|| Lower Court Judgments
|| Hearing Date
||Western Cape High Court, 13 Jan. 2013
||6 Aug. 2013
By Duncan Wild on 23 April 2013
The case involves the legality of the Premier of the Western Cape’s (“the Premier’s”) appointment of the O’Regan Commission into complaints related to inefficiency in the South African Police Service (“the SAPS“) stations in Khayelitsha, as well as the breakdown in relations between the SAPS operating in Khayelitsha and the Khayelitsha community (“the O’Regan Commission”).
On 24 August 2012, the Premier established the O’Regan Commission, appointing its chair, former Justice of the Constitutional Court, Catherine O’Regan, and Mr. Vusumuzi Pikoli as commissioners.
On 5 November 2012, the applicants, including the Minister of Police (“the Minister”), the National Commissioner of the SAPS (“the National Commissioner”) and the Western Cape Provincial Commissioner of the SAPS (“the Provincial Commissioner”) launched an application in two parts: first, seeking an interim interdict halting the operation of the O’Regan Commission, and specifically to prevent Commission from giving effect to subpoenas it had issued or to issue further subpoenas, pending the outcome of the second part; and second, seeking an order setting aside the establishment of the O’Regan Commission.
At this stage, it is strictly speaking only the first part of the relief sought that the court had to decide, that is the interim relief pending a court’s final decision on the legality of the Premier’s establishment of the O’Regan Commission. In other words, the lawfulness of the appointment of the Commission is not directly before the court for decision. What the court must determine is whether the applicants have met the requirements for interim relief: the High Court set out these requirements as “the applicant must establish a prima facie right to the relief sought even if such relief may be open to some doubt; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted: that the balance of convenience favour the granting of the interim relief; and the absence of any other satisfactory remedy available to the applicant.”
In addition, the High Court noted that as the applicants based certain of the relief sought in the Constitution, that the test should be applied “cognizant of the normative scheme and democratic principles that underpin the Constitution,” referring to the Constitutional Court’s e-tolling case, National Treasury & Others v Opposition to Urban Tolling Alliance & Others 2012 (11) BCLR 1148 (CC). The prime impact of this is that when considering the balance of convenience, the court must consider the impact of granting an interim interdict that restrains the constitutional or statutory powers of a state functionary or organ of state.
The applicants challenged the legality of the O’Regan Commission on a number of grounds, including that the Premier: acted irrationally in appointing the Commission; did not comply with the Constitutional obligations of co-operative governance in appointing the Commission; did not engage with the relevant constitutional and statutory bodies before appointing the Commission; and usurped the powers of the police by empowering the Commission to issue subpoenas, including the power to subpoena police officials, as well as to investigate crimes. There were other grounds based on an alleged ulterior motive in appointing the Commission, and that appointing a judge as a commissioner was impermissible. Continue reading