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.
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