About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2023
>>
[2023] ZAECBHC 4
|
|
Madikizela v Public Protector and Others; Mabuyane v Public Protector and Others; Speaker: Winnie Madikizela Mandela Local Municipality and Others v Public Protector and Others (800/2021; 802/2021; 818/2021) [2023] ZAECBHC 4 (10 February 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE DIVISION, BHISHO
Case
No.: 800/2021
Date Heard: 10 November
2022
Date Delivered: 14
February 2023
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
SIGNATURE:
DATE: 10/2/2023
In
the matter between:
BABALO
MADIKIZELA
Applicant
and
PUBLIC
PROTECTOR
First
Respondent
THE
PREMIER OF THE EASTERN CAPE
Second
Respondent
THE
MEC FOR TRANSPORT AND SAFETY
Third
Respondent
THE
SPEAKER: WINNIE MADIKIZELA MANDELA
LOCAL
MUNICIPALITY (FORMERLY KNOWN AS THE
MBIZANA
LOCAL
MUNICIPALITY)
Fourth
Respondent
THE
DIRECTORIATE OF PRIORITY CRIMES INVESTIGATIONS
Fifth
Respondent
THE
AFRICAN NATIONAL CONGRESS
Sixth
Respondent
LULABALO
OSCAR MABUYANE
Seventh
Respondent
WESEWE
DIKANA-GXOTHIWE
Eighth
Respondent
AND
Case
No.: 802/2021
LULABALO
OSCAR MABUYANE
Applicant
and
PUBLIC
PROTECTOR
First
Respondent
THE
SPEAKER: EASTERN CAPE PROVINCIAL
GOVERNMENT
NO
Second
Respondent
THE
NATIONAL HEAD OF THE DIRECTOIRATE
FOR
PRIORITY CRIMES INVESTIGATIONS NO
Third
Respondent
MINISTER
OF
POLICE
Fourth
Respondent
AND
Case
No.: 818/2021
THE
SPEAKER:
WINNIE
MADIKIZELA MANDELA LOCAL MUNICIPALITY
First
Applicant
THE
MUNICIPAL MANAGER:
WINNIE
MADIKIZELA MANDELA LOCAL MUNICIPALITY
Second
Applicant
WINNIE
MADIKIZELA MANDELA LOCAL MUNICIPALITY
Third
Applicant
and
PUBLIC
PROTECTOR
First
Respondent
MTHOMBENI
PROJECTS CC
Second
Respondent
KOO
CONSTRUCTION & PROJECTS CC
Third
Respondent
MAIKENJO
TRADING
CC
Fourth
Respondent
JUDGMENT
EKSTEEN
J
[1]
This matter concerns the
consolidated application for the hearing of three review
applications. The applicants seek orders
to have a report,
findings and remedial action taken by the Public Protector (PP)
reviewed and set aside and declared unconstitutional
and invalid.
She has opposed each of the applications.
[2]
The applicant in case number
800/2021 is Mr Babalo Madikizela. He was the Treasurer of the
African National Congress (ANC)
in the Eastern Cape at the time of
the material events, and he held no public office. He is
currently the MEC for Public
Works in the Eastern Cape. Mr
Lulabalo Oscar Mabuyane, the applicant in case number 802/2021 was
the MEC for Economic Development,
Environmental Affairs and Tourism
at the time and is currently the Premier of the Province. Mr
Vuyo Mahlaka
,
the Municipal Manager of the Winnie Madikizela Mandela Local
Municipality (formerly the Mbizana Local Municipality, to which I
refer as the MLM) is the second applicant in case number 818/2021.
The speaker of the council of the MLM and the MLM itself,
are the
first and third applicants, respectively, in the latter application.
As I have said, the three applications were
consolidated and heard as
case number 800/2021, but I shall refer to original case numbers,
where convenient, to distinguish between
them.
[3]
The investigation has its origin in
a complaint laid in July 2019 at the office of the PP in Bhisho,
Eastern Cape. The complaint
was based on a newspaper article
that was published in the Herald newspaper on 20 May 2019 under the
heading: “BHISHO BOSSES’
R2m PIGGY BANK”. In
the article it was alleged that amounts of R2 million and R1 million
had been misappropriated from
the MLM and Departments of the Eastern
Cape Provisional Government to improperly benefit senior government
officials or private
persons.
[4]
The PP investigated two questions.
The first was whether an amount of R1.1 million that had been
allocated for the transportation
of mourners to the funeral of Ms
Winnie Madikizela Mandela had been improperly deposited into the
account of Mthombeni Projects
(Pty) Ltd (Mthombeni) for the benefit
of certain officials of the Eastern Cape Provincial Government and
private persons (the first
question). The second was whether
the amount of R2.2 million that had been paid by Key Spirit Trading
218 CC, a close corporation
(Key Spirit), to Mthombeni had originated
from public funds so that officials in the Eastern Cape Provincial
Government and private
persons could benefit from these funds (the
second question).
[5]
She answered the first question in
the affirmative and found that Mr Madikizela and Mr Mabuyane
personally benefitted from public
funds which were misappropriated.
She further found that the MLM did not comply with the relevant legal
prescripts during
the procurement of services and that Mr Mahlaka had
fabricated, or facilitated the creation of, letters to create the
impression
that a lawful scheme had existed which included the
“cession” of agreements for the benefit of Mthombeni.
Finally,
she concluded that the financial benefits that accrued to Mr
Madikizela and Mr Mabuyane raised the suspicion that they were
engaged
in criminal conduct, which should be investigated by the
Directorate of Priority Crime Investigation (DPCI).
[6]
These
events arose after the passing of Ms Winnie Madikizela Mandela, an
iconic figure in the struggle against “apartheid”,
on 2
April 2018. She was to be laid to rest in Mbizana and
structures of the ANC in the Eastern Cape had entered into
negotiations
for the transportation of mourners to the funeral
service with the Mbizana Taxi Association. After the
commencement of these
negotiations, the State President declared the
funeral to be an official state funeral, with the consequence that
the duty to transport
mourners no longer fell on the ANC, but on the
Eastern Cape Government. They had a standing contract, the
product of a due
tender process, with Maikenjo Trading CC (Maikenjo)
for the provision of transportation services in the Eastern Cape.
However,
the taxi association in Mbizana threatened violence if
transportation services were allocated to Maikenjo, who had been
regarded
as an outsider. Accordingly, the Eastern Cape
Government entered into a written Memorandum of Agreement (MoA) with
the MLM
with the view to collaborate and co-ordinate efforts geared
at a successful hosting of the memorial service of Ms Madikizela
Mandela.
[1]
In terms of
the MoA, the Eastern Cape Government undertook to provide the
municipality with funding in the amount of R1.1
million for the
transportation of the public to the memorial service. The MoA
further recorded that the MLM was responsible
for the procurement of
transport service providers and to effect payment of the appointed
service providers for their services
on the day of the memorial
service. The payment was to be effected upon documentary proof
of the service delivery.
[7]
Mthombeni is a private company
engaged in building and civil construction works. Mr Edgar Bam
is the sole director of Mthombeni
and had been a longstanding friend
of Mr Madikizela. He provided an affidavit to the PP and she
interviewed him. Mr
Bam said that he was contacted on 24 July
2018 by Mr Madikizela who instructed him to provide an invoice in the
amount of R1.1
million to the MLM and that he should contact Mr
Dyala, the Office Manager of the ANC Provincial Offices in the
Eastern Cape, in
this regard. He later received an invoice,
fully completed, save for the particulars of Mthombeni, from Mr Dyala
reflecting
an indebtedness of R1.1 million in respect of the hire of
certain earthmoving equipment and he delivered it to the MLM.
He
proceeded to explain that he was subsequently contacted by Mr
Mahlaka, who advised that the invoice for the hire of earthmoving
equipment might look suspicious and Mr Mahlaka requested him to
present a fresh invoice reflecting the transportation or ferrying
of
passengers to the memorial service. He, accordingly,
resubmitted the invoice to the MLM, on the advice of Mr Mahlaka,
reflecting Maikenjo
as the service provider for the
transportation or ferrying of passenger services, but reflecting the
banking details of Mthombeni.
On 1 August 2018, the amount of
R1.1 million was paid into the bank account of Mthombeni and he
received a message from Mr Mahlaka
advising that the payment had been
made. Mr Bam said that he had no right to receive payment and
he had rendered no services
of any nature to the MLM.
[8]
After receipt of the payment, he
said, Mr Madikizela called and instructed him to deposit R450 000
into the Nedbank account of “Allan
Morran Design”, with
the reference “Mr Mabuyane”, to assist Mr Mabuyane with
his house. Mr Madikizela further
instructed him to deposit
R350
000
into the account of IPM Plant
Hire. Ms
Zonozeto
Siyazithanda Madikizela, the wife of
Mr Madikizela, was the sole director of IPM Plant Hire.
Finally, Mr Madikizela instructed
him to pay a further amount of R280
000 into the ANC fundraising account. He duly made all these
payments.
[9]
The
payment to Allan Morran Design is not disputed, however, Mr
Mabuyane’s account of these events is material to the
conclusion
to which I have come. He had purchased a new home at
the time and intended to renovate the home. Accordingly, he
engaged
the services of Allan Morran Design, a firm rendering
architectural services, to prepare plans for the intended
renovations.
On receipt thereof, he requested Mr Morran to
provide him with an estimate of the costs of construction and Mr
Morran, after consulting
a construction company, provided an estimate
in the amount of R450 000. As Mr Mabuyane did not have the
finances at his disposal
at the time he approached Mr Madikizela, a
longstanding friend and business associate, who was apparently a man
of means and requested
him to advance to him an amount of R450 000.
Mr Madikizela agreed and a written loan agreement was concluded on 23
July 2018
[2]
which provided for
the advance of the money and the terms of repayment. Mr
Mabuyane said that Mr Morran was appointed as
the principal-agent to
manage the execution of the renovations and, accordingly, Mr
Madikizela was requested to pay the amount
of R450 000 into the
account of Allan Morran Design so that Mr Morran could make payment
to suppliers and contractors during the
course of the construction.
Mr Morran was indeed appointed as the principal-agent for this
purpose and he managed the construction
of the subsequent
renovations. He said that he was advised by Mr Mabuyane’s
wife that the money deposited was to be
used for this purpose and Mr
Mabuyane maintained that he had no knowledge of the interaction
between Mr Madikizela, Mr Mahlaka,
and Mthombeni and had believed
that the loan had been advanced to him by Mr Madikizela. He
said that the loan had been repaid
in full even before the PP started
her investigation and he provided documentary proof thereof. I
shall revert to this issue
later.
[10]
The facts underlying the second
question also arose from information provided by Mr Bam. He
said that on 7 August 2018, he
had received a call from Mr Mhlaba,
the Chief of Staff in the office of Mr Mabuyane. Mr Mhlaba
forwarded to him the cellphone
number of Mr Phala, a director of Key
Spirit, and instructed Bam to liaise with Mr Phala in order to
prepare an invoice for R2.2
million to be made out as if he was
billing for coil sheets (coils). He duly did so and an amount
of R2.2 million was subsequently
paid into his account.
[11]
The
PP alleged in her report that she had received a financial
intelligence report
[3]
from the
Financial Intelligence Centre (FIC) on 14 July 2021 which confirmed
the payment of R2.2 million into the account of Mthombeni.
The
report, she said, further reflected that Key Spirit had received
payment from the Eastern Cape Department of Transport (ECDoT)
of an
amount of R38 388 672,93 a week earlier. The evidence suggested
that the ECDoT did from time to time place orders for
the supply of
equipment with Key Spirit. She found that the amount of R2.2
million had emanated, or originated, from the
R38 million which was
paid by the Eastern Cape Provincial Government. Mr Bam said
that he had not purchased any coils and
that the claim that he made
for Mthombeni was fraudulent. He confirmed that he had received
payment from Key Spirits for
R2.2 million and, again, he said, on the
instructions of Mr Madikizela, he had distributed the money to
various beneficiaries.
[12]
On completion
of her investigation on 28 September 2021, the PP issued and
published her report (the first report) in which she
recommended the
following remedial action:
“
To
the National Head of the Directorate of Priority Crimes
Investigations (DPC/Hawks):
7.1.1
The investigation has undeniably proven that the nature of the
allegations and complaints referred to above are largely of
criminal
nature and may not be executed fully by the Public Protector, without
bringing them to the attention or notice of the
relevant public
authorities charged with criminal investigation and prosecution.
The issues investigated and the evidence
obtained are accordingly, in
terms of section 6(4)(c)(ii) of the Public Protector Act, referred to
the Head of the Directorate
of Priority Crimes Investigations
(DPCI/Hawks) of the South African Police Service for consideration of
criminal investigation,
with a view of prosecution.
The
Speaker of the Council of Mbizana Local Municipality (MLM) to:
7.1.2
Take urgent steps to ensure that the Municipality take the
appropriate action, including the institution of disciplinary
proceedings in respect of the financial misconduct by the Municipal
Manager in connection with (sic) and that of any other official
involved in the procurement of transportation services for the
memorial service of the late Ms Winne Madikizela, as contemplated
by
section 171(4) of the MFMA, within sixty (60) days of the issuing of
this report;
8.
MONITORING
8.1
The Speaker of the Council of MLM must submit an Implementation Plan
to the Public Protector within thirty (30) working days
from the date
of receipt of this report indicating how the remedial action referred
to in paragraph 7 above will be implemented.
8.2
The submission of the implementation plan and the implementation of
the remedial action taken shall in the absence of a court
order be
complied with within the period prescribed in this report to avoid
being in contempt of the Public Protector.”
[13]
However,
later, she reconsidered. She altered her findings
[4]
in respect of the second question and she added the following further
remedial action in her later report (the second report) dated
10
October 2021.
“
7.1.3
Within 60 (sixty) days from the date of issuing of this report, table
it to the EPL.”
I
set out below how the history of the two reports.
The litigation
background
[14]
It
is necessary for the adjudication of the arguments raised by the
parties to set out briefly the manner in which the litigation
herein
unfolded. On 10 October 2021, the PP held a media briefing in which
she released her report (the second report) titled “The
report
on the investigation into allegations of corruption,
maladministration or misuse of public funds by senior and executive
government officials from the Mbizana Local Municipality and Eastern
Cape Provincial Department(s)”. Mr Madikizela
and Mr
Mabuyane immediately filed applications to review and set aside the
report and the applicants in case number 818/2021 followed
shortly
thereafter. In each case the application was brought in two parts,
first, to urgently interdict the implementation of her
remedial
action pending the finalisation of Part B, in which they sought to
set aside, and declare the report unconstitutional
and invalid.
At the hearing of Part A, before Kruger AJ, it was noted that Mr
Madikizela sought to review and set aside the
first report, whereas
Mr Mabuyane attacked the second report. Thus, it emerged that
there were two reports in existence.
Both were dated and signed
by Ms Mkhwebane, the PP, and, as I have said, reflected the same
remedial action, save that the second
report reflected an additional
remedial measure. The first report had been published on the
PP’s website, whilst the
latter was released at the media
briefing.
[5]
[15]
The relief sought in Part A of the
notice of motion in each case was duly granted on 26 October 2021 and
attorneys acting on behalf
of Mr Madikizela immediately addressed
correspondence to the PP requesting her to explain why there were two
reports with different
remedial action. She did not reply but
responded through her attorneys who advised that an explanation for
the two reports
would be filed together with the record in terms of
rule 53 of the Uniform Rules of Court (the rules). A record was
duly
filed and on 1 December 2021 they wrote to Mr Madikizela’s
attorneys to advise that the rule 53 record was incomplete and
they
undertook that a supplementary record would be filed in due course.
There was no explanation for the two reports.
[16]
On 13 January 2022, Mr Madikizela’s
attorney again addressed the PP’s attorneys of record informing
them that if they
did not file a complete record Mr Madikizela
intended to bring an application to compel the PP to produce a
complete record.
They responded, on the same day, advising that
the PP did not intend to file any further records and would
strenuously oppose such
an application. Thus, Mr Madikizela’s
attorneys launched their application in terms of rule 30A (the rule
30A application).
Consistent with the earlier promise a notice
of opposition was delivered. The rule 30A application was duly
enrolled, and,
despite her earlier bravado, the PP filed an answering
affidavit and produced a supplementary record just a few days prior
to the
hearing of the application. But Ms Mkhwebane did not attest to
an affidavit, rather, she left it to Ms Roberts, her attorney of
record, who also tried to explain that the first
report
w
as merely a draft that had been
erroneously placed on the PP’s website, as I explain later. The
PP proceeded to contend that
the application had become moot and
should therefore be dismissed with costs. Accordingly, the
application was not argued
and the costs of the rule 30A application
remain to be decided, together with the review applications.
[17]
In
his supplementary affidavit filed in terms of rule 53(4), Mr
Madikizela sought to address the affidavit of Ms Roberts in the
rule
30A application and the material which emerged from the rule 53
record. He rejected the explanation advanced by Ms Roberts
for
the existence of the two reports and contended that the PP had failed
to apply her mind to the contents of the report, that
she had simply
signed what had been placed before her without ensuring that it was
appropriate for her to affix her signature and
the date on the
report. He argued that she had signed off on the report simply
because she was determined to implicate members
of the East Cape
Provincial Government, and of the ANC generally, by the release of
her report, which occurred just a few weeks
before the local
government elections. He accused her of having conducted her
investigation in bad faith and having reached
her conclusions for an
improper and ulterior purpose. Finally, he noted that certain
documentation referred to in her report,
notably the FIC report
[6]
,
was absent from the record in terms of rule 53 and he, therefore,
contended that she had not applied her mind to it at all.
[18]
As
I have said, the Ms Mkhwebane did not attest to an affidavit in the
rule 30A application, nor did she do so in any of the review
applications, notwithstanding the serious allegations by Mr
Madikizela in his supplementary affidavit. Instead, Mr Dlamini,
the regional representative of her office attested to the answering
affidavit in each application.
[7]
This prompted Mr Madikizela to file an extensive application to
strike out, as inadmissible hearsay, numerous allegations in the
answering affidavits that sought to address the matters raised in the
supplementary affidavit and to justify the PP’s reasoning
in
arriving at her conclusions. In addition, they sought, on the
same grounds, to strike out numerous averments in the affidavit
of Ms
Roberts, filed in the application to compel, which was incorporated
in the papers in the review that had sought to explain
why the PP
deemed it appropriate to sign two different reports that contained
different remedial action.
[19]
Counsel
for the PP raised three arguments in response thereto. First,
they contended that the fact that Ms Mkhwebane had not
personally
confirmed it did not mean that the evidence of Mr Dlamini is hearsay
evidence. This, so the argument went, was because
Mr Dlamini had been
responsible for the investigation and had worked closely with the
PP. The investigations, it was contended,
were conducted under
his control and direction and he, as the delegated official for the
PP
[8]
, drafted the report for
and on behalf of the PP. Thus, it was contended that he had
personal knowledge of what the PP considered.
Second, they
argued, even if it did constitute hearsay evidence, it was admissible
in terms of s 3(1) of the Law of Evidence Amendment
Act, 45 of 1998
(the Evidence Act). Third, they asserted that the application
to strike out should be dismissed as the applicants
had failed to
allege that any of the grounds relied upon for striking out the
material was scandalous, vexatious, or irrelevant,
and in what
respect, nor had they alleged prejudice.
[20]
In
respect of the first contention, the Evidence Act
[9]
defines hearsay evidence, which is generally inadmissible in terms of
s 3(1), as “evidence …, the probative value
of which
depends upon the credibility of any person other than the person
giving such evidence.” The material
objected to in
the affidavit of Mr Dlamini
[10]
relates to the PP’s state of mind; what she read,
thought, and considered, and what motivated her, as the
decision-maker,
before arriving at her factual findings and deciding
to impose the remedial action impugned in the application. Per
definition,
the probative value of these passages of evidence depends
primarily, if not exclusively, upon the credibility of Ms Mkhwebane.
The fact that Mr Dlamini might have gathered the evidence and
prepared the report does not assist in accounting for that which
Ms
Mkhwebane alone can answer for. Thus, in
Vere
NO
[11]
it was held that:
“
[84]
As correctly pointed out by the applicants, it is the MEC whose
application of the mind and conduct is challenged. It is she,
and
only she, who can say what she read, considered, and applied her mind
to. Nobody else can comment on what the MEC applied her
mind to.
…
[87]
In areas where Mr Mosiapoa purports to testify on behalf of the MEC
on matters affecting the exercise of her discretion, his
evidence
constitutes inadmissible hearsay evidence and it must be totally
disregarded in the adjudication of the issues between
the parties.
Consequently, the respondents have failed to show that the MEC
exercised her discretion reasonably, lawfully and rationally.”
The
evidence objected to was hearsay.
[21]
I
turn to the averments of Ms Roberts
[12]
that relate to the explanations for the signature and publication of
two separate reports with different content. Only Ms
Mkhwebane
can explain the reasons for the premature publication, the changes
that she effected after the publication of the original
report on her
website, and why she appended her signature to a “draft”.
As I shall show later the changes that
were effected were certainly
not inconsequential and Ms Roberts could have no personal knowledge
of what motivated her to make
these changes.
[13]
[22]
The
second contention raised is equally untenable. Section 3(1) of
the Evidence Act permits a court to receive hearsay evidence
if, on a
consideration of a number of factors enumerated in the section, it is
of the opinion that such evidence should be admitted
in the interests
of justice.
[14]
I have
considered earlier the nature of the evidence and the probative value
thereof. These considerations militate
against the admission of
such evidence. The purpose for which the evidence is tendered
is to rebut the contention by the
applicants that the PP had failed
to apply her mind on material issues, that she had acted with an
ulterior motive, exceeded her
powers, and that she conducted her
enquiry in bad faith. These are fundamental components of the
applicants’ case and
accordingly, the reception thereof would,
self-evidently, result in considerable prejudice to the applicants.
[23]
The reason
advanced on behalf of the PP for Ms Mkhwebane not having attested to
the affidavit herself was that she had been suspended
from office.
The answering affidavits were due on the same day that the President
suspended her from office and counsel on
behalf of the PP explained,
though it does not appear from the papers, that her suspension came
with an injunction that she was
no longer authorised to act in any
manner on behalf of the office of the PP.
[24]
There
are a number of difficulties with this argument. First, Ms
Mkhwebane was suspended on 9 June 2022. She had been
called
upon in October 2021 to explain her reasons for there being two
reports and the discrepancy between the two reports. Ms
Roberts
deposed to her affidavit on 22 February 2022, some months prior to
the suspension. Second, on Mr Dlamini’s
version, the PP
was required to file an answering affidavit in these proceedings by
no later than 9 June 2022, the date on which
Ms Mkhwebane was
suspended. No reason is advanced why her affidavit, which must
have been prepared by that time, was not
filed. In any event,
her suspension provides no impediment to her attesting to an
affidavit as a witness. A deponent
to an affidavit in motion
proceedings need not be authorised by the party concerned to depose
to an affidavit.
[15]
After her suspension from office, she was no longer the litigating
party and the proceedings continue in the name of the
acting PP, but
there can be no reason to disqualify her as a witness in matters
within her personal knowledge. The explanation
advanced does
not withstand scrutiny.
[25]
In
respect of the third contention, rule 6(15) provides that a court
may, on application, strike out any matter which is scandalous,
vexatious or irrelevant from an affidavit, with an appropriate order
as to costs. The rule stipulates that a court may not
grant
such an application unless it is satisfied that the applicant will be
prejudiced if the application is not granted.
The difficulty
for the PP is that the subrule is not exhaustive of the grounds on
which the application to strike out may be brought.
[16]
Inadmissible hearsay evidence may always be struck out, simply
because it is inadmissible.
[17]
It may be struck out even where no prejudice can be shown.
[18]
[26]
I am
accordingly satisfied that Mr Madikizela’s application to
strike out inadmissible hearsay evidence in the affidavits
of Dlamini
and Roberts was well-founded.
[27]
The applicants
in case number 818/2021 also launched an extensive application to
strike out material in the answering affidavit
of Mr Dlamini on the
grounds that they “not only constitute hearsay evidence for
which no justification for tendering has
been laid, but it is
improper for the deponent to the answering affidavit to tender that
kind of evidence”. The applicants
persisted in their
heads of argument with the application, but no argument was presented
to me on this issue. Suffice it to say
that the vast majority of the
offending material to which they objected does not constitute hearsay
evidence at all and no reason
has been advanced in the notice to
strike out, the heads of argument, or in the argument for the
contention that it is improper
to tender such evidence. I
do not consider that a proper case has been made for the striking-out
in case number 818/2021.
Interpretation
of legislation
[28]
In presenting
their argument the applicants contended that the PP had acted
unlawfully in referring her report to the DPCI in terms
of s
6(4)(c)(ii) of the Public Protector Act (the Act) and that she
exceeded her powers in directing the DPCI to act on her
recommendation.
They contend, too, that she exceeded her
jurisdictional powers by investigating matters which fell beyond the
scope of her authority
and the affairs of the State.
[29]
The
arguments rely primarily on the interpretation of the legislation
which finds application to the investigations of the PP.
As
adumbrated earlier, the applicants seek an order declaring the
reports of the PP dated 28 September 2021 and 10 October 2021
unconstitutional and invalid. There has been some debate as to
whether the PP’s remedial action constitutes administrative
action in terms of the Promotion of Administrative Justice Act
(PAJA)
[19]
. In
Minister
of Home Affairs,
[20]
the SCA said that it was not, but the decision has been criticised by
the Constitutional Court in
Public
Protector and Others v The President of the Republic of South Africa
and Others
[21]
(the President (CC)) where it was emphasised that the reasoning of
the SCA was contrary to the jurisprudence of the Constitutional
Court. I shall accept for purposes of this judgment that the
application is one in terms of PAJA. However, on either
approach it is a constitutional matter.
[22]
[30]
In
Constitutional matters, the court must declare that any conduct that
is inconsistent with the Constitution is invalid to the
extent of the
inconsistency.
[23]
The
office of the PP was established in terms of s 181 of the
Constitution, which requires of the PP to act independently,
and
impartially and to exercise her powers, and to perform her functions
without fear, favour or prejudice. The Constitution
empowers
her to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is
alleged or
suspected to be improper, or to result in impropriety or prejudice,
as regulated by national legislation, and to report
thereon and take
appropriate remedial action.
[24]
Section 182(2) of the Constitution provides that additional powers
and functions may be ascribed to her in terms of national
legislation.
[31]
The
national legislation regulating her investigations is the Act.
The PP’s powers of investigation are circumscribed
by s 6(4) of
the Act
[25]
. If, during
the course of, or before, an investigation, that falls properly
within her competence, the PP forms the opinion
that the facts
disclose the commission of an offence, she is empowered to bring the
matter to the attention of the relevant authority
charged with
prosecutions.
[26]
Section 6(4)(c)(ii) allows her, if she deems it advisable, to refer
any matter, which has a bearing on an investigation,
to the
appropriate public body, or the authority affected by it.
[32]
While
there may be some overlap between the powers entrusted to her in s
182(1)(a) of the Constitution and s 6(4) of the Act, the
powers
listed in s 6(4) are largely additional powers, over and above those
provided for in the Constitution, that flow from the
Act.
[27]
[33]
As
alluded to earlier the PP referred her report to the DPCI in terms of
s 6(4)(c)(ii) of the Act for their consideration of criminal
investigation, with a view to prosecution. The applicants
contend that she has misunderstood the legislation regulating her
conduct and that her reference to the DPCI in terms of s 6(4)(c)(ii)
is unlawful, firstly because the section does not empower
her to do
so, and, secondly because the nature of her reference constitutes a
direction to the DPCI that compels them to investigate,
which
undermines the independence
[28]
of the institution.
[34]
In
respect of the first contention, the question is not whether the PP
is empowered to draw the attention of the DPCI to matters
which have
manifested during her investigation, but rather, whether she is
entitled to do so in terms of provisions of s 6(4)(c)(ii).
It
is an established principle of law that when a person exercising
public power has committed themselves unequivocally to an empowering
provision to justify their authority to exercise that power, they
stand or fall by that choice. They are, generally speaking,
not
free to rely on some other source of authority that may allow them to
do what they purported to do.
[29]
Thus, where a decision maker relies on the incorrect provision in a
statute to inform their decision, and such provision
is relied upon
deliberately, the decision will be unlawful.
[30]
[35]
On
behalf of the applicants, it was argued that the proper construction
of s 6(4)(c) is that subsection (i) is concerned with criminal
matters arising from the PP’s investigations, whilst subsection
(ii) is concerned with non-criminal matters arising from
the
investigations. They contend, accordingly, that she relied,
intentionally, on the wrong section as the reference to the
DPCI
could only occur in terms of subsection (i). The argument turns
on the construction of s 6(4)(c).
[31]
[36]
The
approach to the interpretation of documents, including statutes, was
authoritatively stated in
Endumeni
Municipality.
[32]
It is the process of attributing meaning to the words of the relevant
section in the light of the ordinary rules of grammar and
syntax;
the context in which the provisions appear; the apparent purpose to
which it is directed and the material known to
those responsible for
its production.
[37]
As I have
said, the powers set out in s 6(4) are “additional powers”,
over and above those set out in s 182(1)(a) of
the Constitution,
which are directed at achieving the effective investigation and
remedial action in respect of matters set out
in s 182(1) of the
Constitution and s 6(4)(a) of the Act. The applicants
emphasised, correctly, that interpretation requires
a sensible,
businesslike meaning to be preferred over an interpretation that
results in absurdity or redundancy.
[38]
Subsections
(i) and (ii) of s 6(4)(c) of the Act are connected by the word
“or”.
[33]
In
Municipality
of
Mossel
Bay,
[34]
the SCA explained that the word “or” is to be construed
as a disjunctive, signifying a substitution or alternative,
unless
the context, in most exceptional cases, demands otherwise.
Thus, the applicants argue, it must be the meaning of the
term where
it connects s 6(4)(c)(i) and (ii). So, the argument proceeds,
if the PP is permitted to make a referral to the
DPCI under both s
6(4)(c)(i) and (ii), it would render (i) unnecessary and superfluous
which is not a sensible interpretation.
[39]
I agree that
the two sections are to be interpreted as alternatives and that the
term “or” is used in a disjunctive
sense. It is
also, undoubtedly, correct that the PP has deliberately chosen to
rely on s 6(4)(c)(ii), not only in her report,
but throughout the
affidavits filed on her behalf in all three applications.
However, I am, unable to discern any logical
reason for the
distinction that the applicants sought to draw between civil matters
and criminal matters. Section 6(4)(c)(i)
finds application
where the PP forms an opinion that the facts established, during an
investigation that falls within the ambit
of her authority, disclosed
that a person has committed an offence. If this occurs, she is
empowered to refer the matter
to “the relevant authority
charged with prosecutions”. The authority charged with
prosecutions is the national
prosecuting authority. Thus, the
section empowers the PP to draw the matter to the attention of the
national prosecuting
authority for their consideration. The
subsection does not authorise a reference to the South African Police
Service (SAPS)
or the DPCI. These institutions are charged with
investigation, not prosecution.
[40]
However,
if, in the course of an investigation that falls properly within her
authority, she coincidently comes across information
[35]
that, in her opinion, gives rise to a well-founded suspicion of the
commission of an offence by any person, the appropriate public
body
to whom it should be referred is an investigative body.
[36]
The PP is not empowered, to investigate crime unless the offences
fall within the ambit of s 6(4)(a), which is the function
of the
SAPS. As I have said she was not empowered by s 6(4)(c)(i) to
refer such matters to the SAPS or the DPCI. Her
authority to do
so arises from s 6(4)(c)(ii). Thus, she did not rely on the
wrong section. No absurdity or redundancy arises
from this
interpretation and the first contention can accordingly not be
upheld. If the interpretation contended for by the
applicants
is accepted, it would have the absurd result that she would be
precluded from referring matters to the police at all.
[41]
The
second contention was that the remedial action taken by the PP is
binding and, accordingly, her reference to the DPCI is an
injunction
to them, which directs them to investigate criminal activity, and
will undermine their independence.
[37]
It was contended that the PP does not have the competence to do so.
The effect of the decision in
SABC
[38]
and
Economic
Freedom Fighters
[39]
is that the principle in
Oudekraal
[40]
applies
to the decisions of the PP. Her decisions cannot be ignored
(nor trumped by parallel process) and, unless they are
set aside on
review, they must be obeyed and given effect to. To that extent
they are binding
[41]
. In
Economic
Freedom Fighters
the Constitutional Court also considered the proper interpretation to
be given to remedial action taken by the PP. At para
[69] and
[70] they explained:
“
[69]
But, what legal effect the appropriate remedial action has in a
particular case depends on the nature of the issues under
investigation and the findings made. As common sense and s 6 of the
Public Protector Act suggest, mediation, conciliation
or
negotiation may at times be the way to go. Advice considered
appropriate to secure a suitable remedy might, occasionally, be
the
only real option. And so might recommending litigation or a referral
of the matter to the relevant public authority, or any
other suitable
recommendation, as the case might be. The legal effect of these
remedial measures may simply be that those to whom
they are
directed are to consider them properly, with due regard to their
nature, context and language, to determine what
course to follow.
[70]
It is, however inconsistent with the language, context and purpose of
ss 181 and 182 of the Constitution to conclude that the
Public
Protector enjoys the power to make only recommendations that may
be disregarded, provided there is a rational basis
for doing so.
Every complaint requires a practical or effective remedy that is in
sync with its own peculiarities and merits. It
needs to be restated
that it is the nature of the issue under investigation, the findings
made and the particular kind of remedial
action taken, based on the
demands of the time, that would determine the legal effect it
has on the person, body or institution
it is addressed to.”
Thus,
what the legal effect of a particular action taken or measure
employed is, is a matter of interpretation aided by context,
nature,
and language.
[42]
[42]
The
argument for the applicants was that the effect of para 7.1.1 of the
PP’s remedial action
[43]
is to instruct the DPCI to investigate the matter in order to
endeavor to secure a prosecution. The argument relied on
President
v Public Protector (the President (GP)).
[44]
But the facts in the
President’s
case
were markedly different. In the
President’s
case the PP had directed the National Director of Public Prosecutions
(NDPP) “within 30 working days of receipt of (her)
report to
take note of (her) observations …, as well as the
recommendations contained in 7.3.3 of (her) report, and to conduct
further investigation into the
prima
facie
evidence of money laundering.” She proceeded to direct
the NDPP to submit to her “for approval … an
implementation
plan” indicating how the remedial action would
be implemented. The High Court emphasised that the PP has no
power under
s 6(4)(c)(i) to direct the NDPP to investigate and to
monitor their actions in this regard.
[43]
Her remedial
action in the
President’s
case
clearly contained an instruction, that was intended to be binding, to
show within 30 days how they intended to proceed.
She
sought to subject the NDPP to her authority. This is a far cry
from the facts in the present matter, where she
has merely referred
“the issues investigated and the evidence obtained” to
the DPCI “for consideration of criminal
investigation, with a
view to prosecution”. The DPCI is required to consider
the evidence presented to them and, if
they so choose they may
investigate. The obligation to consider arises not only from
the remedial action, but from s 17B(1)(a)
of the SAPS Act. As a
matter of law, any investigation that they may carry out must be with
a view to prosecution.
The DPCI is not empowered to carry out
investigations at public expense for any other purpose.
Applying the approach set
out in
Economic
Freedom Fighters
the legal effect of the remedial action set out in paragraph 7.1.1 of
the reports is simply a referral to the DPCI to consider
the evidence
that she had gathered and to determine for themselves what course to
follow. This argument must therefore fail.
[44]
Mr
Katz,
on behalf
of Mr Madikizela, submitted that the PP had exceeded her jurisdiction
in two respects. Firstly, she was not entitled
to make findings
against Mr Madikizela, who did not occupy public office at the time
that the alleged unlawful acts took place.
He contended that
she is only competent to investigate conduct arising in the affairs
of the state, which excludes the power to
make findings against a
private person or to impose remedial action in respect of a private
person. Secondly, it was contended
that she intentionally
exceeded her jurisdiction by embarking on an investigation into money
laundering, which falls beyond the
scope of her competence. I
confine myself at this stage to the first issue and I shall revert
later to the second.
[45]
As
I have said s 182(1) of the Constitution provides for the PP to
investigate any conduct in the state affairs, or in the public
administration, in any sphere of government, as regulated by the Act,
and the powers set out in s 6 of the Act are, at least in
part,
additional powers.
[45]
Section 6(4)(a)(iv) empowers her to investigate any improper or
unlawful enrichment, or receipt of any improper advantage,
or promise
of such enrichment or advantage, by a person as a result of an act or
omission of a person performing a public function.
[46]
[46]
In advancing
the argument that the PP has no jurisdiction to investigate, or to
make any finding against a private individual holding
no public
office, Mr
Katz
sought to rely on
The
President
(CC) where the Constitutional Court remarked, with reference to s
182(1) of the Constitution:
“
This
provision empowers the Public Protector to investigate any conduct in
state affairs or in the public administration.
This means the
scope of the power is limited to state affairs and affairs of the
public administration. There can be no doubt
that the CR17
campaign was engaged in the affairs of the ANC, which is a political
party. The fact that it was a ruling party
at the relevant time
did not make it part of the public administration.”
[47]
[47]
Her
investigation of the
President’s
case
was prompted by a complaint made to her in terms of the code of
ethics promulgated in terms of the Executive Members Ethics
Act
[48]
(the Members Act). The questions that arose from the complaint
were whether (1) the statement made by President Ramaphosa
in the
national assembly on 6 November 2018 that he had seen a contract
between his son’s company and Global Operations was
true, and
whether a contract in fact existed; and, (2) whether President
Ramaphosa had deliberately misled Parliament in violation
of the
Members Act. The PP embarked on a different enquiry as to
whether the President had personally benefitted from donations
made
to the CR17 Campaign. She was plainly not authorised to
investigate the issue in terms of s 4 of the member’s
act, as
it only mandates the PP to investigate violations of the code if
there is a complaint by one of the persons listed in the
section.
The Constitutional Court, therefore, proceeded to consider whether
the PP was competent to investigate the affairs
of the CR17 Campaign
on any other basis. In doing so they noted:
“
[99]
This is a legal question which must be answered with reference to the
empowering provisions of the Constitution and relevant
legislation.
Section 182(2) of the Constitution provides that in addition to
powers listed in s 182(1), the Public Protector has
additional powers
prescribed by legislation. …
[100]
The Public Protector Act lists additional powers of the Public
Protector in s 6. Section 6(4) empowers the Public Protector
to
investigate maladministration in connection with the affairs of
government; abuse of public powers and improper or unlawful
enrichment by a person as a result of an act or omission in the
public administration. Whereas s 6(5) confers similar powers
on
the Public Protector in respect of state-owned entities. Evidently,
none of the powers flowing from s 6 of the Public Protector
Act cover
the affairs of the CR17 campaign.”
[49]
[48]
Having
eliminated the application of s (6)(4) to the affairs of the CR17
campaign the Constitutional Court then proceeded at para
[102] to
state:
“
This
leaves section 182(1) of the Constitution as the only possible source
of the Public Protector’s power.”
[49]
As
I have said, the passage emphasised on behalf of the applicants did
not purport to consider the PP’s jurisdiction in terms
of s
6(4) of the Act.
[50]
The
President’s
case is, accordingly, not authority for the proposition that the PP
may not make findings against private individuals where the
investigation proceeds in terms of s 6(4)(a)(iii) or (iv).
[50]
On
the facts which the PP found to be proved in respect of the first
question investigated by her, money that had been paid by the
Eastern
Cape Government to the MLM for payment of transport services was
disbursed by Mr Mahlaka, performing a public function,
to Mthombeni,
acting on the instruction and for the benefit of Mr Madikizela.
In order for the PP to execute her mandate
in respect of subsection
6(4)(a)(iv) she is required to determine whether any person has
derived an improper advantage or unlawful
`enrichment as a result
thereof. The issue necessarily requires an investigation into
and findings in respect of the party
alleged to have benefitted
[51]
from the conduct of the official performing a public function and, in
an appropriate case, a recommendation that litigation be
instituted
against the private individual to recoup the lost funds may be the
only real option. Accordingly, the mere fact
that findings are
made against private individuals is not necessarily evidence that she
has exceeded her competence, provided that
the findings flow from an
enquiry that falls properly within her authority.
Bad faith argument
[51]
The
applicant’s main argument was that the PP conducted her
investigation in bad faith. Whilst the thrust of their case
in
the founding papers was that the PP’s findings were irrational
because they were materially influenced by errors of fact
and law, Mr
Katz
,
wisely in my view, did not pursue this argument. He stressed
that for purposes of his argument what happened was irrelevant.
He confined his argument to the manner in which the enquiry was
conducted. Mr
Bodlani
,
on behalf of the applicants in case number 818/2021, expressly
abandoned any reliance on this ground of review.
[52]
I shall revert below to this ground in respect of Mr Mabuyane.
[52]
In developing
the argument Mr
Katz
emphasised a number of issues, some of which constitute self-standing
grounds of review. He submitted that when viewed together
the
conclusion is justified that the PP had acted in bad faith, with an
ulterior motive and without applying her mind. I
set out below
those grounds which I consider to be material to the outcome of the
review.
(a)
Competence to
investigate offences of money laundering
[53]
As
I have said
[53]
, the
applicants contended that the PP investigated matters which she knew
were beyond the scope of her authority. They argued
that the PP
had intentionally embarked upon an investigation into contraventions
of the Prevention of Organised Crimes Act
[54]
(POCA), which she is not empowered to do. I have explained
earlier the statutory provisions that circumscribe her investigative
powers. Save for the provisions of s 6(4)(a)(iii)
[55]
they do not empower the PP to investigate crime. It is the
function of the police service to investigate crime.
[56]
As adumbrated earlier, where the PP comes across allegations of
crime, including money laundering, in the course of an investigation
that falls properly within her competence, she is empowered to draw
these matters to the attention of the SAPS or the DPCI in terms
of s
6(4)(c)(ii). What she cannot do is to proceed to an
investigation into the merits and demerits of the alleged crime
and
to make findings in respect thereof.
[57]
[54]
In both her
reports she recorded that: “A brief application and discussion,
but not necessarily an investigation” of
POCA was appropriate
“in order to underpin or support” her referral to the
DPCI. The applicants contended that
notwithstanding this rather
equivocal formulation, she had in fact set about intentionally to
investigate money laundering, an
offence created by POCA.
[55]
It
is instructive to consider her conduct during the investigation.
Section 7(9) of the Act provides that when it appears
to the PP
during the course of an investigation that an adverse finding with a
detrimental implication to any person may be made,
the PP is obliged
to afford the affected person a hearing. It follows that where
remedial action adverse to an affected person
may be taken, the PP
should afford them an opportunity to make representations on the
contemplated remedial action, too.
[58]
The PP gave notice to the applicants, in particular to Mr Madikizela
and Mr Mabuyane, in terms of s 7(9). The notice
given reflects
the nature of the investigation conducted. After setting out
the facts relating to the first question the
PP proceeded to set out
extensively the relevant legal framework that she sought to apply.
It included provisions of the
Constitution, the Municipal Finance
Management Act
[59]
, the MLM
Supply Chain Management Policy, treasury regulations, and provisions
of POCA. She recorded:
“
For
purposes of this matter, the relevant question is whether or not Mr
Mabuyane knew or ought reasonably to have known that the
payment of
R450 000 to Allan Morran Design for the renovation of his house came
from Mthombeni Projects, Mr Bam and/or Mbizana
Local Municipality.
Knowledge not participation in the unlawful activity is required.”
The
statement, which encapsulates the test to be applied in respect of s
4 of POCA, gives expression to the purpose of her enquiry.
[56]
At the
conclusion of her discussion on the first question she found:
“
13.1.149
The amount of R1,100 000,00 … was irregularly deposited into
the account of Mthombeni Projects (Pty) Ltd by the
MLM and
subsequently misappropriated to benefit Mr Mabuyane, Mr Madikizela
and the ANC …
13.1.150
Mr Mabuyane denied that he requested Mr Bam to pay the money into the
account of Allan Morran Designs. However, Mr Mabuyane’s
wife:
Ms Siyasanga Mabuyane (Ms Mabuyane) appears to have had knowledge or
reasonably ought to have known that the money
deposited to Allan
Morran came from Mthombeni Projects of which Mr Bam is the owner
since she is one who confirmed to Mr Morran
that R450, 000 was to be
used for the renovations of their house, when Mr Morran queried this
payment.
13.1.151
Mr Mabuyane and Ms Mabuyane are married to each other and there is a
reasonable apprehension and probability
that they discussed all issues or expenses related to their house
renovations.
13.1.152
Consequently, there is a
reasonable
apprehension and probability
that Mr
Mabuyane could have known that the amount of R450,000 paid to his
developer (Allan Morran) for the renovation of his house
originated
from unlawful activities.”
She
gave notice, thus, that she intended to find that Mr Mabuyane was
probably guilty of money laundering. She concluded too,
that
the provisions of POCA “could be relevant to Mr Madikizela for
purposes of determining his liability in this matter”.
[57]
The
suggestion in her reports that her discussions relating to POCA did
not amount to an investigation is not born out by the evidence
of her
investigation. In her papers the PP did not deny that she
investigated contraventions of POCA, rather Mr Dlamini sought
to
justify her discussions relating to POCA. This is remarkable as
her reports were signed just three months after the Constitutional
Court judgment in the
President
(CC)
was delivered. She was clearly not entitled to investigate
allegations of money laundering and in doing so exceeded her
mandate
and she knew that when she issued her reports.
[60]
(b)
Her suspicion that
Mr Mabuyane may have committed an offence in terms of POCA or PCCA
[58]
As adumbrated
earlier Mr Madikizela did not pursue the rationality argument and the
applicants in case number 818/2021 expressly
abandoned it. That
leaves the position of Mr Mabuyane. His version of events is
set out earlier and I have quoted the
preliminary conclusions of the
PP in her s 7(9) notice to the parties, including Mr Mabuyane.
In her reports the PP did not
persist in her finding that he had
probably known that the R450 000 that he had borrowed from Mr
Madikizela had originated from
unlawful activities.
[59]
However, she
persisted that:
“
6.1.6
Mr Mabuyane personally benefitted R450,000 (Four hundred and fifty
thousand rands) from the amount of R1,1 million which were
certainly
public funds that went into the Nedbank account of Allan Morran
Design Architectural Services (Allan Morran Design) which
is a
private company that carried out renovations at his private house as
set out in evidence.
6.1.7
Whereas Mr Mabuyane denied the knowledge of arrangements between Mr
Bam and Mr Madikizela, evidence revealed that his wife,
Ms Siyasanga
Mabuyane … advised the business owner of Allan Morran Design:
Mr Allan Morran … through an email
that the deposit of R450,
000 was to be used for renovations of their private house when this
payment was queried by Mr Morran.”
[60]
On the
strength of this evidence, she concluded that the financial benefits
that accrued to Mr Mabuyane raised a suspicion of a
commission of
criminal conduct in terms of POCA and PCCA and therefore she referred
the investigation to the DPCI.
[61]
Ms
Mabuyane’s account of her instruction to Mr Morran is
consistent with her husband’s version of the arrangement and
the PP’s rejection of Mr Mabuyane’s version on the
strength hereof is curious. The instruction by Ms Mabuyane
to
Mr Morran does not support the conclusion that she or Mr Mabuyane may
have known of the origin of the money. The PP had
no evidence
before her to suggest any knowledge on the part of either Ms or Mr
Mabuyane of the impropriety which had allegedly
occurred between Mr
Madikizela and Mr Mahlaka. She had been provided with a
perfectly logical explanation, supported by a
written agreement of
loan concluded before the payment to Mr Morran, and documentary proof
of the complete repayment of the loan
which she ought to have
accepted. Her conclusion in this respect defies logic and is
not rationally connected to the evidence
before her nor the reasons
given for it.
[61]
No
reasonable decision-maker could have come to such a conclusion.
[62]
Her
finding that a suspicion existed that Mr Mabuyane may have been
guilty of unidentified offences in terms of PCCA is equally
curious.
She found support for the conclusion in the fact that the money had
been transferred directly from Mthombeni to
the account of Mr
Morran. She did not explain how this fact gave rise to her
suspicion in the face of the explanation and
evidence before her.
She explained that a “gratification”, as defined in the
PCCA, includes a loan. However,
the thrust of the potential
offences under the PCCA lies in the acceptance or agreement to accept
gratification in order to act
in a dishonest or improper manner.
In this case, the conclusion of the written loan agreement before the
extension of the
loan and the subsequent repayment thereof do not
support the suspicion of the PP in respect of Mr Mabuyane nor was
there any evidence
to suggest that he had accepted the loan in
exchange for an undertaking to act in a manner set out in the
PCCA.
[62]
[63]
Nowhere
in either of her reports did the PP identify the provisions of the
PCCA that may have been contravened by any of the applicants.
While she discussed the provisions of the PCCA in general terms she
did not attempt to consider how the conduct of any of the applicants
finds application to the provisions of the PCCA. Her findings
of suspicions have very serious implications for the applicants,
in
particular Mr Madikizela and Mr Mabuyane,
[63]
and her nebulous references to unidentified offences makes it
virtually impossible for them to defend themselves against this.
On this basis alone her administrative action must be set aside.
[64]
(c)
The two reports
[64]
I have alluded
before to the two reports signed by the PP on 28 September 2021 and
10 October 2021, respectively, and the attempts
by Ms Roberts in the
rule 30A application to explain their existence. Ms Roberts
sought to explain that the additional remedial
action contained in
the second report was the only material difference between the
reports and contended that the remaining changes
were
inconsequential. Both Ms Roberts and Mr Dlamini suggested that
the first report was merely a draft and that the report
dated 10
October is the only official report.
[65]
There are a
number of difficulties, apart from its hearsay nature, with the
explanation. Firstly, the first report does not
contain any
suggestion that it was intended to be a draft. Secondly, Ms
Mkhwebane, who signed both reports, has consistently
failed to
provide an explanation, when called upon to do so in the face of very
serious allegations about her conduct. As
I have said, she, as
the decision-maker, is the only person who can explain the reasons
for her appending her signature to the
first report and why she
decided to change it. Thirdly, the first report was not an
internal document and it was not disputed
that it was published to
the world at large under the signature of Ms Mkhwebane on the PP’s
website. It recorded,
inter
alia
, as
follows:
“
1.
INTRODUCTION
1.1
This
is a report of the Public Protector issued in terms of section
182(1)(b) of the Constitution of the Republic of South Africa,
1996
(Constitution) and published in terms of section 8(1) of the Public
Protector Act, 23 of 1994 (Public Protector Act).
[65]
1.2
The report is
submitted in terms of
section 8(3)
of the
Public Protector Act to
the
following people to note the outcome of investigation and the
remedial action taken:
…”
[66]
[66]
Once
it had been published on her website the report became final.
[67]
The affect thereof is that the decision cannot be revoked or varied
by the decision-maker
[68]
.
In the result, she did not have the authority or the competence to
add further remedial relief or to change factual findings
in her
second report dated 10 October 2021 and for that reason alone it
should be set aside. In the absence of an explanation
by Ms
Mkhwebane for her publishing the first report the attempted
suggestions by Ms Roberts and Mr Dlamini that it had been published
by mistake are unconvincing. Even if it were true it cannot
change the fact that it was published and that it was then final.
[67]
I have
recorded before that the change effected to the findings in the
report are not insignificant. I shall consider the
substance of
the change below under the
audi
alteram partem.
(d)
Audi
alteram partem
[68]
In
Traub
[69]
Corbett CJ described the principle of
audi
alteram partem
thus:
“
The
maxim
audi alteram partem
expresses
a principle of natural justice which is part of our law. The classic
formulations of the principle state that when
a statute empowers a
public official or body to give a decision prejudicially affecting an
individual in his liberty or property
or existing rights, the latter
has a right to be heard before the decision is taken … unless
the statute expressly or by
implication indicates the contrary.”
[69]
The
principle is integral to the rule of law and to s 33 of the
Constitution. Section 7(9) of the Act gives effect to the principle.
Thus, the Constitutional Court in
The
President (CC)
[70]
explained that
“
[w]hen
the Public Protector contemplates taking remedial action against the
subject of an investigation, that subject is entitled
to an
opportunity to make representations on the envisaged remedial
action. For a proper opportunity to be given, the Public
Protector must sufficiently describe the remedial action in question
to enable the affected person to make meaningful representations.”
[70]
In
this instance the PP did issue a notice in terms of s 7(9) of the Act
to affected persons. However, as I have said, the
remedial
action contained in paragraph 7.1.3
[71]
was added subsequently without any notice to any of the affected
parties to enable them to make representations. The purpose
of
this additional remedial measure is not immediately apparent, but
clearly had a potentially damaging effect on both Mr Madikizela
and
Mr Mabuyane (and possibly the MLM) in the face of the imminent local
government elections. The failure in itself is fatal
to the
remedial action.
[71]
Moreover, in
respect of the second question the notice in terms of s 7(9)
concluded:
“
15.2.1
The origin of the R2.2 million paid into the account of Mthombeni
Projects (Pty) Ltd could not be established with certainty
from the
evidence obtained during the investigation, to date. However,
the evidence indicates that there may have been contraventions
of the
Prevention of
Organised
Crime Act 121 of 1998
and/or Prevention and Combatting of Corrupt
Activities Act 12 of 2004 in respect of this payment and the
subsequent distribution
of the amount.”
[72]
I
have considered earlier the competence of the PP and her findings in
respect of POCA and the PCCA. She was not competent
to
investigate the second question under s 182 of the Constitution or s
6(4)(a)(iv) of the Act unless it could be established
that it
related to public money.
[72]
The first sentence of the proposed finding constituted an admission
that the investigation fell outside of her competence.
[73]
However, in
her first report, without any further notice to any of the affected
persons, she changed her conclusion to:
“
6.2.1
The allegation that an amount of R2.2. million (Two million, two
hundred thousand rand) that originated from the ECPG
[73]
was paid into the account of Mthombeni Projects (Pty) Ltd by Key
Spirit Trading 218 is substantiated. However, due to the
private nature of the subsequent transactions by Mthombeni Projects
(Pty) Ltd it was not possible to conclude within the mandate
of the
Public Protector, whether the money was misappropriated or whether
any person improperly benefited from it.”
[74]
She
said that she had received reports from the FIC dated 14 July 2021
and 16 July 2021
[74]
which
she explained revealed that an amount of R38 388 672,93 had been paid
to Key Spirit by the ECDoT approximately a week before
the R2.2
million payment referred to in the second question. She did not
make a finding that there was any impropriety in
the payment or that
it was not due to Key Spirit. In respect of the subsequent
management of the money she recognised that
it was not in her
competence to investigate further.
[75]
However, in her second report this
material finding was significantly changed without any reference to
any of the affected parties
and, apparently without any further
evidence, to read:
‘
6.2.1
The allegation that an amount of R2,2 million (Two million, two
hundred thousand rand) that originated from ECPG was paid
into the
account of Mthombeni Project (Pty) Ltd by Key Spirit Trading 218 is
substantiated.
6.2.2
It was noted that Key Spirit Trading 218 CC’s ABSA bank account
was funded or received payment of
R38
388 672.93
directly from Eastern Cape
Provincial Government Department of Transport as referenced NPF
CREDIT TREAS/IBS on 30 August 2018.
6.2.3
On 11 August 2018, Key Spirit Trading 218 CC, transferred R2 200
000.00 (Two Million, Two Hundred Thousand) to MTHOMBENI PROJECTS
(PTY) LTD as referenced “
Colis
Roof Sheet
”.’
[76]
These
changes are not insignificant. The fact that a large sum of
money may have been paid to Key Spirit by the ECDoT does
not render
the amount “public money” in the hands of Key Spirit,
unless
the
payment
had been tainted in some way. She made no such finding.
In any event, as I have said there is no reference
to any FIC
reports in the s 7(9) notice nor was any subsequent opportunity
granted to any of the affected persons, either before
the first
report or the second report, to respond thereto. The content of
the FIC reports are not reflected in the reports
nor is it explained
why the PP considered that the amount of R2.2 million originated from
public funds. Ms Baloyi on behalf
of the PP, argued that the PP
was not required to provide implicated persons with all her source
documentation when affording them
an opportunity to make
representations. I shall accept, for purposes of this judgment,
that the contention is correct, but
it is not an answer to Mr
Madikizela’s complaint. In the
President
(CC)
[75]
it
was held:
“
Whenever
an individual is implicated during the course of an investigation,
the Public Protector is obliged to afford such person
an opportunity
to respond to the implicating evidence, if the implication may be
detrimental to the person or if a finding adverse
to him or her is
anticipated.”
[77]
The
content of the FIC reports is critical to the conclusion that the
R2.2 million was public money. If it was not, then the
PP had
no competence to proceed further under s
6(4)(a)(iv) of the Act.
[76]
What is required is that the PP must provide sufficient particularity
of the nature of the information and a reason for it
justifying the
anticipated finding. She was obliged to afford Mr Madikizela
and Mr Mabuyane an opportunity to respond to
the FIC reports and its
alleged incriminating information. She failed to do so.
Again, this is fatal to her findings
in the second question in her
report.
(e)
The rule 53 record
[76]
As I have said the PP claimed to have
relied on reports from the FIC in respect of the second question.
In respect of the
first question, too, she said that she received a
report from the FIC dated 28 June 2021. I have set out earlier
the litigation
history and the endeavours of the applicants to obtain
a full record from the PP. In respect of the second question, these
reports
formed the sole basis for her conclusion that the R2.2
million paid to Mthombeni had originated from public funds. As
I have
demonstrated the finding is essential to her investigation.
None of these reports were included in the rule 53 record and
to date
they have not been produced, hence the contention on behalf of Mr
Madikizela that the PP did not consider them.
[77]
In response, Mr Dlamini contended, as I
have said, that the PP was not obliged to mention the Financial
Intelligence Reports in
the s 7(9) notice and he contended that the
reports could not be made public because they are not public
documents. The reports
were only received after the PP had
signed off on the s 7(9) notices and could not have been included,
but that is no answer.
As a result of the reports, she decided
that a different finding was justified that had serious implications
for Mr Madikizela
and Mr Mabuyane.
[78]
The
purpose of the rule to provide a copy of the full record of the
proceedings is primarily intended to operate in favour of and
benefit
an applicant in review proceedings and it has been held that they
should not be deprived of the benefit of this procedural
right unless
there is clear justification therefor.
[77]
It has also been held that compliance with rule 53 regarding the
provision of a complete record is not just a procedural
process, but
a substantive requirement which serves to ensure that the substance
of the decision is properly put to the fore.
[78]
The purpose of the record is not solely to assist the applicant, but
it is to enable the court fully to assess the lawfulness
of the
decision-making process. Thus, in
Turnbull-Jackson
[79]
the Constitutional Court said:
“
Undeniably,
a rule 53 record is an invaluable tool in the review process. It may
help: shed light on what happened and why; give
the lie to unfounded
ex post facto (after the fact) justification of the decision under
review; in the substantiation of as yet
not fully
substantiated grounds of review; in giving support to the
decision-maker's stance; and in the performance of the
reviewing
court's function.”
[79]
Without
a record a court cannot perform its constitutionally entrenched
review function, with the result that the litigant’s
rights to
a fair public hearing before a court, in terms of s 34 of the
Constitution, is infringed.
[80]
In order for the rule to fulfil its purpose of ensuring that all
relevant material is placed before court, it is self-evident
that all
portions of the record relevant to the decision in question should be
made available.
[81]
[80]
The
mere fact that the FIC may claim confidentiality in respect of their
communications to the PP is not sufficient for her to escape
her
obligation. In
Tulip
[82]
the Constitutional Court explained:
“
A
court cannot simply accept that, because a third party claims
confidentiality, confidentiality exists. Tulip has not shown a
general duty of confidentiality in law between a principal and a
courier, or a consignor and a consignee, to support
confidentiality
flowing from Brinks' statement. Nor has Tulip
demonstrated confidentiality by providing a contract with terms
creating a confidentiality
obligation as to the documents. Therefore
both arguments relating to factual confidentiality are untenable.”
[81]
In
this case, the FIC indicated to the PP that their report may not be
used as evidence in her investigation and that the purpose
thereof
was for her to gather other evidence. She chose to rely on the
reports in order to establish a fundamental requirement
for her
investigation of the second question. Having done so, she was
obliged to afford those implicated a meaningful opportunity
to be
heard in respect of the information contained in those reports.
She could have done so without disclosing the report
itself and the
failure to do so is fatal.
[83]
Her failure to afford the parties the opportunity to be heard on
these issues render her investigation procedurally unfair
and
violated their rights in terms of s 33 of the Constitution. Her
failure to provide the reports as part of the record
infringed on
their rights in terms of s 34 of the Constitution.
Conclusion
[82]
I
alluded earlier
[84]
to s 181
of the Constitution which requires of the PP to act independently,
impartially and to exercise her powers and to perform
her functions
without fear, favour or prejudice. The applicants contended
that she breached this duty and acted in bad faith.
It is
disturbing that Ms Mkhwebane did not respond personally to numerous
accusations made attacking the integrity of her investigation.
An explanation was undeniably called for and, as I have said, she was
the only person who could respond to these accusations.
The
effect is that the allegations of bad faith, of failing to apply her
mind and of acting with an ulterior motive remain uncontested.
[85]
[83]
Ms Mkhwebane
had been charged of intentionally exceeding her jurisdiction in
investigating possible offences of POCA. She
signed her reports
just weeks after the Constitutional Court judgment in the
President
(CC)
.
She must have known that her investigation of offences under POCA was
not within her competence. Her failure to provide
any
explanation for her signing two different reports is disturbing and
gives credence to the charge that she did not apply her
mind to
content. The argument advanced at the hearing that Mr Dlamini
in fact drafted the reports further bolsters the conclusion,
and the
release of her report with vague suspicions of unidentified offences
under the PCCA just weeks before the local government
elections
raises significant questions. The report itself demonstrates
serious errors which justify the review and setting
aside of both
reports.
Costs
[84]
The costs
attendant on the rule 30A remains for decision. The suggestion
that the presentation of a supplementary record (which
is still not
complete) a few days prior to the argument of the application renders
the question of costs moot is clearly not acceptable.
Mr
Madikizela was entitled to the costs of the rule 30A application.
[85]
In addition,
the application of Mr Madikizela to review and set aside the reports
had been duly enrolled for hearing on 16 September
2022 and was ready
to proceed when the PP, at the eleventh hour, brought the application
to consolidate the three applications.
The time set to respond to the
application postdated the date set for the hearing of Mr Madikizela’s
application. Mr
Madikizela resisted the consolidation on the
grounds that his matter had been enrolled, costs had been incurred
and that he was
ready to proceed. In response the PP brought a
separate application for the postponement of his review application.
A postponement of his application was necessary in view of the
consolidation. Both parties contended that they are entitled
to
the costs occasioned by the consolidation and the postponement which
were reserved. I consider that the costs were occasioned
by the
last minute application for consolidation, which could have occurred
much earlier. In the result it would be appropriate
for the PP
to pay Mr Madikizela’s costs of the application for
consolidation and the postponement on 16 September 2022.
[86]
I have
considered the applications to strike out earlier. Mr
Madikizela’s application was well-founded and he is entitled
to
the costs occasioned thereby. The striking-out application on
behalf of the applicants in case number 818/2021 falls to
be
dismissed and the PP is entitled to recover her costs occasioned by
the application.
[87]
In respect of
the review application none of the applicants had sought a punitive
costs order in their papers and I consider it
appropriate that the
costs should follow the result in accordance with the ordinary rule.
These matters involved complicated
issues of law and the costs of two
counsel was justified in each case.
[88]
In the result,
the following order is made:
1.
In case number
800/2021:
(a)
The report of
the first respondent dated 8 October 2021 is reviewed and set aside
and declared to be inconsistent with the Constitution
of the Republic
of South Africa, 1996 and invalid.
(b)
The report of
the first respondent dated 28 September 2021 is reviewed and set
aside and declared to be inconsistent with the Constitution
of the
Republic of South Africa, 1996, and invalid.
(c)
The first
respondent is ordered to pay the applicant’s costs of the
application, including the costs occasioned by consolidation
of the
applications and the postponement of the application on 16 September
2022, such costs to include the costs of two counsel.
(d)
The first
respondent is ordered to pay the costs of the interlocutory rule 30A
application.
(e)
The averments
contained in the affidavit of Mr Vusumuzi Dlamini dated 14
July 2022 at paragraphs 19, 80, 81, 169,
173, 240.3 and 244.1 are
struck out on the basis that they constitute inadmissible hearsay
evidence.
(f)
The averments
contained in the affidavit of Ms Sarah Kate Roberts dated 22 February
2022 at paragraphs 7, 17 and 48 are struck out
on the basis that they
constitute inadmissible hearsay evidence.
(g)
The costs of
the strike out application shall be paid by the first respondent,
such costs to include the costs of two counsel.
2.
In case number
802/2021:
(a)
The report of
the first respondent, number 49/2021/22 (dated 28 September 2021 and
reissued dated 8 October 2021), is reviewed and
set aside and
declared to be inconsistent with the Constitution of the Republic of
South Africa, 1996, and invalid.
(b)
The first
respondent is ordered to pay the applicant’s costs of the
application, including the costs of two counsel.
3.
In case number
818/2021:
(a)
The report of
the first respondent, number 49/2021/22 (dated 28 September 2021 and
reissued dated 8 October 2021), is reviewed and
set aside and
declared to be inconsistent with the Constitution of the Republic of
South Africa, 1996 and is invalid.
(b)
The first
respondent is ordered to pay the applicants’ costs of the
application, such costs to include the costs of two counsel.
(c)
The
application to strike out is dismissed with costs.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
Case
No.: 800/2021
For
Applicants:
Adv
A Katz SC and Adv K Perumalsamy instructed by Mvuzo Notyesi
Incorporated c/o Mbaleni & Associates, King William’s
Town
For
1
st
Respondent: Adv E Baloyi-Mere SC and Adv N Jiba instructed by Gray
Moodliar Inc c/o Gordon McCune Attorneys, King William’s
Town
Case No.: 802/2021
For
Applicants:
Adv
A M Bodlani SC and Adv M Salukazana instructed by Sakhela Inc, East
London
For
1
st
Respondent: Adv E Baloyi-Mere SC and Adv N Jiba instructed by Gray
Moodliar Inc c/o Gordon McCune Attorneys, King William’s
Town
Case No.: 818/2021
For Applicants:
Adv A M Bodlani SC and Adv Z Mashiya instructed
by N Z Mtshabe Incorporated, Mthatha
For
1
st
Respondent: Adv E Baloyi-Mere SC and Adv N Jiba instructed by Gray
Moodliar Inc c/o Gordon McCune Attorneys, King William’s
Town
[1]
Although
the written Memorandum of Agreement was signed at a later date it
records a commencement date of 6 April 2018.
[2]
The
conclusion of the agreement was not in dispute and a copy thereof
was provided to the PP.
[3]
The
alleged report has not been provided to the applicants and it does
not form part of the record provided in terms of rule 53
of the
rules of court.
[4]
The
alteration of her findings is fully discussed
in
paras [73-76]
of
this judgment
[5]
The
material portion of
s 8
of the
Public Protector Act 23 of 1994
that
regulates publication provides:
“
8.
Publication of findings
(1)
The Public
Protector may, … in the manner he or she deems fit, make
known to any person any finding, … or
recommendation in
respect of a matter investigated by him or her.
...
(2A)(a)
Any report issued by the Public Protector shall be open to the
public …”
[6]
Referred
to in para [11] above.
[7]
His
affidavit was not supported by any confirmatory affidavit by the PP.
[8]
Section
7(3)(b)
of the
Public Protector Act provides
for delegation of
powers. Neither the report nor the answering affidavit makes
any reference to a delegation. Rather,
the report reflects
that Mr Dlamini, as the Provincial Representative of the PP
“assisted” her. Where she enlists
the assistance
of a member of her office the member acts under her supervision and
control as set out in s 7(3)(a) of the Act.
[9]
Section
3(4)
[10]
The
passages objected to in Dlamini’s affidavit are as follows:
Paragraph 19 in which it is stated that “I further
deny that
the Public Protector did not consider Madikizela’s version”;
paragraph 80 in which it is stated that
“the evidence before
the Public Protector raised suspicion that these purported cession
letters were organised or facilitated
by Mahlaka”;
paragraph 81 in which it is stated that “The Public Protector
took this view firstly, because
Mngqongwa … had no reason to
cede any payments from MLM to Mthombeni Projects …”;
paragraph 81 in which
it is stated that “The Public Protector
had before her evidence that Key Spirit received R38, 388, 672.93 on
3 August 2018
from the Department of Transport …”;
paragraph 169 in which it is stated that “the truth that the
Public
Protector was searching for is whether the public funds from
MLM were improperly paid for the benefit of senior government
officials
or private individuals”; paragraph 173 in
which it is stated that “I submit that the Public Protector
took
into account all evidence presented before her …”;
paragraph 240.3 which states that “… I
deny the
Public Protector did not consider (or) apply correct legal
principles in arriving at her findings. I further deny
that
the Public Protector did not conduct her investigations with an open
mind”; and paragraph 442.1 which states
that “…
the Public Protector considered all evidence obtained during the
investigation, including that of Cwele”.
[11]
Vere
N.O and Others vs MEC for Department of Economic Development,
Environment, Conservation and Tourism, North West Province
and
Others; Vere N.O and Others vs MEC for Department of Economic
Development, Environment, Conservation and Tourism, North West
Province and Others
(UM112/2020;
UM145/2020) [2021] ZANWHC 1 (19 February 2021) at [84] and [87])
[12]
The
paragraphs objected to in the affidavit of Ms Roberts are as
follows: Paragraph 7 which states that: ‘The review
application concerns a draft report prepared by the First Respondent
dated 28 September 2021 (the “draft report”),
which
First Respondent published prematurely on 8 October 2021.’
The final report is dated 8 October 2021 and was
released on 8
October 2021”; paragraph 17 which states that: “Moreover,
I informed the Applicant’s attorneys
that in so far as it is
relevant, aside from the inconsequential grammatical and
draftsmanship errors, the material difference
between the draft
report and the final report is the addition of paragraph 7.1”;
paragraph 48 which states that:
“As already explained in
paragraphs 10 to 19 above, the contents of which are incorporated
herein as if specifically traversed,
the draft report was
prematurely published through First Respondent’s website.
The report dated 8 October 2021 is
the final report and that was
communicated to the Applicant”.
[13]
See
Gerhardt
v State President and Others
1989 (2) SA 499
(T) at 504f-h;
Von
Abo v Government of The Republic of South Africa and Others
[2008]
ZAGPHC 226
(29 July 2008) at [46];
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality and Another
[2017] 4 All SA 624
(SCA) at [31] and Eskom Holdings SOC Ltd v
Masinda
2019 (5) SA 386
(SCA) at [3]
[14]
Section
3(1)(c) provides:
“
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless-
…
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of
such evidence
depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account,
is
of the opinion that such evidence should be admitted in the
interests of justice.”
[15]
Ganes
and Another v Telkom Namibia Limited
2004 (3) SA 615
(SCA) at 624H; [2004] 2 All SA
609
(SCA)
[16]
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
1974 (4) SA 362
(T) at 368G
[17]
Premier
Produce Co. v Mavros
1931 WLD 91
;
Cash
Wholesalers Limited v Cash Meat Wholesales
1933
(1) PH A24; and
Rail
Commuters Action Group and Others v Transnet Limited t/a Metro Rail
and Others (No 1)
2003 (5) SA 518
(C) at 546E-547E
[18]
Cultura
2000 and Another v Government of the Republic of Namibia and Others
1993 (2) SA 12
(Nm) at 27H
[19]
Promotion
of Administration of Justice Act 3 of 2000
[20]
Minister
of Home Affairs and Another v The Public Protector of the Republic
of South Africa
2018 (3) SA 380 (SCA; [2018] 2 All SA 311 (SCA); [2018] ZASCA
15)
[21]
2021
(6) SA 37 (CC); [2021] ZACC 19
[22]
PAJA
was promulgated to give effect to the right to fair administrative
action enshrined in s 33 of the Constitution.
[23]
Constitution
s 172(1)(a)
[24]
Section
182(1) of the Constitution
[25]
Section
6(4)(a) provides:
“
(4)
The Public Protector shall, be competent-
(a)
to
investigate, on his or her own initiative or on receipt of
complaint, any alleged-
(i)
maladministration
in connection with the affairs of government at any level;
(ii)
abuse or
unjustifiable exercise of power or unfair, capricious, discourteous
or any other improper conduct or undue delay by a
person performing
a public function;
(iii)
improper or
dishonest act, or omission or offences referred to in Part 1 to 4,
or section 17, 20 or 21 (in so far as it relates
to the
aforementioned offences) of Chapter 2 of the Prevention and
Combatting of Corrupt Activities Act, 2004 with respect to
public
money;
(iv)
improper or
unlawful enrichment, or receipt of any improper advantage, or
promise of such enrichment or advantage, by a person
as a result of
an act or omission in the public administration or in connection
with the affairs of government at any level or
of a person
performing a public function; or
(v)
act or
omission by a person in the employ of government at any level, or a
person performing a public function, which results
in unlawful or
improper prejudice to any person.”
[26]
Section
6(4)(c)(i) and
The
President (CC)
para
[115]
[27]
The
President (CC)
para
[100]
[28]
Section
17B(b)(ii)
and
17D
(1) of the
South African Police Service Act 68 of
1995
[29]
AfriForum
NPC v Minister of Tourism and Others
and a similar matter 2022(1) SA 359 (SCA) at [49]; and
Minister
of Education v Harris
2001 (4) SA 1297
(CC) para [17] - [19]
[30]
Tulip
Diamonds FZE v Minister for Justice and Constitutional Development
2013 (2) SACR 443
(CC) at [122]
[31]
Section
6(4)(c)
provides:
“
The
Public Protector shall, be competent-
(c)
at
a time prior to, during or after an investigation-
(i) if
he or she is of the opinion that the facts disclose the commission
of an offence by any person, to bring
the matter to the notice of
the relevant authority charged with prosecutions; or
(ii) if
he or she deems it advisable, to refer any matter which has a
bearing on an investigation, to the appropriate
public body or
authority affected by it or to make an appropriate recommendation
regarding the redress of the prejudice resulting
therefrom or make
any other appropriate recommendation he or she deems expedient to
the affected public body or authority; “
[32]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para [18]
[33]
fn
31
[34]
Municipality
of Mossel Bay v The Evangelical Lutheran Church
and
Another
[2013]
ZASCA
64
(24 May 2013) para [12]
[35]
The
President (CC)
para
[115]
[36]
Democratic
Alliance v Public Protector; Council for the Advancement of South
African Constitution
[2019] 3 All SA 127
(GP) para [36]
[37]
Section
17D(1)(a) of the South African Police Act
[38]
South
African Broadcasting Corporation SOC Ltd and Others v Democratic
Alliance and Others
2016 (2) SA 522 (SCA)
[39]
Economic
Freedom Fighters v The Speaker, National Assembly and Others
2016 (3) SA 580 (CC)
[40]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222 (SCA)
[41]
Minister
of Home Affairs
para
[5]
[42]
Economic
Freedom Fighters
para
[71](h)
[43]
Quoted
at para [12] of this judgment
[44]
The
President
v Public Protector
2020 (5) BCLR 513 (GP); [2020] 2 ALL SA 865 (GP)
[45]
The
President (CC)
para
[99] and [100]
[46]
It
is not contended that s 6(4)(a)(iv) is unconstitutional and it
provides:
“
(4)
The Public Protector shall, be competent-
(a)
to
investigate, on his or her own initiative or on receipt of a
complaint, any alleged-
(vi)
improper
or unlawful enrichment, or receipt of any improper advantage, or
promise of such enrichment or advantage,
by a person as
a result of an act or omission in the public administration or in
connection with the affairs of government at
any level or of a
person performing a public function; or”
[47]
The
President
para [103]
[48]
Executive
Members Ethic Act, 82 of 1998
[49]
The
President
para [99] and [100]
[50]
fn
46
[51]
The
President (GP) para [98]
[52]
The
evidence of the PP in respect of the payment of the R1.1 million by
the MLM to Mthombeni does indeed give rise to serious
concern and
was worthy of investigation by the SAPS or the DPCI. As a fact
the matter was referred to the DPCI, they have
investigated the
matter as they are entitled to do and they have been cited as a
respondent in case number 800/2021. This
judgment does not
affect their investigation.
[53]
Para
[43] of this judgment
[54]
Act
121 of 1998
[55]
The
subsection confers on the PP the competence to investigate specified
offences under the Prevention and Combatting of Corrupt
Activities
Act with respect to public money.
[56]
The
President (CC)
at [114] – [115] and s 205(3) of the Constitution
[57]
The
President (CC
)
para [115]; and
The
President (GP)
para
[139]
[58]
The
President (CC)
para
[125]
[59]
56
of 2003
[60]
Section
6(2)(e) of PAJA
[61]
Section
6(f)(ii) of PAJA
[62]
Section
3, 4, 6 or 7 Of the PCCA
[63]
The
President (CC)
para
[121]
[64]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency,
And
Others
2014
(1) SA 604
(CC) para [87-88]
[65]
Section
8(1) is set out at fn 5
[66]
Section
8(3) provides:
“
(3)
The findings of an investigation by the Public Protector shall, when
he or she deems it fit, but as soon as possible, be made
available
to the complainant and to any person implicated thereby.”
[67]
MEC
for Health, Province of Eastern Cape NO and Another v Kirland
Investments (Pty) Ltd t/a Eye & Laser Institute
2014
(3) SA 219
(SCA) at [15]; and
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
2014 (3) SA 481 (CC)
[68]
Retail
Motor Vehicle Industry Organisation and Another v The Minister of
Water and Environmental Affairs and Another
2014 (3) SA 251
(SCA) at [23]
[69]
Administrator,
Transvaal and Others v Traub and Others
[1989]
4 All SA 924
(AD) at 928
[70]
para
[126]
[71]
Quoted
in full in para [13] of this judgment
[72]
The
President (GP)
para
[98] and s 6(4)(c)(iv)
[73]
Eastern
Cape Provincial Government
[74]
The
notice in terms of s 7(9) was dated 16 June 2021
[75]
para
[123]
[76]
I
have dealt earlier with the nebulous findings in respect of PCCA.
[77]
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 660D-E;
Helen
Suzman Foundation v Judicial Service Commission
2018 (4) SA 1
(CC) at 9F
[78]
General
Council of the Bar of the Bar v Jiba and Others
2017 (2) SA 122
(GP) at 161I-162D (the decision was overturned on
appeal, but not on this point, in J
iba
v General Council of the Bar (
unreported
SCA case number 141/17 dated 10 July 2018) [2018] ALL SA 622 (SCA);
2019 (1) SA 130 (SCA)
[79]
Turnball-Jackson
v Hibiscus Coast Municipality and Others
2014
(6) SA 592
(CC) at 608C-D
[80]
Helen
Suzman Foundation
at
10B-C
[81]
Ekuphumleni
Resort (Pty) Ltd and Another v Gambling and Betting Board, Eastern
Cape and Others
2010
(1) SA 228
(E) para [9]; and
Public
Protector v South African Reserve Bank
2019
(6) SA 253
(CC) para [185]
[82]
Tulip
Diamonds FZE v Minister of Justice and Constitutional Development
and Others
2013
(2) SACR 443
(CC) para [37]
[83]
Zondi
v The MEC for Traditional and Local Government Affairs
2005
(3) SA 589
(CC) para [112]; and
The
President (CC)
para [130]
[84]
para
[29]
[85]
Vere
NO
para
[87]