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[2012] ZASCA 196
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Dumani v Nair and Another (144/2012) [2012] ZASCA 196; 2013 (2) SA 274 (SCA); [2013] 2 All SA 125 (SCA) (30 November 2012)
Links to summary
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
144/2012
Reportable
In
the matter between:
COLLEEN
MZINGISI DUMANI
..........................................................
Appellant
and
DESMOND NAIR
.........................................................................
First
Respondent
THE MAGISTRATES
COMMISSION
.................................
Second Respondent
Neutral citation:
Collen Mzingisi Dumani v Desmond Nair & another
(144/2012)
[2012]
ZASCA 196
(30 November 2012)
Coram:
MPATI P, CLOETE, HEHER, CACHALIA and THERON JJA
Heard:
23 November 2012
Delivered
30 November 2012
Summary:
Review
– Grounds for -
Promotion of Administrative Justice Act 3 of
2000
- decision of presiding officer in disciplinary enquiry.
Material mistake
of fact – misdirection of the presiding officer in evaluating
the evidence does not render the decision reviewable
on ground of
material error of fact.
Decision so
unreasonable that no reasonable person could have reached it –
this ground not established on the evidence.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Eastern Cape High Court, Grahamstown (Pickering and Chetty JJ
sitting as court of appeal):
The appeal is
dismissed with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
THERON
JA (
MPATI P, CLOETE, HEHER and CACHALIA
JJA
concurring):
[1] This appeal is
against the dismissal of an application, in terms of s 6 of the
Promotion of Administrative Justice Act 3 of
2000 (PAJA), for the
review and setting aside of the appellant’s conviction, at a
disciplinary hearing, on three counts of
misconduct.
[2] The appellant is
Mr Collen Mzingisi Dumani (Dumani), a magistrate, currently on
suspension, who was appointed as acting head
of the Graaff-Reinet
Magistrate’s Court, with effect from 1 November 2008. The first
respondent, Mr Desmond Nair (the presiding
officer), is the chief
magistrate of Pretoria, who presided over an inquiry into misconduct
charges brought against Dumani by the
second respondent, the
Magistrates Commission.
[3] On 5 March 2009,
the Magistrates Commission charged Dumani with four counts of
misconduct in terms of regulation 26(4)(
a
) of the Regulations
for Judicial Officers in the Lower Courts issued under the
Magistrates Act 90 of 1993
. All the complainants were employed in
various capacities at the Graaff-Reinet Magistrates’ Court
where Dumani had been stationed.
The first charge related to an
incident that occurred during December 2008, when Dumani allegedly
stroked the cheek of Ms Salome
Hartney (Hartney), who was employed as
an administrative clerk at the court. The second charge related to
Dumani allegedly stroking
the cheek of a security officer, Ms Marilyn
Slavers (Slavers), with the back of his hand. In respect of the third
charge, it was
alleged that Dumani had touched the back of the neck
of Ms Regina Karolus (Karolus), a cleaner at the court. The
complainant in
the final charge was Ms Edwina Ele (Ele), a senior
administrative clerk, and it was alleged that Dumani had put his hand
between
her breasts.
[4] During March
2009, the Magistrates Commission appointed the presiding officer to
hold a disciplinary enquiry into the misconduct
charges. On 19 March
2010, and after hearing evidence, the presiding officer found Dumani
guilty of three counts of misconduct
and acquitted him on count two
relating to the complaint by Slavers. On 24 May 2010, the presiding
officer recommended to the Magistrates
Commission, in terms of
sub-regulation 26(17)(
b
) of the Regulations, that Dumani be
removed from office as a magistrate as contemplated in
s 13
of the
Magistrates Act. On
14 June 2010, Dumani made written representations
to the Magistrates Commission, requesting it to overturn the
convictions, not
to recommend to Parliament that he be removed from
office and not to impose any sanction on him. By letter dated 1
September 2010,
Dumani was advised that the Magistrates Commission
had resolved to accept the recommendation that he be removed from
office on
grounds of misconduct in terms of
s 13(4)(
a
)(i) of
the
Magistrates Act. The
Commission informed Dumani that its
recommendation had been forwarded to the Minister of Justice and
Constitutional Development.
[5] Dumani
instituted proceedings in the Eastern Cape High Court (Grahamstown)
to review and set aside the findings of the presiding
officer. The
high court (Chetty J, Pickering J concurring) dismissed the
application. Dumani now appeals with the leave of this
court. The
grounds of review relied upon are that: (a) the presiding officer
committed a material error of fact (this is dealt
with in the
judgment of Cloete JA in which I concur); (b) the presiding officer
acted arbitrarily; and (c) the presiding officer’s
decision is
so unreasonable that no reasonable person could have reached it.
[6] The enquiry into
the misconduct charges was held in Graaff-Reinet. The complainants
and Mrs Rene Viljoen (Viljoen), the court
manager, testified on
behalf of the Magistrates Commission. Dumani testified in his own
defence. The presiding officer called Mr
Mzimkulu Walter Claassen
(Claassen), a senior clerk at the court, as a witness.
[7] Hartney
testified that she had, during the first week of December 2008, been
requested to go to Dumani’s office to assist
him with his
computer. While they were alone and she was sitting in front of the
computer, Dumani, who was standing next to her,
stroked her cheek
with his hand. It was her testimony that she, in response, then
requested him not to touch her. According to
her, Dumani then
apologised. When she had completed her task at the computer, she
stood up and he once again touched her cheek.
She voiced her
displeasure and he again apologised and requested that she not
disclose the details of the incident to anyone. The
following day she
reported the incident to Viljoen, but asked Viljoen not to take the
matter further and said that she, Hartney,
would only take the matter
further if it happened again.
[8] Slavers, a
security officer at the court, testified that she had, on 16 January
2009, been sitting at the security scanner at
the entrance to the
court. Dumani, upon returning from lunch, greeted her by name,
touched her cheek, proceeded past the security
scanner and entered
the building. She mentioned it to her colleague but the latter had
not observed the incident. Karolus, a cleaner,
testified that she had
been emptying the waste-paper basket in Dumani’s office on 29
January 2009, when he inappropriately
touched the back of her head,
in ‘soft motions’.
[9] Ele, a senior
administrative clerk, testified that she usually worked in the
regional court, but when the court was not in session,
she assisted
in the cash hall or with administration. On a Friday, 30 January
2009, she received a telephone call from Dumani requesting
that she
come to his office. She asked if she could see him after two o’clock
as it was close to lunch time and he agreed.
Thereafter, and shortly
before lunch time (one o’clock) Dumani approached her in the
cash hall. After attending to his query,
she went towards the door as
it was already lunch time, with Dumani following closely behind her.
She turned back to fetch her
cellular telephone which she had left on
her desk, and as she turned Dumani put his hand between her breasts.
She entered the cash
hall and asked Hartney whether Dumani was
‘sexually hyperactive’ and reported to Hartney that he
had touched her breasts.
Ele then went outside where she met Karolus
and Slavers and told them about the incident. It was then that the
complainants shared
amongst themselves their respective experiences
with Dumani. It was also then that the complainants decided to take
the matter
further. Reports were subsequently made to Viljoen. The
complainants were referred to Ms Diane Bertram, a social worker in
the
Department of Social Services, for counselling, which they
underwent.
[10] Viljoen, the
court manager, confirmed that Hartney had, during December 2008,
reported the incident with Dumani to her. Viljoen
said that in
January 2009, she was advised of the incidents of inappropriate
conduct involving Dumani and the other three complainants.
She
testified in cross-examination that most of the court’s
business was conducted in Afrikaans and certain members of the
court
staff (who did not include her) had not been in favour of Dumani’s
appointment because he could not speak Afrikaans.
[11] Dumani
testified in his own defence. He was 58 years old at the time and
had, prior to his appointment as magistrate, been
in practice as an
attorney. He took up his post as acting head of the court in
Graaff-Reinet with effect from 1 December 2008 and
was to have been
on probation for a period of about six months. He denied having
inappropriately touched the complainants and said
he believed they
had concocted these charges against him as they were dissatisfied
because a black man had been appointed as head
of office over
Afrikaans-speaking people and he could not speak Afrikaans. He added
it was his strong belief that the motive of
the complainants was to
undermine transformation.
[12] Dumani
testified that Hartney had been disrespectful towards him. He said
that she had on two occasions reprimanded him for
being late for
work. On another occasion she had come into his office while he had
been dealing with a member of the public sitting
there, and demanded
that he immediately attend to a particular file that she was
carrying. When he refused to do so immediately,
she pushed the file
against his chest and the contents thereof fell onto the floor. It
was his evidence that Karolus only cleaned
his office in December and
not again, so that he subsequently had to arrange with persons doing
community service at the court
to clean his office. Dumani denied
that he had gone to the cash hall on 30 January 2009. He said he left
the court at 12h45 that
day.
[13] Claassen was
called as a witness by the presiding officer. In his
evidence-in-chief he said that Dumani had given him certain
documents
at about 9h00 that morning that needed to be transmitted by telefax.
He said that Dumani telephoned him shortly before
one o’ clock
on 30 January 2009, and requested that Claassen deliver the documents
to Dumani. At the time, Dumani was in
his vehicle, parked in the
vicinity of the court. Claassen arranged for the newspaper vendor to
take the documents to where Dumani
was waiting in his vehicle.
[14] I turn now to
deal with the analysis of the evidence necessitated by the two review
grounds with which this judgment is concerned.
It was initially
contended by Mr Daubermann, who represented Dumani at the enquiry and
has since continued to do so, that Claassen
was a satisfactory
witness and that there were no material inconsistencies or
improbabilities in his version. It was further argued
that his
evidence supported Dumani’s version. As I have said, in his
evidence-in-chief Claassen testified that Dumani had
given him the
documents to send by telefax at about 9h00 on that morning and he had
taken the documents to Dumani shortly before
13h00. During
cross-examination the following was put to Claassen:
‘
Now
this happened a long time ago, so I want you just to think carefully,
because Mr Dumani says that the way it happened was that
at about
quarter-to-one he called you to come and fetch the documents to fax
for him and that he then left his office and met you
downstairs and
handed the documents to you to fax. In other words he says on his way
out he in fact handed the documents to you.
Could it have happened
that way?’
Claassen’s
response to this was:
‘
It
can happen like that because it is quite a long time ago, but what I
can clearly remember is that when he phoned me and requested
[me] to
bring the documents he was outside, that is when I went out to go and
give him the documents’.
This was a dramatic
change in Claassen’s evidence. Whereas he had earlier testified
that he had received the documents at
09h00 he was prepared to
concede that this could have occurred shortly before 13h00. This
raises questions about Claassen’s
recollection of the events
and his reliability as a witness.
[15] It was also
initially contended on behalf of Dumani that Claassen supported
Dumani’s version that the latter was not
in the cash hall
shortly before 13h00 on 30 January 2009 as alleged by Ele. Claassen’s
evidence in this regard was as follows:
‘
MR
DAUBERMANN Did Mr Dumani come into the cash hall at any stage after
half-past-twelve that afternoon?
MR CLAASSEN As I am
saying that I was dealing with clients, but if he came in I did not
see him.
MR DAUBERMANN Would
you have seen him if he had come in?
MR CLAASSEN That is
correct, because
I usually saw him when he
comes in
.
’
(Emphasis
added.)
Claassen’s
evidence does not assist either party. It does not establish that
Dumani was not in the cash hall shortly before
13h00 and nor does it
rule out the possibility that Dumani could have been in the cash hall
at that time. It was ultimately submitted
on behalf of Dumani that
Claassen’s evidence contained contradictions that made him an
unreliable witness; and that accordingly,
whilst his evidence did not
support Dumani, at best for the Magistrates Commission it did not
support its case either. I agree
with this approach. Counsel for
Dumani conceded, and rightly so, that Claassen’s evidence on
this aspect was neutral.
[16] It was argued
by counsel for Dumani that the complainants were unreliable witnesses
who had contradicted themselves in material
respects. The following
attacks were directed at their evidence. Hartney was criticised for
not reporting the incident to her mother
that same night. It was
argued that there were a number of contradictions between Karolus’
evidence and the statement she
made to the police, namely, on whether
(a) Dumani had been seated or standing when she entered his office,
(b) he had touched the
back of her head or her neck, and (c) she was
bending or standing when he touched her. Karolus was also criticised
for not telling
her husband about the incident and it was contended
that her explanation that she did not tell her husband because he
would have
said she was responsible for what happened to her, was not
credible. It was also contended that there were contradictions
between
Ele’s testimony and her statement to the police. The
first was in respect of the time of the incident (whether it had
occurred
before or after one o’ clock) and secondly, whether
Dumani had inserted his hand or only a few fingers between her
breasts.
[17] I will deal
with these criticisms in turn. The fact that Hartney did not tell her
mother about the incident on the evening
it occurred and only told
her mother that the new magistrate was making her feel uncomfortable
does not, to my mind, detract from
her evidence. Karolus and Ele may
have contradicted themselves on the actual incident (back of the head
or neck, a few fingers
or whole hand) but each incident still relates
to inappropriate touching and the differences, in my view, are not
material. The
discrepancies between the police statements and the
oral evidence of the complainants are trifling.
[18] The presiding
officer, in his judgment, noted that the complainants had been
subjected to thorough cross-examination. That
observation is amply
borne out by the record. He stated that Hartney and Karolus had
testified in a ‘convincing manner’
while Ele and Hartney
had made a good impression on him. He later referred to Ele as an
‘outstanding witness’. He concluded
that the
contradictions, such as there were, were minor and did not adversely
affect the complainants’ credibility. There
is no reason to
doubt these findings.
[19] Counsel for
Dumani urged the court to find that it was highly improbable that
Dumani would act in the manner suggested by the
complainants and face
the risk of losing his new-found employment. Counsel suggested that
it was improbable that Dumani would have
engaged in such bizarre
behaviour as alleged by the complainants almost immediately after
taking up his position at the court.
It was argued that the
complainants had conspired to bring false charges against the
appellant because they were displeased with
his appointment. Viljoen
was asked in cross-examination about the reaction of the court staff
when they discovered that a black
magistrate who could not speak
Afrikaans had been appointed as head of the office. She said that the
staff were concerned as the
majority of people in the Graaff-Reinet
area were Afrikaans- speaking. She explained that reports that needed
to be compiled in
the Children’s Court and the Domestic
Violence section were compiled in Afrikaans and this was within the
area of Dumani’s
work.
[20] There is no
evidence to support the conspiracy theory. Viljoen would have had to
have been part of that conspiracy. If she
was part of the conspiracy,
it is unlikely she would have conceded a motive for it, namely that
people were unhappy because Dumani
did not speak Afrikaans. Karolus
and Slavers, a cleaner and security guard at the court respectively,
would not have had much contact
with Dumani in the performance of
their duties. The fact that he did not speak Afrikaans would not have
affected their work environment
in any significant manner and could
not therefore serve as a credible explanation for their being part of
a conspiracy to get rid
of him. If the complainants had conspired to
bring these charges against Dumani, they would surely have complained
of more serious
conduct than the stroking of a cheek or touching of
the back of the head. Furthermore, it is difficult to imagine that
they would
receive counselling from a social worker and thereby risk
being exposed as liars. It is much more probable that they needed
counselling.
The common element in the evidence of the three
complainants is that Dumani touched them inappropriately. In the
absence of a conspiracy,
the cumulative effect of their evidence is
to render the denial by Dumani less probable.
[21] The fact that
the conspiracy theory has not been proved does not entitle this court
to draw an adverse inference against Dumani.
There is, however, one
aspect of Dumani’s evidence that I find improbable. This is
that Hartney would have treated him in
the manner suggested by him.
It is improbable that she, an administrative clerk, would have had
the effrontery to treat Dumani,
the acting head of the office, with
such disrespect and that he would have allowed her to get away with
this conduct as he said
he did.
[22] The enquiry
before the presiding officer was whether, on a balance of
probabilities, Dumani was guilty of misconduct, bearing
in mind that
because such conduct amounted to a criminal offence, it is inherently
unlikely that anyone, particularly a magistrate,
would have indulged
in it. The enquiry before this court is not whether the presiding
officer was correct in his conclusion that
Dumani was guilty on three
of the charges. The main enquiry before this court is whether the
presiding officer’s decision
is so unreasonable that no
reasonable person could have reached it. The further ground of review
relied upon by Dumani, namely
that the presiding officer acted
arbitrarily, is linked to the main enquiry in that the presiding
officer would have acted arbitrarily
if it were to be found that his
finding of guilt on the part of Dumani could not be justified on the
acceptable evidence. I am
not persuaded that the review grounds
relied upon have been established. I am satisfied that a reasonable
person in the position
of the presiding officer on the evidence
disclosed in the record and applying the correct test in law could
have reached the conclusion
that Dumani was guilty of the three
counts of misconduct of which he was convicted.
[23] At the hearing
of this matter, it was argued on behalf of the Magistrates Commission
that the findings and recommendations
made by the presiding officer
to the Magistrates Commission were only part of a multi-stage
decision, and that no attempt had been
made to review the decision
and recommendation of the Magistrates Commission itself. In view of
my finding in para 23 above it
is not necessary to deal with this
argument that was raised for the first time on appeal. In any event,
it is stated in the notice
of appeal that Dumani would, on appeal,
seek an order, inter alia, reviewing and setting aside the
Magistrates Commission’s
decision to support the recommendation
that he, Dumani, be removed from office and indeed, such relief was
foreshadowed in Dumani’s
founding affidavit (albeit not in the
notice of motion).
[24] Costs of two
counsel were sought on appeal. Counsel for the respondents was unable
to advance any convincing reason why such
an order should be made.
[25] The appeal is
dismissed with costs.
_______________
L V THERON
JUDGE OF APPEAL
CLOETE JA (MPATI
P, HEHER, CACHALIA AND THERON JJA CONCURRING)
[26] The appellant’s
attorney submitted that the presiding officer at the inquiry into the
appellant’s misconduct committed
a material misdirection of
fact that entitled the high court and entitles this court to ‘review
the convictions and consider
the matter afresh’ in terms of the
decision in
Pepcor Retirement Fund v Financial Services Board
2003 (6) SA 38
(SCA). The argument requires a consideration of the
parameters of material error of fact as a ground of review. I shall
deal first
with the facts relied on for this part of the argument and
then the law.
[27] So far as the
facts are concerned, the submission was based on the presiding
officer’s reliance on the evidence of Mr
Mzimkulu Walter
Claassen, a clerk in the employ of the Department of Justice at the
Graaff-Reinet Magistrate’s Court. Claassen’s
evidence
related to the fourth count of misconduct but it is evident from the
following passage in the presiding officer’s
judgment that he
accorded it wider significance:
‘
[W]hat
is potent in my assessment is the variance between [the appellant]
and Mr Claassen, in their testimonies and in the answers
given . . .
But Mr Claassen differs to a large extent from [the appellant]. In
fact to my mind it made a very big impression on
me, the variance
between Mr Claassen and [the appellant’s] testimony . . . It is
a weakness in [the appellant’s] case.’
The appellant’s
attorney argued that Claassen had conceded under cross-examination
that the appellant’s version, which
was put to him, could be
correct and that this removed any basis for the findings made by the
presiding officer which I have quoted,
thus leading to a material
error of fact.
[28] The high court
reasoned:
‘
[Counsel
on behalf of the appellant] laid great emphasis on the [presiding
officer’s] treatment of the evidence of Claassen.
Seizing upon
the use of the word “potent” in the judgment, counsel
sought to persuade us that the [appellant’s]
version was
rejected on that score alone. There is no merit in this submission.
The [presiding officer’s] use of the word
was imprecise and
unfortunate but it is obvious from the judgment that upon an
appraisal of the totality of the evidence, whatever
conflict existed
between the [appellant’s] evidence and that of Claassen, played
no meaningful role in the decision arrived
at by him.’
This reasoning
cannot be supported. The passage I have quoted from the presiding
officer’s judgment shows that he was considerably
influenced by
the contradictions found by him to exist between the evidence of
Claassen and that of the appellant.
[29] I turn to
consider the law. Material error of fact was first recognised as a
ground of review by this court in
Pepcor
where the following
was said in para 47:
‘
In
my view, a material mistake of fact should be a basis upon which a
Court can review an administrative decision. If legislation
has
empowered a functionary to make a decision, in the public interest,
the decision should be made on the material facts which
should have
been available for the decision properly to be made. And if a
decision has been made in ignorance of facts material
to the decision
and which therefore should have been before the functionary, the
decision should . . . be reviewable at the suit
of,
inter
alios
,
the functionary who made it ─ even although the functionary may
have been guilty of negligence and even where a person who
is not
guilty of fraudulent conduct has benefited by the decision. The
doctrine of legality which was the basis of the decisions
in
Fedsure
1
,
Sarfu
2
and
Pharmaceutical
Manufacturers
3
requires that the power conferred on a functionary to make decisions
in the public interest, should be exercised properly, ie on
the basis
of the true facts; it should not be confined to cases where the
common law would categorise the decision as
ultra
vires
.’
But the court went
on in the immediately succeeding paragraph, paragraph 48, to say:
‘
Recognition
of material mistake of fact as a potential ground of review obviously
has its dangers. It should not be permitted to
be misused in such a
way as to blur, far less eliminate, the fundamental distinction in
our law between two distinct forms of relief:
appeal and review. For
example, where both the power to determine what facts are relevant to
the making of a decision, and the
power to determine whether or not
they exist, has been entrusted to a particular functionary (be it a
person or a body of persons),
it would not be possible to review and
set aside its decision merely because the reviewing Court considers
that the functionary
was mistaken either in its assessment of what
facts were relevant, or in concluding that the facts exist. If it
were, there would
be no point in preserving the time-honoured and
socially necessary separate and distinct forms of relief which the
remedies of
appeal and review provide.’
The importance of
the qualification contained in the paragraph just quoted was
emphasized in the subsequent decision of this court
in
Government
Employees Pension Fund v Buitendag
2007 (4) SA 2
(SCA) para 12.
[30] In
Chairperson’s Association v Minister of Arts and Culture
2007 (5) SA 236
(SCA) Farlam JA said (in para 48):
‘
In
my opinion the legal position as set out in the
Pepcor
case based as it is on the principle of legality still applies under
PAJA,
s 6(2)(
e
)(iii)
of which provides that administrative action taken because
“irrelevant considerations were taken into account or relevant
considerations were not considered” can be set aside on
review.’
Most recently, in
Chairman State Tender Board v Digital Voice Processing (Pty) Ltd;
Chairman State Tender Board v Sneller Digital (Pty) Ltd
2012 (2)
SA 16
(SCA), Plasket AJA said in para 34:
‘
It
is now well established in South Africa (and in some other common-law
jurisdictions) that a material error of fact is a ground
of review’,
and went on to point
out that this ground could just as easily be accommodated in
s 6(2)(
i
) of PAJA,
4
the catch-all provision that allows for the development of new
grounds of review by providing that administrative action may be
reviewed and set aside on the basis of it being ‘otherwise
unconstitutional or unlawful’.
[31] In the judgment
I have just mentioned Plasket AJA referred to the chapter by
Christopher Forsyth and Emma Dring entitled ‘
The Final
Frontier: The Emergence of Material Error of Fact as a Ground for
Judicial Review
’ in Christopher Forsyth, Mark Elliott,
Swati Jhaveri, Michael Ramsden and Anne Scully-Hill (eds)
Effective
Judicial Review: A Cornerstone of Good Governance
(2010) 245. In
that chapter the learned authors deal with the orthodox approach to
errors of fact in English law, which was similar
to our law prior to
Pepcor
, and go on to consider the extent to which that
approach has been developed to permit clear errors of fact to be
reviewed. The
developments in England and in several common law
jurisdictions (Australia, South Africa, New Zealand and Hong Kong)
are then briefly
examined. For present purposes, it is the view
expressed by the authors at p 258 that requires consideration:
‘
It
is submitted that, ultimately, the suggestion that the recognition of
this new ground for review destroys the distinction between
review
and appeal rests on a misunderstanding of the nature of an
administrative decision. An administrative decision-maker may
need to
make various findings of law (which he must get right) and he may
also need to make findings of fact (which it is submitted
he must
also get right), but then the decision-maker has to exercise his
judgment. This is his realm of autonomy in which he is
free to decide
as his judgment ordains without any judicial intervention. For so
long as the power to review on the ground of error
of fact does not
intrude into that area of judgment, the distinction between merits
and review remains. It needs to be recognised
though that the loss of
the power to make errors of fact necessarily narrows the area of the
[sic] in which the decision-maker
may decide without any judicial
intervention. But this is of course true of every extension of
judicial review. In any event, it
is submitted that the test laid
down in
E
[
v
Secretary of State for the Home Department
[2004]
EWCA Civ 49
, [2004] QB1044] largely preserves the decision-maker’s
area of judgement, by requiring that a factual error must be
“existing”
and “established” (objectively
verifiable) before the court will intervene.’
[32] In none of the
jurisdictions surveyed by the authors have the courts gone so far as
to hold that findings of fact made by the
decision-maker can be
attacked on review on the basis that the reviewing court is free,
without more, to substitute its own view
as to what the findings
should have been ─ ie an appeal test. In our law, where the
power to make findings of fact is conferred
on a particular
functionary ─ an ‘administrator’ as defined in PAJA
─ the material error of fact ground
of review does not entitle
a reviewing court to reconsider the matter afresh. This appears, in
the context of the particular ground
of review being considered, from
para 48 of
Pepcor
, quoted in para 29 above; and in the context
of review generally, from the following passage in the judgment of
O’Regan J
in
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 45:
‘
Although
the review functions of the Court now have a substantive as well as a
procedural ingredient, the distinction between appeals
and reviews
continues to be significant. The Court should take care not to usurp
the functions of administrative agencies. Its
task is to ensure that
the decisions taken by administrative agencies fall within the bounds
of reasonableness as required by the
Constitution.’
The ground must be
confined to the situation, as in the English law as set out in
E
para 66, to a fact that is established in the sense that it is
uncontentious and objectively verifiable. Examples appear from the
cases decided in this court to which I have already referred:
(a) In
Pepcor
the Registrar of the Financial Services Board had granted statutory
approvals, to effect the ‘unbundling’ of the appellant
fund, relying on actuarial calculations that the high court
categorised as ‘arbitrary and indefensible’ and in
respect
of which no justification was attempted on appeal (paras 4 to
6). The challenge by the appellants that the Registrar’s
decision
would have been no different had the correct information
been furnished, was rejected by the high court and this finding was
confirmed
on appeal (para 29).
(b) In the
Chairperson’s Association
case the Minister of Arts and
Culture took a decision to approve the change of name of the town
Louis Trichardt to Makhado. The
Minister was influenced (see para 47)
by a memorandum from the Director General that contained an assurance
from the Names Council
that proper consultation about the name change
had occurred, when it plainly had not (para 46).
(c) In the
Chairman,
State Tender Board
case the State Tender Board resolved to
restrict a company, Sneller Digital (Pty) Ltd, and its directors from
doing business with
all three spheres of government institutions for
a period of ten years. It did so because it concluded that the
directors had been
appointed after a tender had been submitted by the
company, and that the company had accordingly made a fraudulent
misrepresentation
to it and been guilty of ‘fronting’ so
as to claim equity ownership points, to which it was not entitled, in
order
to obtain a tender (para 12). As a matter of objective fact,
the directors had been appointed before the tender was submitted.
This court concluded (para 36) that had the State Tender Board taken
its decision based on the proper facts it could not have concluded
that the company and directors had made fraudulent misrepresentations
to it; and that this factual error was material because it
was the
direct cause of the decision to blacklist the company and directors.
[33] For these
reasons, even if there was a misdirection by the presiding officer in
regard to the evidence of Claassen, the convictions
would not be
reviewable on the ground of material error of fact, nor under the
guise of the provisions of s 6(2)(
e
)(iii) of PAJA viz
‘because irrelevant considerations were taken into account or
relevant considerations were not considered’.
That leaves the
following grounds of review relied upon by the appellant, namely that
the presiding officer acted arbitrarily (based
on s 6(2)(
e
)(vi)
of PAJA) and that the presiding officer’s decision was so
unreasonable that no reasonable person could have reached
it (based
on ss 6(2)(
f
)(ii)(
cc
) and (
h
) of PAJA). (The
alleged misdirection to which I have referred would be relevant, if
established, to the latter ground in considering
whether, on the
facts before the presiding officer as disclosed in the record, no
reasonable person could have found the appellant
guilty.) These
grounds are dealt with in the judgment of my colleague Theron JA in
whose judgment I concur.
_______________
T D CLOETE
JUDGE OF APPEAL
Appearances
For the Appellant: P
Daubermann
Instructed by:
P Daubermann
Attorneys, Grahamstown
Symington & De
Kok: Bloemfontein
For the Second
Respondent: SK Hassim SC (with N Gaisa)
Instructed by:
Netteltons
Attorneys, Grahamstown
State Attorney:
Bloemfontein
1
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
(1998 (12) BCLR 1458).
2
President
of the Republic of South African Rugby Football Union
2000
(1)
SA 1
(CC)
(1999 (10) BCLR 1059).
3
Pharmaceutical
Manufacturers Association of SA: In re Ex Parte President of the
Republic of South Africa
2000 (2) SA 674 (CC) (2000 (3) BCLR
241).
4
Promotion
of Administrative Justice Act, 3 of 2000
.