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IN THE HIGH COURT OF SOUTH AFRICA

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IN THE HIGH COURT OF SOUTH AFRICA Powered By Docstoc
					                         On the roll for hearing on 7, 8 and 9 June 2010

IN THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG HIGH COURT, PRETORIA
                                                 CASE NO. 19577/09


In the matter between:


DEMOCRATIC ALLIANCE                                           Applicant


and


THE ACTING NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS                                           First Respondent

THE HEAD OF THE DIRECTORATE OF SPECIAL
OPERATIONS                                          Second Respondent

JACOB GEDLEYIHLEKISA ZUMA                             Third Respondent




    THE APPLICANT’S HEADS OF ARGUMENT IN THE RULE 6(11)
  APPLICATION FOR THE PRODUCTION OF THE REDUCED RECORD
                                                                                             2

A.      INTRODUCTION: THE BACKGROUND


1.      This is an interlocutory application brought in terms of Uniform Rule
        6(11)1 for the production of the so-called reduced record in respect of a
        decision of the First Respondent taken on or about 6 April 2009, to
        discontinue the criminal prosecution of the Third Respondent in
        accordance with charges contained in an indictment of 27 September
        2007. The reduced record is the record of the proceedings relating to
        the   decision     of   the    First   Respondent,       excluding      the    written
        representations made on behalf of the Third Respondent and also
        excluding any consequent memorandum, report or the like prepared in
        response thereto, production of which would breach any confidentiality
        attaching to the representations.2


2.      The Applicant brought an urgent review of the decision, which was
        issued and served on the First Respondent on 7 April 2009.3


3.      In the Applicant’s notice of motion in the main application, the First
        Respondent was called upon to file the record of proceedings in
        respect of the decision, as required by Uniform Rule 53(1). This was
        not done. Instead, by letter dated 24 April 20094 the State Attorney on
        behalf of the First Respondent responded by stating that there were
        two issues which prevented the filing of the record, namely:


        3.1     The conditions under which the Third Respondent’s legal
                representatives       made       representations       to    the      National
                Prosecuting Authority (“NPA”). It was claimed in the letter that
                the representations were made on condition of “confidentiality”
                and on a “without prejudice” basis.               The First Respondent

1
  Where convenient, we refer to the interlocutory application as the Rule 6(11) Application and
to the papers filed in this application as Record: Rule 6(11) Application.
2
  Record: Rule 6(11) Application at 1-2, para 1
3
  We refer to the review application as the main application; the decision to be reviewed in
that application as the decision; and the papers filed in that application as Record: Main
Application.
4
  The letter appears at Record: Rule 6(11) Application at 14
                                                                                       3

                suggested that this concern could be overcome if the Third
                Respondent was prepared to waive the conditions5 alternatively
                if the Third Respondent was prepared to permit the filing of the
                record subject to suitable written confidentiality undertakings (a
                number of further proposals were made in this regard).6


        3.2     Secondly, it was stated that the First Respondent “intends to
                raise the Applicant‟s locus standi and the reviewability of the
                decision as preliminary matters to be dealt with on an
                interlocutory basis together with the request to the Court to
                sanction any confidentiality arrangements that the parties agree
                upon or to give directions in the event that the parties fail to
                reach agreement …”. The First Respondent contended that it
                would be convenient for these issues to be decided before
                extensive work was undertaken and unnecessary costs were
                incurred.7


4.      Thereafter:


        4.1     The Third Respondent communicated his refusal to waive the
                conditions in a letter dated 29 April 2009.8                    The First
                Respondent’s alternative proposal (filing the record with a
                written confidentiality undertaking) was not dealt with in the
                letter.


        4.2     The First Respondent appears to have regarded the 29 April
                2010 letter as a rejection of both proposals, because in a letter
                dated 8 May 2009 he stated that the record would not be filed in
                the absence of a court order compelling him to do so.9



5
  Record: Rule 6(11) Application at 18 (see para 11 of the letter).
6
  Record: Rule 6(11) Application at 18 (see para 12 of the letter).
7
  Record: Rule 6(11) Application at 20 (see para 17 of the letter0
8
  Record: Rule 6(11) Application at 23 (see unnumbered para 2 of the letter).
9
  Record: Rule 6(11) Application at 26 (see unnumbered para 3 of the letter).
                                                                                              4

        4.3     The Applicant subsequently proposed in a letter dated 12 May
                2009 that the record be delivered to the Registrar without the
                Third Respondent’s representations10 (i.e. the reduced record).


5.      No response was received to this call for the reduced record and it has
        not been filed with the Registrar.11             Furthermore, the interlocutory
        application in respect of the issues of standing and reviewability
        foreshadowed in the First Respondent’s letter of 24 April 2009 was
        never brought.


6.      The First Respondent’s refusal to file the record resulted in the
        launching of the Rule 6(11) application which was set down for hearing
        on 9 June 2009.        An interlocutory application to intervene in the main
        application was also brought by Mr R M M Young (“Young”) and CCII
        Systems (Pty) Ltd (“CCII”) and set down for hearing on the same
        date.12 Neither of the two interlocutory matters proceeded on 9 June
        2009. Instead, a timetable was agreed to between the parties for the
        two interlocutory applications, which was made an order of court.


B.      THE APPROACH THAT THIS COURT SHOULD ADOPT TO THE
        ISSUES THAT IT SHOULD DECIDE


7.      It is submitted that at this interlocutory stage of the proceedings this
        Court should confine itself to considering the merits of the Rule 6(11)
        application and the Intervention Application. This is the appropriate
        approach for a number of reasons:


        7.1     The court order of 9 June 200913 set a timetable for the Rule
                6(11) Application and the Intervention Application. The order
                does not provide for a hearing of any of the issues which the
10
    Record: Rule 6(11) Application at 28 (see unnumbered para 4 of the letter).
11
    Record: Rule 6(11) Application at 10, para 10
12
    We refer to the application to intervene as “The Intervention Application” and to the papers
filed in the application as “Pleadings: Intervention Application”. It will be noted that First
Respondent’s answer to the Rule 6(11) application forms part of the papers in the Intervention
Application.
13
    A copy appears at Record: Main Application at 172 (see para 4 at 173).
                                                                                             5

                Respondents now wish this Court to decide. The Respondents
                declined to bring an application for a separation of issues in the
                main application, nor have the parties agreed to the main
                application being dealt with on this basis. As noted above, the
                First Respondent indicated in the letter of 24 April 2009 that it
                intended     to    dispute     the   Applicant’s      standing     and     the
                reviewability of the decision,14 but it failed to take this further by
                bringing the required application. In the result, it is procedurally
                premature and impermissible to request this Court to decide
                issues such as standing and reviewability which will arise for
                determination in due course in the main application.15 These
                issues are not before the Court at this stage.


        7.2     If this fundamental principle is not adhered to, it will have the
                untenable result that certain issues in the main application will
                be adjudicated upon twice – in the interlocutory application and
                thereafter in the main application. It is manifestly inappropriate
                that this should be the case.


        7.3     The danger of not adhering to basic principle is illustrated by
                what transpired in the present matter:                    While the First
                Respondent initially (in the letter dated 24 April 2009) raised
                confidentiality, the without prejudice issue, standing and
                reviewability as possible defences to the production of the
                record, the Respondents have added a number of other




14
  Record: Rule 6(11) Application at 20 (see unnumbered para 16 of the letter).
15
  See S v Chao and Others 2009 (2) SA 595 (C) at para 36: “It is my view that justice will be
best served if such arguments are raised in review applications or in the trial court, and not
argued in interlocutory proceedings.” See, also, ABBM Printing & Publishing (Pty) Ltd v
Transnet Ltd 1998 (2) SA 109 (W) (1997 (10) BCLR 1429; [1997] 4 All SA 94), where the
Court held in an application comparable to the present one:

        “[25] In the course of argument reference was made to two alleged irregularities in the
        tender process. For purposes of this judgment I need not resolve these issues as
        they can be more properly dealt with should there be any further proceedings arising
        out of the order I propose giving.”
                                                                                                 6

                 defences to the production of the record in their answering
                 papers, including the following:


                 7.3.1 whether        a    sitting   President      may      be    charged      or
                         prosecuted;16


                 7.3.2 the status of the section 179(5)(d) appeal proceedings
                         before the Constitutional Court which were terminated by
                         agreement;17


                 7.3.3 whether the “entire application is an abuse of process …
                         brought … solely in order to gain political ground on the
                         ANC”; 18


                 7.3.4 whether the Third Respondent’s fair trial rights will be
                         impaired by a fresh decision to prosecute him;19 if so,
                         whether a review court would exercise the discretion it
                         has in review proceedings against the setting aside of the
                         impugned decision;20 and




16
   Record: Rule 6(11) Application at 45-6, the Third Respondent’s Answering Affidavit at para
24; Record: Rule 6(11) Application at 83, the Third Respondent’s Answering Affidavit at para
82 and further.
17
   Record: Rule 6(11) Application at 70, the Third Respondent’s Answering Affidavit para 55
18
   Record: Rule 6(11) Application at 74, the Third Respondent’s Answering Affidavit para 65;
Record: Rule 6(11) Application at 83, the Third Respondent’s Answering Affidavit para 81
19
   Record: Intervention Application at 227: the First Respondent’s Answering Affidavit para
11. This is not the first time that the Third Respondent prematurely raised a possible violation
of his right to a fair trail. On a previous occasion when he did so, it resulted in an adverse
costs order against him. The Constitutional Court stated as follows in Thint Holdings (SA)
(Pty) Ltd v NDPP; Zuma v NDPP 2009 (1) SA 141 (CC) (2008 (2) SACR 557):
         “[68] In this case, it was pointed out to the applicants in the Supreme Court of Appeal
         that their complaints in relation to the infringement of their rights were prematurely
         raised and should only be made at the criminal trial. It also became clear during the
         present hearing that if the applicants lose, they would still be entitled to object to the
         admissibility of the documents forming the subject-matter of these proceedings. The
         main issue in this case was thus the narrow one of the lawfulness of the letter of
         request. Despite what was said in the Supreme Court of Appeal, the applicants
         persisted in raising the same complaints and put the respondent to the expense of
         defending the appeal. In the circumstances, the general rule ought not to apply. Costs
         should therefore follow the result.”
20
   Record: Intervention Application at 225: the First Respondent’s Answering Affidavit para
9.2; Record: Intervention Application at 227: the First Respondent’s Answering Affidavit para
                                                                                            7

                7.3.5 whether there has been an unreasonable delay which
                        would entitle the Third Respondent to a permanent stay
                        of prosecution.21


        7.4     As with the issues of standing and reviewability, these additional
                defences are aimed achieving the dismissal of the application as
                a whole.22 They call for the determination of a number of difficult
                legal    issues     of    fundamental       importance.          In    these
                circumstances, it is submitted that this Court should have due
                regard to what was said by Kentridge AJ in S v Mhlungu23 and
                subsequently approved by the Constitutional Court in Zantsi,24
                and thereafter reiterated in a line of further constitutional
                judgements25:


                        “[3]…I would lay it down as a general principle that where
                        it is possible to decide any case, civil or criminal, without
                        reaching a constitutional issue, that is the course which
                        should be followed.”

        7.5     There can be no good reason why a court should decide, for
                example, a far-reaching issue such as whether a sitting




11; Record: Intervention Application at 253: the First Respondent’s Answering Affidavit para
78 and further
21
   Record: Rule 6(11) Application at 71-4, the Third Respondent’s Answering Affidavit paras
58-64
22
   Record: Rule 6(11) Application at 36, the Third Respondent’s Answering Affidavit para 7:
“the [Rule 6(11)] application falls to be dismissed on grounds which mean the failure of the
application as a whole”. See, also, the Third Respondent’s Answering Affidavit para 8: “why
not only the Record application but also the review application should be dismissed on certain
discrete grounds with costs on the attorney and own client scale”.
23
   S v Mhlungu 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793) at para 59
24
   Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC) (1995 (10) BCLR 1424)
25
   S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC) (1995 (2) SACR 125; 1995 (7) BCLR
851) para 13; Gardener v Whitaker 1996 (4) SA 337 (CC) (1996 (6) BCLR 775) para 14; S v
Mbatha; S v Prinsloo 1996 (2) SA 464 (CC) (1996 (1) SACR 371; 1996 (3) BCLR 293) para
28; Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) (1996 (1) BCLR 1)
para 7; Motsepe v CIR 1997 (2) SA 898 (CC) (1997 (6) BCLR 692) para 21; Harksen v Lane
NO 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489) at para 26; National Coalition for Gay &
Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) (2000 (2) SACR 349;
2000 (1) BCLR 39) at para 21; Minister of Education v Harris 2001 (4) SA 1297 (CC) (2001
(11) BCLR 1157) at para 19; Minister of Safety & Security, Ex p: In re S v Walters 2002 (4)
SA 613 (CC) (2002 (2) SACR 105; 2002 (7) BCLR 663) at para 64.
                                                                             8

           president may be prosecuted, before it is absolutely necessary
           to do so. As Chaskalson CJ explained in Zantsi:


                  “[5] [The Zantsi] rule allows the law to develop
                  incrementally. In view of the far-reaching implications
                  attaching to constitutional decisions, it is a rule which
                  should ordinarily be adhered to by this and all other South
                  African Courts before whom constitutional issues are
                  raised.”

     7.6   Our submission is that, unless this Court upholds the principle of
           deciding only that which is properly before it (which is the
           Applicant’s application for access to the reduced record), it will
           be drawn (unnecessarily) to decide on a range of far-reaching
           issues which will have to be determined in the main application.


     7.7   Finally, it submitted that sight should not be lost of the fact that
           the financial resources at the disposal of the Respondents are,
           for all practical purposes and in the context of the present
           litigation, unlimited.   The resources of the Applicant are
           obviously limited. In these circumstances, it can never be in the
           interest of justice for a respondent to be permitted to draw its
           opponent into protracted interlocutory battles (with the possibility
           of further appeals) which are calculated to weaken the latter’s
           ability to continue the main application.


8.   We turn now to deal with the manner in which this Court, in our
     submission, should decide the Rule 6(11) application. Thereafter, and
     while our primary submission remains that this Court should refrain
     from deciding them, we deal briefly with issues such as the standing of
     the Applicant, the reviewability of the impugned decision and certain of
     the further defences raised by the Respondents. It is submitted that if
     this Court decides to deal with these issues, this should be done on a
                                                                                              9

        prima facie basis and by reference to the Applicant’s founding papers
        in the main application.26


9.      We deal with the Intervention Application in a separate set of heads of
        argument.


C.      THE RULE 6(11) APPLICATION


10.     Properly viewed, the main application seeks to hold the First
        Respondent accountable for his decision to discontinue the prosecution
        against the Third Respondent.             As Chaskalson CJ has stated, the
        Constitution calls for open and transparent government,27 and as
        Froneman J noted, review proceedings are a relatively effective way of
        ensuring transparent and accountable government.28 The Applicant
        seeks to enforce these fundamental principles.


11.     The NPA vigorously pursued a prosecution against the Third
        Respondent on corruption charges for several years. However, at a
        time it had become apparent that the Third Respondent would become
        President, a decision was taken to discontinue the prosecution. It is
        common cause that the decision was not taken because of any lack of
        prospect in the case against the Third Respondent.                             In the
        circumstances and given the precepts of the Constitution, any South
        African is entitled to approach the courts to call the First Respondent to
        account.     What is in issue is whether the prosecution of someone


26
   See Steel and Engineering Industries Federation and Others v National Union of
Metalworkers of South Africa (1) 1993 (4) SA 190 (T) at 191I - J, in which Myburgh J stated
that an “objection taken in limine to the locus standi of an applicant must be dealt with on the
assumption that all the allegations of fact relied on by the party are true”; Nelson Mandela
Metro Municipality v Greyvenouw CC 2004 (2) SA 81 (SE): “In much the same way as the
issue of standing is a preliminary issue in which the merits are assumed in favour of the
applicant…”.
27
   See Minister of Health NO v New Clicks SA (Pty) Ltd (Treatment Action Campaign as
Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1) at para 113, with reference to
sections 1 and 197 of the Constitution.
28
   See Kate v MEC for the Dept of Welfare, Eastern Cape 2005 (1) SA 141 (SE) ([2005] 1
All SA 745) at para 33.
                                                                                         10

       accused of abusing public office and of certain serious crimes was
       unlawfully stopped.


12.    The identity of the particular member of the public who takes the matter
       to court should be of little consequence. Neither should the juristic
       niche within which the case is brought. It is of no particular significance
       whether the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”)
       applies or not. What matters is that it cannot be seriously disputed that
       the First Respondent and the NPA must comply with the rule of law,
       entrenched in section 1 of the Constitution and that they must exercise
       their duties without fear, favour or prejudice, as required by section
       179(4) of the Constitution and section 32(1)(a) of the National
       Prosecuting Authority Act No 32 of 1998 (“the NPA Act”). The essence
       of the Applicant’s case is covered by these sections of the Constitution.
       This being so, it cannot be disputed that the decision is reviewable,
       although the yardstick used to determine the challenge may be
       disputed.


13.    Similar review challenges have been brought and dealt with in the
       highest courts of other countries, the latest of which is UK: R (Corner
       House Research and Another v Director of The Serious Fraud
       Office [2008] WLR (D) 106 (HL).29 In this matter two claimants, being
       a non-profit research organisation called Corner House and an
       unincorporated lobby association known as Campaign Against Arms
       Trade brought a review of the decision of the Director of the Serious
       Fraud Office to terminate an investigation into corruption allegations
       against BAE Systems plc. In our submission, if such a challenge by
       two NGO’s can be sustained in the United Kingdom, there can be little
       doubt that our constitutional order permits the Applicant to prosecute its
       challenge.




29
  We refer below to this case both in the House of Lords and the Divisional Court as “Corner
House”.
                                                                                       11

14.    These are, however, issues to be decided later in the main application.
       As we stated above, the only matter which is properly before this Court
       is a preliminary procedural step in the attempt to hold the First
       Respondent and the NPA accountable.                No applicant can properly
       substantiate an attack on a governmental decision and no Court can
       properly consider such an attack without access to the materials which
       informed the decision. It is submitted that the open and transparent
       government to which Chaskalson CJ and Froneman J refer would not
       hesitate to provide those materials to an applicant and to a Court, as
       part of the scrutiny process. In the unfortunate event of a refusal to co-
       operate, as in the present matter, a Court should not hesitate to compel
       the production of the record. Again, it does not really matter whether
       the order is made in terms of Uniform Rule 53 or in terms of the High
       Court’s inherent power under section 173 of the Constitution to
       regulate its own process, taking into account the interests of justice.30


15.    The First Respondent’s initial objection to the production of the record
       was (apart from the issues of standing and reviewability) that the Third
       Respondent’s        representations      were     made      on    condition     of
       confidentiality and without prejudice.          In an attempt to avoid any
       dispute at that early stage, the Applicant then confined its request to
       the reduced record, excluding the Third Respondent’s written
       representations and any related document which would breach any
       confidentiality attaching to the representations.


16.    This addressed the First Respondent’s concern about the production of
       the record and it should have been the end of the matter. However, no
       reduced record was produced.                Instead, the First Respondent
       (supported by the Third Respondent) altered its position.                  In the
       answering affidavits, it is contended that the full record extends beyond
       the representations made by the Third Respondent and includes the
       record of the investigations against him, the disclosure of which would

30
   Kriegler AJA in Jockey Club of SA v Forbes 1993 (1) SA 649 (A) at 662 stated that there
is a stultification inherent in reading Rule 53 rigidly and inflexibly.
                                                                                          12

        be “invidious” and a “breach of his rights”;31 and that “personal
        information” of third parties is included in the materials seized from
        computers of the Third Respondent and the Thint companies which
        cannot be handed over as part of a review record.32


17.     In short, what happened is that when the without prejudice and
        confidentiality issues were addressed, further difficulties were raised
        regarding the confidentiality and personal character of other materials.


18.     The First and the Third Respondents now appear to be contending that
        the NPA may engage in off-the-record, private dealings with suspects
        and accused persons leading to the discontinuation of a prosecution
        and that no-one may subsequently compel the NPA to produce the
        record of these secret dealings. In our submission, this stance is both
        unfortunate and unsustainable.            It would lead, for example, to a
        situation where an accused could bribe a prosecutor to terminate a
        prosecution but it would not be possible to establish this because the
        evidence of the secret deal is immune from judicial scrutiny.


19.     The stance of the Respondents is inconsistent with the basic values of
        accountability, openness and transparency which underpin the South
        African constitutional state. These have recently been articulated as
        follows by Leach J in Ekuphumleni Resort (Pty) Ltd and Another v
        Gambling and Betting Board, Eastern Cape and Others 2010 (1)
        SA 228 (E) (which also concerned an attempt by an organ of state (the



31
   Record: Intervention Application at 246: the First Respondent’s Answering Affidavit para
57. See, also, Record: Rule 6(11) Application at 90, the Third Respondent’s Answering
Affidavit at para 101, where the Third Respondent contends that all the records pertaining to
the decision to withdraw the prosecution against the Third Respondent are inextricably linked
and affected by the duty of confidence and privilege, including duties owned to other
(unnamed) parties.
32
   See, also, Record: Rule 6(11) Application at 76, the Third Respondent’s Answering
Affidavit para 68, where the Third Respondent contends that many of the documents which
pertain to the prosecution were seized from individuals in terms of warrants, some of which
have been set aside. It is contended that the search and seizure of such documents
constitutes a gross violation of privacy which is only justified for the limited purpose of
investigation and prosecution.
                                                                                            13

        Gambling and Betting Board to refuse access to parts of the record in
        review proceedings):


                “[20] The Board is a public body created to serve the public's
                interest, but which is to be held accountable for its actions. It is
                charged, both under the Act and the Constitution, to perform its
                functions openly and transparently, and to reach decisions
                which are not irrational or arbitrary. Its functioning will in my view
                be enhanced, rather than impeded, if it deals with the review in
                the present matter frankly and openly, and that it can only do if it
                discloses the material information which the applicants seek. To
                seek to avoid disclosure does it no credit. It seeks, for no good
                reason, not to deal openly and fairly with the applicants, despite
                its constitutional obligation to do so.”

20.     The remarks of Schwartzman J in ABBM Printing & Publishing (Pty)
        Ltd v Transnet Ltd 1998 (2) SA 109 (W) (1997 (10) BCLR 1429;
        [1997] 4 All SA 94) are also apposite:


                “[22.1] …To uphold the respondent's submission would also be
                subversive of the object of ss 32 and 33 of the Constitution,
                would stultify the development of accountability and
                transparency in administrative decision- making and would
                represent a step back to the dark past …in which officials who
                acted in secret could hide behind a wall of silence.”33

21.     Apart from being inconsistent with basic values underlying the
        Constitution, we respectfully submit that the stance taken by the
        Respondents is also contrary to well-established legal principles. We

33
  See also Shabalala v A-G, Tvl 1996 (1) SA 725 (CC) (1995 (2) SACR 761; 1995 (12)
BCLR 1593) at para 26, where Mahomed DP wrote as follows for the Constitutional Court in a
matter dealing with the “blanket docket privilege”:
        “[26] What is perfectly clear from these provisions of the Constitution and the tenor
        and spirit of the Constitution viewed historically and theologically, is that the
        Constitution is not simply some kind of statutory codification of an acceptable or
        legitimate past. It retains from the past only what is defensible and represents a
        radical and decisive break from that part of the past which is unacceptable. It
        constitutes a decisive break from a culture of apartheid and racism to a
        constitutionally protected culture of openness and democracy and universal human
        rights for South Africans of all ages, classes and colours. There is a stark and
        dramatic contrast between the past in which South Africans were trapped and the
        future on which the Constitution is premised. The past was pervaded by inequality,
        authoritarianism and repression. The aspiration of the future is based on what is
        'justifiable in an open and democratic society based on freedom and equality'. It is
        premised on a legal culture of accountability and transparency. The relevant
        provisions of the Constitution must therefore be interpreted so as to give effect to the
        purposes sought to be advanced by their enactment.”
                                                                              14

      deal with these legal principles and the issues raised by the
      Respondents under the following headings:


      21.1   The materials forming the record;


      21.2   How confidential materials are to be dealt with;


(i)   Which materials form the record?


22.   The purpose of Uniform Rule 53 is described by Kriegler AJA in
      Jockey Club of SA v Forbes 1993 (1) SA 649 (A) at 660 as follows
      (our underlining):


             “Not infrequently the private citizen is faced with an
             administrative or quasi-judicial decision adversely affecting his
             rights, but has no access to the record of the relevant
             proceedings nor any knowledge of the reasons founding such
             decision. Were it not for Rule 53 he would be obliged to launch
             review proceedings in the dark and, depending on the
             answering affidavit(s) of the respondent(s), he could then apply
             to amend his notice of motion and to supplement his founding
             affidavit. Manifestly the procedure created by the Rule is to his
             advantage in that it obviates the delay and expense of an
             application to amend and provides him with access to the
             record. In terms of para (b) of subrule (1) the official concerned
             is obliged to forward the record to the Registrar and to notify the
             applicant that he has done so. Subrule (3) then affords the
             applicant access to the record. (It also obliges him to make
             certified copies of the relevant part thereof available to the Court
             and his opponents. The Rule thus confers the benefit that all the
             parties have identical copies of the relevant documents on which
             to draft their affidavits and that they and the Court have identical
             papers before them when the matter comes to Court.) More
             important in the present context is subrule (4), which enables
             the applicant, as of right and without the expense and delay of
             an interlocutory application, to 'amend, add to or vary the terms
             of his notice of motion and supplement the supporting affidavit'.
             Subrule (5) in turn regulates the procedure to be adopted by
             prospective opponents and the succeeding subrules import the
             usual procedure under Rule 6 for the filing of the applicant's
             reply and for set down.”

23.   In essence, what the Applicant is contending for is that it should be
      given a proper opportunity to formulate its attack on the First
                                                                              15

      Respondent’s decision. In order to do so, it must be afforded access to
      the materials which informed the decision. This basic principle was
      recognised by the Supreme Court of Appeal in Tetra Mobile Radio
      (Pty) Ltd v MEC, Department of Works 2008 (1) SA 438 (SCA),
      which dealt with the right to access of information in the context of an
      internal appeal against the award of a tender. In the course of its
      judgment holding that a right to such information may be derived from
      PAJA, the SCA stated (our emphasis):


             [11] … An Appeals Tribunal cannot determine whether any of
             these grounds has been established without reference to the
             documents that were before the relevant committee, the record
             of the relevant meetings and the reasons for the decision. In this
             matter the Tribunal would need sufficient information in order to
             determine (inter alia) whether the third respondent was capable
             of undertaking the work. This follows from the very nature of the
             process and the grounds for interference. There is little purpose
             served if the unsuccessful tenderer does not know what case it
             must meet. This is a basic tenet of fairness, which in turn is a
             fundamental requirement of administrative action.

             [12] The appellant argues that the fairness contemplated in the
             tender procedure means that it should have been given
             sufficient information, by way of disclosure of documents, to
             enable it to know what material was before the Tender
             Evaluation Committee when it concluded that the third
             respondent was capable of undertaking the work, why the
             appellant was unsuccessful and its reasons for coming to these
             conclusions. This, argues the appellant, flows from the nature of
             the process and enquiry rather than from any specific provision
             of the Procurement Act. The appellant argues that it should have
             been 'put in possession of such information as will render [its]
             right to make representations a real and not an illusory one'.
             (See Heatherdale Farms (Pty) Ltd and Others v Deputy Minister
             of Agriculture and Another.”

24.   It is difficult to envisage how there can be a fair hearing (which the
      Applicant is entitled to in terms of section 34 of the Constitution) on the
      issue of the lawfulness of the decision to discontinue the prosecution, if
      the Applicant and the Court are not given access to the materials which
      informed the decision.    Our submission is that a right to access to
      information may be derived from the right to a fair civil hearing,
                                                                                             16

        guaranteed by section 34 of the Constitution. In the same manner the
        right to information was derived from the right to just administrative
        action in Tetra Mobile and from the right to a fair criminal trial in
        Shabalala v A-G, Tvl 1996 (1) SA 725 (CC) (1995 (2) SACR 761;
        1995 (12) BCLR 1593) where the Constitutional Court held that the
        “blanket docket privilege” is inconsistent with an accused’s right to a
        fair trial.34


25.     Although this is not explicitly stated in Uniform Rule 53 (or section 34 of
        the Constitution), the duty imposed is to file the materials relevant to
        the review and not each and every document which at any stage
        formed part of the process leading to the decision. As Leach J stated
        in Ekuphumleni Resort (Pty) Ltd,35 “the essential issue is whether the
        information the applicants seek is relevant to the review or not”.


26.     In the present instance the materials which are relevant to the decision
        to discontinue the prosecution should be made available. This does
        not extend to every bit of evidence the NPA collected for the
        prosecution of the Third Respondent. Ultimately, the Applicant should
        be placed in a position where it can formulate its case and the Court
        should be in a position to determine whether the decision was lawfully
        taken. It is submitted that guidance may be derived from the following


34
   See also Shabalala at para 56 where the Court held as follows:
        “….The crucial determinant is what is fair in the circumstances, regard being had to
        what might be conflicting but legitimate considerations.
               'What the Charter guarantees is a fair trial, not the most favourable procedure
               imaginable and the fairness involves the weighing of the public interests in the
               equation.'
        Again, it follows from this that the rule in Steyn's case is clearly unsustainable in its
        present form.”
See, also ABBM Printing & Publishing (Pty) Ltd v Transnet Ltd 1998 (2) SA 109 (W) (1997
(10) BCLR 1429; [1997] 4 All SA 94), where the Court held:
        “[24.4] In Shabalala and Others v Attorney-General, Transvaal, and Another 1996 (1)
        SA 725 (CC) (1995 (2) SACR 761; 1995 (12) BCLR 1593) the Constitutional Court
        refused to uphold a blanket privilege attaching to police dockets but recognised that
        circumstances could exist where the State could justify a refusal to allow access to
        part of a police docket. At 165--7 of the judgment the Constitutional Court laid down
        certain guidelines to assist the parties and the Court in determining how to balance
        these competing interests. Counsel did not address me on this issue. By parity of
        reasoning the same principle applies in civil litigation.”
35
   Supra
                                                                                       17

       passage in the judgement of the Divisional Court in Corner House (our
       emphasis):


               “[8] Since this case has aroused public concern, we should
               stress that which is well-recognised in the field of public law.
               This court is not concerned to conduct an inquiry into the facts
               which led to the Director’s decision, save to the extent
               necessary to reach a conclusion as to whether that decision was
               lawful. The defendant has disclosed facts which are sufficient
               for the purpose of reaching a conclusion but they are not
               comprehensive and it is no part of the court’s function in these
               judicial proceedings to achieve a more complete account of the
               events, unless omission inhibits a correct legal conclusion. We
               emphasise that, through the efforts of Treasury counsel and
               those by whom he is assisted, there has been sufficient
               disclosure to enable us to reach a solution to the essential
               question whether the Director acted lawfully. …”

27.    In the Respondents’ answering affidavits it is claimed at various places
       that the record may consist of millions of documents. More specifically:


       27.1    In the Third Respondent’s answering affidavit it is stated that the
               NPA provided the Third Respondent’s legal representatives with
               some four million documents in electronic format as documents
               potentially relevant to the criminal trial; that the expert reports
               run to hundreds of pages with immediate support documentation
               running to some ten thousand pages; statements of some
               hundred plus witnesses; and thousands of pages regarding the
               postponement application by the State, the application for a
               permanent stay, as well as the search and seizure, the section
               179(5) and the letter of request litigation.36


       27.2    In the First Respondent’s answering affidavit it is contended that
               the full record extends beyond the representations made by the
               Third Respondent and includes the record of the full
               investigation against him. It is stated that the materials which


36
  Record: Rule 6(11) Application at p. 74, the Third Respondent’s Answering Affidavit para
66
                                                                                         18

               were gathered as part of the investigation cannot handed over
               and that it would be “logistically cumbersome for the NPA to
               screen these properly in order to hand over only that which is
               relevant to the review application as part of the record.”37


28.    The Respondents accordingly assume that the record necessarily
       includes all the material collected and produced in the course of the
       investigation and prosecution of the Third Respondent, including the
       full records of the many court proceedings spawned by the
       investigation and prosecution. As stated above, in our submission the
       record of the decision consists only of the materials before the First
       Respondent and which were relevant in the sense that they informed
       the decision. It is improbable that this record consists of the quantity
       and type of documentation which the Respondents suggest to be the
       case. As we understand the reason which led to the withdrawal of the
       prosecution, it had nothing to do with the merits of the case against the
       Third Respondent. It was predicated on other considerations, such as
       political interference in the timing of the prosecution. If this is so, the
       mass of documents which pertain to the merits of the case did not
       inform the decision and will not form part of the record.


29.    In short, the First Respondent should determine which documents were
       relevant the decision he took to discontinue the prosecution.                   The
       concerns raised about seized materials and personal information of the
       Third Respondent and third parties will fall away if the matter is
       approached on this basis, as it should be.


(ii)   How the materials are to be dealt with


30.    To the extent that the record may contain materials obtained by means
       of statutory procedures available to and employed by the investigating
       and prosecuting authorities, that fact alone does not mean that this

37
  Record: Intervention Application at 246-7: the First Respondent’s Answering Affidavit para
57-8.
                                                                                   19

          material cannot or should not form part of the record.         If any such
          documents were relevant and were before the First Respondent when
          making his decision or were relied upon by him, they must be
          produced.


31.       Privileged and confidential document should be dealt with in terms of
          the well-established rules governing judicial review. In Tetra Mobile
          the SCA stated the following:


                    “[13] ….What counsel persisted in vigorously was that the
                    institutional respondents could not furnish the documentation
                    because it was confidential. The appellant, continued the
                    argument, thus failed to prove its entitlement to the documents
                    in question.


                    [14] The appellant contended that the respondents had not
                    made out a case for reliance on confidentiality: if there was any
                    apprehension on the part of the respondent regarding any
                    specific document, that concern could be met by making an
                    order similar to the one granted by Schwartzman J in ABBM
                    Printing & Publishing (Pty) Ltd v Transnet Ltd, where the parts of
                    the documents in respect of which disclosure might result in
                    breach of confidence were to be identified and marked as
                    confidential and the applicant’s attorney was prohibited from
                    disclosing such parts to any other party, including the applicant,
                    save for the purpose of consulting with counsel or an
                    independent expert. In that way a fair balance could be achieved
                    between the appellant’s right of access to documentation
                    necessary for prosecuting its appeal, on the one hand, and the
                    third respondent’s right to confidentiality, on the other.”38

32.       The same applies in the present case. It is submitted that no case has
          been made out that any documents in the reduced record are
          privileged or confidential. If there are such documents, they should be
          dealt with (subject to the qualification we make below) in terms of an
          order similar to that made by Schwartzman J in ABBM Printing.39




38
     Supra at 444
39
     Supra
                                                                       20

32.1   Schwartzman     J   held   that   he   would   not    sustain   an
       unsubstantiated blanket claim to confidentiality. In this regard,
       his reasoning was as follows (our emphasis):


             “[24.3] I do not have a copy of the tender document. Part
             of it, such as the tender price, the tenderer's experience
             and expertise cannot be confidential. Other parts of it
             may well contain confidential information as this term is
             understood in the considerable case law involving
             confidential information and which should be protected
             from disclosure. On the facts before me I cannot decide
             whether any tender contains confidential information. I
             am also of the opinion that this issue should not be
             decided on the question of onus in opposed applications.
             (See Ngqumba en 'n Ander v Staatspresident en Andere;
             Damons NO en Andere v Staatspresident en Andere;
             Jooste v Staatspresident en Andere 1988 (4) SA 224 (A).
             In my judgment, it would be counter-productive and
             contrary to the Constitution to allow the respondent to
             hide behind an unsubstantiated blanket claim to
             confidentiality on behalf of tenderers or the express
             undertaking of confidentiality given to all tenderers. By
             way of example only a claim to confidentiality should not
             protect from disclosure a `side letter' containing terms
             other than those appearing in the tender or for that matter
             the provision for a `kick back'.”

32.2   The issue of claims to confidentiality was dealt with in the
       following manner in the order in ABBM Printing:


       32.2.1 On the copy of each such tender or in a separate
               document the respondent was to mark or record that
               part of the tender which it considered to be confidential.


       32.2.2 Save for the purpose of consulting with counsel or an
               independent expert, the applicant's attorney was not to
               disclose to any other party, including the applicant, any
               part of a tender or contract in respect of which the
               respondent claimed confidentiality.


       32.2.3 Should the applicant dispute any claim to confidentiality
               and should the parties be unable to resolve such
                                                                                    21

                            dispute, the applicant was on notice to the respondent
                            and any person having an interest therein to have the
                            right to apply to a Judge in Chambers for a ruling on the
                            issue.


                  32.2.4 Should circumstances require, either party was to have
                            the right to apply to a Judge in Chambers for an
                            amendment to the order.


33.       If there are materials forming part of the reduced record which the First
          Respondent cannot permit to be filed, the documents in question will
          doubtless be identified in the manner described above. The question
          can then be dealt with in the light of the materials in question and the
          reason for their being withheld, in the manner set out in the ABBM
          Printing order.


34.       We submit that ABBM Printing sets out the appropriate order to be
          made in respect of confidential materials forming part of the reduced
          record, save that the Applicant’s legal representatives should be
          permitted to consult with the First Respondent’s officials regarding the
          contents of the reduced record. As stated by Leach J in Ekuphumleni
          Resort40:


                  “[12] The Board's proposal to make information available to an
                  attorney on condition that he does not disclose it to his clients, is
                  truly preposterous. The relationship between an attorney and his
                  client has to be frank and open, and the client is entitled to
                  expect his attorney to discuss with him all available information
                  which might be relevant to the case at hand. This could not be
                  achieved if the attorney were prohibited from disclosing
                  information to his client, which might have a material bearing
                  upon the outcome of the matter. If, for example, the Board's
                  disclosure to the applicants' attorney showed that one of the
                  members of the Board was probably biased against the
                  applicants, the attorney can hardly be expected to keep that
                  from his clients, to their prejudice. After all, an attorney is
                  expected to act to the benefit of the person employing him for

40
     Supra at para [12]
                                                                                             22

                 his professional expertise. Very wisely, Mr Buchanan, who
                 appeared on behalf of the Board, did not seek to persuade me
                 that it had been proper to volunteer this information to the
                 applicants' attorney on a confidential basis.”

35.    The First Respondent contends that the NPA needs the guarantee of
       confidentiality and privilege in order to conduct full and frank
       discussions to determine whether or not, and for what legitimate
       reason, a criminal prosecution should be stopped or continued. 41
       However, this can never justify a claim to a blanket privilege. The
       interests at stake must be balanced by reference to the materials in
       question as envisaged in ABBM Printing.


36.    The same applies to the Third Respondent’s contentions that:


       36.1      All the records pertaining to the decision to withdraw the
                 prosecution against the Third Respondent are inextricably linked
                 and affected by confidentiality and privilege,42 including duties
                 owned to other [unnamed] parties.43


       36.2      Most of the documents which pertain to the prosecution of the
                 Third Respondent were seized from individuals in terms of
                 warrants, some of which have been set aside. It is contended
                 that the search and seizure of such documents constitutes a
                 violation of privacy which is only justified for the limited purpose
                 of investigation and prosecution.44 The unauthorised use of the
                 material is, in terms of section 43 of the NPA Act, a criminal
                 offence.45




41
   Record:   Intervention Application at 236: the First Respondent’s Answering Affidavit para 39
42
   Record:    Rule 6(11) Application at 90, the Third Respondent’s Answering Affidavit at para
101
43
   Record:   Rule 6(11) Application at 91, the Third Respondent’s Answering Affidavit at para
102
44
   Record:   Rule 6(11) Application at 76, the Third Respondent’s Answering Affidavit para 68
45
   Record:   Rule 6(11) Application at 76, the Third Respondent’s Answering Affidavit para 69
                                                                                     23

D.    THE STANDING OF THE APPLICANT


37.   We address the issue of the standing of the Applicant as follows:


      37.1   We first deal with the standing of the Applicant to enforce
             compliance with the rule of law;


      37.2   We then deal, in the alternative, with the standing of the
             Applicant under section 38 of the Constitution.


(i)   Standing of the Applicant to enforce the Rule of Law


38.   In Kruger v President of Republic of South Africa and Others 2009
      (1) SA 417 (CC) the Constitutional Court held that a generous
      approach should be adopted to the determination of an applicant’s
      standing in matters where compliance with the rule of law is sought to
      be enforced. The reasoning is instructive and we quote the relevant
      passages from the judgment in full (footnotes omitted and emphasis
      added):


         “[22] [Section 38 of the Constitution] introduces a radical departure
         from the common law in relation to standing. It expands the list of
         persons who may approach a court in cases where there is an
         allegation that a right in the Bill of Rights has been infringed or
         threatened to include anyone acting in the public interest or on
         behalf of another person who cannot act in their own interest.

         [23] In Ferreira O'Regan J explained why a generous and expanded
         approach to standing is necessary in constitutional litigation. She
         said:

             Existing common-law rules of standing have often developed in the
             context of private litigation. As a general rule, private litigation is
             concerned with the determination of a dispute between two
             individuals, in which relief will be specific and, often, retrospective, in
             that it applies to a set of past events. Such litigation will generally not
             directly affect people who are not parties to the litigation. In such
             cases, the plaintiff is both the victim of the harm and the beneficiary of
             the relief. In litigation of a public character, however, that nexus is
             rarely so intimate. The relief sought is generally forward-looking and
             general in its application, so that it may directly affect a wide range of
             people. In addition, the harm alleged may often be quite diffuse or
                                                                                              24

                amorphous. Of course, these categories are ideal types: no bright line
                can be drawn between private litigation and litigation of a public or
                constitutional nature. Not all non-constitutional litigation is private in
                nature. Nor can it be said that all constitutional challenges involve
                litigation of a purely public character: a challenge to a particular
                administrative act or decision may be of a private rather than a public
                character. But it is clear that in litigation of a public character, different
                considerations may be appropriate to determine who should have
                standing to launch litigation. (Footnotes omitted.)

            Section 38, however, is not of direct application in this case as it
            does not concern a challenge based on a right in Ch 2 of the
            Constitution. We should in my view nonetheless adopt a generous
            approach to standing in this case. In so doing I am mindful of the
            fact that constitutional litigation is of particular importance in our
            country where we have a large number of people who have had
            scant educational opportunities and who may not be aware of their
            rights. Such an approach to standing will facilitate the protection of
            the Constitution.”46

39.     In public law litigation there can be no proper justification for a
        restrictive approach to standing and it does not matter whether the Bill
        of Rights or another provision of the Constitution is invoked.                        As
        Froneman J stated in Ngxuza v Permanent Secretary, Dept of
        Welfare, EC 2001 (2) SA 609 (E) (2000 (12) BCLR 1322) at 619B:

46
  See also South African Association of Personal Injury Lawyers v Heath 2000 (10)
BCLR 1131 (T), 1147I (the generous approach to standing applies to all constitutional cases);
Law Society of South Africa and 10 Others v The Minister of Transport and Another
(Unreported Judgment of the North Gauteng High Court Pretoria, delivered on 31 March 2010
by Fabricius AJ (footnotes omitted), where it was held as follows:

        “[section 38] was obviously intended to be of much broader or wider effect than for
        instance Rule 12 of the Uniform Rules of Court that I have already dealt with. The
        majority of the Constitutional Court stated that whilst it is important that the Court
        should not be required to deal with abstract or hypothetical issues, it could see no
        good reason for adopting a narrow approach to the issues of standing in
        constitutional cases. To the contrary, it should rather adopt a broad approach to
        standing. This would ensure that constitutional rights enjoy the full measure of the
        protection to which they are entitled. Apart from that I have also considered the fact
        that constitutional invalidity, or the allegations of such, requires an objective approach
        by a Court with reference to the facts of the case. I am also of the view that a
        generous approach to standing is essential to the maintenance of the Rule of Law as
        envisaged by the Constitution, and in any event for constitutional legitimacy. I believe
        I am justified in holding that any indigent, poor and other disabled persons who are
        physically and financially unable to launch or conduct these proceedings can act
        herein, and, that the present challenge by the First Applicant is a reasonable and
        effective challenge to legislation which does or will, directly or indirectly, affect
        thousands of persons who have been or will in future be affected by the present
        legislative scheme. Accordingly I decline to dismiss the Applicants’ application on the
        ground of lack of locus standi.”
                                                                                      25

          “The principle of legality implies that public bodies must be kept within
          their powers. There should, in general, be no reason why individual
          harm should be required in addition to the public interest of the general
          community”.


40.       An important element of the Applicant’s case is that the decision is
          invalid because it was irrational and arbitrary and contrary to the rule of
          law, entrenched in section 1(c) of the Constitution.47 In fact, the rule of
          law goes further. In Du Toit v Minister for Safety and Security and
          Another 2009 (6) SA 128 (CC), the Constitutional Court stated the
          following (footnotes omitted and emphasis added):


                   “[24] Our constitutional democracy is founded on the supremacy
                   of the Constitution and the rule of law. The rule of law requires,
                   among other things, that the law should punish those guilty in
                   terms of the law and absolve those who are not. This principle
                   not only protects against the arbitrary exercise of public power,
                   but also points to the correct way to treat those who act contrary
                   to the law. The rule of law requires accessibility, precision and
                   general application of the law. As this court held in De Lange v
                   Smuts NO and Others:

                           '(C)itizens as well as non-citizens are entitled to rely upon
                           the State for the protection and enforcement of their
                           rights. The State therefore assumes the obligation of
                           assisting such persons to enforce their rights.' [Footnotes
                           omitted.]”

41.       The same point is made in the early decision of the Constitutional
          Court of AZAPO v President of the RSA 1996 (4) SA 671 (CC) (1996
          (8) BCLR 1015) (emphasis added):


                   “[9] The effect of an amnesty undoubtedly impacts upon very
                   fundamental rights. All persons are entitled to the protection of
                   the law against unlawful invasions of their right to life, their right
                   to respect for and protection of dignity and their right not to be
                   subject to torture of any kind. When those rights are invaded
                   those aggrieved by such invasion have the right to obtain
                   redress in the ordinary courts of law and those guilty of

47
     Record: Main Application at 14, Founding Affidavit at para 13
                                                                                         26

               perpetrating such violations are answerable before such courts,
               both civilly and criminally. An amnesty to the wrongdoer
               effectively obliterates such rights.”

42.    The Third Respondent’s alleged crimes of corruption are crimes
       against the public. He is alleged to have provided political patronage
       and protection for financial reward.48             Every South African would
       accordingly be entitled to enforce compliance with the rule of law since
       every South African is affected by crimes of this kind. This is in itself
       sufficient to confer standing on the Applicant.


43.    The present matter has a further and particular feature which creates a
       special nexus between the Applicant and the First Respondent
       regarding the latter’s decision.         The First Respondent received and
       accepted submissions from the Applicant which ought to have been
       considered alongside submissions from the Third Respondent
       regarding      the   discontinuance       of   the   prosecution.49         In   the
       circumstances, the Applicant is entitled to approach a Court with a
       contention that its representations were unlawfully rejected and to
       enforce compliance with the principle of legality. The present matter is
       very similar to M & G Media Ltd v Public Protector 2009 (12) BCLR
       1221 (GNP) where Poswa J held that the applicant in that matter had
       standing to challenge the report of the Public Protector, on the basis of
       non-compliance with the principle of legality,50 remarking as follows:


           “[35] …The respondent does not contend – neither could he
           contend, in my view – that the applicants were not entitled, in law,
           to complain as they did to him. Why then would they not be entitled
           to bring an application if they were unhappy with his conduct? I,
           therefore, find that the applicants are perfectly entitled to bring this
           application on this basis alone.”

44.    This reasoning applies in the present matter. The First Respondent
       permitted the Applicant to make representations regarding his decision
48
   Record: Main Application at 15, Founding Affidavit at para 17
49
   Record: Main Application at 16, Founding Affidavit at para 18.5
50
   See para 99 of the judgment where it was held that it was not necessary to decide whether
PAJA applies as a concession was made that the matter could be decided with reference to
the principle of legality.
                                                                             27

       whether or not to discontinue the prosecution of the Third Respondent.
       In the result there can be no reason why the Applicant should not be
       permitted to bring an application if dissatisfied with the outcome of the
       decision.


45.    A similar point was made by the Constitutional Court in Minister for
       Justice and Constitutional Development v Chonco 2010 (2) BCLR
       140 (CC), concerning the exercise of the pardon power (which is not
       administrative action). The Court held:


            “[30] …Though there is no right to be pardoned, the function
            conferred on the President to make a decision entails a
            corresponding right have a pardon application considered and
            decided upon rationally, in good faith, in accordance with the
            principle of legality, diligently and without delay.”

46.    Again, the present matter is comparable. The Applicant participated in
       the process by making representations to the First Respondent
       regarding the decision. It accordingly has an entitlement to have the
       matter decided upon “rationally, in good faith and in accordance with
       the principle of legality”. The Applicant contends that the decision has
       not been taken in this manner and it is entitled to enforce its right in
       review proceedings.


47.    In the circumstances, it is submitted that the Applicant clearly has
       standing to enforce compliance with the rule of law. The question of
       whether the Applicant has standing under section 38 of the Constitution
       does not in fact arise, on this analysis.


(ii)   Standing of the Applicant under section 38 of the Constitution


48.    In its Founding Affidavit the Applicant contends that it has standing
       because it is bringing the application in its own interest and in the
       interest of its members and supporters (section 38(a) and (d) of the
       Constitution) and in the public interest (section 38(d) of the
                                                                                         28

       Constitution). The fundamental rights which the Applicant alleges have
       been infringed or threatened are:


       48.1    The right to just administrative action (section 33 of the
               Constitution).51


       48.2    The right to equality, it being alleged that the Third Respondent
               avoided prosecution by reason of his particular prominence,
               position and influence.52


49.    We deal with the issue of whether the decision amounts to
       administrative action below.            However, even if this Court were
       ultimately to be against the Applicant on this question, or if it were
       found that the Applicant’s right to equality was not impaired by the
       decision, it does not mean that this Court should find that the Applicant
       does not have standing to make the argument. The consequence of
       the approach adopted by the Constitutional Court in Ferreira v Levin
       NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) (1996 (1) BCLR
       1) is that an applicant association merely has to allege that, objectively
       speaking, a right in the Bill of Rights is infringed or threatened.53 This
       does not have to be its own or any particular person's fundamental
       right. In addition, such an applicant must show that it has a “sufficient
       interest” in the determination of the dispute (section 38(a)) or that its
       members have a sufficient interest (section 38(e)) or that there is a
       sufficient public interest in the determination of the dispute (section
       38(d)). We now turn to deal with these issues in turn.




51
   Record: Main Application at 14, Founding Affidavit at para 13
52
   Record: Main Application at 13, Founding Affidavit at para 11.4
53
   Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) (1996 (1) BCLR 1)
para 26; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC) para 29 (allowing foreign nationals with sufficient interest to challenge
laws by relying on their South African spouses' fundamental rights); Chief Lesapo v North
West Agricultural Bank 2000 (1) SA 409 (CC) para 7.
                                                                                           29

(aa)    The Applicant’s interest


50.     We have pointed out that the Applicant has a special interest in the
        relief sought because it made representations to the First Respondent
        regarding the decision to discontinue the prosecution of the Third
        Respondent.        That interest would in itself be sufficient to confer
        standing. In addition, and quite apart from this interest, we submit that
        the Applicant has a sufficient interest because:


        50.1    The alleged crimes of corruption are crimes against the public.
                As a political party, the Applicant represents a significant portion
                of the public.54


        50.2    It is the official opposition in Parliament and the charges which
                the Third Respondent faced included that he failed properly to
                declare the proceeds of bribes to the Secretary of Parliament.55


        50.3    The Applicant’s own constitution requires it to ensure respect for
                the rule of law and legality56 and provides that its mandate
                extends to cases such as the present.57




54
  Record: Main Application at 15, Founding Affidavit at para 17. The size of the political
party is not relevant. See, in this regard Concerned Land Claimants' Organisation of PE v
PE Land & Community Restoration Assoc 2007 (2) SA 531 (CC) (2007 (2) BCLR 111),
where the Constitutional Court stated the following:

        “[28] Accordingly we do not need to consider the conclusion of the Land Claims Court
        that members of the applicant lack standing in this matter. Nevertheless, it should be
        recorded that the applicant represents a genuine community concern, however small
        or unrepresentative. On the papers in this Court, land claimants who are members of
        the applicant also appear on the list of claimants appearing in Annexure A to the
        agreement. These appear to be people who originally owned land in the earmarked
        area and feel aggrieved by the terms of the framework agreement. In our view, it may
        well be that the applicant therefore has an interest sufficient to vest standing in the
        applicant and its members. We are well aware that the applicant represents a splinter
        group from PELCRA. However, in our view, that fact would, in all probability, not be a
        sufficient reason to non-suit them on the ground of standing.”
55
   Record: Main Application at 15, Founding Affidavit at para 18.1
56
   Record: Main Application at 16, Founding Affidavit at para 18.2
57
   Record: Main Application at 17, Founding Affidavit at para 21
                                                                                              30

       50.4    As a political party, the Applicant has a special constitutional
               role and interest to ensure that those in power do not escape
               accountability for their actions and that the principles of
               accountability, responsiveness and openness (section 1(d) of
               the Constitution), are upheld.


51.    In the circumstances it is submitted that the Applicant has a sufficient
       interest of its own and that it has standing on that basis.


(bb)   The interest of the Applicant’s members


52.    We have pointed out that the charges which were withdrawn were
       essentially that the Third Respondent had perpetrated a series of
       corrupt acts. As these charges involve the misappropriation of public
       money, the Applicant’s members, who are taxpayers, have an interest
       in the decision to discontinue the prosecution against the Third
       Respondent. We noted that the rule of law requires an appropriate
       sanction for those guilty in terms of the law. In order to validate this
       principle, the Applicant must be afforded standing to enforce
       compliance with the rule of law on behalf of its members.58



58
    See Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC and
Others 2004 (2) SA 81 (SE), where Plasket AJ commenting on the standing of a voluntary
ratepayers' association to enforce applicable zoning conditions stated (at 103C - F) as
follows:

       “In addition to the above, the fourth respondent's constitution expressly gives it the
       power to sue or be sued in the furtherance of its objects, which relate directly and
       unambiguously to the plans of the members of the fourth respondent to force the
       Crazy Zebra, through litigation, to comply with the law. In these circumstances, even
       under the restrictive pre-1994 common-law rules of standing, courts recognised the
       standing of associations like the fourth respondent to litigate on behalf of their
       members. Now, when courts are required to develop the common law in accordance
       with the spirit, purport and objects of the Bill of Rights; when s 34 of the Constitution
       makes specific provision for the entrenchment of a fundamental right of access to
       court; when the rules of standing in their constitutional setting must be applied
       broadly, and when courts have developed the common law in similar situations to
       recognise the standing of associations to act in the public interest or in the interests of
       their members, there can be little warrant in not recognising the standing of an
       association such as the fourth respondent to litigate on behalf of its members.”

See also Highveldridge Residents Concerned Party v Highveldridge TLC 2002 (6) SA 66
(T) para 6 and further.
                                                                             31

(cc)   The public interest


53.    The test for whether an applicant may act in the public interest has
       been laid down as follows in Lawyers for Human Rights v Minister of
       Home Affairs 2004 (4) SA 125 (CC) (2004 (7) BCLR 775) (footnotes
       omitted and emphasis added):


          “Standing

          [14] Section 38 of our Constitution introduces a radical departure
          from the common law in relation to standing. Indeed, the terms of
          the section limit considerably the degree to which an analysis of the
          standing jurisprudence in other countries can be of real assistance.
          ……

          [15] Subsection (d) expressly allows court proceedings by
          individuals or organisations acting in the public interest. Public
          interest standing is given in addition to those provisions that allow
          for actions to be instituted on behalf of other persons and on behalf
          of a class. Subsection (d) therefore connotes an action on behalf of
          people on a basis wider than the class actions contemplated in the
          section. The meaning and reach of the standing conferred by this
          paragraph must be determined against this background.

          [16] In her judgment in Ferreira v Levin O'Regan J advocated the
          following approach to determine the reach of the provision in the
          interim Constitution equivalent to s 38(d) of the Constitution as well
          as whether and when a person or organisation could be said to
          have been acting in the public interest in a particular case:

             'This Court will be circumspect in affording applicants standing
             by way of s 7(4)(b)(v) and will require an applicant to show that
             he or she is genuinely acting in the public interest. Factors
             relevant to determining whether a person is genuinely acting in
             the public interest will include considerations such as: whether
             there is another reasonable and effective manner in which the
             challenge can be brought; the nature of the relief sought, and
             the extent to which it is of general and prospective application;
             and the range of persons or groups who may be directly or
             indirectly affected by any order made by the Court and the
             opportunity that those persons or groups have had to present
             evidence and argument to the Court. These factors will need to
             be considered in the light of the facts and circumstances of each
             case.'
                                                                                              32

            [17] I agree in substance with this approach. ….

            [18] The issue is always whether a person or organisation acts
            genuinely in the public interest. A distinction must however be made
            between the subjective position of the person or organisation
            claiming to act in the public interest on the one hand, and whether it
            is, objectively speaking, in the public interest for the particular
            proceedings to be brought. It is ordinarily not in the public interest
            for proceedings to be brought in the abstract. But this is not an
            invariable principle. There may be circumstances in which it will be
            in the public interest to bring proceedings even if there is no live
            case. The factors set out by O'Regan J help to determine this
            question. The list of relevant factors is not closed. I would add that
            the degree of vulnerability of the people affected, the nature of the
            right said to be infringed, as well as the consequences of the
            infringement of the right are also important considerations in the
            analysis.59


59
    Madala J stated in the same matter at para [73]: “To these guidelines I would add that a
further and important factor to be taken into account in deciding whether a party has public-
interest standing is the egregiousness of the conduct complained of.”

See also Campus Law Clinic, University of KZN v Standard Bank of SA Ltd 2006 (6) SA
103 (CC) (2006 (6) BCLR 669)

        “[20] Given the broad provisions of s 38 of the Constitution, the fact that the Campus
        Law Clinic was not a party to the proceedings in any of the three courts mentioned
        above is not an absolute bar to it being accorded standing to bring an application for
        leave to appeal. As Yacoob J pointed out in Lawyers for Human Rights, s 38 of the
        Constitution has introduced a radical departure from the common law in relation to
        standing. In that matter, this Court had to decide whether the applicant organisation,
        a non-profit non-governmental organisation, had standing to challenge provisions of
        the Immigration Act 13 of 2002, dealing with the deportation of illegal foreigners. After
        observing that, although it is not ordinarily in the public interest for proceedings to be
        brought in the abstract, Yacoob J emphasised that this was not an invariable
        principle, and that there might be circumstances in which it would be in the public
        interest to bring proceedings even if there were no live case.

        [21] The factors that would be relevant would be: Whether there is another
        reasonable and effective manner in which the challenge may be brought; the nature
        of the relief sought and the extent to which it is of general and prospective
        application; the range of persons or groups who may be directly or indirectly affected
        by any order made by the Court and the opportunity that those persons or groups
        have had to present evidence and argument to the Court; the degree of vulnerability
        of the people affected; the nature of the rights said to be infringed; as well as the
        consequences of the infringement. The list of factors is not closed. In the
        circumstances of that case the possibility that the people affected by the provisions
        concerned would challenge their constitutionality was remote. They may well have left
        the country before the constitutional challenge could or would materialise, even if it
        were assumed that they would have the resources, knowledge or will to institute
        appropriate proceedings. Accordingly, objectively speaking, Yacoob J held that it was
        in the public interest for the proceedings to be brought.

        [22] In the present matter the Campus Law Clinic points to what it calls the
        exceptional circumstances of the case. The proceedings from the start were
                                                                                               33

54.       Applying these factors to the present matter, then there can be no
          doubt that the Applicant should be afforded standing. The decisive
          considerations, in our submission, are the following:


          54.1    The Applicant has no other means to challenge the decision
                  save by approaching this Court by way of review proceedings.60


          54.2    The reality is that few citizens have the means and resources to
                  bring such a challenge, even though the underlying issue is one
                  of fundamental importance.61 In short, if the Applicant is not
                  permitted to bring the present challenge, then the legality of the
                  decision is likely to remain free from any scrutiny.


          54.3    The Applicant’s challenge does not relate to abstract issues. If
                  the First Respondent acted unlawfully, there is no reason why
                  his decision to discontinue the prosecution should not be set
                  aside. We deal with this aspect in greater detail below.


          54.4    The decision in question involves issues of governance at the
                  highest level in a matter of overwhelming public interest. The
                  potential for a loss of confidence in organs of State concerned
                  with crime prevention and prosecution is manifest, unless the
                  legality of the decision is tested in open court.



          essentially driven by judicial concern to ensure that, in enforcing warrants for sales in
          execution of properties where mortgage debtors were in default, constitutional rights
          concerning access to adequate housing be considered. The individual debtors did not
          actively pursue the matter themselves nor did they instruct counsel to appear.
          Counsel acting as amici curiae appeared at the request of the respective Courts.
          Once the appeal by Standard Bank succeeded in the SCA, there was no litigant
          willing and able to take the matter further. The applicant contends that, since the SCA
          decision will be binding on the High Court, and would be followed by the SCA itself,
          fresh proceedings would serve no useful purpose, and only involve unnecessary
          delay and expense. In the light of these considerations, we accept that the applicant
          has standing to bring an application for leave to appeal in this case.”

See also Centre for Child Law v Minister of Justice and Constitutional Development and
Others 2009 (6) SA 632 (CC) at para 12.
60
     Record: Main Application at 15, Founding Affidavit at para 17
61
     Record: Main Application at 17, Founding Affidavit at para 18.7
                                                                                           34

(iii)   The contentions of the First Respondent


55.     The First Respondent contends that:


        55.1    The standing of the Applicant must be determined in terms of
                PAJA and not in terms of section 38 of the Constitution. Under
                PAJA, so it is further contended, the Applicant would lack
                standing as it must show that it has a direct and substantial legal
                interest, which it cannot do as the NDPP’s decision does not
                adversely affect any of its rights.62


        55.2    The First Respondent further contends that the Applicant may
                not rely on section 38 of the Constitution as it has not alleged
                which of its rights have been infringed or threatened.63


56.     The second contention is factually incorrect for the reasons set out
        above. The first contention is flawed because:


        56.1    The Applicant is entitled to rely on section 38, as it has alleged
                that sections 9 and 33 of the Constitution were violated by the
                decision.64       Further, and in any event, the same (broad)
                approach to standing applies even if the allegation is merely that
                the rule of law has been impaired.


        56.2    As PAJA was enacted to give effect to the rights conferred by
                section 33 of the Constitution, the standing provisions of section
                38 also apply in respect of review applications under PAJA.65



62
   Record: Intervention Application at 248, the First Respondent’s Answering Affidavit para
63-4
63
   Record: Intervention Application at 250, the First Respondent’s Answering Affidavit para 67
64
   National & Overseas Modular Construction (Pty) Ltd v Tender Board, Free State
Provincial Govt 1999 (1) SA 701 (O) at 704C, where the point is made that section 33 falls
within chapter 2 and that where it is alleged that this right has been impaired, section 38 is
applicable.
65
   See De Ville Judicial Review of Administrative Action in South Africa (2003) at 401;
Hoexter Administrative Law (2007) at 441; Currie The Promotionof Administrative
Justice Act: A Commentary (2007) at 179.
                                                                                         35

(iv)   The Contentions of Third Respondent


57.    The Third Respondent fails to take any account of the significant
       developments regarding the issue of standing in public law over the
       last 15 years, contending that:


       57.1    The test to be applied is the private law test governing general
               civil litigation, i.e. whether the Applicant has a direct and
               substantial legal interest, in the sense of a legal interest
               cognisable in law,66 in the subject matter of the proposed
               prosecution of Third Respondent, tantamount to an interest
               which will suffice to entitle such a person to the institution of a
               private prosecution.67


       57.2    The Applicant cannot and does not assert any injury or right
               peculiar to it which arises from or is affected by the decision.68


58.    The above contentions are bad in law, for the reasons stated.


59.    In addition, the Third Respondent has attempted to develop a third and
       somewhat unorthodox basis for denying the Applicant standing. This
       contention, which will be referred to as the “two streams argument”,
       rests on a claim that the Applicant’s leader stated that her submissions
       were made under section 179(5)(d) of the Constitution.69 This section
       provides as follows:


               “(5) The National Director of Public Prosecutions-




66
   Record: Rule 6(11) Application at 44, the Third Respondent’s Answering Affidavit para 18.
67
   Record: Rule 6(11) Application at 49-50, the Third Respondent’s Answering Affidavit para
33
68
   Record: Rule 6(11) Application at 45, the Third Respondent’s Answering Affidavit para 22
69
   Record: Rule 6(11) Application at 53, the Third Respondent’s Answering Affidavit para 43.
It is further contended, at 62, para 46(g) that “there are importance differences between
Section 179(5)(d) representations and the failure to afford an opportunity for these and the
general practice of receiving and considering representations from accused persons”.
                                                                                       36

                       “(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.”

60.    The Third Respondent contends that the decision did not result from
       the section 179(5) process but was pursuant to the NPA “practice” of
       receiving representations from the accused as per the “prosecution
       policy”.70 The Third Respondent alleges that he availed himself of this
       practice to submit representations while, at the same time, pursuing his
       rights in the “somewhat parallel proceedings” in terms of section
       179(5)(d).71


61.    Although the contention was rejected by the Supreme Court of Appeal
       in NDPP v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009
       (4) BCLR 393), the Third Respondent has always maintained that he
       had a right to make representations under section 179(5)(d) of the
       Constitution. What the Third Respondent now appears to contend for
       is that there was:


       61.1    a public consultation process required by section 179(5)(d) in
               which the Applicant participated and if a decision was taken in
               that process the Applicant (presumably) had standing to review
               the result; and, simultaneously,

70
   Record: Rule 6(11) Application at 54, the Third Respondent’s Answering Affidavit para
46(b). In NDPP v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393),
the SCA referred, at para 54 of the judgment, to the power of the NDPP under section
22(4)(c) of the NPA Act to “consider such recommendations, suggestions and requests
concerning the prosecuting authority as he or she may receive from any source”. The Third
Respondent does not state whether it submitted the representations under this provision.
71
   Record: Rule 6(11) Application at 55-6, the Third Respondent’s Answering Affidavit para
46(c).
                                                                                        37

          61.2    a private, confidential, without prejudice, consultation process,
                  which is not reviewable, and the record of which should not be
                  produced, inter alia, because neither the Applicant nor the
                  complainant nor the Intervening Party who claims to be a
                  complainant nor, presumably, anyone else, has standing to
                  review.


62.       This contention falls to be rejected on several grounds:


          62.1    Firstly, it has no factual basis. Neither the First Respondent’s
                  invitation to the Applicant to make representations,72 nor the
                  Applicant’s       representations         themselves,73        constitute
                  representations made or received in terms of section 179(5)(d).
                  In the Founding Affidavit it is merely stated that the NPA
                  “implicitly accepted that the DA was considered to be a party in
                  terms of section 179(5)(d)(iii) of the Constitution”.74


          62.2    Secondly, it makes little sense to attempt to relegate the
                  Applicant’s submissions to a separate stream, given that the
                  NPA had won the SCA case in January 2009, where it was held
                  that section 179(5)(d) was not applicable. The representations
                  made by the Applicant were not in terms of a non-existent
                  section 179(5) process. They were in response to the “secret
                  document” submitted by the Third Respondent to the NPA.75
                  The representation formed part of the process which led to the
                  decision to discontinue the prosecution against the Third
                  Respondent. This is so because the First Respondent directed
                  the Applicant to submit the written representations to him before




72
   Record: Main Application “JS5” at 103
73
   Record: Main Application “JS9” at p. 117
74
   Record: Main Application at 16, Founding Affidavit at para 18.5
75
     Record: Main Application “JS9” at 117, unnumbered last paragraph on the page.
                                                                                            38

                  27 March 2009, as “this is the date I have set for myself to apply
                  my mind to all the information supplied and still to be supplied”.76


          62.3    In any event, the exact basis on which the representations were
                  made or received is not the issue. What is relevant for present
                  purposes is that the First Respondent granted the Applicant an
                  opportunity to submit representations on the question whether or
                  not the First Respondent should discontinue the prosecution of
                  the Third Respondent. By permitting the Applicant to submit
                  representations      in   the    circumstances      he    did,   the   First
                  Respondent implicitly accepted that the Applicant was a relevant
                  and interested party. The Applicant for its part became entitled
                  to have its representations properly considered in a process
                  which was lawful and regular.          It was a process in which other
                  political parties such as the ANC participated, even though the
                  latter’s representations were vetted and submitted via the legal
                  representatives of the Third Respondent.77


E.        PROSECUTORIAL DECISIONS ARE NOT REVIEWABLE UNDER
          THE CONSTITUTION AND PAJA


63.       We deal separately below with the question whether a decision not to
          prosecute is reviewable under the (i) Constitution and (ii) PAJA.


(i)       The decision is reviewable for being inconsistent with the rule of
          law


Even if the decision were not to qualify as administrative action, it involves the
exercise of public power and accordingly is subject to the legality principle,
which is an aspect of the rule of law. The review application is directed at
upholding the rule of law and vindicating the Constitution.




76
     Record: Main Application “JS5” at 103, second unnumbered paragraph
77
     Record: Rule 6(11) Application at 66, the Third Respondent’s Answering Affidavit para 49.
                                                                                           39

64.     The Supreme Court of Appeal held in NDPP v Zuma 2009 (2) SA 277
        (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393) at para 36 that a
        failure by the NPA to comply with a constitutional or statutory
        requirement to hear a party is justiciable under the principle of legality
        irrespective of whether or not PAJA applies.78                The legality of the
        NDPP’s decision was described as “the crux “of that appeal.79


65.     The position has subsequently been described as follows in S v Chao
        and Others 2009 (2) SA 595 (C):


            “[27] All decisions to prosecute are arguably administrative actions
            in the traditional sense. However, s 1(i)(b)(ff) of PAJA explicitly
            excludes 'a decision to institute or continue to prosecute' from the
            regulatory scope of PAJA, and can therefore not be reviewed in
            terms of that Act. This fact was emphasised by Harms DP in
            National Director of Public Prosecutions v Zuma.

            [28] Regardless of this exclusion, the authorisation and/or decision
            to prosecute or continue to prosecute still amounts to the exercise
            of public power and is consequently subject to the rule of law
            generally and the principle of legality specifically. An administrator
            exercising a public power bestowed on him or her, which the NDPP
            in this instance did, must therefore apply his or her mind to the
            decisions taken in terms of that authority and do so rationally.”

66.     It is surprising that in the light of the above dicta, the First Respondent
        nonetheless contends that prosecutorial decisions are not reviewable
        for rationality under the Constitution80 but only on very narrow grounds,
        such as bad faith.81        It is not clear on what basis this conclusion is
        reached. The First Respondent accepts that under the Constitution
        rationality is a minimum threshold requirement for all exercises of
        public power and that prosecutorial decisions involve the exercise of
        public power.82       The conclusion that a decision to discontinue a



78
   See also Naidoo and Others v National Director of Public Prosecutions and Others
2005 (1) SACR 349 (SCA).
79
   See para 52 of the Judgment.
80
   Record: Intervention Application at 244, the First Respondent’s Answering Affidavit para 50
and further.
81
   Record: Intervention Application at 247, the First Respondent’s Answering Affidavit para 59
82
   Record: Intervention Application at 244, the First Respondent’s Answering Affidavit para 51
                                                                                             40

       prosecution may be subject to a rationality review is sought to be
       avoided on two grounds:


       66.1      Firstly, it is contended that the legislature has excluded
                 prosecutorial decisions, including decisions not to prosecute,
                 from the ambit of PAJA and it is not permissible to go behind
                 this exclusion and to rely on rationality under the Constitution,
                 without challenging the constitutionality of PAJA.83


       66.2      Secondly, it is contended that rationality review requires an
                 assessment of the presence or absence of a rational connection
                 between the decision and the reasons for it, as well as a rational
                 connection between the decision and the material properly
                 before the decision-maker.              Such material would include
                 representations made on a confidential and without prejudice
                 basis, and personal information of the Third Respondent and
                 others,84 which cannot be disclosed to third parties85.                  This
                 means that a rationality review cannot be properly conducted in
                 such circumstances.          It is contended that this is a justifiable
                 limitation under section 36 of the Constitution.86


67.    In our submission both arguments merely have to be stated in order for
       them to be rejected. There can be no authority for the first argument.
       The very reason for invoking rationality review under the Constitution is
       that PAJA does not apply.                   Such rationality review has been
       undertaken regularly by our courts, including seminal decisions of the
       Constitutional Court such as President of the Republic of South
       Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) and
       Pharmaceutical Manufacturers Association of SA: In re: ex parte


83
   Record:   Intervention Application at 245, the First Respondent’s Answering Affidavit paras
5405
84
   Record:   Intervention Application at 246-7, the First Respondent’s Answering Affidavit para
57-8
85
   Record:   Intervention Application at 246, the First Respondent’s Answering Affidavit para 56
86
   Record:   Intervention Application at 246, the First Respondent’s Answering Affidavit para 56
                                                                                          41

       President of the Republic of South Africa 2000 (2) SA 674 (CC). The
       second argument is an attempt to justify what is, in effect, an ouster
       through lack of transparency. The surprising contention appears to be
       that review proceedings are incompetent because the First Respondent
       will not produce the materials necessary for such a review to be
       competently performed. We have already dealt with the production of
       the record. There is no basis to sustain a blanket refusal to provide any
       materials to the Applicant.


68.    The Third Respondent appears to accept, as he must, that the First
       Respondent’s decision may be impugned on the grounds that it was
       irrational or inspired by improper motive.87              The Third Respondent
       however advances the following two points:


       68.1      Firstly, the unusual argument is made that “any decision in the
                 context of actual litigation between the parties is not susceptible
                 to a review”.88 It is not clear what this means. It seems to be
                 suggested that the Third Respondent and the First Respondent
                 “were litigating with each other”89 and that the outcome of this
                 litigation is nobody’s business but theirs.


       68.2      The Third Respondent further contends that the nature of the
                 representations made by him is more “akin to one party
                 proposing a settlement and giving the reasons for that”.90


69.    It is submitted that the withdrawal of a prosecution cannot amount to a
       “settlement”, given that the State may at any time decide to charge the
       Third Respondent again. Further, whatever the nature of the process,
       ultimately a decision was taken by the organ of state and such decision
       is clearly reviewable.


87
   Record:   Rule 6(11) Application at 81, the Third Respondent’s Answering Affidavit para 79
88
   Record:   Rule 6(11) Application at 67, the Third Respondent’s Answering Affidavit para 52
89
   Record:   Rule 6(11) Application at 67, the Third Respondent’s Answering Affidavit para 52
90
   Record:    Rule 6(11) Application at 69, the Third Respondent’s Answering Affidavit para
53(c)
                                                                             42

(ii)   The decision is reviewable under PAJA


70.    We have made the submission that whether or not the decision to
       discontinue the prosecution of the Third Respondent is reviewable
       under PAJA is not a question to be decided in this interlocutory
       application.     It falls to be dealt with at the hearing of the main
       application.


71.    However, if this Court were to decide this issue, it is our submission
       that the decision does amount to administrative action, within the
       definition of that term in section 1 of PAJA. We say so for the following
       reasons:


       71.1   Excluded from the definition of administrative action under PAJA
              is a decision to institute or continue a prosecution. A decision
              not to prosecute or to discontinue a prosecution is a decision of
              a fundamentally different character.        PAJA recognises the
              central importance of this distinction, by excluding a decision to
              institute or continue a prosecution from the ambit of judicial
              review.     PAJA does not, exclude from judicial review all
              „prosecutorial decisions‟.


In the case of a decision to prosecute, the accused has the right to defend
himself or herself in accordance with fair trial rights, which makes a review
unnecessary. In the case of a decision to prosecute, the trial court becomes in
effect the arbiter of that decision. In the case of a decision not to prosecute,
that is the end of the road save for the review remedy.


       71.2   A private prosecution is not an adequate alternative to a
              prosecution by the State. Few complainants have the time, skill
              or resources available to them to institute a private prosecution,
              even if they were otherwise to comply with the requirements of
              s 7 of the Criminal Procedure Act 51 of 1977.
                                                                                           43

        71.3    The Constitutional Court left the question open in Kaunda and
                Others v President of the Republic of South Africa and
                Others 2005 (4) SA 235 (CC) (2004 (10) BCLR 1009) para 84
                but the High Court held in Zuma v National Director of Public
                Prosecution 2009 (1) BCLR 62 (N) (para 58) that a decision not
                to prosecute was subject to review. This last finding was never
                overturned and remains the only direct authority on the point.


72.     The First Respondent has summarised its arguments on the issue of
        whether PAJA applies in its answering affidavits. We deal with each of
        these arguments in turn below.


(aa)    Policy decision


73.     The First Respondent contends that the considerations which inform a
        decision whether or not to prosecute involve value judgments and
        policy considerations that do not make themselves amenable to judicial
        review on the wide grounds provided under PAJA.91


74.     The answer to this contention, we submit, is that prosecutors, including
        the First Respondent, do not formulate policy92 which might result in
        their decisions being executive in nature, rather than administrative.
        The polycentric decisions, to the extent that there are any, are dealt
        with in the Policy Manual, which is annexed to the First Respondent’s
        answering affidavit,93 and which contains guidance on the withdrawal of
        cases and the stopping of prosecutions.94 A decision on the withdrawal
        of a prosecution involves rather the application of the policy, with direct




91
   Record: Intervention Application at 237, the First Respondent’s Answering Affidavit (first)
para 4
92
   See, regarding the formulation of policy, President of the Republic of South Africa v
South African Rugby Football Union 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059) at para
142.
93
   Record: Intervention Application at 257, annexure “MJM1”.
94
   Record: Intervention Application at 291.
                                                                                           44

        and immediate consequences for individuals or groups of individuals.
        Such a decision is generally regarded as administrative action.95


(bb)    Impractical to afford all affected parties a hearing


75.     The First Respondent contends further that if PAJA were to apply to
        prosecutorial decisions, then every person whose rights and legitimate
        expectations may be effected would have to be given a hearing,
        necessitating substantial staff increases to cope with the additional
        administrative burden.96 It is further contended that the identity and
        number of persons whose rights could be affected by decisions would
        be difficult to determine and to manage. Informal approaches by legal
        representatives on behalf of accused persons could no longer be
        entertained.97


76.     The answer to this contention, we submit, is that a finding that a
        decision not to prosecute amounts to administrative action does not
        mean that such a decision necessarily attracts the duties imposed by
        section 3 of PAJA (the right to a hearing).               Section 3(1) of PAJA
        confers a right to procedural fairness only in respect of administrative
        action that “materially and adversely affects the rights or legitimate
        expectations of any person”.         The Supreme Court of Appeal has held
        that, while “rights” may have a wider connotation in this context, and
        may include prospective rights that have yet to accrue, it is difficult to
        see how the term could encompass interests that fall short of that. 98 It
        may well be that a decision not to prosecute does not affect rights or
        prospective rights, but that issue need not be decided in this matter.




95
   Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA)
(2005 (10) BCLR 931; [2005] 3 All SA 33) at para 24
96
   Record: Intervention Application at 238, the First Respondent’s Answering Affidavit para 42
and (second) para 43
97
   Record: Intervention Application at 239, the First Respondent’s Answering Affidavit para 44
98
   Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA)
(2005 (10) BCLR 931; [2005] 3 All SA 33) at para 30
                                                                                         45

(cc)   Application of PAJA will cause delays


77.    The First Respondent contends that the application of PAJA would
       result in significant delays in the criminal justice system.99                  The
       application of PAJA might cause a delayed prosecution which could
       undermine section 35(3)(d) of the Constitution, namely the right of an
       accused to have the trial begin and conclude without unreasonable
       delay.100


78.    The answer to this contention, we submit, is that the accused would
       remain entitled to object to a delayed prosecution and to use the
       available remedies to deal therewith, including the right to demand a
       permanent stay of prosecution.


(dd)   Unfair advantage can be gained


79.    The First Respondent contends that other accused may gain an
       advantage by reviewing a decision not to prosecute and obtaining
       information via the record of the case against them.101


80.    The answer to this contention, we submit, is that in such a matter the
       NPA will be entitled to refuse to make the record available until the trial
       of the accused is complete.


(ee)   Substitution not appropriate


81.    The First Respondent contends that the discretion of a Court in terms
       of section 8(1)(a)(ii) of PAJA, in exceptional circumstances to substitute
       its decision and accordingly to order the continuation of a prosecution
       could never have been intended as it goes against the mandate to


99
    Record: Intervention Application at 239, the First Respondent’s Answering Affidavit para
45-6
100
    Record: Intervention Application at 242, the First Respondent’s Answering Affidavit para
49.4
101
    Record: Intervention Application at 240, the First Respondent’s Answering Affidavit para
46
                                                                                             46

        prosecute conferred on the NPA in terms of section 179 of the
        Constitution.


82.     The answer to this contention, we submit, is that there are many
        instances of administrative action where a court will be extremely loath
        to substitute its own decision for that of the administrator (for example,
        a refusal to approve the construction of a nuclear power plant). This
        does not, however, mean that the decision is not administrative action.


(ff)    Does not affect rights


83.     The First Respondent contends that the decision not to prosecute or
        not to continue a prosecution in victimless crimes does not adversely
        affect the rights of any person.             Where there is a victim, with a
        substantial and peculiar interest in the decision, the law provides a
        remedy in the form of a private prosecution in terms of section 7 of the
        CPA.102


84.     In our submission, the First Respondent’s interpretation of rights, at
        least for purposes of section 1 of PAJA, is too narrow.                            The
        Constitutional Court has held that, even in the context of section 3 of
        PAJA, the notion of rights includes not only vested private law rights
        but also legal entitlements that have their basis in the constitutional and
        statutory obligations of government.103 All the Applicant seeks to do in
        the present matter is to ensure compliance with constitutional and
        statutory obligations, such as the duty to act rationally (section 1 of the
        Constitution) and to take decisions impartially and in good faith and




102
    Record: Intervention Application at 242, the First Respondent’s Answering Affidavit para
49.3
103
   Joseph v City of Johannesburg 2010 (3) BCLR 212 (CC) at para 42. See, also,
Bullock NO v Prov Govt, North West Province 2004 (5) SA 262 (SCA) ([2004] 2 All SA
249) at para 19: “If a narrow interpretation of 'rights' in para (d) is adopted, the decision of
the first respondent, based as it is on an incorrect premise, could not be challenged, with
consequent lack of accountability on the part of the first respondent, despite prejudice to
those affected by the decision”; Grey's Marine Hout Bay (Pty) Ltd v Minister of Public
Works 2005 (6) SA 313 (SCA) (2005 (10) BCLR 931; [2005] 3 All SA 33) at para 23.
                                                                                         47

       without fear, favour or prejudice (section 179(4) of the Constitution and
       section 32(1)(a) of the NPA Act).


F.     WHETHER A SITTING PRESIDENT MAY BE PROSECUTED


85.    We submit that, should this Court be inclined to consider the contention
       by the Third Respondent that a sitting President may not be criminally
       prosecuted104 (a question which we submit the Court should not
       consider), the contention falls to be rejected on the following grounds:


       85.1    Firstly, the Third Respondent is incorrect in contending that
               under South African law the President cannot be criminally
               prosecuted.       There are a number of countries in the world
               whose constitutions expressly provide the head of state with
               certain    protections     from    litigation.     The     South    African
               Constitution is not one of them. In South Africa no constitutional
               protection is afforded to the President against criminal
               prosecution.


       85.2    In any event, at the time when the decision which the Applicant
               seeks to impugn was taken, the Third Respondent was not the
               President.      The question of whether or not the prosecution
               against him should proceed while he is the President – in the
               event that the application for review should succeed – is not one
               which arises at this time.


       85.3    Furthermore, an order setting aside the decision to withdraw the
               prosecution against the Third Respondent is not the same thing
               as an order directing the First Respondent to reinstate the
               prosecution. If therefore there are legal grounds on which a
               President cannot be charged criminally, then the reinstatement


104
   Record: Rule 6(11) Application at 45-6, the Third Respondent’s Answering Affidavit at
para 24; Record: Rule 6(11) Application at 83, the Third Respondent’s Answering Affidavit at
para 82 and further
                                                                                              48

                of the prosecution would have to stand over until the Third
                Respondent is no longer President.


G.      ABUSE OF COURT ARGUMENT


86.     The Third Respondent contends that the application is an abuse of
        process brought in order to gain political ground at the expense of the
        ANC.105 This argument is reiterated at various points in the answering
        affidavit.106 In support of this contention, it is inter alia alleged that the
        review application was drawn prior to the announcement of the NDPP’s
        decision being announced107 and that the Applicant has not sought to
        review the decision to discontinue the prosecution of the Thint
        companies.108


87.     The Third Respondent further contends that the Applicant seeks to
        establish as a precedent the right of a political party to review any
        decision by the NPA which the party does not like.109 It is alleged that
        this is a “very disturbing proposition” which would pose “dire threats” to
        the independence of the NPA and the separation of powers doctrine.


88.     There is no factual basis for the contention that the Applicant seeks to
        abuse the process of court. In any event, even if the Applicant had a
        political motive, this would be no reason to dismiss its challenge. At
        para [81] of (Police and Prisons Civil Rights Union and Others v
        Minister of Correctional Services and Others (No 1) 2008 (3) SA 91
        (E) Plasket J stated the following:




105
    Record: Rule 6(11) Application at 74, the Third Respondent’s Answering Affidavit para 65;
Record: Rule 6(11) Application at 83, the Third Respondent’s Answering Affidavit para 81
106
    Record: Rule 6(11) Application at 43, the Third Respondent’s Answering Affidavit para 17:
“The Applicant is a political party with minority support in the country and it has brought this
application in pursuance of its own political aims…”.; para 21: “It is clear that the Applicant is
pursuing its own political agenda…”. See, also, paras 26-
107
    Record: Rule 6(11) Application at 49, the Third Respondent’s Answering Affidavit para 32
108
    Record: Rule 6(11) Application at 49, the Third Respondent’s Answering Affidavit para 32
109
    Record: Rule 6(11) Application at 51, the Third Respondent’s Answering Affidavit para 38
                                                                                          49

                “[81] They have succeeded in this application, not because they
                have clean hands, but because the Constitution is supreme and
                its fundamental rights protect everyone, even the basest of
                individuals, from the abuse of governmental power.”

89.     As support for the above proposition, Plasket J referred to dicta of the
        Constitutional Court in S v Makwanyane and Another 1995 (3) SA
        391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665) para 137 (per
        Chaskalson P) and para 331 (per O'Regan J), where it was said:


            “It is a fundamental premise of our Constitution that the rights in
            chap 3 [of the interim Constitution] are available to all South
            Africans no matter how atrocious their conduct.”

90.     The rule of law means that the principle of clean hands cannot operate
        as a general principle to non-suit applicants in constitutional /
        administrative law matters.


H.      DISCRETION IN REVIEW PROCEEDINGS


91.     The First Respondent contends that the Third Respondent’s fair trial
        rights will be impaired by a fresh decision to prosecute him. This will
        require a review court to exercise the discretion it has in review
        proceedings against the setting aside of the impugned decision.110 In
        addition there has been an unreasonable delay which would entitle the
        Third Respondent to a permanent stay of prosecution.111


92.     We have already made the submission that whether or not the court
        seized of the main application for review should exercise a discretion
        against granting the relief sought by the Applicant is not a question
        which this Court is called upon to decide. In any event, there is no
        reason why the review court would in the exercise of its discretion

110
    Record: Intervention Application at 225: the First Respondent’s Answering Affidavit para
9.2; Record: Intervention Application at 227: the First Respondent’s Answering Affidavit para
11; Record: Intervention Application at 253: the First Respondent’s Answering Affidavit para
78 and further.
111
    Record: Rule 6(11) Application at 71-4, the Third Respondent’s Answering Affidavit paras
58-64
                                                                             50

      refuse to grant the relief sought in the main application. Insofar as the
      question is relevant to the interlocutory application we respectfully
      submit that this Court should not exercise a discretion to dismiss the
      interlocutory application.


93.   We submit that the First Respondent’s invocation of delay is
      inappropriate.   The First Respondent’s duty is to prosecute alleged
      criminals, not to raise in their favour delay points.        If the First
      Respondent were to be consistent in this approach – in other words, if
      the First Respondent were not to invoke delay only where it is believed
      to be politically expedient to do so – then any number of prosecutions
      where the crime was committed a considerable time before the case
      gets to court would have to be withdrawn. This is not the policy of the
      NPA, as far as is known.


94.   Our submission on this aspect is that the discretion which exists in
      review proceedings is not applicable in the present matter. In Eskom
      Holdings Ltd and Another v New Reclamation Group (Pty) Ltd
      2009 (4) SA 628 (SCA) at para 9 the following was stated:


         “The principle of legality would require that an invalid administrative
         decision be set aside. The desirability of certainty may - and I
         emphasise the word 'may', because this is not so in every case -
         point in the opposite direction: persons who altered their position on
         the basis that the administrative act was valid would suffer prejudice
         if it is set aside, because the effect of such an order is
         retrospective.”

95.   In the present case, there are no public policy considerations which
      militate against setting aside the decision. There was no delay in the
      institution of the review proceedings. There will be no loss to the public
      purse or disruption of any kind.        In short, none of the legitimate
      considerations for exercising a discretion against the setting aside of
      the decision exist. In the circumstances, the rule of law requires the
      decision to be set aside if it is found to be unlawful.
                                                                             51

I.    CONCLUSION


96.   For all the above reasons, it is submitted that the Rule 6(11) application
      should be granted with costs, such costs to include the costs of two
      counsel.




                                         S P ROSENBERG SC

                                         H J DE WAAL
                                         Applicant’s Counsel

Chambers
Cape Town
13 May 2010
                                                                         52



                          LIST OF AUTHORITIES

1.    S v Chao and Others 2009 (2) SA 595 (C)
2.    ABBM Printing & Publishing (Pty) Ltd v Transnet Ltd 1998 (2) SA
      109 (W) (1997 (10) BCLR 1429; [1997] 4 All SA 94
3.    Thint Holdings (SA) (Pty) Ltd v NDPP; Zuma v NDPP 2009 (1) SA
      141 (CC) (2008 (2) SACR 557)
4.    S v Mhlungu 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7)
      BCLR 793)
5.    Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC) (1995 (10)
      BCLR 1424)
6.    S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC) (1995 (2) SACR
      125; 1995 (7) BCLR 851)
7.    Gardener v Whitaker 1996 (4) SA 337 (CC) (1996 (6) BCLR 775)
8.    S v Mbatha; S v Prinsloo 1996 (2) SA 464 (CC) (1996 (1) SACR 371;
      1996 (3) BCLR 293)
9.    Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC)
      (1996 (1) BCLR 1)
10.   Motsepe v CIR 1997 (2) SA 898 (CC) (1997 (6) BCLR 692)
11.   Harksen v Lane NO 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489)
12.   National Coalition for Gay & Lesbian Equality v Minister of Home
      Affairs 2000 (2) SA 1 (CC) (2000 (2) SACR 349; 2000 (1) BCLR 39)
13.   Minister of Education v Harris 2001 (4) SA 1297 (CC) (2001 (11)
      BCLR 1157)
14.   Minister of Safety & Security, Ex p: In re S v Walters 2002 (4) SA
      613 (CC) (2002 (2) SACR 105; 2002 (7) BCLR 663)
15.   Steel and Engineering Industries Federation and Others v National
      Union of Metalworkers of South Africa (1) 1993 (4) SA 190 (T)
16.   Nelson Mandela Metro Municipality v Greyvenouw CC 2004 (2) SA
      81 (SE)
17.   Minister of Health NO v New Clicks SA (Pty) Ltd (Treatment Action
      Campaign as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1)
                                                                         53

18.   Kate v MEC for the Dept of Welfare, Eastern Cape 2005 (1) SA 141
      (SE) ([2005] 1 All SA 745)
19.   UK: R (Corner House Research and Another v Director of The
      Serious Fraud Office [2008] WLR (D) 106 (HL)
20.   Jockey Club of SA v Forbes 1993 (1) SA 649 (A)
21.   Ekuphumleni Resort (Pty) Ltd and Another v Gambling and
      Betting Board, Eastern Cape and Others 2010 (1) SA 228 (E)
22.   Shabalala v A-G, Tvl 1996 (1) SA 725 (CC) (1995 (2) SACR 761;
      1995 (12) BCLR 1593)
23.   Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works 2008 (1)
      SA 438 (SCA)
24.   Kruger v President of Republic of South Africa and Others 2009
      (1) SA 417 (CC)
25.   South African Association of Personal Injury Lawyers v Heath
      2000 (10) BCLR 1131 (T)
26.   Law Society of South Africa and 10 Others v The Minister of
      Transport and Another (Unreported Judgment of the North Gauteng
      High Court Pretoria, delivered on 31 March 2010 by Fabricius AJ)
27.   Ngxuza v Permanent Secretary, Dept of Welfare, EC 2001 (2) SA
      609 (E) (2000 (12) BCLR 1322)
28.   Du Toit v Minister for Safety and Security and Another 2009 (6) SA
      128 (CC)
29.   AZAPO v President of the RSA 1996 (4) SA 671 (CC) (1996 (8)
      BCLR 1015)
30.   M & G Media Ltd v Public Protector 2009 (12) BCLR 1221 (GNP)
31.   Minister for Justice and Constitutional Development v Chonco
      2010 (2) BCLR 140 (CC)
32.   Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC)
      (1996 (1) BCLR 1)
33.   Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC)
      (1996 (1) BCLR 1)
34.   National Coalition for Gay and Lesbian Equality v Minister of
      Home Affairs 2000 (2) SA 1 (CC)
35.   Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC)
                                                                       54

36.   Concerned Land Claimants' Organisation of PE v PE Land &
      Community Restoration Assoc 2007 (2) SA 531 (CC) (2007 (2)
      BCLR 111)
37.   Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA
      125 (CC) (2004 (7) BCLR 775)
38.   Highveldridge Residents Concerned Party v Highveldridge TLC
      2002 (6) SA 66 (T)
39.   Campus Law Clinic, University of KZN v Standard Bank of SA Ltd
      2006 (6) SA 103 (CC) (2006 (6) BCLR 669)
40.   Centre for Child Law v Minister of Justice and Constitutional
      Development and Others 2009 (6) SA 632 (CC)
41.   National & Overseas Modular Construction (Pty) Ltd v Tender
      Board, Free State Provincial Govt 1999 (1) SA 701 (O)
42.   De Ville Judicial Review of Administrative Action in South Africa
      (2003)
43.   Hoexter Administrative Law (2007)
44.   Currie The Promotionof Administrative Justice Act: A Commentary
      (2007)
45.   NDPP v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4)
      BCLR 393)
46.   S v Chao and Others 2009 (2) SA 595 (C)
47.   Naidoo and Others v National Director of Public Prosecutions and
      Others 2005 (1) SACR 349 (SCA)
48.   President of the Republic of South Africa v South African Rugby
      Football Union 2000 (1) SA 1 (CC)
49.   Pharmaceutical Manufacturers Association of SA: In re: ex parte
      President of the Republic of South Africa 2000 (2) SA 674 (CC)
50.   Kaunda and Others v President of the Republic of South Africa
      and Others 2005 (4) SA 235 (CC) (2004 (10) BCLR 1009)
51.   Zuma v National Director of Public Prosecution 2009 (1) BCLR 62
      (N) (para 58)
52.   Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005
      (6) SA 313 (SCA) (2005 (10) BCLR 931; [2005] 3 All SA 33)
53.   Joseph v City of Johannesburg 2010 (3) BCLR 212 (CC)
                                                                   55

54.   Bullock NO v Prov Govt, North West Province 2004 (5) SA 262
      (SCA) ([2004] 2 All SA 249)
55.   Police and Prisons Civil Rights Union and Others v Minister of
      Correctional Services and Others (No 1) 2008 (3) SA 91 (E)
56.   S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR
      1; 1995 (6) BCLR 665)
57.   Eskom Holdings Ltd and Another v New Reclamation Group (Pty)
      Ltd 2009 (4) SA 628 (SCA)