IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO: 8550/09
In the matter of:
FREEDOM UNDER LAW - Applicant for admission as amicus curiae
In re the matter of:
PIKOLI, VUSUMZI PATRICK - Applicant
and
THE PRESIDENT - First Respondent
SPEAKER OF THE NATIONAL ASSEMBLY - Second Respondent
THE CHAIR OF THE NATIONAL COUNCIL OF PROVINCES - Third Respondent
______________________________________________________________
FOUNDING AFFIDAVIT
______________________________________________________________
I, the undersigned:
DESMOND MPILO TUTU
do hereby make oath and say :
1 I am an Anglican priest and the Anglican Archbishop Emeritus of Cape Town.
2 In 1984 I was awarded the Nobel Peace Prize. From 1996, I served as the chairperson of the Truth and Reconciliation Commission.
3 I am presently a member of the International Advisory Board of Freedom Under Law. Freedom Under Law is the applicant for the admission as amicus curiae in these proceedings. I am duly authorised to depose to this affidavit on behalf of Freedom Under Law by virtue of a decision of its Board of Directors taken on 20 June 2009.
4 The facts set out herein fall within my personal knowledge, unless otherwise indicated by the context, and are to the best of my belief true and correct.
5 When dealing with legal questions and the contents of the affidavits filed in the main application, I rely on the advice of Freedom Under Law's legal representatives.
THE APPLICANT
6 Freedom Under Law was established in January 2009. It is a not-for-profit company incorporated and registered in South Africa in terms of section 21 of the Companies Act 61 of 1973, and with offices of record in South Africa and Switzerland.
7 Freedom Under Law seeks to promote democracy under law and to advance the understanding of and respect for the rule of law and the principle of legality. Its concern with these issues is particularly focused on Southern Africa, and the members of its Board of Directors are drawn from South Africa, Botswana, Namibia and Zimbabwe.
8 The members of the Board of Directors are Judge Johann Kriegler, Elize Angula, Professor Hugh Corder, Ezra Davids, Jeremy Gauntlett SC, Abdool Rahim Khan, Kgomotso Moroka SC, Dr Frederick Mostert, Beatrice Mtetwa and Dumisa Ntsebeza SC.
9 Freedom Under Law also has an International Advisory Board whose members, in addition to me, are the Rt Hon the Lord Steyn P.C., Shami Chakrabarti, Judge Nathaniel R. Jones, Professor Jeffrey Jowell Q.C., Sir Sydney Kentridge QC, Cyril Ramaphosa, Dr Mamphela Ramphele and the Hon Soli Sorabjee SC.
THE PRESENT APPLICATION
10 This application arises out of the application launched by Mr Pikoli, the former National Director of Public Prosecutions ("NDPP"), seeking to have reviewed and set aside the decision of the President of the Republic of South Africa to remove him from office. I refer to that application as "the main application".
11 Freedom Under Law seeks to be admitted as an amicus curiae in respect of the main application in terms of Rule 16A of the rules of this Court. The purpose of this affidavit is to set out the basis of the application in terms of Rules 16A(5) and (6) of the Rules of this Court.
12 In what follows, I deal with four main issues:
12.1 The interest of Freedom Under Law in the main application;
12.2 The submissions which will be advanced by Freedom Under Law if it is admitted as an amicus curiae;
12.3 The attitude of the parties in the main application to Freedom Under Law's admission; and
12.4 The relief that ought to be granted to Freedom Under Law in this application.
THE INTEREST OF FREEDOM UNDER LAW IN THE MAIN APPLICATION
13 The aims of Freedom Under Law are set out above. Freedom Under Law is of the view that the main application raises novel questions which are crucial for the rule of law and principle of legality.
14 The position of the NDPP is created by section 179 of the Constitution. Section 179(3) of the Constitution provides that "National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice." This recognises that it is fundamental to the rule of law and democracy that the National Prosecuting Authority and its head the NDPP are able to function independently.
15 The national legislation envisaged by section 179(3) of the Constitution is the National Prosecuting Authority Act 32 of 1998. Section 9(1)(b) provides that the person appointed as NDPP must "be 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". Section 12 of the Act deals, in some detail, with the procedure that must be followed if the NDPP is to be removed from office.
16 The present case involves the first time in the democratic era that an NDPP has been removed from office. It is accordingly essential that that decision be tested against the relevant legal and constitutional principles. Moreover, it is essential that the correct constitutional and legal principles in this regard be established.
17 This is particularly the case because the independence and security of tenure of the NDPP are critical to the rule of law.
18 In the circumstances, I submit that Freedom Under Law - as an organisation dedicated to advancing the understanding of and respect for the rule of law and the principle of legality - has an interest in the main application sufficient to qualify it as an amicus curiae.
THE SUBMISSIONS WHICH WILL BE ADVANCED BY FREEDOM UNDER LAW IF IT IS ADMITTED AS AN AMICUS CURIAE
19 Freedom Under Law seeks admission as an amicus curiae only for the purpose of advancing certain legal submissions. It does not seek to adduce any evidence before the Court hearing the main application.
20 The issues upon which Freedom Under Law wishes to advance written and oral submissions are the following:This section would consider, in particular, the proper interpretation of sections 12(6) and (7) of the National Prosecuting Authority Act 32 of 1998 in light of the requirements of prosecutorial independence.
20 The issues upon which Freedom Under Law wishes to advance written and oral submissions are the following:
20.1 The powers and functions of the NDPP
These submissions would focus on the origin and nature of the powers entrusted exclusively to the NDPP. It will be contended that the NDPP has the sole discretion to take decisions relating to the institution, continuation and stay of prosecution, especially where these relate to members of Cabinet or the legislature.
These submissions would address how the powers and functions entrusted to the NDPP are appropriately exercised in light of the principles of cooperative government.
20.3 The appropriate grounds for removing the NDPP from office.
These submissions would consider, in particular, what is required for a person to be fit and proper for the position of NDPP.
20.4 The appropriate procedure for removing the NDPP from office.
This section would consider, in particular, the proper interpretation of sections 12(6) and (7) of the National Prosecuting Authority Act 32 of 1998 in light of the requirements of prosecutorial independence.
21 It should be emphasised that in making these submissions, Freedom Under Law will rely significantly on comparative foreign jurisprudence. It appears that at least the following authorities from the United Kingdom, Canada and United States are of relevance:
21 It should be emphasised that in making these submissions, Freedom Under Law will rely significantly on comparative foreign jurisprudence. It appears that at least the following authorities from the United Kingdom, Canada and United States are of relevance:
21.1 R v DPP, ex parte Kebeline and Others [2000] 2 AC 326 (HL);
21.2 Sharma v Brown-Antoine and Others [2007] 1 WLR 780 (PC);
21.3 Krieger v Law Society of Alberta [2002] 3 S.C.R. 372, 2002 SCC 65
21.4 Crockford v British Columbia (Attorney General) 2006 BCCA 360; 271 DLR (4th) 445
21.5 Hoem v Law Society of British Columbia and Attorney General of British Columbia 63 B.C.L.R. 36, [1985] 5 W.W.R. 1, 20 C.C.C. (3d) 239, 20 D.L.R. (4th) 433
21.6 R. v. Power, [1994] 1 S.C.R. 601
21.7 Imbler v. Pachtman 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128;
21.8 Yaselli v. Goff 12 F.2d 405; 56 A.L.R. 239.
22 For this reason alone, I submit that Freedom Under Law's submissions will assist this court in determining the main application and will be different from those of the parties to the main application.
23 In addition, the parties to the main application will inevitably focus on the specific circumstances of the present case and the reasonably narrow interests they wish to protect and assert. By contrast, Freedom Under Law will be able to make submissions as a matter of principle and in the public interest, with an eye to how the jurisprudence in this area ought to be developed if the rule of law is to be adequately protected in the future. For this reason too, I submit that Freedom Under Law's submissions will assist the court hearing the main application and will be different from those of the parties to the main application.
THE ATTITUDE OF THE PARTIES TO THE MAIN APPLICATION
24 On 23 April 2009, Freedom Under Law's attorneys, Webber Wentzel, wrote to the attorneys for the Applicant and First to Third Respondents seeking their consent to Freedom Under Law being admitted as amicus curiae in the main application.
24.1 A copy of the letter is Annexure A to this affidavit. A confirmatory affidavit from Freedom Under Law's attorney, Mr Peter Grealy, of Webber Wentzel, is filed together herewith.
24.2 In that letter, Freedom Under Law set out its interest in the main application as well as the issues upon which it wished to advance written and oral submissions. The issues upon which Freedom Under Law wished to advance submissions are set out in paragraphs 4.1 to 4.4 of that letter. I point out that those issues are in substance identical to the issues set out in paragraphs 20.1 to 20.4 above of the present affidavit.
24.3 In the letter, Webber Wentzel requested that the parties consent by no later than Monday 4 May 2009.
25 On 24 April 2009, Deneys Reitz, which acts for Mr Pikoli in the main application, sent a letter to Freedom Under Law's attorneys indicating that Mr Pikoli consented to Freedom Under Law being admitted as amicus curiae. A copy of this letter is Annexure B to this affidavit.
26 However, no response was forthcoming from the State Attorney which acts on behalf of the First to Third Respondents.
27 Accordingly, on 6 May 2009, Webber Wentzel sent a further letter to the State Attorney indicating that it had not received any response and requesting an urgent response to the letter of 23 April 2009. A copy of the letter of 6 May 2009 is Annexure C to this affidavit.
28 In the absence of any response, on 8 May 2009, Mr Grealy telephoned Mr Isaac Chowe of the State Attorney, Pretoria, and asked for a response to his previous letters. Mr Chowe requested that copies of the letters be sent to him which Mr Grealy attended to on the same day. A copy of Mr Grealy's letter dated 8 May 2009 is Annexure D to this affidavit.
29 On 13 May 2009, Mr Grealy received a letter from the State Attorney, Pretoria. A copy of that letter is Annexure E to this affidavit. In that letter, the State Attorney, Pretoria, indicated that instructions were being taken from the Respondents and that these instructions would be finally communicated to the State Attorney on or before 22 May 2009. This did not occur.
30 On 27 May 2009, a further letter was sent by the State Attorney, Pretoria to Mr Grealy. It appears that this letter was sent on behalf of the first respondent (the President), not the second and third respondents. A copy of the letter is Annexure F to this affidavit. In that letter, the State Attorney indicated as follows:
30.1 In respect of the issues set out in paragraphs 4.3 and 4.4 of the Webber Wentzel letter of 23 April 2009, the President would not oppose Freedom Under Law's admission as an amicus curiae. I point out that these are the issues dealt with at paragraphs 20.3 and 20.4 above of the present affidavit - that is the appropriate grounds and procedure for removing the NDPP from office.
30.2 In respect of the issues set out in paragraphs 4.1 and 4.2 of the letter dated 23 April 2009, the President took the view that these did not appear to be directly relevant to any issues which were the subject matter of the main application. Accordingly the President would oppose Freedom Under Law being admitted as an amicus curiae on these issues. I point out that these are the issues dealt with at paragraphs 20.1 and 20.2 above of the present affidavit - that is powers and functions of the NDPP and the relationship between the NDPP, the Minister of Justice and the President.
31 No response has been received from the second and third respondents regarding Freedom Under Law's request for admission as amicus curiae. This is presumably because the second and third respondents are not opposing the relief sought by Mr Pikoli in the main application and have instead elected to abide.
THE RELIEF THAT OUGHT TO BE GRANTED TO FREEDOM UNDER LAW IN THE PRESENT APPLICATION
32 In light of the attitude of the parties set out above, it appears that there will be no opposition from any party to the main application to Freedom Under Law being admitted as amicus curiae.
32.1 Neither Mr Pikoli nor the second or third respondents oppose the admission of Freedom Under Law as amicus curiae.
32.2 The President too does not oppose the admission of Freedom Under Law as amicus curiae but maintains that it should only be allowed to advance submissions on two of the four issues proposed.
33 In the circumstances, I submit that this Court should grant the relief sought in the Notice of Motion and admit Freedom Under Law as an amicus curiae to the main application in terms of rule 16A(8) of the Rules of this Court. Indeed, I submit that, whatever the attitude of the parties to the main application, Freedom Under Law has plainly made out a proper case for admission as amicus curiae in this regard.
34 The only remaining question is whether this Court ought to:
34.1 restrict Freedom Under Law to making submissions on two of the four issues raised (as the President appears to contend); or
34.2 simply admit Freedom Under Law as amicus curiae without such a restriction.
35 I submit that this Court should not seek to limit the four issues on which Freedom Under Law wishes to make submissions. This is for three reasons.
36 First, it would place the judge hearing the present amicus application in a highly invidious position.
36.1 That judge will have to determine whether the two contentious issues (paras 20.1 and 20.2 above) are relevant to the main application.
36.2 However, the affidavits in the main application (excluding annexures) run to almost 400 pages. The annexures take up more than 600 additional pages. The issues are complex and novel both as a matter of fact and law.
36.3 In due course, a judge (or judges) of this Court will consider that entire record and the matter as a whole in the course of hearing the main application. The judge hearing the main application will be best placed to determine whether the submissions by Freedom Under Law on the two contentious issues have relevance to the main application.
36.4 If this Court prevents Freedom Under Law from making the submissions to which the President objects, it will mean that the judge hearing the main application is precluded hearing from those submissions and determining their relevance in light of the full record.
36.5 By contrast, if this Court permits Freedom Under Law to make the submissions in question, the judge hearing the main application will be able to determine what relevance they have. If the judge takes the view that those submissions are not relevant, he or she will not take them into account. That is a decision that the judge hearing the main application should be able to make.
37 Second, it would be at odds with the practice of our courts, in particular the Constitutional Court which frequently deals with the admission of amici curiae.
37.1 I am advised that it is extremely unusual and virtually unprecedented for a Court to admit a party as amicus curiae and then to specify the submissions it can make.
37.2 Instead, the prevailing practice is that where a prospective amicus curiae is admitted, the Court does not restrict the submissions it can advance, save to say on occasion that the amicus should not repeat submissions made by the parties.
37.3 This approach has much to recommend it because it avoids a Court having to determine, in advance, precisely which of the submissions of the amicus will be helpful and to what extent in the deciding the main case.
38 Third, and in any event, I submit that there is no merit in the President's contention that the two issues raised are not relevant to the main application. This is demonstrated by a consideration of the facts set out in the papers in the main application. For the sake of convenience, I refer only to the affidavit filed by President Motlanthe, which demonstrates the point quite clearly.
38.1 At p 6, para 15-16, the President outlines the deficiencies in Mr Pikoli's conduct which meant that he was not a fit and proper person to be the NDPP. He states in this regard that:
"Further deficiencies related to his lack of recognition of the Minister's final responsibility and his failure to give due consideration to the actions necessary for the President to take in order to avert any potential security crisis and instability and to protect the country's international reputation that may have been brought about by the arrest of the then Commissioner of SAPS, Mr. Selebi."
38.2 At p 9, para 24.4, the President refers to Mr Pikoli's failure to understand the "particular constitutional position required to be fulfilled by the National director of Public Prosecutions [which] is indicative of his failure to display the characteristics of ‘a fit and proper' National Director of Public Prosecutions".
38.3 At p 18, para 39.2, the President avers that Mr Pikoli had no insight into the relationship between the NDPP and other arms of government, including the executive arm of government.
38.4 At p 24, para 53.5, the President contends that in order for a person to be fit and proper for the office of NDPP, he must understand the unique role played by the NDPP and the nature of the inter-relationship between his office and the other arms of government.
38.5 At p 24, paras 53.8 and 53.9, the President avers that Mr Pikoli's view that his position was entirely separate from and independent of the other arms of government, including the Minister of Justice, rendered him not fit and proper to hold the position of NDPP. The President contends further that the Minister of Justice is entitled to be kept informed of all decisions taken by the NDPP and to exercise final responsibility over the National Prosecuting Authority.
38.6 At p 25, para 54, the President again avers that Mr Pikoli failed to understand the proper relationship between different arms of government and the need to co-operate and that, accordingly, he misunderstood the scope of his own powers because he did not consider himself accountable to other arms of government.
38.7 At p 28, para 59-60, the President avers that Mr Pikoli misconstrued his powers and his obligation to inform the Minister of Justice prior to obtaining search warrants.
38.8 At p 30, para 62-63, the President avers that Mr Pikoli was under a duty to co-operate with the President and the Minister rather than present them with a fait accompli in respect of search warrants for the Union Buildings.
38.9 At p 33, para 66.3, the President avers that the mistakes made by Mr Pikoli are fundamental and reflect on his understanding of and his ability to perform the role of the NDPP in the context of co-operation with other arms of government.
38.10 At p 35, para 74, the President avers that Mr Pikoli's failure to inform Minister of Justice of his activities was irregular.
38.11 At p 37, para 80, the President deals with the relationship between Mr Pikoli and the President in relation to the planned arrest and prosecution of Mr Selebi.
38.12 At p 38, para 82 the President refers to findings by Dr Ginwala that Mr Pikoli
"displayed serious and far reaching deficiencies in his capacity and understanding of issues of national security and the requirement to facilitate co-operation between different arms of government" and goes on to say that this conclusion "is of particular importance".
39 Whether these averments and submissions are correct, of course, remains to be seen. However, they demonstrate quite clearly that the two issues which the President contends are irrelevant - the powers and functions of the NDPP and the relationship between the NDPP, the Minister of Justice and the President - are plainly relevant to the main application. This is on the President's own version.
40 In order to avoid unduly burdening the papers, a copy of the President's affidavit is not attached. However, it will be made available at the hearing of this matter should the need arise.
41 In all the circumstances, I respectfully submit that this Court should grant the application by Freedom Under Law for admission as amicus curiae without limiting the four issues raised by it.
42 There is only one remaining matter that falls to be dealt with. Rule 16A of the Rules of this Court sets out various time-periods for the admission of an amicus curiae.
42.1 Rule 16A(9) permits this Court to "dispense with any of the requirements of this rule if it is in the interests of justice to do so."
42.2 To the extent that there has been any non-compliance with rule 16A, Freedom Under Law requests this Court to dispense with the relevant requirements.
42.3 As the facts set out above make clear, Freedom Under Law has been seeking admission as amicus curiae for some time. However, it took the view that it was prudent to wait until the President had responded to the letter requesting admission and Mr Pikoli's replying affidavit had been filed before launching the present application. I point out that Mr Pikoli's replying affidavit was filed on 11 June 2009.
42.4 In view of the considerable importance of the present matter for the country as a whole. and the lack of any prejudice to the respondents, I submit it is plainly in the interests of justice for this application to be dealt with on its merits.
43 In the circumstances, I pray for the relief as set out in the Notice of Motion to which this affidavit is attached.
DESMOND MPILO TUTU
Source: Freedom Under Law
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