IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
(BLOEMFONTEIN)
APPEAL CASE NO 1065/19
GP CASE NO 6175/19
In the matter between:
HELEN SUZMAN FOUNDATION

Appellant

and
ROBERT McBRIDE

First Respondent

THE INDEPENDENT POLICE INVESTIGATIVE
DIRECTORATE
MINISTER OF POLICE
PORTFOLIO COMMITTEE ON POLICE:
NATIONAL ASSEMBLY

Second Respondent

Third Respondent
Fourth Respondent

APPELLANT'S HEADS OF ARGUMENT

INTRODUCTION
1.

This is an unfortunate case in which the Court below (per Hughes J) sanctioned an
agreement between the parties which allows them to adopt an interpretation of
section 6(3)(b) of the Independent Police Investigative Directorate Act, 2011 ("the
IPID Act") which they prefer, which has now – contrary to a long line of authority become a binding court order, and which interpretation is manifestly inconsistent
with our courts' jurisprudence on the independence of IPID.

2.

The Constitutional Court has already had occasion to consider the independence
of the Independent Police Investigative Directorate ("IPID"), and held as follows:

 2

"Independence primarily means that the anti-corruption bodies should be
shielded from undue political interference. To this end, genuine political will
to fight corruption is the key prerequisite. Such political will must be
embedded in a comprehensive anti-corruption strategy.

The level of

independence can vary according to specific needs and conditions.
Experience suggests that it is the structural and operational autonomy that is
important, along with a clear legal basis and mandate for a special body,
department or unit. This is particularly important for law enforcement bodies.
Transparent procedures for appointment and removal of the director together
with proper human resources management and internal controls are
important elements to prevent undue interference."1
3.

The Constitutional Court went on to turn its face against “conduct [that] has the
potential to expose IPID to constitutionally impermissible executive or political
control”.2 Said the Court:
“That action is not consonant with the notion of operational autonomy of IPID
as an institution. Put plainly it is inconsistent with section 206(6) of the
Constitution.”

4.

Even more vigilance is required in the case of renewals. The Constitutional Court
has stressed that renewals left to the discretion of political actors strike at the very
heart of independence and are inconsistent with the Constitution.3

1

McBride v Minister of Police and Another 2016 (11) BCLR 1398 (CC) ("McBride") para [35], quoting a report by
the Organisation for Economic Co-operation and Development titled: "Specialised Anti-corruption Institutions:
Review of Models", which was cited with approval by the Constitutional Court in Glenister.

2

McBride at para [40].

 3

5.

Despite the judgments mentioned above, the Minister of Police ("the Minister"),
the Portfolio Committee on Police ("the Committee") and the erstwhile Executive
Director of IPID ("Mr McBride") have, privately, agreed on a mechanism for the
renewal of the Executive Director's tenure via a settlement agreement made an
order of court by the Honourable Madam Justice Hughes on 12 February 2019
("the Hughes Order").4 In so doing, these parties have applied, and the High
Court has endorsed, a constitutionally impermissible interpretation of section
6(3)(b) of the IPID Act.

6.

This private agreement and agreed interpretation concentrate the power of
renewal in the Minister and the Committee, thus exposing IPID to political
interference or the perception of such interference. It is plainly an unlawful
interpretation.

7.

The legality of the agreed interpretation was never ventilated in open Court.
Indeed, there was no argument on any interpretation of section 6(3)(b) of the IPID
Act, and no written heads of argument were filed by any of the Minister, the
Committee or Mr McBride to explain why their agreed interpretation was
constitutionally compliant.

8.

Instead, the High Court rubberstamped the agreement as a consent order, without
any consideration as to its constitutionality. It did so despite efforts by the
appellant ("HSF"), which had been admitted by consent of the parties and by the

3

Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v
President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of
Republic of South Africa and Others 2011 (5) SA 388 (CC) ("JASA"), para [73]; and Helen Suzman Foundation v
President of the Republic of South Africa and Others 2015 (2) SA 1 (CC) ("Helen Suzman Foundation"), paras
[78] to [82].

4

Appeal record ("AR") volume 3 pages 325 - 326.

 4

Court, as an amicus curiae. So admitted, the HSF sought to halt the parties’
efforts to avert a proper hearing by their proposed settlement agreement.
9.

The HSF advanced submissions that such an approach ought not to be adopted
by Hughes J, and that before any agreement was endorsed as a court order Her
Ladyship was constrained to hear legal argument on interpretation and consider
the merits of the matter (as opposed to short-cutting the hearing by giving effect to
the parties' agreement in this regard).

10. In so doing, the High Court has now given judicial effect to the interpretation of
section 6(3)(b) of the IPID Act adopted by the parties, simply because it was
agreed between the litigants. This is unconstitutional and amounts to a failure of
judicial duty, as the Constitutional Court has already ruled.5
11. This agreed interpretation conflates the appointment of an Executive Director with
the renewal of his / her tenure, does violence to the independence (and the
perception of independence) of IPID and is contrary to our courts' jurisprudence on
renewals and the need for insulation from political and executive interference.
12. The new interpretation by the parties, and endorsed by Hughes J, is as follows:
12.1

First, the Minister must make a recommendation or “preliminary decision” as
to whether or not to renew the Executive Director's tenure.6 This immediately
creates the danger that an Executive Director may shape his or her actions

5

Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others 2019 (2) BCLR 165 (CC) ("ACSA"),
paras [1] to [4].

6

The Hughes Order AR volume 3 page 325 para 1.

 5

so as to win the Minister's approval.

Such a concentration of power has,

repeatedly, been ruled unconstitutional.
12.2

Second, the Committee must then consider this decision and either endorse
or reject it.7 It has no guidelines stipulated by which it must make its decision
– which itself (by virtue again of the Constitutional Court's judgments
mentioned above) renders the Committee’s decision unconstitutional, an
unconstitutionality that is compounded by the fact that the only “guideline”
that it will receive is the Minister’s compromised recommendation.

12.3

Moreover, the Committee is a political entity,8 and has admitted as much on
oath even indicating that its members would have to report back to their
political party structures in order to consider the renewal decision.9

Again,

this exposes IPID to undue political interference, as the Executive Head may
wish to curry favour – or be perceived to curry favour – with a particular
political party or faction.
13. The above interpretation is thus unconstitutional.
14. Interpretation of legislation is an objective enquiry, which must be performed within
the context of the overarching principle of supremacy of the Constitution.

In

interpreting legislation, it is the Court that ultimately must apply its mind to the
correct constitutionally compliant interpretation of legislation.

To this end, the

different interpretations by the actual or potential actors implicated by it are not

7

The Order AR volume 3 page 325 para 2.

8

Helen Suzman Foundation v President of the Republic of South Africa and Others; In Re: Glenister v President of
South Africa and Others 2014 (4) BCLR 481 (WCC), para [101].

9

The Committee's answering affidavit ("PC AA") AR volume 2 page 167 para 33.

 6

dispositive and cannot limit the interpretative exercise; certainly, these actors
cannot "settle" interpretation amongst themselves.
15. Given the above, the Hughes Order, cannot stand. Not only was it reached in a
constitutionally

impermissible

manner,

but

it

endorses

a

constitutionally

impermissible interpretation of the IPID Act which breaches fundamental
jurisprudence pertaining to the need for effective independence.
CHRONOLOGY
16. On 5 September 2018, Mr McBride directed a letter to the Minister10 bringing to the
Minister's attention the fact that his five-year term of office would come to an end
on 28 February 2019. Mr McBride also sought confirmation as to whether the
"Ministry [intended] to retain or extend [his] contract".
17. On 13 November 2018, after no response from the Minister, Mr McBride sent a
follow-up letter, dated 13 November 2018,11 enquiring once again as to the
Ministry's intention regarding his term of office.
18. On 16 January 2019, over 4 months later, the Minister finally addressed a letter to
Mr McBride12 in which he stated that he has "decided not to renew or extend [Mr
McBride's] Employment Contract as Executive Director of IPID" and that Mr
McBride's final day in office would be 28 February 2019.13

This was,

unambiguously, a decision as to whether or not to renew Mr McBride's tenure as
Executive Director ("the Non-Renewal Decision").
10

The Minister's answering affidavit ("Minister's AA") AR volume 1 page 125.

11

Minister's AA AR volume 1 page 126.

12

Mr McBride's founding affidavit ("McBride's FA") AR volume 1 page 31 - 32.

13

McBride's FA AR volume 1 page 31 para 3.

 7

19. Mr McBride then wrote to the Minister on 22 January 2019,14 bringing to the
Minister's attention the fact that, in light of Constitutional Court jurisprudence, any
decision so taken by the Minister would be unlawful and called upon the Minister
immediately to withdraw his decision and, in any event, to provide Mr McBride with
reasons for the decision not to renew or extend Mr McBride's term of office. The
deadline provided in this letter was 25 January 2016.
20. It was only once Mr McBride wrote to the Minister on 22 January 2019 that the
Minister engaged the Committee. This he did on 24 January 2019 in a letter
calling on the Committee to "either confirm or reject [his] decision not to renew the
term of office of Mr McBride".15 The Minister informed Mr McBride on the same
day that he had engaged with the Committee regarding the status of Mr McBride's
term of office.16
21. The letter addressed to the Committee on 24 January 2019 received the attention
of the Speaker of the National Assembly, who responded on 4 February 2019. 17
She recorded in that letter that the Minister may make recommendations regarding
Mr McBride's renewal or extension of his term of office which she would then refer
to the Committee.18 Pertinently, she went on to state that the matter could not be
considered by the Portfolio Committee until such time as the Minister makes such

14

McBride's FA AR volume 1 page 33 - 35.

15

Minister's AA AR volume 1 page 121 - 122

16

McBride's FA AR volume 1 page 38 - 39.

17

Minister's AA AR volume 1 page 123.

18

Minister's AA AR volume 1 page 123 line 24 - 26.

 8

recommendation19, thus elevating the Minister's decision to being a jurisdictional
pre-requisite before the Committee could act.
22. Urgent litigation was instituted by Mr McBride and IPID inter alia to set aside the
Minister's decision of 16 January 2019 and to compel the Committee to make a
decision as to the renewal of his tenure as Executive Head by 28 February 2019.20
THE HIGH COURT PROCEEDINGS
23. The matter was set down for hearing on the urgent roll of the High Court of South
Africa, Gauteng Division, Pretoria on 12 February 2019.
24. Two hours before the hearing, the HSF received a courtesy copy of an order which
Mr McBride, IPID, the Minister and the Committee had agreed the night before
(which was in the terms of the Hughes Order) ("the settlement order").
25. At the hearing, first, both HSF and Corruption Watch were admitted as amicus
curiae. Counsel for Mr McBride and IPID then introduced the settlement order,
noting, however, that the HSF had raised some issues therewith.
26. The HSF broadly argued the following before Madam Justice Hughes:
26.1

firstly, the settlement order could not be made an order of Court without
proper judicial consideration, through argument in open court and
submissions, of the interpretation it proposed. The HSF stressed that this
was not simply a settlement of a private dispute, but the interpretation of
legislation at the heart of an essential institution of national importance. The

19

Minister's AA AR volume 1 page 123 line 26 - 27.

20

AR volume 1 page 1 - 4.

 9

Constitutional Court held in Eke v Parsons 2016 (3) SA 37 (CC) ("Eke") that
any settlement agreement to be made an order of court was required to be
unobjectionable, its terms must accord with both the Constitution and the law
and its terms must not be at odds with public policy.21 The HSF stressed that
any settlement order in this matter will necessarily amount to a
pronouncement on rights in rem, determining the objective status of the
Minister’s decision and the rights and duties of the Committee, and entail a
consideration of the correct interpretation of section 6(3)(b) of the IPID Act.
Any such order by a court, as confirmed in ACSA,22 requires argument in
open court, must accord with and be justified by the merits of the matter and
the relevant judge is required to produce a written judgment setting forth
reasons for the decision. Such an order, unlike orders bearing simply on
rights in personam, cannot simply be taken by agreement.
26.2

The HSF pointed out to Madam Justice Hughes that it had been stressed in
McBride v Minister of Police and Another 2016 (11) BCLR 1398 (CC) (6
September 2016) at footnote 25, that:
"Where a point of law is apparent on the papers, but the common
approach of the parties proceeds on a wrong perception of what the law
is, a court is not only entitled, but is in fact also obliged, mero motu, to
raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised on an incorrect
application of the law. That would infringe the principle of legality."

21

Eke v Parsons 2016 (3) SA 37 (CC) at paras [25] and [26].

22

[2018] ZACC 33 (27 September 2018), paras [1] to [4].

 10

26.3

The HSF thus argued that, as a first stage, the settlement order at least had
to be debated in open Court, argument on the interpretation of section 6(3)(b)
of the IPID Act had to be heard by Madam Justice Hughes and she had to
deliver a written judgment setting forth the Court's interpretation of this
section.

26.4

Secondly, the HSF pointed out that, substantively, the settlement order was
premised on, and gave effect to, an unlawful interpretation of section 6(3)(b)
of the IPID Act. The HSF had submitted full written heads of argument on
the correct interpretation of section 6(3)(b) of the IPID Act, but was not asked
to address the correct interpretation in oral argument. None of the parties
thus were requested to make any written or oral submissions on the
constitutional issues implicated by the settlement agreement in question or
the initial dispute between the parties.

26.5

Thirdly, aside from the order entrenching the involvement of the Minister and
the Portfolio committee in the renewal of Mr McBride’s term, the HSF pointed
out that the settlement order was impracticable, as the Committee had
indicated, on oath, (and before the settlement order was agreed) that it would
be rushed into taking a decision by the date Mr McBride's term as Executive
Director expired, and its decision may well be unlawful and subject to
review.23 The Hughes Order was thus also contrary to the evidence before
the Court.

23

PC AA AR volume 2, page 157 - 162, para 15, 19.1 - 19.2, 21, 22.1.1 - 22.1.3 and 22.2.1.

 11

26.6

Finally, the HSF highlighted that parties' interpretations carried no additional
weight simply by virtue of their designations. Indeed, that approach was
expressly rejected in JASA where the Constitutional Court held that "The
contention is faulty for yet another reason. It implies that the way in which
Parliament understood the constitutional amendment that it approved is
binding on the manner in which this Court must interpret the amendment. It
cannot be so. Even if it were possible to arrive at this result, we are obliged to
determine objectively the meaning of the constitutional provision irrespective
of the meaning as perceived by Parliament."24 (emphasis added)..

27. In answer through their counsels’ oral submissions, Mr McBride and IPID did not
abandon the settlement order, but indicated that they were not opposed to the
HSF's position. Mr McBride did, however, point out that interim relief, whereby Mr
McBride remained Executive Head, should then be considered by the Court
should the matter not be resolved by 28 February 2019 (being the last day of Mr
McBride's term as Executive Director on his version).
28. The Minister and the Committee, however, opposed the HSF's position, including,
remarkably with respect, on the basis that the HSF was merely an amicus and had
no standing to complain about the legality of the agreement proposed by the
parties to be made an order of court. Importantly, the Minister and the Committee
opposed the HSF’s position without any argument on the merits of the correct
interpretation of section 6(3)(b) of the IPID Act.

24

JASA, para [60].

 12

29. The HSF thus submitted that the Court should not make the settlement order an
order of Court, and the parties should instead address the Court on the
substantive issues relating to the settlement and the correct interpretation of the
IPID Act. The HSF further submitted that if the Court needed time to hear the
parties properly and further time to give a reasoned judgment, the Court could –
and should – issue a status quo order confirming that Mr McBride remained in his
position and prohibiting the Minister and/or the Portfolio Committee from taking
any decisions in respect of his renewal pending the outcome of the application.
30. Her Ladyship refused the HSF's request and proceeded to make the settlement
agreement an order of court.
MADAM JUSTICE HUGHES' REASONS
31. On 21 February 2019, Madam Justice Hughes provided reasons for the Hughes
Order ("the Reasons").25
32. In the Reasons, Madam Justice Hughes states that "HSF objected to having the
agreement made an order of court. Instead, they sought to bring an application
from the bar, that I reject the agreement and decline to make it an order of court".26
33. At the outset, Her Ladyship appears to have misunderstood what was being
argued by the HSF. The HSF was not bringing an application from the Bar that
the Court rejects the settlement agreement and decline to make it an order of
court. There was no reason for the HSF to bring any application and it did not do
so. Rather, having been admitted as an amicus curiae in the proceedings, the
25

AR volume 3 page 327 - 334.

26

The Reasons AR volume 3 page 329 para 5.

 13

HSF was arguing why the proposed draft order, dealing as it did with national
legislation and rights in rem, could not simply be rubberstamped by the Court, but
had to be debated on the merits in open Court and a written judgment given
setting forth the Court's substantive interpretation. In turn, in such debate, the
HSF would have submitted that the consent order is manifestly unconstitutional
and should be rejected (as it did in its written heads of argument before the court a
quo).
34. In a terse paragraph, Hughes J held that "I am satisfied that the terms of the
agreement are legitimate, practically achievable, not against public policy and do
not infringe either the law or Constitution."27 However, there is no analysis of the
legality of the interpretation of s 6(3)(b) of the IPID Act, no analysis of how the
settlement agreement is practical (in the face of the evidence by the Committee in
which it says that it could not take a decision as quickly as that directed in the
Hughes Order without exposing itself to potential judicial review28) and no analysis
as to why, in determining rights in rem, the settlement agreement should be given
effect to.
35. On this basis alone, Hughes J failed in her constitutional duty and the Hughes
Order must be set aside.

27

The Reasons AR volume 3 page 333 para 17.

28

PC AA AR volume 2, page 157 - 162, para 15, 19.1 - 19.2, 21, 22.1.1 - 22.1.3 and 22.2.1.

 14

36. Furthermore, the Reasons state that HSF was only admitted as an amicus in the
main case, and not in relation to the settlement agreement, and that the HSF is
raising a "new issue" of which the parties were unaware.29
37. This is manifestly incorrect. The settlement agreement was made available to the
HSF but two hours before the hearing. If anyone was introducing new matter, it
was the parties. In any event, the settlement agreement is an integral part of the
proceedings and implicates the very issues which were raised by the HSF in the
main matter.
38. The parties were, moreover, well aware of the HSF's interpretation and position
regarding any settlement. When Mr McBride, on 6 February 2019,30 circulated a
proposed settlement agreement (which was not the settlement agreement
ultimately made an order of court but a preceding version), the HSF immediately,
on 7 February 2019,31 alerted all parties that:
38.1

"any settlement order will necessarily amount to a pronouncement on rights
in rem and entails a consideration of the correct interpretation of section
6(3)(b) of the IPID Act. This, as confirmed by the Constitutional Court in
Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others
(CCT257/17) [2018] ZACC 33 (27 September 2018), requires argument in
open court and a written judgment from the relevant judge(s).

38.2

To this end, please note that any settlement will thus still require argument
before Court on the interpretative issues and the relief sought, and the HSF,

29

The Reasons AR volume 3 page 332 para 13.

30

AR volume 1 page 141 - 143.

31

AR volume 3 page 355 - 356.

 15

for the reasons set out in its supporting affidavit dated 6 February 2019,
contends (and will argue) that the correct order which should be granted is in
terms of paragraph 2 of the original notice of motion dated 29 January 2019,
buttressed by a proper interpretation of section 6(3)(b) of the IPID Act, as set
forth in HSF's papers.
38.3

To the extent necessary, the HSF will address the Court in relation to the
above at the hearing on 12 February 2019."

39. The parties were thus forewarned of the HSF's position; were directed to the
authority relied on and were told what the HSF would seek to argue if they
proceeded with their attempted agreement.
40. The parties then purported to settle two hours before the hearing. Their lastminute efforts to do so did not relieve the Court a quo of its constitutional
obligations. Rather – as per ACSA, McBride and Eke – Hughes J was constrained
to consider the interpretation of s6(3)(b) of the IPID Act on its merits, to do so in
open Court after argument on the interpretational merits, and to deliver a written
judgment supporting the Court's interpretation.
41. Having been admitted as an amicus, the HSF's arguments on the merits were
required to be heard and considered by the Court. This is so even if the parties
were unaware of the HSF's position vis-a-vis settlement.

When it comes to

interpretation of legislation, the fact that an amicus' interpretation may carry the
day, as opposed to that of a cited party, occurs frequently32 and is hardly

32

See for example Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)
("Glenister II")

 16

controversial - it is the amicus' very purpose to assist the Court in reaching the
correct legal conclusion.
42. Moreover, the parties and the Court were fully cognisant of the HSF's contentions
as to the only lawful interpretation of s6(3)(b) of the IPID Act. The HSF's heads of
argument were filed in Court and delivered to all parties on 11 February 2019, and
addressed both the merits and the proper approach to make settlement
agreements orders of court.
43. Her Ladyship, inexplicably, concluded that the HSF's arguments on the legal
principles and merits implicated by the settlement amounted to "new evidence"
and "new issues".33 This finding shows, with respect, that Hughes J fundamentally
misdirected herself on important issues of constitutional principle, and had not
read, or disregarded, the written submissions made by HSF.
44. In any event, even if this was “new argument”, her Ladyship was obliged to hear it
in order to discharge her duty as per the judgment in ACSA.

Indeed, it was

incumbent on her to raise the issues herself mero motu, in order to discharge that
duty (as the Constitutional Court's judgment in McBride made clear, in footnote 25,
quoted above). Her Ladyship was constitutionally obliged to hear and take into
account, the HSF's (and the parties') arguments on the merits. She did not do so,
and instead lent her judicial authority to a constitutionally impermissible
agreement, which gives effect to an unlawful interpretation of s6(3)(b) of the IPID
Act.

33

The Reasons AR volume 3 page 332 - 333 para 13 - 15.

 17

45. The effect of the Hughes Order, as read with the Reasons, is also to curtail the
important role of an amicus in constitutional litigation. The Reasons suggest that it
is permissible, in significant constitutional litigation, for the parties simply to make
private agreements as to the meaning and import of statutory provisions and have
these made an order of court, thus binding the State and others, in circumstances
where amici would not even have input in relation to matters of principle. This is
so even if the amici were formally admitted in the case (and thus, by definition,
have something important to say about the matter which is materially different from
the submissions of the parties). This undermines the constitutionally recognised
role of an amicus. This is a further reason why the Reasons and the Hughes
Order are in conflict with the Constitution.
THE UNLAWFUL INTERPRETATION ADOPTED IN THE HUGHES ORDER
46. As per the Hughes Order, the Minister's decision was not declared unlawful as
sought by Mr McBride and IPID, but was rather judicially endorsed as a
preliminary decision to be confirmed or rejected by the Committee.
47. When read with the Speaker's letter of 4 February 2019,34 the Minister's
recommendation or preliminary decision is now a jurisdictional prerequisite for a
renewal to be considered.35
48. This patently erodes the independence of the institution of IPID, however. If the
Minister's recommendation is to carry any weight at all, or is the prerequisite for a

34
35

Minister's AA AR volume 1 page 123 line 24 - 27.

See Director: Mineral Development, Gauteng Region v Save the Vaal Environment 1999 (2) SA 709 (SCA) at
718B/C-J and Oosthuizen’s Transport (Pty) Limited & others v MEC, Road Traffic Matters, Mpumalanga & others
2008 (2) SA 570 (T).

 18

consideration on renewal, then it creates the possibility that an incumbent
Executive Director who wished to have his or her term renewed would seek to
curry the favour of the Minister. It allows a single political actor to wield influence
over the tenure of the head of a critical, independent constitutional institution.
49. Even if this possibility does not arise in practice, the mere possibility itself gives
rise to the perception of diminished independence. The Constitutional Court has
stressed as follows in Glenister II:
"While it is not to be assumed, and we do not assume, that powers under the
SAPS Act will be abused, at the very least the lack of specially entrenched
employment security is not calculated to instil confidence in the members of
the DPCI that they can carry out their investigations vigorously and
fearlessly. In our view, adequate independence requires special measures
entrenching their employment security to enable them to carry out their duties
vigorously".36
50. The susceptibility to, and possibility of, undue influence is substantially enhanced
in the context of a renewal as compared to the initial appointment.
50.1

The Minister may, for ulterior purposes such as the incumbent's particularly
effective campaign against corruption of political actors, be inclined not to
renew (or recommend renewal), and no-one will ever be able to prove, or
even know, such purposes. Conversely, the incumbent may, in the fulfilment
of his office seek to curry favour to secure renewal. The impairment, and

36

Glenister II at para 222. See also paras 234 – 236.

 19

perception of impairment, of constitutionally required independence is
palpable in both instances.
50.2

This is contrary to the rule of law and constitutional requirements of
independence. For this reason, the legislation must be interpreted to afford
no power or role to the Minister in respect of renewals, contrary to the
Hughes Order.

50.3

Further, by impermissibly elevating his role to one essential to or informing
renewal, the Minister creates the potential where he can, simply through
delay, artificially create a vacancy which would then allow the Minister unilaterally - to graft an acting Executive Director of IPID for up to a year
(under section 6(4) of the IPID Act).

50.4

The Hughes Order also creates a logical difficulty - if the Minister's
recommendation is not to renew, and the Portfolio Committee does not
endorse this, it is unclear whether, in such instances, a renewal would be
automatic or whether a vacancy would then be created for the Minister to fill.
The Hughes Order may still not mean that any decision to affirm the renewal
exists.

51. The second leg of the Hughes Order, whereby the Committee confirms or rejects
the Minister's preliminary decision, involves substantial political oversight over
renewal, which is constitutionally unacceptable. It allows a select committee of the
National Assembly which is a political body (as recognised in South African

 20

jurisprudence),37 to pass judgement, without any guidelines, on the security of
tenure of the Executive Director.
51.1

This is precisely the kind of power that has been held by the Constitutional
Court to be unconstitutional in a trilogy of cases: Glenister, Helen Suzman
Foundation38 and JASA.39

51.2

The Committee now sits in judgment of the Minister's recommendation
(which carries weight) before it takes a decision, after seeking input from "the
various party structures that each member represents".40

51.3

This Committee, moreover, comprises a majority from the same political
party as the Minister. Given that the Committee records, on its own version,
that its members seek input from the political parties to which they belong, it
is plain that the decision whether to renew will be substantially informed by
political

considerations

of

the

kind

which

directly

undermine

the

independence and efficacy of an institution such as IPID. The possibility, and
perception, of untoward political influence is palpable.
52. Constitutional

principle,

including

the

constitutionally

required

structural,

operational and institutional independence of the IPID, which is critical to the ability
of that body to fulfil its constitutional and legislative mandate as well as the
Republic's obligations under international law, requires an interpretation of

37

Helen Suzman Foundation v President of the Republic of South Africa and Others; In Re: Glenister v President of
South Africa and Others 2014 (4) BCLR 481 (WCC), para [101].

38

Helen Suzman Foundation, supra, paras [78] to [82].

39

JASA, supra, para [73]

40

PC AA AR volume 2 page 167 para 33.

 21

legislation which places the renewal of the Executive Director's tenure beyond the
remit of political actors. The Hughes Order is the antithesis of that.
THE LAWFUL INTERPRETATION
Renewability of the type contended for by the Hughes Order is plainly
unconstitutional
53. It is trite that terms of office of independent institutions which are renewable in the
hands, or at the instance, of any political actors (including Parliament) or third
parties are incompatible with the requirements of adequate independence.
54. This was held in Helen Suzman Foundation, where the Constitutional Court stated
the following:41
"[78] Subsections (15) and (16) apply to a National Head or Deputy National
Head who would have reached the age of 60 years and would thus be
expected to retire. The possibility of a continuation in an office by an
incumbent, who is mentally and physically healthy and willing to continue
beyond the age of 60 years, would only arise when that age has already
been reached.

No one can tell reliably whether her health permits

continuation beyond 60 years, seven years in advance. This continuation is
renewal or extension of tenure by another name. It would obviously happen
if the Minister is inclined to allow continuity.

After all she has the

countervailing discretion to renew or not to renew. But for factors like health
and willingness that would inform the Minister’s decision to allow or not allow
the National Head or the Deputy National Head to continue in office, no
41

Paragraphs [78] to [82] (emphases added, except where indicated otherwise).

 22

guidelines for renewal are set out in the section. And that is how virtually
unfettered the Minister’s discretion is.
[79] The words “retain”, “may only be retained” and “continue to serve in such
office” and the requirement that one could serve beyond the age of 60 years
if the “mental and physical health of the person concerned enables him or her
so to continue”, all suggest that subsections (15) and (16) are about the
extension of the term of office when the incumbent reaches the age of 60
years but not at the time of the assumption of office. One cannot be retained
in an office before she assumes that position. Similarly, to continue in an
office presupposes that one would have been working in that office before.
[80] This favour, extendable to these functionaries on undisclosed bases, has
great potential to compromise the independence of the affected official and
by extension the DPCI. The incumbent would have known at the time of
appointment that she might, by reason of age, require an extension at the
age of 60 years. And that could affect the independence of the incumbent. It
is for this reason that the Court in Glenister II observed that—
“[a] renewable term of office, in contradistinction to a non-renewable term,
heightens the risk that the office-holder may be vulnerable to political and
other pressures.”
While dealing with conditions of service, Glenister II remarked as follows on
the impact of the renewability of terms of office on independence:

 23

“[T]he lack of employment security, including the existence of renewable
terms of office . . . are incompatible with adequate independence.” (Emphasis
added.)
[81] The danger of renewability was also dealt with in JASA. Renewal invites
a favour-seeking disposition from the incumbent whose age and situation
might point to the likelihood of renewal. It beckons to the official to adjust her
approach to the enormous and sensitive responsibilities of her office with
regard to the preferences of the one who wields the discretionary power to
renew or not to renew the term of office. No holder of this position of high
responsibility should be exposed to the temptation to “behave” herself in
anticipation of renewal.
[82] The extension of the term of office of the National Head and the Deputy
National Head in terms of section 17CA(15) and (16) has in a way been
decided by Glenister II and is inimical to the adequacy of the independence
of the DPCI. It is incompatible with the independence necessary for the
National Head and Deputy National Head to be faithful to their mandate.
These subsections are constitutionally invalid."
55. Similarly, in JASA, the Constitutional Court stressed:
"It is well established on both foreign and local authority that a nonrenewable term of office is a prime feature of independence. Indeed, nonrenewability is the bedrock of security of tenure and a dyke against judicial
favour in passing judgment. Section 176(1) gives strong warrant to this
principle in providing that a Constitutional Court judge holds office for a nonrenewable term. Non-renewability fosters public confidence in the institution

 24

of the judiciary as a whole, since its members function with neither threat that
their terms will not be renewed nor any inducement to seek to secure
renewal."42 (emphasis added)
56. This approach is fully supported by various international law instruments,
including:
56.1

Article 9(2) of the United Nations Convention against Transnational
Organized Crime (to which South Africa is a State Party)43 which states that
"[e]ach State Party shall take measures to ensure effective action by its
authorities in the prevention, detection and punishment of the corruption of
public

officials,

including

providing

such

authorities

with

adequate

independence to deter the exertion of inappropriate influence on their
actions" (emphasis added). This provision places duties on states to ensure
independence, which must include measures to ensure officials of anticorruption bodies cannot be subjected to undue influence.
56.2

Article 6(2) of the United Nations Convention against Corruption (to which
South Africa is a State Party)44 which states that "[e]ach State Party shall
grant [anti-corruption bodies] the necessary independence, in accordance
with the fundamental principles of its legal system, to enable the [bodies] to
carry out its functions effectively and free from any undue influence." This
provision requires legislation that ensures necessary independence of anti-

42

JASA para [73].

43

Adopted by the UN General Assembly on 15 November 2000, by resolution A/RES/55/25 and in force from 29
September 2003. Signed by South Africa on 14 December 2000 and ratified on 20 February 2004.

44

Adopted by the UN General Assembly on 31 October 2003, by resolution 58/4 and in force from 14 December
2005. Signed by South Africa on 9 December 2003 and ratified on 22 November 2004.

 25

corruption bodies such as IPID, by ensuring that they operate free of undue
influence. In addition, it states that such measures must be in accordance
with the fundamental principles of our legal system ie the Constitution.45
56.3

The Organisation for Economic Co-Operation and Development review of the
models of the various specialised anti-corruption institutions internationally,
titled Specialised Anti-corruption Institutions: Review of Models ("the OECD
Report").46 The following are extracts from the OECD Report that reflect
international experience and best practice:
"Experience suggests that it is the structural and operational autonomy
that is important, along with a clear legal basis and mandate for a
special body. …Transparent procedures for appointment and removal
of the director together with proper human resource management and
internal

controls

are

important

elements

to

prevent

undue

interference.47
…
In short, independence, first of all entails de-politicisation of anticorruption institutions. …Institutions in charge of investigation and
prosecution

of

corruption

normally

require

a

higher

level

of

independence than those in charge with preventive functions. …In such
systems the risks of undue interference is substantially higher when an

45

This was confirmed in Glenister at para [123].

46

In compiling the Report, the OECD drew criteria from the UN Convention Against Corruption, and considered
best practices from the 35 OECD countries. South Africa is one of seven non-OECD member countries that is
party to it.

47

OECD Report at p10

 26

individual investigator or prosecutor lacks autonomous decision-making
powers in handling cases, and where the law grants his/her superior or
the chief prosecutor substantive discretion to interfere in a particular
case" (emphasis added).
57. Ultimately, terms of office which are renewable at the instance of third party
political actors invite or give the impression of rent-seeking and irremediably
undermine independence. They are unconstitutional. The Hughes Order permits,
however, of that unconstitutionality.
58. Courts have a duty, under the Constitution, to avoid that result, by giving the
legislation a constitutionally compliant meaning, which does not unduly strain the
language used in the legislation.
59. This is possible, as set forth below.
The only constitutionally compliant interpretation
60. As stated above, non-renewable terms of office of functionaries in independent
public institutions are a central feature of independence.48
61. Where an individual is placed in high office with enormous powers, the prospect of
renewal at the discretion of an individual or body should not exist as this has the
possibility to shape how the incumbent exercises his or her powers, in the hope of
securing a discretionary renewal. Even if this scenario does not play out in fact,
the mere existence of such a renewal power will suffice to affect the perception of
independence of that institution, which cannot be permitted.

48

JASA para [73].

 27

62. It was held in Glenister that when determining the adequate independence of the
Directorate for Priority Crime Investigations, the public perception of independence
is an additional factor to consider beyond the actual structural and operational
autonomy of the institution. To this end, the Court held that "public confidence that
an institution is independent is a component of, or is constitutive of, its
independence," and that "public confidence in mechanisms that are designed to
secure independence is indispensable."49
63. In this case, while the legislation refers to the term being renewable, it does not
indicate at whose instance the term is renewed.
64. Here, the interpretation which gives effect to constitutional requirements and
values - and therefore must be favoured - is one that protects IPID's independence
and ensures that renewal is not left to the discretion of politicians, for all the
reasons set forth above.
65. In this context, it is important to recall the purpose of IPID and role of the
Executive Director, as interpreted by the Constitutional Court:
"IPID is an independent police complaints body established in terms of
section 206(6) of the Constitution. Section 4(1) of the IPID Act requires it to
function independently of SAPS.

This is to ensure that IPID is able to

investigate cases or complaints against the police without any fear, favour or
prejudice or undue external influence. Section 4(2) of the IPID Act requires
that each organ of state assist the Directorate to maintain its impartiality and
to perform its functions effectively. Importantly, section 2 of the IPID Act
49

Glenister at para [207] citing S and Others v Van Rooyen and Others 2002 (5) SA 246 (CC) at para [32].

 28

requires IPID to play an oversight role over SAPS and Municipal Police
Services. Given the nature, scope and importance of the role played by
police in preventing, combating and investigating crime, IPID’s oversight role
is of cardinal importance.

This is aimed at ensuring accountability and

transparency by SAPS and Municipal Police Services in accordance with the
principles of the Constitution.
IPID is headed by an Executive Director who is nominated by the Minister in
terms of section 6(1) of the IPID Act.

This nomination must be either

confirmed or rejected by the Parliamentary Committee within a period of 30
parliamentary working days.
The Executive Director’s responsibilities are set out in section 7 of the IPID
Act.

They include: providing strategic leadership to the Directorate;[27]

appointing provincial heads of each province;[28] appointing such staff as
may be necessary to enable the Directorate to perform its functions in terms
of

the

Act;[29]

giving

guidelines concerning

the

investigation

and

management of cases by officials within the respective provincial offices, the
administration of national and provincial offices and, the training of staff at
national and provincial levels; referring criminal cases revealed as a result of
an investigation to the NPA for criminal prosecution and notifying the Minister
of such referral; ensuring that complaints regarding disciplinary matters are
referred to the National Commissioner and where appropriate, the Provincial
Commissioner; once a month submitting a summary of disciplinary matters to
the Minister and providing the Secretary with a copy thereof; and keeping
proper records of all financial transactions, assets and liabilities of the

 29

Directorate, ensuring that the Directorate’s financial affairs comply with the
Public Finance Management Act and, preparing an annual report in the
manner contemplated in section 32.

The Executive Director is also the

accounting officer of the Directorate. Evidently, his duties are extensive and
wide."50
66. IPID, headed by its Executive Director, is thus of immense national importance. It
is an essential organisation which gives effect to chapter 2 of the Constitution of
the Republic of South Africa, 1996, by "provid[ing] for the upholding and safeguarding of fundamental rights of every person".51
67. IPID's importance in our constitutional project is concretised by its corruption
fighting function, particularly where that corruption may be in the ranks of those
who have sworn to protect and serve the public, being the South African Police
Service and Municipal Police Services. These bodies, in turn, house essential
corruption fighting organisation themselves, including, for example, the "Hawks"
(the DPCI).
68. IPID is thus the constitutional answer to the query quis custodiet ipsos custodes,
ensuring that those who are mandated to root out corruption, uphold the law and
prevent crime are not themselves guilty of corruption or unlawful conduct.
69. Given that members of the police, most particularly the DPCI, are charged with
fighting corruption, often at an executive level, it is essential that not only are these

50

McBride paras [24] - [26].

51

IPID Act preamble.

 30

bodies sufficiently independent, but the body which exercises oversight over them
- namely IPID - is itself independent.
70. In assessing independence, the Constitutional Court has already grappled with the
question as to "[w]hat then does the independence of IPID mean?". Paragraphs
31 to 39 of McBride traverse this issue, and it is telling that the following was
described as useful and illuminating in trying to define and delineate the contours
of independence as it pertains to the independence of IPID:
"Independence primarily means that the anti-corruption bodies should be
shielded from undue political interference. To this end, genuine political will
to fight corruption is the key prerequisite. Such political will must be
embedded in a comprehensive anti-corruption strategy.

The level of

independence can vary according to specific needs and conditions.
Experience suggests that it is the structural and operational autonomy that is
important, along with a clear legal basis and mandate for a special body,
department or unit. This is particularly important for law enforcement bodies.
Transparent procedures for appointment and removal of the director together
with proper human resources management and internal controls are
important elements to prevent undue interference."52
71. In McBride, the Constitutional Court decried the involvement of the Minister in
IPID, adjudging the Minister's power of removal as being "antithetical to the
entrenched independence of IPID envisaged by the Constitution as it is
tantamount to impermissible political management of IPID by the Minister. To my
52

McBride para [35], quoting the OECD Report referenced above, which was cited with approval by the
Constitutional Court in Glenister.

 31

mind, this state of affairs creates room for the Minister to invoke partisan political
influence to appoint someone who is likely to pander to his whims or who is
sympathetic to the Minister’s political orientation.
becoming politicised and being manipulated.

This might lead to IPID

Is this compatible with IPID’s

independence as demanded by the Constitution and the IPID Act?

Certainly

not."53
72. In short, IPID and its Executive Director are of paramount national and
constitutional importance, they must be independent and be seen to be
independent, and independence is defrayed through any political interference or
the possibility therefor.
73. In light of this, section 6(3)(b) cannot be interpreted to afford the Minister or the
Committee any role in the renewal process.54 This is particularly so where there
are no objective criteria for renewal. In the context of renewals, for all the reasons
given above, they should be treated with even greater circumspection where it is
suggested that such powers are to be exercised by political actors, who
necessarily will or may have political agendas.
74. IPID must enjoy sufficient structural and operational autonomy so as to shield it
from undue political influence; this can only be achieved by removing the option to
renew from any political actor. Of course, the Committee and Parliament are,
similarly, political actors. Indeed, members thereof may even be the subject of
DPCI investigations, with IPID in turn exercising oversight over the DPCI.

53

McBride para [38].

54

See, too, McBride para [39].

 32

75. While the Minister and the relevant Parliamentary Committee play a part in
appointing the Executive Director of IPID, a renewal of a term of office is, as the
Constitutional Court has held, qualitatively different from an initial appointment, as
there is a greater opportunity for political favouritism and perverse incentives and
disincentives. Once invested with significant power, there should be no external
influences which should sway - or have the potential to sway - the incumbent to
abuse such power for ulterior purposes. The renewal thus cannot, as a matter of
constitutional principle, be left to political happenstance.
76. For this reason, the only constitutionally compliant interpretation which safeguards
independence and the perception thereof is that the term contemplated in section
6(3)(b) of the IPID Act is renewable at the instance only of the Executive Director
of the IPID and not at the instance of the Minister, a parliamentary committee or
the Executive.
77. The Executive Director would still remain subject to constitutionally compliant
oversight through the mechanisms established in the Constitution and the removal
powers under the IPID Act.
APPEALABILITY OF THE HUGHES ORDER AND REASONS
78. As demonstrated above, the Order has far-reaching effects. The Order declared
the Minister's decision on the renewal of Mr McBride's term of office one which had
to be confirmed or rejected by the Portfolio Committee and endorsed the
settlement agreement reached between the respondents. In so doing, the court a
quo endorsed the underlying interpretation of the IPID Act, as chosen by the
respondents, which was being given effect to.

The constitutionality of this

interpretation, however, was never ventilated in open court and no argument on

 33

the merits of the matter was advanced by the parties, despite the HSF's
submissions - supported by Constitutional Court precedent - to the contrary.
79. There is, with submission, no legal basis on which an order of that nature could
ever properly be issued and is inconsistent with the Constitutional Court’s finding
in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited
(CCT91/17) [2019] ZACC 15; 2019 (6) BCLR 661 (CC); 2019 (4) SA 331 (CC), in
particular paragraph 25 thereof where the Court held:
“There are sound reasons why a court should carefully scrutinise a
settlement agreement before making it an order of court. Once a settlement
agreement is made an order of court, it is interpreted in the same way as any
judgment or order and affects parties’ rights in the same way. Madlanga
J in Eke put the matter thus:
“The effect of a settlement order is to change the status of the rights
and obligations between the parties. Save for litigation that may be
consequent upon the nature of the particular order, the order brings
finality to the lis between the parties; the lis becomes res judicata
(literally, ‘a matter judged’). It changes the terms of a settlement
agreement to an enforceable court order.” (emphasis added).

80. The Order directs performance by the Minister and the Committee on the basis of
a clearly unlawful and unconstitutional interpretation of the IPID Act. The final
effect of the Order is that the power to renew the term of office of the Executive
Director of IPID lies in the hands of political actors and exposes IPID to real or
potential undue political interference.
81. Further, there is now judicial precedent - and sanction - through the Order that the
Minister (an individual political actor) plays an important part in the renewal
process, being afforded the power (if not responsibility) to make a preliminary
decision. It is this preliminary decision which then falls to be considered by the
Portfolio Committee.

 34

82. The fact that a litigant prays for, or even that all parties to a matter agree to, an
unlawful result does not mean that there is no issue which must be debated or
judicially considered.55 In giving effect to the settlement agreement reached by the
parties, the court a quo effectively decided the interpretation of the IPID Act and
lent the imprimatur of the Court to such interpretation.
83. The declarations contained in the Order thus amounted to decisions, which
decisions have final effect and are appealable.
THE PRACTICAL EFFECT OF THE APPEAL – AND IN THE INTERESTS OF
JUSTICE THAT IT BE HEARD
84. On 28 February 2019, the Portfolio Committee made a final decision not to renew
Mr McBride's term, which decision must stand until reviewed and set aside.56 Mr
McBride has taken the Portfolio Committee's decision not to renew his term on
review. However, Mr McBride's review application presupposes that the Portfolio
Committee was entitled to make its decision in the first place. It does not deal with
the interpretation of s6(3)(b) of the IPID Act - this issue having already been
decided by the court a quo in rubberstamping the private settlement agreement
reached by the respondents.
85. This appeal will determine the separate and objectively fundamental question of
the constitutionality and lawfulness of the interpretation endorsed by the Hughes
Order and Reasons. In other words, the issues raised in Mr McBride's review of

55

Eke v Parsons 2016 (3) SA 37 (CC) at paras [25] and [26].

56

See the sample of news articles attached as annex "RA1" to the HSF's replying affidavit in response to the
Minister's answering affidavit before this Court.

 35

the Portfolio Committee's decision are thus entirely irrelevant to the question of law
on appeal before this Honourable Court.
86. That is not to say that the determination of the legal question by this Court will
have no practical effect.
87. Not only will the legal conclusions by this Court guide future courts regarding the
manner in which consent orders are endorsed in public law matters, and provide
practical impacts for Parliament, the Minister and the Committee regarding future
renewal and appointment of the head of IPID.
88. This Court’s decision will also have a practical impact on Mr McBride’s review
application and any appeals arising therefrom.
89. And if the HSF is successful in these proceedings, the outcome of this appeal will
be a death-knell to review proceedings in their entirety, as the legal underpinning
for such proceedings will have been removed.
90. In any event, this Court – on account of the stance adopted by the court a quo – is
faced directly with the question of an unconstitutionality in respect of IPID’s
interpretation and an unconstitutionality in relation to the manner in which that
interpretation was given judicial endorsement in a settlement agreement.

The

jurisprudence on section 172(1)(a) of the Constitution is well settled – a court
faced with an unconstitutionality must declare it so.57
91. An unconstitutional interpretation of the IPID Act cannot stand. Not only is the
Hughes Order now a public pronouncement on the renewal process, but it will also

57

State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) at para 52.

 36

likely affect the functioning of IPID.

IPID's officials will now have to consider

themselves beholden to the political branches, whatever the decision of the
Committee.
92. Moreover, given the improper manner in which the Order was granted, and
substantial implications which that Order and the Reasons have for the role of
amici in constitutional litigation, it is plain that this appeal will provide clarity on the
place of amici, quite aside from the rights of parties and responsibilities of courts in
relation to settlement orders reached by agreement. This appeal therefore has
substantial implications for the administration of justice.
93. Absent this appeal by the HSF, the Republic will be burdened with an order,
ostensibly binding IPID, the National Executive and Parliament, which was
improperly reached, which applies an unconstitutional interpretation to the IPID
Act, and which directs high ranking officials to participate in and implement an
unconstitutional process.

If successful, the appeal will thus clearly have an

important effect on the functioning and independence of IPID as the appeal court
will have to consider, in its reasoning, the correct interpretation of the IPID Act.
94. This appeal is thus not moot as it will have a very clear practical effect - it will not
only affect the review proceedings but will also - fundamentally - determine the
manner by which the Executive Head of IPID is to be appointed or replaced.
95. Additionally, the Constitutional Court has held that "to the extent that it may be
argued that this dispute is moot . . . this Court has a discretion whether to hear the
matter. Mootness does not, in and of itself, bar this Court from hearing this
dispute. Instead, it is the interests of justice that dictate whether we should hear

 37

the matter".58 It is in the interests of justice, for the all the reasons mentioned
above, that the appeal be heard (even if it is moot, which the HSF denies).
96. There is, moreover, an entirely separate basis for the appeal to be heard. That is
on account of the order of costs made by Hughes J.
COSTS
97. Quite extraordinarily, Hughes J awarded costs to the Minister and Committee as a
result of resisting the HSF's application for leave to appeal in the court a quo,
despite no party seeking costs against the HSF in the leave to appeal application.
98. In addition, such an award is entirely contrary to Biowatch59 in which it was held
that an unsuccessful party in constitutional litigation against the state must be
spared from paying the state’s costs ("the Biowatch principle").

The only

exception to the Biowatch principle is in circumstances where the litigation is
frivolous or vexatious or based on improper motives or where the interests of
justice require a costs order against the unsuccessful party.60

None of these

circumstances existed in the HSF's application for leave to appeal. As has been
demonstrated above, the HSF's application for leave to appeal was brought in the
interest of ensuring that a lawful, constitutionally compliant interpretation of
legislation is upheld. Moreover, it was brought to ensure that IPID, an institution of
paramount constitutional importance which exists to curb rampant corruption
threatening the political and economic integrity of the country, is sufficiently

58

South African Reserve Bank v Shuttleworth 2015 (5) SA 146 (CC) at para 27. See also President of the Republic
of South Africa v Democratic Alliance and Others 2020 (1) SA 428 (CC).

59

Biowatch Trust v Registrar: Genetic Resources, and Others 2005 (4) SA 111 (T).

60

Lawyers for Human Rights v Minister in the Presidency 2017 (1) SA 645 (CC) para [18]; Affordable Medicines
Trust v Minister of Health 2006 (3) SA 247 (CC) para [138].

 38

independent and protected from undue political influence. The HSF thus sought
leave to appeal the Order and Reasons in its own interest and in the public interest
and ought not to be saddled with a costs order for doing so. To do so would
impose a chilling effect on constitutional and public interest litigation, reinterpret
amici intervention in high profile constitutional matters and close the doors of the
court to (or at the very least chill the efforts of) parties who have, thus far, made a
valuable contribution to the Republic's constitutional jurisprudence.
99. The Court a quo thus manifestly misdirected itself in its award of costs against the
HSF in the application for leave to appeal a quo, which warrants this Court's
setting aside of the costs order.
CONCLUSION
100. In the circumstances, we pray that the HSF's appeal be upheld with costs and that
the Hughes order be substituted with the order set out in the notice of appeal.

MAX DU PLESSIS SC
Counsel for the appellant
Chambers
Durban
17 March 2020