South African Association of Personal Injury Lawyers v Heath

The Special Investigating Units and Special Tribunals Act 74 of 1996 came into force in November 1996 to provide for the investigation of serious malpractices or maladministration concerning state institutions, state assets and public money. In March 1997 the President established a special investigating unit (SIU) under the Act and appointed Judge Heath (a High Court judge) as its head pursuant to section 3(1) which required the head to be a judge or acting judge of the High Court. In March 1999, an allegation was referred to the SIU for investigation concerning failures by attorneys acting for claimants from the Road Accident Fund (RAF) to properly account to their clients for compensation received. The South African Association of Personal Injury Lawyers (SAAPIL), whose members are attorneys and advocates involved in personal injury litigation, challenged the constitutionality of the Act's provisions, the proclamation appointing Judge Heath, and the proclamation referring the RAF matter for investigation. They argued that the SIU's investigative powers were highly intrusive, would invade privacy, and damage professional reputations. Judge Heath functioned full-time as head of the SIU since March 1997 and had not sat as a judge since then. The SIU had extensive powers including investigation, summoning witnesses, conducting searches, and instituting civil proceedings in Special Tribunals to recover losses suffered by the state.

• Whether section 3(1) of the Act and the appointment of a High Court judge as head of the SIU are inconsistent with the Constitution because they undermine the independence of the judiciary and the separation of powers required by the Constitution
• Whether the Proclamation R31 of 1999 referring the allegation concerning attorneys dealing with RAF claims was beyond the scope of the Act and accordingly invalid
• Whether the powers of search vested in the SIU are contrary to the constitutional right to privacy under section 14 of the Constitution

The appeal was upheld with costs. The order of the High Court was set aside. Section 3(1) of Act 74 of 1996 was declared inconsistent with the Constitution and invalid. Proclamation R24 of 1997 (appointing Judge Heath) was declared inconsistent with the Constitution and invalid. These declarations of invalidity were suspended for a period of 1 year to allow Parliament to amend the legislation and for orderly transfer of responsibilities. Proclamation R31 of 1999 (referring the RAF matter for investigation) was declared inconsistent with the Constitution and invalid with effect from the date of the order. The third and fourth respondents were ordered to pay costs including costs of two counsel.

The binding legal principles established are: (1) The Constitution provides for a separation of powers between the legislature, executive and judiciary, which is implicit in the constitutional structure even if not expressly stated, and laws inconsistent with this separation are invalid. (2) Implicit constitutional provisions have the same force as express provisions. (3) The independence of the judiciary is an essential aspect of the separation of powers required by the Constitution, and the judiciary must be and be seen to be independent. (4) While judges may perform certain non-judicial functions in appropriate circumstances, they cannot be appointed to perform executive functions that are incompatible with judicial office. (5) Functions are incompatible with judicial office where they: are far removed from the central mission of the judiciary; are more appropriate to another branch of government; are partisan in nature; involve the judge extensively in executive functions such as law enforcement and litigation on behalf of the state; and prevent the judge from performing judicial duties for an indefinite period. (6) Section 3(1) of the Special Investigating Units and Special Tribunals Act 74 of 1996, which requires the head of a Special Investigating Unit to be a judge or acting judge, is inconsistent with the separation of powers required by the Constitution. (7) A referral by the President to the SIU for investigation must fall within the specific grounds set out in section 2(2) of the Act and must have the requisite specificity regarding particular conduct by particular persons causing serious harm; broad fishing expeditions are not permissible.

The Court made several non-binding observations: (1) The Court noted that past practices from the era of parliamentary sovereignty do not necessarily determine what is permissible under the new constitutional dispensation. (2) The Court observed that judges may permissibly preside over commissions of inquiry or sanction search warrants in appropriate circumstances where the subject matter calls for judicial qualities such as independence, weighing of information and decision-making based on relevant information, though much depends on the particular subject matter and legislation involved. (3) The Court noted that the referral concerning RAF claims revealed a serious concern about handling of such claims that, if true, called for urgent attention, and suggested that alternative mechanisms such as accurate accounting and means of verifying accounts could address most problems without complicated investigations. (4) The Court expressed no opinion on other judgments that found the SIU exceeded its jurisdiction or undertook recoveries beyond its powers, or on questions raised about constitutionality of other provisions of the Act. (5) The Court observed that if allegations were made that investigations were not undertaken in good faith or went beyond what was permissible under the Act, persons affected would retain such remedies as they might have. (6) The Court left open the question whether performance of functions going beyond those ordinarily performed by judicial officers might be permissible for a limited period in cases of urgent national interest. (7) The Court noted that corruption and maladministration undermine constitutional values and pose a serious threat to democracy, and there can be no quarrel with the important purpose of the Act, but that purpose must be pursued in accordance with the Constitution.

This is a landmark case on the separation of powers doctrine in South African constitutional law. The Court confirmed that while separation of powers is not expressly mentioned in the Constitution, it is implicit in the constitutional structure and has the same binding force as express provisions. The judgment established important principles regarding the independence of the judiciary and the limits on assigning non-judicial functions to judges. It clarified that judges cannot be appointed indefinitely to perform executive functions that are incompatible with judicial office, even where the appointment is made in good faith and for important public purposes such as fighting corruption. The case emphasized that judicial independence must not only exist but must be seen to exist, and that the public must perceive the judiciary as separate from and independent of the executive and legislature. The judgment provides guidance on factors to consider when determining whether particular functions are compatible with judicial office. It reinforced that constitutional imperatives, including separation of powers and judicial independence, cannot be compromised even for laudable purposes such as combating corruption and maladministration. The case is frequently cited in subsequent jurisprudence on separation of powers and judicial independence in South Africa.