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[2016] ZAWCHC 120
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Fransman v Speaker of the Western Cape Provincial Legislature and Others (13097/2014) [2016] ZAWCHC 120; [2016] 4 All SA 424 (WCC) (15 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 13097/2014
DATE:
15 SEPTEMBER 2016
In
the matter between:
MARIUS
LLEWELLYN
FRANSMAN
..................................................................................
Applicant
And
THE
SPEAKER OF THE WESTERN CAPE
PROVINCIAL
LEGISLATURE
.................................................................................
First
Respondent
THE CHAIRPERSON, WESTERN CAPE
PROVINCIAL LEGISLATURE STANDING
COMMITTEE
ON PUBLIC
ACCOUNTS
............................................................
Second
Respondent
Delivered:
15 September 2016
JUDGMENT
BOQWANA,
J
Introduction
[1]
This is an application to review
decisions allegedly taken by the Western Cape Standing Committee on
Public Accounts (‘SCOPA’/‘the
committee’)
arising from the summonsing of the applicant to appear before it as a
witness on 23 April 2014. Other ancillary
relief, to which I shall
return, is also sought.
[2]
SCOPA is a committee established by
the provincial legislature in terms of s 116 of the Constitution and
the Standing Rules of the
Western Cape Provincial Parliament
(‘Standing Rules’). It is common cause that, amongst
other things, SCOPA is empowered
to summons any person to appear
before it and/or to produce documents, and to hear oral evidence and
examine any reports, including
those of the Auditor-General, on the
affairs of the provincial executive.
Factual
background
[3]
In January 2014, the Auditor-General
published a report on a performance audit of the use of consultants
at selected departments
of the Western Cape Provincial Government
(‘provincial government’). An independent auditing
process was to evaluate
measures instituted
by
management [of the said departments] to ensure that resources had
been procured economically
and were
used efficiently and effectively.
[4]
The performance audit on the use of
consultants was conducted at two departments of the provincial
government, namely, the Department
of Health and the Department of
Transport and Public Works. The audit covered eleven consultancy
projects at the Department of
Health with contracts or payments
amounting to R625 million; and twenty consultancy projects at the
Department of Transport and
Public Works with contracts or payments
amounting to R328 million, during the financial years of 2005 to
2010.
[5]
The applicant, Mr Marius Fransman,
was the Western Cape Provincial Minister of Transport and Public
Works during the period of 2005
to July 2008, and Mr Pierre Uys was
the Provincial Minister of Health.
[6]
The report identified that the total
expenditure on consultants by the two audited departments amounted to
R 9.2 billion (89% of
the total provincial expenditure of R 10.3
billion on consultants) for the three-year period 2008-2009 to
2010-2011.
[7]
The said report was tabled before a
SCOPA meeting on 20 February 2014. The chairperson of SCOPA at
that time and during the
events that gave rise to this application
was Mr Grant Haskin. At that meeting, committee members decided that
both the applicant
and Mr Uys should be invited to attend a SCOPA
meeting scheduled for 17 March 2014. An invitation was also sent to
the former Head
of Department: Transport and Public Works, Mr
Manyathi.
[8]
The two former Members of the
Executive Council (‘MECs’) were, according to Mr Haskins,
invited because it was the responsibility
of the executive authority
to account to SCOPA, and not that of the accounting officer. This
view is not shared by the applicant,
who alleges that it was unusual
for MECs to be called to account at a SCOPA meeting. This is because
they were not involved in
signing of contracts and financial
management of the departments. It is, according to the applicant, the
heads of departments that
were normally called by SCOPA to answer
questions. This issue is relevant to the applicant’s case
because he regards SCOPA’s
actions of calling him to account as
being politically motivated and driven by members of the provincial
majority party, the Democratic
Alliance (‘DA’) whose
mission was to embarrass him given that he had long moved on and left
the provincial department.
He was in 2014 the Deputy Minister of
International Relations in the national government. Summonsing a
member of the national executive
was to him unprecedented.
[9]
The applicant received the
invitation to attend the meeting, scheduled for 17 March 2014, on 3
March 2014. In terms of the letter,
the purpose of the invitation was
for the applicant to participate in discussions and answer questions
on the Auditor-General’s
report on the performance audit at the
selected departments.
[10]
The meeting was to be attended by
SCOPA, Finance and Community Development and the two relevant
departments (Health and Transport
and Public Works). The letter
requested that any documents or presentations relevant to the subject
be sent by the invitee to the
committee coordinator.
[11]
According to Mr Haskin, neither the
applicant, Mr Uys nor Mr Manyathi attended the meeting. As a
consequence thereof all three of
them had to be summonsed to appear
at the next SCOPA meeting scheduled for 23 April 2014.
[12]
In his replying affidavit, the
applicant alleges that he went to the venue of the meeting, but
discovered that the meeting had started
earlier than advised. It is
not clear whether he announced his presence at the meeting as the
replying affidavit is silent on this
issue. From the respondents’
point of view, however, the applicant did not arrive.
[13]
I am bound to accept the version of
the respondents. It, in any event, makes more sense to me than that
of the applicant in that
it seems inherently improbable that the
first respondent would have considered it necessary to issue a
summons requiring the applicant
to appear before SCOPA, if he had
presented himself voluntarily on 17 March 2014.
[14]
Reacting to the summons, the
applicant and Mr Uys attended the meeting of 23 April 2014
accompanied by a legal representative, whom
they intended would
represent them at the meeting. According to the applicant, upon their
arrival, SCOPA members were already in
attendance. Their legal
counsel introduced herself to the chairperson, Mr Haskin, and
informed him that she represented Mr Uys
and the applicant. She
further informed Mr Haskin that Mr Uys and the applicant intended to
seek a postponement of the proceedings.
Mr Haskin advised her that
legal representation was not permitted and therefore she did not have
any ‘speaking rights’
in the proceedings. He however
advised that she could sit next to Mr Uys and the applicant to advise
them. The applicant alleges
that they had no choice but to accept the
ruling of the chairperson, regardless of the fact that he was in need
of legal assistance.
He believed the chairperson was wrong as Rule 72
of the Standing Rules of the provincial legislature dated February
2014 permitted
legal representation at committee meetings, while the
Western Cape Witnesses Act 2 of 2006 (‘the Witnesses Act’),
in
terms of which they were summonsed, is silent on the question of
legal representation.
[15]
Mr Haskin’s version is
different on this issue. He alleges that he recalls applicant’s
counsel being introduced to him
but could not remember her name. To
his recollection, a conversation took place in a corridor, before the
meeting commenced, where
Mr Uys asked him whether legal
representatives could attend the meeting. He told Mr Uys that they
could consult with the legal
representative but summonsed people were
required to speak for themselves under oath or affirmation. According
to him, neither
Mr Uys nor the applicant made any application during
the meeting to be legally represented, or for a legal representative
to be
permitted to make submissions to the committee on their behalf.
He contends therefore that SCOPA made no decision that could
conceivably
form the subject of a review application in this regard.
This issue is significant to the relief sought by the applicant for
reasons
that will become evident presently.
[16]
The applicant recalls the meeting as
being very hostile towards him. Apart from Mr Haskin, who was a
member of the African Christian
Democratic Party (‘ACDP’),
and Mr Ozinsky, a sole member of the African National Congress
(‘ANC’), the
majority of the committee, who were members
of the DA, was extremely adversarial and acted in bad faith. He
believed that they
were out to attack and catch him by surprise with
the intention of embarrassing him and Mr Uys since they were high
profile members
of the ANC; they did this for the benefit of members
of the media who were in attendance.
[17]
Having been told that he and Mr Uys
could not be legally represented, the committee did not allow him to
speak, informing him that
he could only do so after having taken an
oath. This was contrary to the advice that he had received from his
counsel. He had intended
to explain his position to the committee and
motivate for a postponement. He also would have requested to be
provided with a list
of questions and/or issues so as to adequately
prepare.
[18]
The applicant averred that he would
have informed the committee that summons had been served during a
demanding period, when political
parties were electioneering for the
national elections that were scheduled for 7 May 2014. Furthermore,
he was no longer in the
provincial government and had lost touch with
its affairs; he therefore might need access to the relevant
documents, records and
the opportunity to consult with the relevant
officials on issues relating to his time in office in the Western
Cape government.
According to him, there was no genuine or
particularly pressing reason for the meeting to proceed before the
elections. He formed
the opinion that the hearing was nothing more
than an abuse of the SCOPA process by members of the majority party
for narrow political
purposes.
[19]
Mr Uys was however allowed to speak
on the basis that, unlike the applicant, he was still a member of the
provincial legislature.
The applicant regarded this as an act of
unfair discrimination as they had both been summonsed as witnesses.
[20]
Mr Uys requested a postponement and
asked that questions that SCOPA intended to ask be given to them in
writing. His request was
turned down. According to Mr Haskin, the
view underlying this approach was that the applicant and Mr Uys
should have asked for
the documentation, questions and access to
officials long before the meeting; and should have adequately
prepared on receipt of
summons. Members also informed Mr Uys that
committee members could not be expected to prepare questions in
advance and if a question
or an issue not anticipated arose, a
witness would be given an opportunity to furnish answers later in
writing or ask for a postponement
at that juncture.
[21]
It appears that during the debate
the chairperson expressed a view in support of the postponement but
was outvoted by the majority
of the committee. A motion was tabled
that the meeting continue.
[22]
Mr Haskin alleges that the meeting
was chaired in line with the Witnesses Act and SCOPA’s
practice, which required non-members
of the provincial parliament to
take an oath or affirmation before they can make any oral submissions
to the committee. The applicant
declined to take an oath and to
further participate in the meeting and left. This has consequences in
terms of the Witnesses Act,
to which I shall return later.
[23]
Feeling aggrieved, the applicant
launched this application.
Relief
sought
[24]
The relief prayed for is in three
parts.
[25]
The first part deals with the
review, correction and setting aside of alleged decisions made by
SCOPA on 23 April 2014 -
(a)
refusing the application to postpone the
hearing and allow the applicant an opportunity to properly prepare
for participating in
the hearing; and by refusing to provide the
applicant with the list of issues and/or questions that the applicant
is expected to
deal with at the said hearing;
(b)
not allowing the applicant to address the
hearing of SCOPA before having taken an oath as a witness; and
(c)
denying the applicant an entitlement to
legal representation at the SCOPA hearing.
[26]
The second part seeks a directive
that the respondents -
(a)
provide the applicant with the list of
issues and/or questions that the applicant is expected to deal with
before the committee;
(b)
provide the applicant with full access to
all relevant documentation and records as well as an adequate
opportunity to consult with
any provincial or other officials
necessary in order to properly prepare for the hearing in respect of
the aforesaid issues and/or
questions; and
(c)
allow the applicant to address SCOPA
without having taken an oath.
[27]
The third part concerns a
declaratory order sought by the applicant that he has not violated
any of the provisions of the Witnesses
Act by declining to continue
his participation in the SCOPA hearing of 23 April 2014.
[28]
In the alternative, a declaratory
order is sought that the applicant is entitled to all of the relief
sought above including legal
representation.
Legal
Framework
[29]
The provincial legislature is
established in terms of Chapter 6 of the Constitution. In terms of s
108 (1) of the Constitution,
a provincial legislature is elected for
a period of five years and when its term expires, it is dissolved and
replaced by the next
legislature. Section 17 of the Constitution of
the Western Cape, Act 1 of 1998 (“the provincial constitution”)
contains
similar provisions.
[30]
In this case the committee’s
term of office was due to expire after the elections of May 2014.
According to Mr Haskin, the
committee intended to finalise issues
raised in the Auditor-General’s report before its term ended.
[31]
Section 114 (2) of the Constitution
requires a provincial legislature to (a) ensure that all provincial
executive organs of state
in the province are accountable to it, and
(b) maintain oversight of the exercise of provincial executive
authority in the province,
including the implementation of
legislation; and any provincial organ of state.
[32]
Section 116 of the Constitution
provides that:
‘
(1) A provincial legislature may
(a)
determine and control its internal
arrangements, proceedings and procedures; and
(b)
make rules and orders concerning its
business, with due regard to representative and participatory
democracy, accountability, transparency
and public involvement.
(2)
The
rules and orders of a provincial legislature must provide for
(a)
the
establishment, composition, powers, functions, procedures and
duration of its committees;
(b)
the
participation in the proceedings of the legislature and its
committees of minority parties represented in the legislature, in
a
manner consistent with democracy;
(c)
financial and administrative assistance to
each party represented in the legislature, in proportion to its
representation, to enable
the party and its leader to perform their
functions in the legislature effectively; and
(d)
the recognition of the leader of the
largest opposition party in the legislature, as the Leader of the
Opposition.’
Section
23 of the provincial constitution contains similar provisions.
[33]
SCOPA is established to fulfil the
function of holding the executive to account. It is common cause that
SCOPA’s functions
include examining the Auditor-General’s
report in terms of Rule 98 and, necessarily, following up on the
findings of that
report relating to the use of public resources. It
is not disputed that SCOPA has powers to summons witnesses to appear
before
it.
[34]
Section 115 of the Constitution
provides that:
‘
115.
Evidence or information before provincial legislatures
A
provincial legislature or any of its committees may
(a)
summon any
person to appear before it to give evidence on oath or affirmation,
or to produce documents
;
(b)
require any
person or provincial institution to report to it;
(c)
compel, in
terms of provincial legislation or the rules and orders, any person
or institution to comply with a summons or requirement
in terms of
paragraph (a) or (b); and
(d)
receive
petitions, representations or submissions from any interested persons
or institutions.’
[35]
Section 2 of the Witnesses Act
empowers the Secretary of provincial parliament to issue summons for
a witness to give evidence or
to produce documents in terms of s 25
(a) of the provincial constitution and s 3 provides for the
examination of witnesses
as follows:
‘
3
Examination of witnesses
When the
Provincial Parliament or
a committee requires that anything be
verified or otherwise ascertained by the oral examination of a
witness, the person presiding
at the enquiry may-
(a)
Call upon
and administer
an
oath to, or accept an affirmation from, any person present at
the enquiry who was or could have been summonsed in terms
of section
2; and
(b)
Examine that
person, or request the person to produce any document in the person’s
possession or custody or under his or her
control which may have a
bearing on the subject of the enquiry, subject to any limitation
provided for, by or in terms of the Standing
Rules with regard to the
type of subject matter about which a witness may be questioned or the
type of document that a witness
may be requested to produce.’
Section
5 criminalises the following conduct by witnesses:
‘
5
Offences
(1)
A
person who-
(a)
has
been duly summonsed in terms of section 2 and who fails, without
sufficient cause-
(i)
to attend at
the time and place specified in the summons; or
(ii)
to remain in
attendance until excused from further attendance by the person
presiding at the enquiry;
(b)
when
called upon under section 3(a), refuses to be sworn in or to make an
affirmation as a witness; or
(c)
Fails, without
sufficient cause-
(i)
to answer
fully and satisfactorily all questions lawfully put to him or her
under section 3(b) or
(ii)
to produce any
document under his or her possession or custody or under his or her
control which he or she has been required to
produce under section
3(b), commits an offence and is liable to a fine or to imprisonment
for a period not exceeding 12 months
or to both the fine and the
imprisonment.’
Submissions
[36]
The respondents contend that the
review sought stems from issues that are no longer contentious in
that the events of 23 April 2014
are history. Mr Budlender SC, who
appeared for the respondents together with Ms Bawa SC, argued that
the only reason that the historical
facts were being ventilated was
because the applicant fears that, if and when he is summonsed again,
the aforementioned allegedly
unlawful conduct might be repeated by
members of SCOPA. In this regard, the first respondent openly
tendered, with prejudice, exactly
what the applicant demanded in his
application.
[37]
Mr Denzil Potgieter SC appearing,
with Ms Nyman, for the applicant on the other hand argued that the
relief sought by the applicant
was important not only to deal with
the past violations of his rights, but also to establish certainty in
respect of future SCOPA
proceedings. He also contended that the
granting of the relief would serve the public interest as it sought
to prevent abuse of
power for political gain.
[38]
The applicant’s primary
argument is that the matter is not moot as the factual circumstances
indicate that SCOPA will reinstate
the hearings based on utterances
made by the Western Cape Premier, Ms Helen Zille in her state of the
nation address on 24 June
2014 when, referring to the applicant, she
apparently said the following:
‘
We
welcome him back into this House because now we will make sure that
he goes before SCOPA and we will make sure that he takes
an oath and
we will make sure that he tells us the truth about a lot of things to
which we have been trying to get answers, Madam
Speaker, for a very
long time. So, we give you a very warm welcome back and let me give
you a little warning about some things
that we will be raising with
you.’
[39]
From this statement, according to
the applicant, it is evident that the Premier and her government are
intent on using the SCOPA
hearing process to continue harassing him
and to score cheap political points.
[40]
Furthermore, it is submitted on the
applicant’s behalf, that it is in the interests of justice that
the court grants the relief
so as to prevent the abuse of power by
SCOPA in their hearings. The court is requested to set in place a
process to regulate a
future SCOPA hearing into the Auditor-General’s
report that would curtail the abuse of the hearing to oppress
opposition
parties and to score political points in the manner done
on 23 April 2014 and which it is alleged is likely to recur in the
absence
of a court order. It is contended that the judiciary must
step in to prevent abuse of state power. To support this proposition,
counsel for the applicant referred to the
dictum
in
South
African Broadcasting Corporation SOC Ltd and Others v Democratic
Alliance and Others
2016 (2) SA 522
(SCA) at para 2, which dealt with the role of the Public
Protector.
[41]
The respondents attacked the relief
sought also on grounds that the impugned decisions did not (a)
constitute administrative action;
(b) that no decision was made
refusing legal representation and (c) that courts do not grant
declaratory relief simply to record
history. There must be a real
dispute which affects a person’s right going forward; no
consequential claim can be made in
this matter because the applicant
has been given or offered what he sought.
Would
the orders sought by the applicant be of practical value?
[42]
The only fact the applicant provides
as a basis for the contention that the relief sought will have
practical effect is the Premier’s
speech of 24 June 2014.
Apart from that, there has been no indication that the current SCOPA
which assumed office in May
2014 will summons the applicant to
return. The current committee members could take a completely
different approach to that of
their predecessors.
[43]
The question of whether the
applicant should be re-summonsed would be a new issue which would
have to be determined by the current
committee. Relevant questions
would have to be considered if and when the applicant is
re-summonsed. The new members are not bound
by the views of the
previous committee. It is not known if the committee would grant or
refuse the applicant’s requests,
which the applicant seeks the
court to direct. The context in which the requests might be made is
also not currently determinable.
[44]
The applicant firmly confirms in his
replying affidavit what the purpose of this application is. In reply
to the allegation by the
respondents that the relief sought does not
impact on his rights currently or in future and only dealt with pure
history, the applicant
alleges that ‘it is critical for this
court to grant the relief sought so that the respondents are
prevented from continuing
the abuse of power in their regulation of
SCOPA hearings.’ He further asks this court to set in place a
procedure to regulate
a future SCOPA hearing into the
Auditor-General’s report that would curtail the use of the
process to oppress opposition
parties and to score political points
in the manner in which it was done by the majority party on 23 April
2014.
[45]
It is not the role of the judiciary
to get involved in parliamentary politics, or to determine the
internal arrangements, proceedings
and procedures of provincial
legislatures that are reserved by the Constitution for determination
by those legislatures themselves.
The judiciary would be
impermissibly impinging on the terrain of the legislature if it were
to do what the applicant wants it do.
The applicant wants the court
to regulate SCOPA hearings to prevent the abuse and step in to
protect minority parties from being
mistreated by those in the
majority. These are the only reasons why this application was
brought.
[46]
Despite the fact that no decision
has been made to re-summons the applicant, the second respondent has
given him certain undertakings
should he be re-called, which more
than adequately addresses the forward looking relief. The applicant
has rejected this tender.
The respondents contend that the tenders
given render the relief academic.
[47]
In
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
2006 (11) BCLR 1255
(CC), the Court
held that while the issues might well have been moot because they
were overtaken by events, the issues may be so
crucial to important
aspects of government, as well as rights contained in the Bill of
Rights, that it could be in the interests
of justice to grant the
relief sought. (at para 27).
[48]
It is, therefore, important to
consider whether the tenders have indeed rendered the issues before
the court academic, or whether
a case has been made out for granting
the relief in the interests of justice.
[49]
The second respondent, who is the
current chairperson of SCOPA, alleges that he was of the view that
the complaints raised by the
applicant could be resolved without
resorting to litigation. He was satisfied that public interest would
be served by resolving
the matter and that it would serve no purpose
for the court to adjudicate a matter purely for historical interest.
He sought legal
advice and instructed the respondents’
attorneys of record to settle the matter. On 22 January 2016, the
respondents’
attorneys sent a letter to the applicant’s
attorneys with the following undertakings on behalf of the second
respondent,
in his capacity as the chairman of SCOPA:
‘
6.1
that the applicant will be permitted to address SCOPA with regard to
procedural matters (but obviously not factual matters falling
within
its enquiry) without having to take an oath;
6.2
that your client will be given a reasonable opportunity to prepare in
order to enable him to properly participate in the hearing;
and
6.3
that (to the extent that this is within the powers and competence of
SCOPA), your client will be given access
to all
relevant documents and records, and an adequate opportunity to
consult with any provincial or other officials necessary
in order to
properly prepare for the hearing.
7.
As SCOPA has a discretion as to whether to allow legal
representation, your client, may request legal representation if he
again
is summoned to appear before SCOPA. That will be a matter to be
decided by SCOPA, and our client is not in a position to give any
undertaking in anticipation of what it will decide.
8.
Our client’s view is that the report of the Auditor-General
adequately identifies the matters which your client will be
required
to address if he is summoned to appear before SCOPA. If any matter
raised at such a meeting is such that your client could
not
reasonably have anticipated that he would be required to deal with
it, he will be entitled to ask for time to enable him to
prepare in
that regard.’
[50]
This was followed by a draft
settlement agreement to be made an order of court. Further
undertakings made by the second respondent
in this draft were as
follows:
‘
2
If the Applicant is summoned to appear before SCOPA, the second
respondent, in his capacity as chairperson of SCOPA, will ensure
that:
2.1
The Applicant will be permitted to address SCOPA with regard to any
procedural matters, and matters not falling within the ambit
of
SCOPA’s enquiry, without having to take an oath;
2.2
The Applicant will be given no less than 60 days’ notice to
enable him to consult with provincial or other officials and
to
undertake other preparation for the hearing;
2.3
To the extent that it is within the powers and competence of SCOPA,
SCOPA will give the Applicant access to all identified relevant
documents and records. To the extent that it is not within the powers
and competence of SCOPA to give the Applicant such access,
it will in
a spirit of co-operation take reasonable measures to assist him to
obtain such access from those who have the power
to give it.
2.4
If the Applicant considers that he requires legal representation at
the hearing, he may make application to SCOPA at the sitting
at which
he appears, to allow this. SCOPA must exercise its discretion as to
whether to permit legal representation. If SCOPA refuses
to permit
legal representation, the Applicant will be given a reasonable
opportunity, if he so requests, to challenge such refusal
before the
hearing proceeds further.
2.5
If the Applicant is requested by SCOPA to address matters that he
could not reasonably have anticipated would be dealt with,
the SCOPA
meeting will be adjourned for a period of 30 days to allow him time
for further preparation.
3.
…It is recorded that if the Applicant is again summoned to
appear before SCOPA and contends that this agreement has not
been
complied with, he is entitled to apply to the High Court for
appropriate relief.’
[51]
The applicant contends that this
tender is merely a façade intended to trap him into submitting
to a continued abusive process
without any real or effective
protection of his fundamental rights. His main concerns are that,
given the history of the matter,
the undertakings made by the second
respondent, who is also a member of the ACDP, like his predecessor,
would not be followed by
the majority of the committee members who
are members of the DA. According to him, without the support of the
DA majority, those
undertakings carry no weight.
[52]
This contention is unfounded, in my
view. The second respondent is representing SCOPA in these
proceedings. It has not been suggested
that he has no authority to
act on their behalf in matters relating to this litigation. He
alleged in the answering affidavit that
he was mandated to take all
necessary steps (including the filing of answering papers) on behalf
of SCOPA in this matter and to
report regularly to SCOPA in relation
hereto. Consequently, if he is representing SCOPA, it should be taken
that he can settle
proceedings on behalf of SCOPA.
[53]
To the extent that the second
respondent has given undertakings on matters where a mandate was not
given, that would be an issue
for committee to take up with him. The
committee would have to abide by any settlement agreement which would
have been made an
order of court. If the committee fails to comply
with the court order, the applicant would be within his rights to
approach the
court for an appropriate order.
[54]
As regards, the issue of legal
representation, the applicant’s contention is that Rule 72 of
the Standing Rules provides him
with a right to legal representation.
That Rule is worded as follows:
‘
72.
Counsel, attorneys and other persons appearing before a committee
must observe the directions and conform to the rules laid
down by the
chairperson’
[55]
The Rule plainly does not provide
for a right to legal representation. It simply asserts that when
counsel or legal representatives
do appear before the committee, they
must adhere to the committee rules. There is no absolute right to
legal representation. At
best, it indicates that the Rules conceive
that there may be situations where attorneys and advocates will
appear before the committee.
The committee has the discretion on
whether to allow legal representation.
[56]
The matter of
Hamata
and Another v Chairperson, Peninsula Technikon Internal
Disciplinary Committee, and Others
2002
(5) SA 449
(SCA) at para 21, which the applicant relied on, does not
advocate for a right to legal representation. To the contrary, it
supports
a view that courts have denied the existence of any absolute
right to legal representation in arenas other than a court of law (at
para 5). The court, however, recognised that there may be cases
where legal representation may be appropriate, where it ‘
may
be essential to a procedurally fair administrative proceeding
.’
(at para 11). Therefore, any rule purporting to compel an organ of
state to refuse legal representation no matter the circumstances
and
‘
even if they are such that a
refusal might very well impair the fairness of the administrative
proceeding, cannot pass muster in
law
.’
(at para 12). The court in
Hamata
confirmed a settled principle that the
technikon’s internal disciplinary committee had a discretion
whether to allow legal
representation, taking into account relevant
factors, including those articulated in
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Another (Mukhwevho Intervening)
2001 (3) SA 1151
(CC) at 1184D-E as follows:
‘
...the
nature of the decision, the “rights” affected by it, the
circumstances in which it is made, and the consequences
resulting
from it.’ (
Hamata
supra at footnote 25)
[57]
In short, there is no absolute right
to legal representation in fora other than courts of law, but it
cannot be excluded as of rule;
a discretion on whether to allow it
must be exercised taking into account relevant factors. Having said
that, if the rules of a
particular tribunal allow for an unqualified
right to legal representation then it will be unqualified. But that
is not the case
with Rule 72. The judgment of
Legal
Aid South Africa v Magidiwana and Others
2015 (6) SA 494
(CC) does not take the matter any further.
[58]
The views expressed by the second
respondent in this case that the committee has a discretion on the
issue of legal representation
are correct. I do not think it would be
appropriate for this court to order that the applicant is entitled to
legal representation;
all the more so when the current committee
members have not had the opportunity to consider the matter.
[59]
Turning to the undertaking that the
applicant would be permitted to address the committee without taking
an oath, Mr Potgieter submitted
that that undertaking must be seen in
the context of the respondents’ view that the applicant is now
a member of the provincial
parliament and accordingly allowed to
address the committee without taking an oath. Whilst that is so, the
tender is not qualified.
The undertaking, as it reads, would be
applicable whether or not the applicant is a member of parliament.
There is no ambiguity
in its wording. In my view, the tender given by
the second respondent adequately satisfies the relief sought by the
applicant.
[60]
In view of the findings above, it is
not necessary for this court to interpret the Witnesses Act, as
argued by Mr Potgieter. Whether
or not the former chairperson erred
in his interpretation of the Witnesses Act is history.
[61]
I am willing to assume, without
deciding this issue, that the applicant may have been unlawfully
treated by the previous committee
as principles of natural justice
may dictate that a person should be heard on procedural matters (i.e.
issues not pertaining to
the examination of a witness) even if called
as a witness, before the administration of the oath. In any
event, if the applicant
had attended the meeting of 17 March 2014 he
was initially invited to participate in, no oath would have been
required even though
he was not a member as the Witnesses Act had not
been invoked.
[62]
I do not need to decide on this also
because of the fact that for any future hearings that may arise
(which is the applicant’s
main concern), the second respondent
has undertaken to allow the applicant to address the committee
without taking an oath. Furthermore,
he is now a member of
parliament, although nothing much turns on this issue as the
undertaking is wide.
[63]
As to the directive that the
applicant be presented with a list of questions and/or issues he is
expected to deal with at the hearing,
the second respondent submits
that the Auditor-General’s report identifies the issues the
committee would like addressed,
but if it does arise that the
applicant is requested to address matters that he could not
reasonably have anticipated would be
dealt with, the meeting would be
adjourned for 30 days to allow him to prepare.
[64]
The applicant seeks a directive that
he be provided with a list of questions and/issues that he is
expected to deal with at the
hearing. Not only would that be
premature, but the court may be confining members of SCOPA to a list
of questions, which I do not
consider appropriate. Nothing prevents
the applicant, however, from asking SCOPA to present him with a list
of questions for purposes
of preparation if and when he is summonsed,
or to seek clarity on those aspects of the Auditor- General’s
report that the
committee would require him to focus on. It is up to
SCOPA to decide how the process would be regulated and not the court,
particularly
in the absence of a decision having been made and/or
infringement of the law. Whilst I understand the applicant’s
apprehension,
it is unjustified to assume that the current committee
members would act unlawfully.
[65]
With regards to the preparation time
that the applicant seeks to be directed, an undertaking is given that
he would be given no
less than 60 days to consult with the provincial
or other officials in order to prepare for the hearing as he
requested. Furthermore,
access would be given to documents, to the
extent that it is within the powers and competence of SCOPA to do so
and, if it is not
within their competence, SCOPA would take
reasonable steps to assist that those documents be obtained by the
applicant. This more
than adequately addresses the relief sought by
the applicant in this regard.
[66]
Mr Budlender submitted that the
relief sought could not be granted for other reasons, namely, that
the decisions of 23 April 2014
are not administrative action as
contemplated in PAJA; that no decision was made on the issue of legal
representation and that
courts do not grant declaratory orders simply
to record history.
Are
these administrative decisions?
[67]
The applicant brought the review
application in terms of PAJA. He alleges that the SCOPA decisions
fell to be reviewed and set aside,
inter
alia
, in terms of section 6 (2) (a) –
(f), (g) and (i), including various relevant subsections of PAJA. To
support this contention
counsel for the applicant relied on the
decision of
Democratic Alliance v
Ethekwini Municipality
2012 (2) SA 151
(SCA) which states as follows at para 21:
‘
[21]
This conclusion does not mean, however, that these decisions are
immune from judicial review. The fundamental principle, deriving
from
the rule of law itself, is that the exercise of all public power, be
it legislative, executive or administrative – is
only
legitimate when lawful (see eg Fedsure para 56). This tenet of
constitutional law which admits of no exception, has become
known as
the principle of legality (See eg Cora Hoexter Administrative Law in
South Africa 117). Moreover, the principle of legality
not only
requires that the decision must satisfy all legal requirements, it
also means that the decision should not be arbitrary
or irrational…’
[68]
The passage clearly refers to
legality reviews, not to reviews expressly brought in terms of PAJA.
Only administrative action is
reviewable in terms of PAJA.
[69]
The respondents submit that the
decisions challenged are not administrative action as contemplated by
PAJA but instead decisions
of a committee of the provincial
parliament carrying out its legislative function of keeping the
executive accountable; they are
subject to review on grounds of
legality, and not under PAJA; or they can be challenged under the
common law duty to act fairly
in investigations (if at all the
hearing is viewed as investigative).
[70]
I do not agree that
Ethekwini
supports the proposition advanced by the applicant’s counsel.
The Court in the preceding paragraphs found that the decisions
in
that matter were not administrative action. It said the following at
para 20:
‘
[20]
There is further authority for the proposition that a decision taken
by a politically elected deliberative assembly whose individual
members could not be asked to give reasons for the manner in which
they had voted, does not constitute ‘administrative action’.
This is to be found in decisions such as
Steele
and Others v South Peninsula Municipal Council and Another
2001 (3) SA 640
(C) at 644D; and
Van Zyl
v New National Party and Others
2003
(10) BCLR 1167
(C)
[2003] 3 All SA 737)
paras 48-54.
Since
the decisions under consideration bear all these hallmarks, I think
it can be accepted with confidence that they do not constitute
administrative action under PAJA.
The
further somewhat intricate question as to whether these decisions
should be categorised as the exercise of an executive function
as
opposed to a legislative function, is one we do not have to decide.
As long as these decisions do not qualify as ‘administrative
action’, PAJA does not apply.’ (Own emphasis)
[71]
The Constitutional Court in
Minister
of Defence and Military Veterans v Motau and Others
2014 (5) SA 69
(CC) at para 33 set out seven components which must be
satisfied have not been satisfied in this case. The Court held
that
‘
there must be (a) a decision
of an administrative nature; (b) by an organ of state or a natural or
juristic person; (c) exercising
a public power or performing a public
function; (d) in terms of any legislation or an empowering provision;
(e) that adversely
affects rights; (f) that has a direct, external
legal effect; and (g) that does not fall under any of the listed
exclusions
.’
[72]
Mr Potgieter submitted that SCOPA
was not performing a legislative function but an administrative
function of supervising and investigating
which he argued had nothing
to do with legislation. I disagree with Mr Potgieter, SCOPA is a
committee of parliament, carrying
out its constitutional function of
overseeing and holding the executive to account. Members deliberate
and make decisions based
on the views of the majority. The functions
of the legislature that are peculiar to that arm of government do not
have to do exclusively
with passing legislation. Members deliberate
and vote on many other legislative functions including holding the
executive to account.
I am therefore not persuaded that the examining
of the Auditor-General’s report and calling of witnesses
pursuant thereto
to answer questions on issues raised by the report
constitute administrative action, for the purposes of PAJA. Apart
from stating
that the decisions constitute administrative action, the
applicant has not stated what direct external legal effect the
decisions
have.
No
decision was made on the issue of legal representation
[73]
There is a dispute of fact on this
issue. The applicant alleges that he was informed during the session
of a committee by the chairperson
that legal representation was not
allowed. The second respondent submits that the applicant and Mr Uys
enquired from Mr Haskin
outside in the corridor whether they could be
represented by counsel and he told them it was not allowed. According
to Mr Haskin
the issue was not discussed by the committee and no
decision was taken. The transcript of the record of the meeting does
not reflect
any discussion on this issue. As these are motion
proceedings, where there is a dispute on the facts final relief
should be granted
only if the facts as stated by the respondent
together with the admitted facts that the applicant’s affidavit
would justify
such an order. (See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
(Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-635. The application of this rule
impels a finding that no decision was made by the committee on the
issue of legal
representation.
Courts
do not grant declaratory relief simply to record history
[74]
There must be a real dispute that
affects rights going forward. The court in
Naptosa
& Others v Minister of Education, Western Cape and Others
2001 (2) SA 112 (C) at 125 B – E quoted with approval the
remarks by Williamson J (as he then was) in
Adbro
Investment Co Ltd v Minister of the Interior and Others
1961
(3) SA 283
(T) at 285 B-C where he held the following:
‘ …
(T)he
Court in each case must…carefully determine whether or not the
particular case in question is a proper case for the
exercise of its
discretion. For a case to be a proper case, in my view, generally
speaking it should require to be shown that despite
the fact that no
consequential relief is being claimed or perhaps could be claimed in
the proceedings, yet justice or convenience
demands a declaration be
made…’
[75]
The Court in
Naptosa
supra at para 125 D further stated that:
‘
A
declaratory order is an order by which a dispute over the existence
of some legal right or entitlement is resolved. The right
can be
existing, prospective or contingent (
Suid-Afrikaanse
Onderlinge Brand-en Algemene Versekeringsmaatskappy Bpk v Van den
Berg en ’n Ander
1976 (1) SA 602
(A)). A declaratory order need have no claim for specific relief
attached to it, but it would not ordinarily be appropriate where
one
is dealing with events which occurred in the past. Such events, if
they gave rise to a cause of action, would entitle the litigant
to an
appropriate remedy.’
[76]
The applicant seeks past relief with
no substantial relief attached to it. The second respondent has
resolved the question of future
conduct. As contended on behalf
of the respondents, the court cannot tell parliament how to conduct
its business purely on
a hypothetical basis when the committee of
parliament has tendered to comply with the future relief and
the
law.
The applicant was not
suing on behalf of others therefore the court could not give an order
regulating SCOPA’s future conduct,
in a case where the second
respondent acting for SCOPA made undertakings addressing the relief
sought by the applicant.
Declaratory
order – non-violation of the Witnesses Act
[77]
As to whether the applicant violated
the Witnesses Act by refusing to further participate upon the
committee,
inter alia
,
refusing to postpone the meeting, I do not believe that this court is
in a position to pronounce on whether there was sufficient
cause for
the applicant to withdraw his participation in the meeting. That
would be usurping the function of a criminal court.
Inasmuch as it is
argued that this court would be dealing with this case from a
different angle, i.e. from a civil court point
of view, I am not
persuaded that the issues are any different to what a criminal court
would look at. No solid basis has been presented
before me to
convince me otherwise.
[78]
I am alive to the fact that there
are many matters that serve before civil and criminal courts
involving the same events. This is
not one of those cases, in my
view. Those are cases that involve different issues such as, for
example, delictual claims. A civil
court in those matters would
consider whether a delictual claim exists and not whether an offence
has been committed, which is
what the applicant seeks the court to
effectively do in this matter.
[79]
Mr Budlender referred to a decision
of the Appellate Division in the matter of
Attorney-General
of Natal v Johnstone
&
Co Ltd
1946 AD 256
at 261 which he
submitted indicated that it was only in exceptional cases that a
civil court would make an order effectively finding
an [accused]
person innocent. The pertinent passage of the judgment reads as
follows:
‘…
in
general where it is alleged by the Crown that a person has committed
an offence, the proper way of deciding on his guilt is to
initiate
criminal proceedings against him; and where such proceedings
have already been commenced, even if the stage of indictment
only has
been reached, it seems to me that a court which is asked to exercise
its discretion by entertaining proceedings for an
order expressly or
in effect declaring that the accused is innocent would do well to
exercise great caution before granting such
an order. In most types
of case such an order would be entirely out of place. But the class
of case to which the present belongs
has certain features that
distinguish it from most other offences. The provisions are often
difficult to construe and differences
of view as to their effect may
be honestly entertained…’
[80]
No exceptional circumstances have
been shown as to why this case is different from others other than to
state that it is permissible
for courts to hear the matter involving
the same issues in both criminal and civil courts. Having not been
provided with any clear
basis on why this court should make the order
sought, I have to decline ordering such relief.
Relief
against the first respondent
[81]
It was contended on behalf of the
respondents that the relief against the first respondent must be
dismissed because she has no
power to do what the applicant seeks in
the relief. The first respondent caused summons to be issued against
the applicant. The
issuing of summons is not being attacked. She has
no control over SCOPA and may not interfere in their decisions. She
has no power
to comply with the relief sought against her. Other than
the fact that the first respondent is the senior official responsible
for the business of the provincial parliament, it has not been shown
that she is able to comply with the relief sought against her
by the
applicant.
Conclusion
[82]
In view of the undertakings made by
the second respondent coupled with the fact that any possible
re-summonsing of the applicant
to attend a hearing before SCOPA is
not known, I do not find it necessary to grant the relief sought by
the applicant. As to the
question of whether the Witnesses Act has
been violated, this court is not in a position to grant the
declaratory order sought
for reasons outlined above.
[83]
Both parties asked for
costs
against each other. Notwithstanding the fact that costs for both
parties would ultimately be sourced from the same public
purse, none
of the parties contended for a no cost order. Both counsel asked for
the matter to be dismissed with costs including
the costs of two
counsel. Mr Budlender further indicated for the record that he was
not involved in the drafting of the heads of
argument. For those
reasons, I would grant costs in favour of the respondents.
[84]
In the result,
the following order is made:
1.
The application is dismissed with costs,
including costs of two counsel to the extent of their employment.
N
P BOQWANA
Judge
of the High Court
APPEARANCES
For the
Applicant: Adv D Potgieter SC with Adv R Nyman
Instructed
by: State Attorney, Cape Town
For the
Respondents:Adv G Budlender SC with Adv N Bawa SC
Instructed
by: Webber Wentzel, Cape Town