MADLANGA J [85] Once satisfied that the Constitution requires an independent designated Judge to authorise interceptions, it is necessary to ascertain the meaning of independence. The Supreme Court of Canada in R v Valente defined independence thus: “The word ‘independent’ . . . connotes not merely a state of mind or attitude in the actual exercise of judicial function, but a status or relationship to others, particularly to the Executive branch of government, that rests on objective conditions or guarantees.”119 [86] This Court in McBride, in considering the independence of the Independent Police Investigative Directorate, explained that— “it is difficult to attempt to define the precise contours of a concept as elastic as [independence]. It requires a careful examination of a wide range of facts to determine this question. Amongst these are the method of appointment, the method of reporting, disciplinary proceedings and method of removal of the Executive Director from office, and security of tenure.”120 (Emphasis added.) [87] In examining the elements of independence, this Court in Glenister II accepted that the question is not whether an institution has absolute independence, but rather “whether it enjoys an adequate level of structural and operational autonomy that is secured through institutional and legal mechanisms designed to ensure that it ‘discharges its responsibilities effectively’, as required by the Constitution”.121 Additionally, the perception of independence plays a critical role in ascertaining whether an institution is independent. In particular, “[w]hether a reasonably informed and reasonable member of the public will have confidence in an entity’s 119 R v Valente (1985) 24 DLR (4th) 161 (SCC) at para 15. 120 McBride v Minister of Police [2016] ZACC 30; 2016 (2) SACR 585 (CC); 2016 (11) BCLR 1398 (CC) at para 31. 121 Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC) ; 2011 (7) BCLR 651 (CC) (Glenister II) at para 125. 49

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