IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)

CASE NO:

In the matter between:

HELEN SUZMAN FOUNDATION - First Applicant

FREEDOM UNDER LAW NPC - Second Applicant and

THE MINISTER OF POLICE - First Respondent

MTHANDAZO BERNING NTLEMEZA -Second Respondent

DIRECTORATE FOR PRIORITY CRIME INVESTIGATION -  Third Respondent

THE CABINET OF THE REPUBLIC OF SOUTH AFRICA -  Fourth Respondent

FOUNDING AFFIDAVIT

I, the undersigned

FRANCIS ANTONIE

do hereby make oath and say that:

INTRODUCTION

1. I am an adult male director of the applicant, the Helen Suzman Foundation ("HSF"), situated at 2 Sherborne Road, Parktown, Johannesburg.

2. I am duly authorised to depose to this affidavit on behalf of the applicants.

3. The facts contained in this affidavit are within my personal knowledge, unless it appears otherwise from the context, and are both true and correct. Where facts are not within my personal knowledge, I refer to the confirmatory affidavit of Mr DJ Rafferty that will be filed herewith.

4. All legal submissions are made on the advice of the applicants' legal representatives.

PARTIES

5. The first applicant in this application is the HSF. The HSF was established in 1993, and is a non-governmental organisation whose objectives are "to defend the values that underpin our liberal constitutional democracy and to promote respect for human rights".

6. The second applicant is Freedom Under Law NPC ("FUL"). FUL is an organisation that is primarily concerned with the principles of democracy and constitutionalism, as well as the rule of law.

7. The applicants approach this Honourable Court, firstly, in their own interest.

They are both organisations that are primarily concerned with the principles of democracy and constitutionalism, as well as the rule of law. By appointing Major-General Mthandazo Berning Ntlemeza ("Maj-Gen Ntlemeza") as National Head of the Directorate of Priority Crime Investigation ("the DPCI") ("the National Head"), the Minister of Police, Mr Nkosinathi Phiwayinkosi Thamsanga Nhleko ("the Minister"), has acted unlawfully and irrationally, and, moreover, has failed in his constitutional duty to protect the independence of the DPCI and uphold the rule of law in South Africa.

8. The applicants also approach this Honourable Court in the public interest. All South Africans have an interest in the rule of law, the requirements for a properly functioning constitutional democracy, and, in particular, the urgent steps necessary to root out corruption and maladministration in our nascent democracy. The National Head's role and functions mean that his actions have an impact on the administration of justice, the realisation of rights and the public at large. This is a high office which yields enormous power and is charged, as its core mandate, with the combatting of corruption and other priority offences, which are, by their very nature, of great public import and central to the administration of justice. Incidental to this mandate is the concomitant requirement that any incumbent of such office not only be lawfully appointed and act lawfully (which is trite), but that the incumbent must also exhibit, and be seen to exhibit, the utmost independence, integrity and respect for the law. The lawfulness of the appointment of the National Head is thus a facet in which the public has an especial interest, and is pre- eminently a case where the applicants should, and do, act in the public interest.

The first respondent is the Minister, acting in his official capacity. The first respondent's office is located at the Department of Police at 231 Pretorius Street, 756-7th floor Wachthuis Building, Pretoria, 0002. The Minister is cited in his official capacity as the servant of the State responsible for the administration of the South African Police Service Act, 1995 ("the SAPS Act") and as the official who took the decision to appoint the second respondent as the National Head. The address of the Minister for the purposes of legal proceedings is c/o The State Attorney, Pretoria at SALU Building, 316 Thabo Sehume Street, Pretoria.

10. The second respondent is Maj-Gen Ntlemeza both in his personal capacity and in his official capacity as the National Head. The second respondent's office is located at 1 Promat Building, 1 Creswell Road, Silverton, Pretoria.

11. The third respondent is the DPCI, established under section 17C of the SAPS Act, and is cited for its interest in this matter. No relief is sought against the third respondent. The address of the DPCI for the purposes of legal proceedings is c/o The State Attorney, Pretoria at SALU Building, 316 Thabo Sehume Street, Pretoria.

12. The fourth respondent is the Cabinet of the Republic of South Africa, established under section 91 of the Constitution of the Republic of South Africa, 1996. It is cited for any interest it may have in this matter. The address of the Cabinet for the purposes of legal proceedings is c/o The State Attorney, Pretoria at SALU Building, 316 Thabo Sehume Street, Pretoria.

13. Due to the urgency of the matter, where email addresses exist for the respondents, electronic service will also be made on such addresses.

THE REMAINDER OF THIS AFFIDAVIT WILL BE STRUCTURED AS FOLLOWS:

14. Nature of this application

15. Urgency

16. Salient facts

17. Importance of this application

18. Legislative framework governing appointment  /;

19. The decision is unlawful and irrational

20. The Sibiya judgments

21. Relevance of the Sibiya judgments

22. The Booysen judgment

23. Requirements for interim relief

24. Prima facie right

25. Irreparable harm

26. No alternative remedy

27. Balance of convenience

28. Conclusions and relief

NATURE OF THIS APPLICATION

29. This is a two-part application arising from the unlawful and irrational appointment, on or about 10 September 2015, by the Minister of Maj-Gen Ntlemeza as the National Head ("the appointment of Maj-Gen Ntlemeza"). This appointment has had, and will continue to have, serious consequences for not only the structure and proper functioning of the DPCI, but for the Republic as a whole.

30. As set out in the notice of motion, under Part A of this application, the applicants seek urgent interim relief, interdicting Maj-Gen Ntlemeza (the second respondent) from exercising any power or discharging any function or duty as National Head pending the outcome of Part B of this application.

31. Part B is a review, in terms of Rule 53 of the Uniform Rules, seeking to review and set aside the appointment of Maj-Gen Ntlemeza. To this end, this affidavit serves as the founding papers for part B, and the applicants will, if deemed necessary, supplement these papers (in the context of Part B) upon receipt of the record of decision.

URGENCY

32. The urgency in this matter is manifest and cannot be overstated, particularly in light of the potential prejudice to the proper functioning of the DPCI and the Republic at large, the irreversible consequences which arise by virtue of Maj­ Gen Ntlemeza exercising the National Head's powers and the blatant illegality of the Minister's conduct.

33. This application concerns the proper functioning, integrity and independence of one of the most important law enforcement bodies in South Africa.

34. It has now become plain, from the content of a letter sent by the Minister on 2 March 2016 ("the 2 March 2016 letter", a copy of which is annexed marked "FA1"), that the appointment of Maj-Gen Ntlemeza was irremediably unlawful, by virtue, inter alia, of the Minister's abuse of discretion and failure to take into account relevant factors in deciding on the appointment. This state of affairs only came to the attention of the HSF in the evening of 2 March 2016 once the Minister eventually provided the reasons for Maj-Gen Ntlemeza's appointment as National Head.

35. The relevant chronology of events leading to the 2 March 2016 letter is briefly as follows. On 2 November 2015, the HSF addressed a letter to the Minister requesting, inter alia, "full written reasons why Maj Gen Ntlemeza was appointed as the National Head and evidence that the [statutory requirements for his appointment] have been fulfilled'' , as well as "a copy of any documents and information on the basis of which the appointment was made by [the Minister], and all documents and information considered by [the Minister] in making the appointmenf' ("the 2 November 2015 letter"). The HSF expressly recorded that should the requested information not be furnished timeously or should such information fail to negate the HSF's concerns, it would have to be assumed that no lawful basis for the decision to appoint Maj-Gen Ntlemeza as National Head existed. The 2 November 2015 letter is attached marked "FA2".

36. On 14 December 2015, the HSF received a letter from the National Deputy Information Officer within the South African Police Service ("SAPS") , purportedly under the Promotion of Access to Information Act, 2000 ("PAIA"), requesting an extension until 13 January 2016 to "deal with the requesf' . This letter is attached as annex "FA3". This extension request was sent despite the fact that the request for reasons was not made under PAIA.

37. On 18 January 2016, the HSF received a request (once again, purportedly, under PAIA) for payment of a fee of R35 in order to "process [the] requesf' ("the 18 January 2016 letter"). The 18 January 2016 letter states that "only after the deputy information officer has received the receipt, your request will be considered'' . The 18 January 2016 letter is annexed hereto marked "FA4".

38. Even though the request was not made under PAIA, the HSF made payment of the R35 as requested. On 22 February 2016, in a further attempt to obtain the information, the HSF addressed a letter to the Minister setting out the unwarranted delay and stressing the importance of the matter and again requesting the information by 2 March 2016 ("the 22 February 2016 letter"). The 22 February 2016 letter is annexed as "FAS".

39. The 2 March 2016 letter was received in response to the 22 February 2016 letter. The 2 March 2016 letter sets out the full written reasons for the appointment of Maj-Gen Ntlemeza. The documents considered by the Minister and Cabinet in making the appointment were the CV of Maj-Gen Ntlemeza and a document containing the recommendation to Cabinet, both of which were not disclosed to the HSF, on the basis of alleged privacy and secrecy.

40. The applicants have acted in the most prudent manner in launching this litigation. The applicants have not been unduly hasty in bringing this application - instead, this application has been launched as soon as possible after receiving the 2 March 2016 letter, which letter establishes the unlawful nature of the decision to appoint Maj-Gen Ntlemeza as National Head.

41. Any delay between the actual decision to appoint Maj-Gen Ntlemeza and the launching of this application was occasioned by the (proper) need to ascertain the reasons which underlie the appointment of Maj-Gen Ntlemeza; unlawfulness could not simply be assumed, but was only rendered transparent in the evening of 2 March 2016.

42. Maj-Gen Ntlemeza's actions as purported National Head are thus tainted by such illegality. Moreover, the National-Head is invested with significant powers, of national consequence, and Maj-Gen Ntlemeza is invoking such powers and making decisions with national ramifications on a regular basis. These decisions are, practically, largely irreversible. This compounds both the irreparable nature of the harm and the urgency of this matter.

43. The above must be seen in the context of the proper functioning of the DPCI. The DPCI is an institution which is vital to our constitutional democracy and its sanctity and functioning must be carefully safeguarded. Its head must be above reproach; must personify the institution and the values it upholds and must, above all, be a person of independence and integrity. It is constitutionally untenable to maintain in office a person whose appointment was plainly unlawful. This is particularly so in circumstances where the functionary in question wields enormous power, which:

43.1 can change the face of law enforcement in South Africa, including effecting dozens of appointments within the DPCI (in terms of Chapter 6A of the SAPS Act) and directing or discontinuing investigations;

43.2 can direct, alter or prevent investigations of priority offences; and

43.3 may have implications for the entirety of the Republic.

44. Maj-Gen Ntlemeza has, since his appointment, been particularly active in restructuring the DPCI and effecting fundamental change of personnel within the DPCI, as we traverse below. He has also been involved in high-profile investigations and interrogatories of current Ministers.

45. Evidence of the ongoing and fundamental restructuring of the DPCI can be seen in recent suspensions and appointment of senior officials of the DPCI. The Minister and/or Maj-Gen Ntlemeza have recently appointed new Provincial Heads of the DPCI for all nine provinces in South Africa (presumably under section 17CA(6) of the SAPS Act) as well as a Deputy National Head of the DPCI ("the appointments") as is evident from the SAPS media statements of 14 January and 3 February 2016 attached hereto marked "FA6". Chapter 6A of the SAPS Act, which deals with the DPCI is attached hereto as "FA7".

46. Maj-Gen Ntlemeza also suspended certain senior members of the DPCI, including Maj-Gen Sibiya and Maj-Gen Booysen, the heads of the DPCI in Gauteng and KwaZulu Natal, respectively. These suspensions have been judicially criticised (I detail those criticisms below) and in both the case of the action taken against Maj-Gen Sibiya and Maj-Gen Booysen the courts have criticised Maj-Gen Ntlemeza for his role in the suspensions.

47. Such fundamental and unlawful restructuring of the DPCI by Maj-Gen Ntlemeza necessarily affects the proper functioning and integrity of the DPCI. This is particularly so when Maj-Gen Ntlemeza has, on at least one previous occasion, acted in a manner unbefitting the office of the National Head, as held by the Honourable Mr Justice Matojane in the Sibiya case (discussed below); and in the case of Maj-Gen Booysen his conduct has been declared unlawful by the court.

48. The following additional facts support the urgency of the matter. It is clear that the methods which Maj-Gen Ntlemeza has employed in investigations have the potential to cause irreparable harm not only to the reputation of the DPCI, but also the financial and political stability of the Republic. Maj-Gen Ntlemeza has directed various interrogatories and questions to the Minister of Finance, in relation to the alleged SARS rogue unit, mere days before the Minister of Finance issued what has been termed South Africa's most important budget speech. He followed up that communication with an ultimatum that the Minister of Finance must respond to these questions in relation to the rogue unit by 16:00 on 14 March 2016, failing which there will be severe consequences. The questions are all in relation to events which date back to 2008 and allegations of unlawfulness dating back to (at the latest) 2014, and in respect of a unit which has effectively been disestablished in 2014. It is not apparent on what legal basis those inquiries have been directed, and the Minister of Finance has reportedly (rightfully, the applicants will argue) contested the legal basis upon which Maj-Gen Ntlemeza has acted. It is notable in this regard that Secretary-General of the African National Congress ("ANC"), Mr Gwede Mantashe, has confirmed that in "our view [the ANC'SJ this is a well-calculated destabilisation plan with all the elements of disinformation, falsehoods and exaggerated facts". The relevant ANC press statement of 26 February 2016 is annexed hereto marked "FAS".

49. It is also clear that there is no urgency in investigating that matter. It is also important to note that the Minister of Finance has no legal obligation to provide any answers to the questions posed. It is reported that the Minister of Finance has responded to Maj Gen Ntlemeza, indicating that he will need more time to respond to the questions and that requiring an immediate response would unduly divert the Minister of Finance's attention from current matters which are critical to the stability of the South African markets and economy.

50. In mid-February 2016 Maj-Gen Ntlemeza also authorised the arrest and detention in police cells of Ms Glynnis Breytenbach MP, the Shadow Minister of Justice, and her attorney Mr Gerhard Wagenaar relating to events that took place some four years ago and that had been thoroughly thrashed out in departmental disciplinary proceedings against Ms Breytenbach (resulting in her "acquittal") approximately three years ago. Even assuming that there is a valid basis for the prosecution, which seems highly unlikely but will no doubt be debated elsewhere, this treatment of a prominent public figure and a well- known attorney practising and living in Pretoria not only breathes malice towards an opposition member of Parliament and an attorney in his capacity as her legal representative, but suggests an attempt to intimidate them. There was no apparent cause for such a drastic, inherently humiliating and widely publicised step. The attendance in court of these two persons could and should have been initiated by summons or written warning in terms of section 38 of the Criminal Procedure Act, 1977. And as in the case of the Minister of Finance, there could have been no urgency. Indeed, there was no formulated charge-sheet available at the arraignment of Ms Breytenbach and Mr Wagenaar on 15 February 2016.

51. Aside from the apparent political abuse of his office for ulterior purposes and the judicial criticism of his conduct in the suspensions of Sibiya and Booysen, the above is also indicative of the far-reaching ambit of the National Head's powers and the potential for irreparable harm should the powers be exercised by someone who is not fit for office, as required under the legislation and the Constitution, or who abuses his/her discretion. Any abuse would have consequences at a national level, striking at the heart of the Constitution of the Republic of South Africa, democracy as a whole, the Executive and the economy.

52. Upon receipt of the 2 March 2016 letter, it became clear that the Minister did not take into account all relevant factors when appointing Ntlemeza and the appointment is thus irrational and unlawful, and must be denuded of any further practical effect. By virtue of the high office occupied by the National Head, the need for absolute integrity of the DPCI and the enormous powers vested in the National Head, every day that Maj-Gen Ntlemeza continues to occupy the office of National Head imperils and undermines the public's confidence in the DPCI, the Republic and the administration of justice.

53. Part A is thus inherently urgent - the applicants submit that, in view of the nature of the application, the time periods stipulated under Part A of the notice of application to which this affidavit is attached are appropriate . The applicants submit that the 13 calendar days provided to the respondents to file their answering affidavits, as set out in the notice of motion, is sufficient time to allow them properly to consider and answer the limited issues in Part

A. In light of the harm suffered every day that Maj-Gen Ntlemeza remains in office or is able to wield the powers of National Head, this time period is, it is submitted, an appropriate balance between affording the respondents a meaningful opportunity to respond and protecting the interests of the Republic.

SALIENT FACTS

54. On or about 10 September 2015, the Minister appointed Maj-Gen Ntlemeza as the National Head ("the decision to appoint"). Maj-Gen Ntlemeza had been the acting National Head since December 2014 when his predecessor Lt-Gen Anwa Dramat ("Lt-Gen Dramat") was unlawfully suspended. The suspension of Lt-Gen Dramat as the National Head of the DPCI and the appointment of Maj-Gen Ntlemeza as Acting National Head of the DPCI were successfully challenged by the HSF. The decisions were set aside in Helen Suzman Foundation v Minister of Police and Others (1054/2015) [2015] ZAGPPHC 4 (23 January 2015). Maj-Gen Ntlemeza, however, never left office and, for whatever reason, the decision of this Court in the above matter was never implemented. Lt-Gen Dramat never resumed his office and ultimately resigned in April 2015.

55. Maj-Gen Ntlemeza was apparently appointed as the National Head in September 2015. Maj-Gen Ntlemeza's appointment was made despite scathing High Court judgments (a quo and in respect of the leave to appeal application) against Maj-Gen Ntlemeza, handed down by the Honourable Mr Justice Matojane in February 2015 ("the Sibiya judgments", which are detailed later herein). The Sibiya judgments related to the unlawful suspension by Maj-Gen Ntlemeza of Maj-Gen Sibiya.

56. Impervious to previous judicial criticism in this regard, immediately after Maj­ Gen Ntlemeza's appointment as the National Head on or about 10 September 2015, Maj-Gen Ntlemeza continued his unlawful conduct by suspending Maj-Gen Booysen, the KZN Provincial Head of the DPCI, on or about 14 September 2015. On 18 November 2015, the Honourable Mr Justice van Zyl handed down a further judgment reversing the suspension and ordering punitive costs (Booysen v National Head of the Directorate for Priority Crime Investigation and Another (9799/2015) [2015] ZAKZDHC 86) ("the Booysen judgment").

THE IMPORTANCE OF THIS APPLICATION

57. As detailed above, the National Head occupies a high office of enormous power. With great power, of course, comes great responsibility, and this heightens the need for the wielder of such power to be fit for office.

58. The Minister, however, in making the decision to appoint, failed to take into account all relevant factors, most notably judicial pronouncements in the Sibiya judgments that cast serious doubt on the fitness and propriety of Maj­ Gen Ntlemeza to hold any public office, let alone the critical office of the National Head. This emerged only in March 2016. The appointment of Maj­ Gen Ntlemeza is thus irrational and unlawful and falls to be set aside.

59. Taking into account the importance of the office of the National Head and the mandate of the DPCI, these matters relating to the fitness of Maj-Gen Ntlemeza to hold this office are clearly crucial to the proper functioning of the DPCI and to our constitutional democracy. This constitutional imperative heightens the urgency of this matter.

60. The Constitutional Court has held in Glenister v the President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) at para [166] (" Glenister' ) that "corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels ma/administration and public fraudulence and imperils the capacity of the state to fulfill its obligations to respect, protect, promote and fulfill all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk."

61. The attainment of an effective, lawful and responsive criminal justice system is vital to our democracy. In Glenister the Constitutional Court further recognised that the DPCI is an indispensable investigative organ which must be given substantial protections to carry out its mandate. 1 There is thus a constitutional imperative to ensure that only those who are fit and proper to carry out the mandate of the high office of the National Head are appointed to that position. The failure to ensure that appropriate individuals fill those positions imperils the criminal justice system, the fulfilment of our aspirations as a nation, and the attainment of our constitutional objectives. Moreover, there is a need to take all necessary steps to insulate the DPCI from political interference. All of the above is crucial to the DPCI fulfilling the core of its statutory and constitutional mandate: to investigate high-level and high-profile corruption and organised crime cases, which often implicate important political figures. [1 2011 (3) SA 347 (CC) at para [166].]

62. The Constitutional Court further held in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC) that "[o]ur ability as a nation to eradicate corruption depends on the institutional capacities of the machinery created to that end'' (para [106]) and that the DPCI is the "agency dedicated to the containment end eventual eradication of the scourge of corruption" (para [2]).

63. Despite the requirements of the SAPS Act and his mandate under the Constitution, the Minister, in considering appointing Maj-Gen Ntlemeza to this office and eventually making the decision, did not take into account the Sibiya judgments where specific findings were made relating to Maj-Gen Ntlemeza's character and integrity; these judicial pronouncements (which were tacitly endorsed by the Supreme Court of Appeal in denying a petition for leave to appeal) directly state that Maj-Gen Ntlemeza does not satisfy the criteria required to hold the important office of the National Head. This aspect alone renders the decision irrational.

64. More recently the Honourable Mr Justice van Zyl, in the Booysen judgment, made further remarks about Maj-Gen Ntlemeza's conduct that support the contention that he is, in fact, not a fit and proper person to hold the office of the National Head. This exacerbates the urgency of this matter, as the high office of the National Head cannot be occupied by an individual such as Maj­ Gen Ntlemeza.

65. The Sibiya and Booysen judgments indicate that Maj-Gen Ntlemeza acted mala fide and for ulterior purposes in relation to the structuring, or more correctly the restructuring, of the DPCI. They also remarked upon Maj-Gen Ntlemeza's lack of integrity and recorded Maj-Gen Ntlemeza's "contemptuous attitude towards the rule of law and the principle of legality and transparency".

66. Should Maj-Gen Ntlemeza be permitted to continue to exercise the functions of the DPCI, there is now, especially when considering these judgments, good reason to believe that he will not do so taking into account the independence, mandate and interests of the DPCI, or respecting the rule of law or the principles of legality and transparency.

67. Thus, further decisions made by Maj-Gen Ntlemeza may have further and immediately damaging consequences for the independence and effective functioning of the DPCI. Under the SAPS Act, it is the National Head who, inter a/ia:

67.1 manages and directs the DPCI, including its members and the conduct of investigations under the DPCl's auspices (sections 17C(2)(a) and (3) of the SAPS Act);

67.2 is in control of the DPCl's funds and expenditure (section 17H(6) of the SAPS Act);

67.3 appoints the staff of the DPCI (sections 17C(2)(b) and 17DB(b) of the SAPS Act);

67.4 determines the number and grading of posts in the DPCI (section 17DB(a) of the SAPS Act);

67.5 has a veto power on the transfer or dismissal of any Deputy National Head, Provincial Head or administrative staff of the DPCI (section 17CA(20) of the SAPS Act) - any disciplinary steps against members of the DPCI are, in any event, to be finalised under the auspices of the National Head within the DPCl's structures (section 17CA(19) of the SAPS Act);

67.6 determines which national priority offences (and other crimes) are to be addressed by the DPCI (section 17D(1)(a) and section 170(2) of the SAPS Act);

67.7 determines under whose mandate (the DPCI or other parts of the SAPS) a particular crime falls and designates who is to investigate that crime (sections 16(3) and (4)(c) of the SAPS Act); and

67.8 heads the Operational Committee established under section 17J of the SAPS Act.

68. The National Head is thus at the very heart of the DPCl's ability to function effectively and to fulfil its constitutional mandate. The National Head makes dozens of critical operational, institutional and financial decisions which may have a substantial bearing on on-going, sensitive and high profile investigations and pending cases, the rights and expectations of members of the public, and the very structure and operational integrity of the DPCI, which would be difficult or impossible to reverse.

LEGISLATIVE FRAMEWORK GOVERNING APPOINTMENT

69. Section 17C(1) of the SAPS Act establishes the DPCI. Section 17C(1A) provides that the DPCI will comprise of a national office and an office set up in each province. Section 17C(2) of the SAPS Act sets out that there will be a National Head of the Directorate "who shall manage and direct the Directorate and who shall be appointed by the Minister in concurrence with Cabinef' .

70. Section 17CA(1) of the SAPS Act sets out the requirements that a person that is appointed as the Head of the DPCI must meet:

"(1) The Minister, with the concurrence of Cabinet. shall appoint a

person who is-

(a) a South African citizen; and

(b) a fit and proper person.

with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned, as the National Head of the Directorate ..." (Own emphasis)

71. The relevant sections of the SAPS Act are set out in annex "FA7" referred to above.

THE DECISION IS UNLAWFUL AND IRRATIONAL

72. The appointment of Maj-Gen Ntlemeza suffers from numerous defects. Most significantly, that decision could not lawfully or rationally have been taken without considering and taking proper account of all relevant factors which bear on the fitness and propriety of Maj-Gen Ntlemeza. This, axiomatically, includes all adverse judicial pronouncements in relation to the conduct of Maj-Gen Ntlemeza prior to his appointment (ie: the Sibiya judgments).

73. It is submitted that, properly viewed, these judicial pronouncements are so damning that a proper consideration of them could never allow for the appointment of Maj-Gen Ntlemeeza as the National Head.

74. The subsequent appointment thus suffers from either a failure to consider such issues at all, or an improper exercise of discretion in finding that, notwithstanding the Sibiya findings, Maj-Gen Ntlemeneza fell properly to be considered and appointed as the National Head.

The Sibiya judgments

75. The background to these judgments is as follows:

75.1 After being appointed as the acting National Head of the DPCI in December 2014, in January 2015, Maj-Gen Ntlemeza suspended Maj- Gen Sibiya for his alleged involvement in the illegal rendition of Zimbabwean prisoners in or about November 2010.

75.2 Maj-Gen Sibiya challenged the decision of Maj-Gen Ntlemeza to suspend him. The Gauteng Division of the High Court agreed with Maj- Gen Sibiya and his suspension was overturned.

76. In the judgment of the Honourable Mr Justice Matojane, handed down on 20 February 2015 ( Sibiya v Minister of Police and Others [2015] ZAGPPHC 135 (20 February 2015)) ("the Sibiya judgment a quo") the Court noted the following with regard to Maj-Gen Ntlemeza's conduct in taking the decision to suspend Maj- Gen Sibiya, at para 31:

"[31] In my view, there exists no basis in law or fact for the Third Respondent to take the drastic measure of placing [the] Applicant on precautionary suspension. I agree with the Applicant that the decision by Third Respondent was taken in bad faith and for reasons other than those given. Itis arbitrary and not rationally connected to the purpose for which it was taken and accordingly, it is unlawful as it violates [the] Applicant's constitutional right to an administrative action that is lawful, reasonable and procedurally fair' (own emphasis).

77. Maj-Gen Ntlemeza launched an application for leave to appeal the findings of Matojane J. On 23 March 2015, Matojane J handed down judgment in the leave to appeal of the matter, dismissing the application for leave to appeal ("the Sibiya leave to appeal judgment"). The Sibiya leave to appeal judgment is annexed marked "FA9".

78. Importantly, at page 8 of the Sibiya leave to appeal judgment, Matojane stated that Ntlemeza was "biased and dishonesf', and "lacked integrity and honour' as Ntlemeza had made false statements under oath. In addition to these serious indictments on Ntlemeza's character, the Court further remarked, at page 11 of the Sibiya leave to appeal judgment, that Ntlemeza AJ has a "contemptuous attitude towards the rule of law and the principle of legality and transparency'' .

79. Maj-Gen Ntlemeza sought leave to appeal from the Supreme Court of Appeal in relation to the Sibiya judgment a quo. This application for leave to appeal was dismissed by the Supreme Court of Appeal on 26 May 2015. In this regard, I refer to the order annexed marked "FA1O".

80. Furthermore, after Maj-Gen Sibiya's suspension was set aside by the court, Maj-Gen Ntlemeza refused to allow Maj-Gen Sibiya to return to work. The relevant media article reporting this is annexed marked "FA11". This shows a further blatant disregard for the law, which is incompatible with the office of the National Head of the DPCI.

Relevance of the Sibiya judgments

81. It is submitted by the applicants that the decision to appoint Maj-Gen Ntlemeza is irrational and unlawful on the basis that these findings of the Court were ignored or were not properly considered.

82. These judicial pronouncements establish that Maj-Gen Ntlemeza:

82.1 acted arbitrarily and in bad faith;

82.2 refused, alternatively failed, to take the Court into his confidence and provide the true reasons for his decision in relation to Maj-Gen Sibiya;

82.3 violated constitutional rights in the process;

82.4 was biased, dishonest, lacked integrity and lacked honour;

82.5 had a contemptuous attitude towards the rule of law and the principle of legality and transparency; and

82.6 refused to abide by or implement Orders of Court, which are binding.

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83. The Sibiya judgments quite clearly establish that Maj-Gen Ntlemeza is not fit and proper to hold the office of the National Head as required by section 1?CA( 1) of the SAPS Act.

84. None of these findings was properly scrutinised by the Minister or Cabinet and the serious doubts in relation to the propriety for office of Maj-Gen Ntlemeza were thus not addressed. Indeed, the only document considered by the Minister in coming to the decision was the curriculum vitae of Maj-Gen Ntlemeza (which has not been disclosed to the HSF, on the fallacious basis of breach of privacy, but which could not in any event ever have assuaged concerns around the findings in the Sibiya judgments).

85. As is evident from section 17CA(1) of the SAPS Act, the core consideration which must be satisfied on an objective basis is whether the candidate is a fit and proper person that can be entrusted with the responsibilities and duties that are core to the office of the National Head. This is essential to ensure that the DPCI is capable of performing its mandate and to do so with independence and integrity.

86. This is evident from the fact that the legislature specifically limited the discretion of the Minister to appoint the National Head by setting out several criteria that a person must meet before he/she can be appointed as the National Head.

87. Given that most of the criteria set out by the legislature relate to the character of the person to be appointed as head of the DPCI, any evidence which casts any aspersion or doubt on the character or ability of a potential appointee must be thoroughly investigated and the Minister must satisfy himself, on objective grounds, that the evidence is untrue or is negated for some other' reason. In the absence of such objective analysis, the appointment in the face of the adverse evidence cannot be lawful or rational.

88. This must be particularly so where the evidence speaks to the candidate's integrity, honesty and attitude towards the law, his attitude towards the courts, and his commitment to furthering constitutional ideals.

89. Having regard to the nature of the functions and powers of the National Head, the adverse evidence goes to the very heart of his office.

90. The Sibiya judgments contained findings of dishonesty and ma/a tides that, due to the fact that they were made by way of judicial pronouncements, are direct evidence that Maj-Gen Ntlemeza lacks the requisite honesty, integrity and conscientiousness to hold any public office, let alone an office as crucial to our constitutional democracy as that of the Head of the DPCI, where independence, honesty and integrity are essential characteristics (particularly to the fight against corruption and other priority offences) and not merely desirable ones.

91. The findings made in the Sibiya judgments thus have direct relevance to the question of whether Maj-Gen Ntlemeza is fit and proper, taking into account his "conscientiousness and integrity", or the lack thereof, as these requirements disqualify him completely from holding such office. The judicial findings in the Sibiya judgments are final and have not been disturbed on appeal.

92. On an objective consideration of the judicial findings in the Sibiya judgments and the Minister's failure to deal with those findings appropriately in the appointment process, the Minister could not lawfully or rationally have effected the appointment of Maj-Gen Ntlemeza.

93. Moreover, the public perception created by the Sibiya judgments as to the propriety of Maj-Gen Ntlemeza as a suitable National Head would also require to be considered before any appointment. The perception that it is forgivable for such damning judicial pronouncements to be ignored greatly undermines the sanctity of the institution of the DPCI.

The Booysen judgment

94. At the outset, I point out that that the Booysen judgment post-dates the decision to appoint. The applicants rely on this judgment not as a substantive ground to set aside the decision to appoint, but to buttress the grounds underpinning urgency.

95. It is clear from the Booysen judgment that Maj-Gen Ntlemeza acted with ma/a tides in his decision to suspend Booysen. It also confirms that, despite the previous judicial criticism of his conduct regarding the suspension of Maj­ Gen Sibiya, Maj-Gen Ntlemeza continues to conduct himself as someone above the law.

96. In that application, Maj-Gen Booysen had contended "that the decision to suspend him was unlawful because it was taken ma/a fide, for some ulterior purpose and was not one the respondent could reasonably have arrived at if he had, actually considered the relevant facts, including the representations made by the applicant prior to his suspension. "[2 Booysen judgment at page 3, para 5]

97. Van Zyl J largely agreed with Maj-Gen Booysen's contentions. The judgment states that Maj-Gen Ntlemeza "[b]y blandly asserting to be within his rights to suspend [Booysen] while he investigates suggests an unfettered and arbitrary discretion, to be exercised at will as a matter of entitlement, irrespective of whether the a/legations objectively have any merit." [Booysen judgment at page 21, para 48]

98. His Lordship states further that " what remained unanswered were [Maj-Gen Booysen's] assertions that the subject matter of the a/legations were not new, had been the subject of investigation in the past and against the background of sustained unsuccessful efforts to suspend or discipline him, amounted to a sinister attempt again to remove him from office on a pretext, for reasonswhich remain unclear." [4 Booysen judgment at page 22, para 53]

99. In relation to ulterior motives or purposes, the Court had the following to say:

"63. [Maj-Gen Booysen] has pointed to the series of actions taken against him as being indicative of [Maj-Gen Ntlemeza] acting with an ulterior motive. Whilst denying such a motive, [Maj-Gen Ntlemeza] has not placed in dispute the previous actions taken against [Maj-Gen Booysen], or that they were unsuccessful. A strong suggestion arises that there is an ongoing move. possibly even a campaign to unseat {Mai-Gen Booysenl. but there is not sufficient evidence before the court to draw firm conclusions in this regard and neither party has sought a referral for the hearing of oral evidence in order to resolve these factual conflicts.

64. What is however noteworthy is that [Maj-Gen Ntlemeza] had embarked, for reasons unclear. upon a course of action as against {Mai- Gen Boovsenl which was unsustainable upon the information at his disposal. When {Mai-Gen Boovsen 7 responded with detailed and motivated submissions to the notice of intention to suspend him. {Mai­ Gen Ntlemeza 1 effectively ignored these and proceeded with the suspension in any event. When {Mai-Gen Booysenl instituted the present application to set aside the suspension. {Mai-Gen Ntlemezal doggedly opposed the relief soughf'  (my emphasis). [5 Booysen judgment at pages 26 to 27, para 63 to 64]

100. The Booysen judgment provides further support for the applicants' contention that Maj-Gen Ntlemeza is, in fact, and when assessed objectively, not fit and proper to hold the office of the National Head, and poses a serious threat to the stability, reputation and lawful conduct of the criminal justice system.

101. Given this, he cannot remain as the incumbent National Head; he is wielding his enormous power improperly, which was foreshadowed in the Sibiya judgments.

102. The Republic must thus urgently be safeguarded from any such abuses of power and the very real threats Maj-Gen Ntlemeza poses to the proper functioning of the DPCI and the fight against corruption.

103. Moreover, the public perception created by the Booysen judgments stokes the urgency of the matter. The perception that a National Head could so abuse powers and seemingly attempt to restructure the DPCI for his (or ulterior) purposes greatly undermines the sanctity of the institution of the DPCI.

REQUIREMENTS FOR INTERIM RELIEF

104. I am advised that it has been generally accepted in our law that the following requirements have to be met when an interim interdict is sought:

104.1 The existence of a prima facie right;

104.2 A reasonable apprehension of irreparable and imminent harm to the right;

104.3 The balance of convenience must favour the grant of the interdict; and

104.4 The applicant must have no other remedy available.

PRIMA FACIE RIGHT

105. The applicants, and, indeed, all citizens of the Republic, have a clear constitutional right to an independent and functioning criminal justice system. A core tenet of this right is the establishment of an independent corruption fighting unit, the DPCI.

106. The Constitutional Court itself has recently (again) affirmed the need for the independence of this organisation.

107. Similarly, the applicants, and all citizens, have a right to have a National Head appointed who is fit for office. In circumstances such as these, ignoring prima facie indications of dishonesty would have been sufficient to ground the relief sought. The judicial findings of dishonesty thus support a clear right to the relief sought.

108. It is plain that the Minister (and Cabinet) have not complied with the [) requirements of the Constitution and section 17CA of the SAPS Act. As the Constitutional Court held in Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC), a failure to consider and properly address findings of impropriety made against a candidate in Maj-Gen Ntlemeza's position is fatal to the lawfulness of any decision to appoint him/her. This must be particularly so where the findings are made by members of the judiciary.

109. The applicants thus have a clear, let alone prima facie, right (grounded in at least the principle of legality and the rule of law) to review the decision and have the appointment set aside.

IRREPARABLE HARM

110. The enormous powers wielded by the National Head have been alluded to above and Maj-Gen Ntlemeza has sought to exercise these powers liberally. If, as the applicants argue, he has been appointed improperly, then he yields such powers unlawfully.

111. Moreover, as appears from the Sibiya and Booysen judgments, in so wielding such powers the National Head can, if left unchecked, restructure the DPCI to his own end. He can also investigate matters which should not be investigated (and, more importantly, take intrusive steps to further such investigations), or pend or quash matters worthy of further, immediate investigation.

112. The use of such enormous powers has implications at a national level, and in many instances an abuse cannot be undone once it is performed. Such irreversible consequences alone constitute irreparable harm.

113. Particularly given Maj-Gen Ntlemeza's well-publicised attempts fundamentally to restructure the DPCI, combined with the Sibiya and Booysen judgments and the improper appointment of Maj-Gen Ntlemeza, there is a very real apprehension of irreparable harm to the administration of justice, the DPCI, the national economy and the Republic's constitutional democracy.

NO ALTERNATIVE REMEDY

114. In light of the harm traversed above, there is clearly no alternative remedy.

BALANCE OF CONVENIENCE

115. Although the interim relief prayed for by the applicants may result in a situation where there is no functional, permanently appointed National Head, any adverse effect of this situation is negated by section 17CA(12)(a) of the SAPS Act which states that "[w]henever the National Head of the Directorate is absent or unable to perform his or her functions, the Minister shall appoint the Deputy National Head of the Directorate as the acting National Head of the Directorate."

116. The DPCI had previously operated under an acting National Head for many months.

117. Should the interim relief not be granted, however, then the harm identified herein may become irreversibly entrenched, and the corruption fighting capacity of the DPCI may be greatly diminished or even itself corrupted.

118. The benefit of (and necessity for) the interim relief, in light of the potential risk to the proper functioning of the DPCI, outweighs any potential adverse effects on the functioning of the DPCI should Part A of this application be granted.

119. In the circumstances, I respectfully submit that the strength of the applicant's right, the limited impact on the respondents should the relief be granted, and the devastating and irreparable harm that will be suffered by the applicants and the public should it not, all point to the need for the relief sought to be granted. The applicants therefore submit that the balance of convenience favours the granting of the relief sought in this application.

CONCLUSIONS AND RELIEF

120. It is evident from the above that the decision by the Minister to appoint Maj­ Gen Ntlemeza as the National Head is unlawful and irrational and falls to be reviewed and set aside on several bases. The applicants and the public should not, for a moment longer, be subjected to the far-reaching decisions of a plainly unlawfully appointed official, and particularly one whose role is so critical to our constitutional project.

121. It is, moreover, essential that the interim regime prayed for be implemented to insulate the Republic from the harm identified herein.

WHEREFORE, the applicants pray for the relief set forth in parts A and B of the notice of motion.

Transcribed from PDF. As such there may be errors in the text.