of the above considerations, and the unchallenged version of the applicant as set out in the founding affldavit, I respectfully submit that the applicant has made out a case for the relief sought in Part A of the notice of motion. 

E. The effect of the second suspension 

15. In paragraph (b) of Part A of the notice of motion, as amended, the applicant makes it clear that the interim relief is sought to prevent the fifth respondent from discharging functions and duties as a member of SAPS, and interdict the second and sixth respondents from assigning any functions to him in that capacity, pending the determination of the review. 

16. The fundamental premise of that relief is that in Jaw the second and/or sixth respondents are entitled, in their respective capacities as employer, to require the fifth respondent to perform work or not to do so. In the circumstances set out in the founding affidavit, the second and sixth respondents have not only the right but the duty not to assign any functions and duties to the fifth respondent as a senior member of SAPS. 

17. From what the second respondent has said in paragraphs 14 to 23 of the answering affidavit, It is clear that the second respondent has misconstrued the fundamental basis of the relief sought by the applicant in paragraph (b) of the Part A of the notice of motion. 

18. In any event, the version put up by the second respondent, in the said paragraphs of the answering affidavit, reinforces the justification for that relief. 

19. The applicant is obviously concerned that the decisions previously made concerning the suspension and re-instatement of, and withdrawal of disciplinary charges against, the fifth respondent have always been accompanied by allegations of improper political interference and lack of certainty. For instance, in the New Age publication of 30 May 2012 (a copy whereof is annexed hereto and marked "RAl") there is a suggestion that the decision to suspend the second respondent for the second time is under review by senior officials of SAPS. 

20. The interim relief sought in the notice of motion is necessary and desirable, in order to ensure that this sort of uncertainty, and possible unlawful interference, do not take place, pending the review of the impugned decisions. Again, I emphasize that none of the respondents has denied the applicant's version that the relief In the terms and of the duration described in Part A of the notice of motion, will not cause prejudice to them, or that any conceivable prejudice they may suffer outweighs the prejudice which will arise, should the interim relief not be granted. 

F. Costs

21. In paragraph 25 of the notice of motion the second respondent seeks a costs order on attorney and client scale against the applicant, in the event the interim relief is refused. The applicant does not set out a basis for such relief. 

22. In the light of the attitude adopted by the second respondent on the question of costs, and the version put up by him, which is woefully inadequate, and tactically avoids dealing with the case set out in the founding affidavit, instead relying on unfounded technical defences, I submit that it is just and appropriate that the second respondent be ordered to pay the costs of the interim application. His opposition, in circumstances where he advances no factual answer, but relies on spurious contentions of non-urgency belied by his own actions, is wholly unreasonable, and has resulted in unnecessary opposed costs. I submit that the issues are such as to have warranted the engagement of two counsel. 

G. Conclusion 

23. In the light of what I have set out herein and in the founding affidavit, I respectfully submit that the appropriate order is the following: 

23.1. Leave to amend the paragraph (b of Part A of the notice o motion is granted, in terms of the notice dated 21 May 2012. 

23.2. The relief sought in paragraph (b) of Part A of the notice o motion is granted. 

23.3. The second respondent Is ordered to pay the costs of the application, including the costs of two counsel.

 I CERTIFY that the deponent has acknowledged that she knows and understands  the contents of this affidavit has no objection to taking the prescribed oath. Thus done, signed and sworn to before me, at CAMPS BAY on this the 1st day of JUNE 2012, in terms of the Regulations contained in Government Notice No. R.1258 dated 21 July 1972 (as amended) and Government Notice No. R.1648 dated 19 August 1977 (as amended), which have been complied with. 

Transcribed from PDF. Please check against the original.

Source: www.freedomunderlaw.org

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