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[2023] ZAECBHC 13
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Mabuyane v President Of The Republic Of South Africa and Others (330/2023) [2023] ZAECBHC 13 (20 June 2023)
FLYNOTES:
SIU and POCA –
Proclamation –
Ambit and
operation
–
Unconstitutional
methods of investigation – Alleged maladministration –
Contends SIU is trying to extend ambit
of Proclamation to include
a Master’s programme when Proclamation makes reference only
to Honour’s programme
– Whether Proclamation excluded
a Master’s programme as part of matters to be investigated
in relation to the
University – SIU does not have original
authority to investigate University affairs – Extending
operation of
the Proclamation may be found to be unjust –
Interdict granted – Special Investigating Unit and Special
Tribunals
Act 74 of 1996, s 2(2).
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION – BHISHO]
CASE
NO.: 330/2023
In
the matter between: -
LUBABALO
OSCAR MABUYANE
APPLICANT
and
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
1
ST
RESPONDENT
SPECIAL
INVESTIGATING UNIT
2
ND
RESPONDENT
UNIVERSITY
OF FORT HARE
3
RD
RESPONDENT
JUDGMENT
NORMAN
J:
[1]
On 31 May 2023, the applicant, who is the Premier for the Eastern
Cape Province, brought an application against
the President of the
Republic of South Africa (‘the President’), the Special
Investigating Unit (‘the SIU’)
and the University of Fort
Hare (‘the university’) seeking,
inter alia
, the
following orders; in Part A, an order:
“
1. That
the applicant’s non-compliance with the forms of service and
time periods prescribed in the Uniform Rules of
Court be condoned and
that leave be granted for the relief sought under Part A of this
application to be heard on an urgent basis
in terms of Uniform Rule
6(12).
2. That
the second respondent is interdicted from implementing Proclamation
84 of 2022 published in Government Gazette
No. 47199 on 5 August 2022
pending the finalization of Part B of the application.
3. That
the costs of this application be paid by the respondents that oppose
the relief sought in Part A of this application.
4. That
the applicant be granted such further or alternative relief as this
court considers appropriate.”
[2]
In Part B of the application he sought:
“
1. That
the time period for instituting judicial review proceedings in terms
of the Promotion of Administrative Justice Act
3 of 2000 (PAJA) is
extended in terms of section 9(1)(b) of PAJA in relation to the
decision by the first respondent, the President
of the Republic of
South Africa to refer various allegations concerning governance and
operations at the University of Fort Hare
for investigation by the
second respondent under Proclamation 84 of 2022, published in
Government Gazette No. 47199 on 5 August
2022(Proclamation”).
2. That
the first respondent’s decision to issue the Proclamation (and
the Proclamation) is declared unlawful
and invalid.
3. That
the Proclamation is set aside.
4. That it
is declared that the second respondent’s investigation of the
applicant in terms of the Proclamation
is unconstitutional and
invalid.
5. That
the costs of this application be paid by the respondents that oppose
the relief sought in Part B of this application.
6. That
applicant be granted such further or alternative relief as this court
considers appropriate.”
[3]
On 8 June 2023, the applicant amended its notice of motion in respect
of both Part A and Part B and he sought
the following relief:
“
In respect of Part
A by replacing paragraph 2
:
1.
The SIU is interdicted from enforcing Proclamation 84 of 2022,
published in Government Gazette 47199 on 5 August 2022 insofar as
the
SIU has taken steps or intends to take steps that are directed at the
Applicant, pending the determination of Part B.
“
In respect of
Part B by replacing paragraphs 2,3 and 4 with the following:
2.1 It is
declared that the conduct of SIU in its investigation of the
Applicant is an abuse, unconstitutional and
is reviewed and set
aside.
2.2 It is
declared that the SIU’s decision to embark on an investigation
against the Applicant is ultra vires
the terms of the Proclamation
and is reviewed and set aside.
2.3 The
Applicant reserves the rights to supplement the notice upon receipt
of the Rule 53 record.”
[4]
It is common cause that when the amended notice of motion and
affidavit in support thereof were delivered
on 8 June 2023, that was
the day upon which all the respondents were expected to file their
answering affidavits in respect of
the original notice of motion. At
the hearing of the matter and after the applicant’s counsel,
Ngcukaitobi SC had completed
his argument, Counsel for the President,
Gabriel SC, invited the applicant to withdraw the application against
the President. That
invitation was accepted and this court
accordingly granted the applicant leave to withdraw the application
against the President
and tendered his costs.
[5]
Central to the issues in this matter is the Proclamation. It is
important to quote its contents for ease of
reference:
“
SPECIAL
INVESTIGATING UNITS AND SPECIAL TRIBUNALS ACT, 1996
: REFERRAL OF
MATTERS TO EXISTING SPECIAL INVESTIGATING UNIT: UNIVERSITY OF FORT
HARE WHEREAS as allegations as contemplated in
section 2(
2) of the
Special Investigating Unit and Special Tribunals Act, 1996 (Act No.
74 of 1996) (hereinafter referred to as “the
Act”), have
been made in respect of the affairs of the University of Fort Hare,
situated in the Eastern Cape Province (hereinafter
referred to as
“the University”);
AND WHEREAS the
University or the State may have suffered losses that may be
recovered;
AND WHEREAS I deem it
necessary that the said allegations should be investigated and civil
proceedings emanating from such investigation
should be adjudicated
upon;
NOW, THEREFORE, I
hereby, under section 2(1) of the Act, refer the matters mentioned in
the Schedule, in respect of the University,
for investigation to the
Special Investigating Unit established by Proclamation No R118 of 31
July 2001 and determine that, for
the purposes of the investigation
of the matters, the terms of reference of the Special Investigating
Unit are to investigate as
contemplated in the Act, any alleged –
(a)
serious maladministration in connection with the affairs of
the University;
(b)
improper or unlawful conduct by officials or employees of the
University;
(c)
unlawful appropriation or expenditure of public money or
property;
(d)
unlawful, irregular or unapproved acquisitive act,
transaction, measure or practice having a bearing upon State
property;
(e)
intentional or negligent loss of public money or damage to
property;
(f)
offence referred to in Parts 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 Combating of Corrupt Activities Act, 2004 (Act
No. 12 of 2004), and which offences were committed in connection
with
the affairs of the University; or
(g)
unlawful or improper conduct by any person which has caused or
may cause serious harm to the interest of the public or any category
thereof,
which took place
between 1 November 2012 and the date of publication of this
Proclamation or which took place prior to 1 November
2012 or after
the date of publication of this Proclamation, but is relevant to,
connected with, incidental or ancillary to the
matters mentioned in
the Schedule or involve the same persons, entities or contracts
investigated under authority of this Proclamation,
and to exercise or
perform all functions and powers assigned to or conferred upon the
said Special Investigating Unit by the Act,
including the recovery of
any losses suffered by the University or the State, in relation to
the said matters in the Schedule.
SCHEDULE
1.
The procurement of, or contracting for goods, works or
services by, or on behalf of, the University and payments made in
respect
thereof in a manner that was –
(a)
not fair, competitive, transparent, equitable or
cost-effective; or
(b)
contrary to applicable –
(i)
legislation;
(ii)
manuals, guidelines, practice notes, circulars or instructions
issued by the National Treasury; or
(iii)
manuals, policies, procedures, prescripts, instructions or
practices of, or applicable to the University,
and any related
unauthorized, irregular or fruitless and wasteful expenditure
incurred by the University in relation to –
(aa)
the appointment of a service provider for cleaning and gardening
services during the period 1 November 2012
to 31 July 2019;
(bb) the
leasing of student accommodation since 1 July 2013;
(cc)
the appointment of a service provider for the maintenance and repair
of air conditioning systems in terms
of bid reference UFH-SCM04/2018;
and
(dd)
the collusion between officials of the University and suppliers or
service providers in which such officials
held direct or indirect
interests.
2.
Maladministration in the affairs of the University’s
Faculty of Public Administration in relation to the –
(a)
Awarding of honours degrees;
(b)
management of funds;
(c)
sourcing of public servants for study into various Faculty
programmes by an individual for personal gain.
3.
Any unlawful or improper conduct by –
(a)
officials or employees of the University;
(b)
suppliers or service providers of the University; or
(c)
any other person or entity, in relation to the allegations set
out in paragraphs 1 and 2 of this Schedule.”
The
conduct of the SIU complained of
[6]
In his supplementary affidavit in support of the amended notice of
motion, the applicant, stated that upon
reflection, he realized that
although the primary legal argument remains that the Proclamation is
unconstitutional he had been
advised to narrow the scope of the
relief. The reason for that is because he supports the investigation
into corruption and maladministration
at the university. The
Proclamation never envisaged that he would turn to be a subject of
the investigation. It appears that there
is a malicious plan to cause
him grave embarrassment. When an investigation is an abuse, it must
be put to an end. He tendered
his full cooperation with the
investigation. He regarded the notice issued by the SIU as draconian.
In his view, there was no need
for the SIU to subpoena him because
any failure to comply with that subpoena carried with it criminal
consequences. The subpoena
created a false impression that he was the
culprit and was unwilling to cooperate. Whilst these proceedings were
pending before
court, the SIU sought a search and seizure warrant
against him directed at his private residence. The search and seizure
warrants
in respect of proceedings which are being challenged in
court, amount to constructive contempt of the court. It shows bad
faith
by the SIU because his house is entirely irrelevant to the
issue being investigated against him. These warrants were sought for
an ulterior purpose, he contends.
[7]
He listed the documents that the SIU requested from him being:
“
1. Copy of the
identity document,
2. The
original copy of your Bachelor’s degree Certificate from an
institution of higher learning, if any,
3. The
original copy of your Honour’s degree Certificate from an
institution of higher learning, if any,
4. Any
other tertiary qualification(s) that you are in possession thereof,
5. The
original copy of your Recognition of Prior Learning (RPL) assessment,
if any,
6. A copy
of confirmation of approval of the RPL relating to yourself by the
Senate of the University of Fort Hare (UFH)
to you to study, if any,
7. The
original copy of your proposal, which is a requirement for a study
towards a Master’s degree by research,
8. Any
other information which in your view, is relevant and necessary for
the purposes of the hearing.”
[8]
The applicant alleges that he does not object to produce these
documents in a lawful investigation. However,
he objects to the
unconstitutional methods of investigation employed by the SIU. He
offers his full cooperation if his constitutional
rights and dignity
and equality were to be respected. He contends that the President in
issuing the Proclamation excluded the registration
into the Master’s
programme as part of the alleged ‘maladministration’. The
only way he became a focal point
of these investigation is the
deliberate strategy of the SIU to make the whole investigations about
him, he stated. The SIU is
trying to extend the ambit of the
Proclamation to include a Master’s programme when the
Proclamation makes reference only
to the Honour’s programme.
SIU’s
case
[9]
In its answering affidavits the SIU stated that its investigations
upon the Proclamation having been issued
revealed, amongst others,
maladministration in the affairs of university’s faculty of
Public Administration. The SIU found
evidence which
prima facie
showed that some students were irregularly registered into the
Master’s degree programme without satisfying the prerequisite
of having an Honour’s degree. That had a ripple effect on how
students were allowed to irregularly register and be admitted
to
pursue Masters and/or Doctoral qualifications. It also found evidence
which
prima facie
showed that a team of university officials
and researchers produced a thesis on behalf of the applicant who was
pursuing a Master’s
and Doctorate qualifications at the
relevant time without having been awarded an Honour’s degree or
its equivalent.
[10]
It also appeared to the SIU that the applicant was irregularly
registered and admitted for a Master’s degree without
satisfying the prerequisite of having an Honour’s degree. It
further appeared that the applicant was already enrolled for
a PhD
degree at the time he registered for the Master’s degree. The
SIU also emphasized that the applicant’s supervisor
was
Professor Ijeoma who was a key person of interest in the SIU’s
investigation and was the former head of the university’s
department of public administration. The SIU also stated that: ‘
The
evidence obtained by the SIU to date in its investigations concerning
maladministration in the affairs of the University’s
faculty of
public administration prima facie implicates the applicant in the
commission of fraud, forgery and uttering’
.
[11]
The SIU contended that there was no case made out for the interdict
and for the review. It asked for the dismissal of
the application
with costs.
Professor
Edwin Chikata Ijeoma’s affidavit
[12]
On the date of the hearing, the applicant relied on a supporting
affidavit deposed to by Professor Ijeoma. Professor
Ijeoma outlined
the process of registering students for a Master’s programme
without them possessing an Honour’s degree.
He stated that one
of the requirements is that an employed applicant with no Honour’s
degree must have extensive work experience
post their undergraduate
degree. This process is governed by the recognition of prior learning
policy (RPL policy) of the university,
which he attached.
[13]
He contends that he was chairing the selection committee when the
applicant applied. The committee comprised of senior
academics and
senior administrators from the department of public administration.
The selection committee at the Bhisho campus
did not deal with the
admission but merely selected the applicants from a list of those
that applied. That, according to him was
the extent of his
involvement. Other processes of registration were attended to by the
faculty and the registrar’s office.
He, however, was the
supervisor of the applicant in his Master’s programme. He
stated that in addition to the requirements
to be followed, the RPL
policy was applied, in the case of the applicant and he directed the
court to the applicant’s work
experience reflected on the
applicant’s curriculum vitae attached to his replying
affidavit.
[14]
He denied that he wrote any research proposal for the applicant
because he was busy supervising other students. He also
confirmed
that the applicant was deregistered for the program on 15 March 2021
based on the reasons that he had not met the minimum
requirements for
admission. He contends that the deregistration of the applicant was
not correct. He stated that there were no
irregularities with the
applicant’s application otherwise they would not have admitted
him into the Master’s programme.
Professor Ijeoma focused on
his role as a Professor at the University and as the supervisor of
the applicant.
University’s
case
[15]
The Vice- Chancellor of the university, Mr Sakhela Buhlungu deposed
to the answering affidavit. He stated that the university
had
received reports of misconduct, mismanagement of funds and corruption
submitted by staff, students and persons outside the
university. Due
to the enormity of those allegations and lack of capacity on the part
of the university, it engaged forensic firms,
such as Price
Waterhouse Coopers and Horizon Forensics to conduct the
investigations. Of relevance to this application are allegations
that
certain students were registered without meeting the minimum
requirements. There was a facilitation of public servants into
the
public administration programme under Professor Ijeoma. The
university had taken disciplinary measures against some of its
employees. He mentioned that the university lost millions of rands as
a result of rampant corruption at the university. He alluded
to a
criminal network operating within the university. He contended that
the scope of the Proclamation must be extended to any
person involved
in the maladministration of the university, and not be limited to
staff only.
[16]
The university supported the investigation of the applicant because
it alleged that he had been complicit in the maladministration
that
took place within the department of Public Administration. He
contends that the applicant is one of the students who were
admitted
to the Master’s programme without meeting the requirements. He
stated that it appeared that the applicant was a
witness in the
investigation. During the course of the investigation the university
discovered that there is prima facie evidence
of the applicant’s
complicity in having his research proposal for his Master’s
degree prepared for him by post- doctoral
students under Professor
Ijeoma. He contended that there was no legal basis for the interdict
because there were no prospects of
success in the review application.
The university asked for a punitive costs order against the
applicant.
In reply, the applicant denied any
involvement in ommission of fraud, forgery and uttering offences. He
alleged that the SIU was
making baseless claims without providing a
factual basis for those claims. He regarded the conduct of the SIU in
this regard as
malicious and reckless. He contended that that conduct
was aimed at impugning his reputation. He denied the allegations that
his
research proposal was prepared by other people. He confirmed that
he prepared his proposal with the assistance of his supervisor.
Applicant’s
legal submissions
[17]
Mr Ngcukaitobi SC submitted that the Proclamation excluded the
Master’s programme from the scope of the investigation.
He
submitted that in interpretating the Proclamation the court must find
that because the Honour’s programme is expressly
included, the
exclusion of the Master’s programme must be found to be outside
the scope of the investigation. In this regard
he made reference to
the documentation that was placed before the President prior to him
listing matters under investigation and
submitted that those
documents had included the Master’s programme but the President
decided not to include it.
[18]
In attacking the argument by the SIU that the Master’s
programme is ‘incidental’ to the Honour’s
programme. His submission was that the fact that the SIU makes
reference to ‘incidental’ is indicative of the fact
that
it is aware that the Master’s programme is not included in the
Proclamation. Therefore, it ought not to investigate
it. He submitted
that what the SIU is doing is to try to extend the ambit of its
investigation and by so doing it is acting unlawfully.
In this regard
he relied on,
inter
alia,
Special
Investigating Unit v Nadasen
[1]
.
[19]
He submitted that the notice from the SIU to the applicant raised,
two questions, whether the applicant is being regarded
as a witness,
or, whether he is a subject of the investigation. He submitted that
even if he was initially regarded as a witness
but because they
allege now that the applicant’s complicity continues he has to
be dealt with expeditiously, according to
the response of Professor
Buhlungu.
[20]
Mr Ngcukaitobi submitted that once the SIU came across the evidence
that suggested impropriety on the part of the applicant
they were not
entitled to expand the scope of the Proclamation on their own, they
ought to have approached the President to include
the Master’s
programme in the Proclamation. In addressing the fact that it is the
applicant himself who first approached
the SIU, his submission was
that his conduct is not an answer to the
ultra
vires
point because they cannot be granted the power by the client when
such power is not contained in the Proclamation itself. He submitted
that the applicant is entitled to interdict the SIU from continuing
with an unlawful investigation. In this regard, he submitted
that the
applicant was entitled not to subject himself to an unlawful process.
He relied on
President
of the Republic of South Africa v Jacob Zuma
[2]
,
with
specific reference to paragraph 17, for the submission that the
critical harm concerns a fundamental constitutionally guaranteed
right to personal freedom.
[21]
He submitted that the SIU contends that it is not investigating
individuals. Mr Ngcukaitobi submitted that the fact that
the SIU
invoked the provisions of section 5 of the SIU Act when seeking
documents from the applicant demonstrates that it was conscious
of
the fact that it did not have authority over the applicant. It
decided that it would, in any event, invoke the provisions of
section
5(2) in a matter where it did not have jurisdiction. He submitted
that section 5(2) does not create jurisdiction, it only
applies where
the SIU already has jurisdiction. He submitted that the university
and the SIU cannot produce evidence that justifies
on a
prima
facie
basis, the wrong that the applicant has done. He submitted
that Professor Ijeoma is an objective witness and he has confirmed
that
the applicant’s registration with the university for the
Master’s programme was proper.
[22]
He contended that the investigation by its very nature is irrational
because although the applicant had been admitted
to the programme his
registration was terminated in an improper manner. He also submitted
that the SIU is abusing its power for
its ulterior ends. It is not
doing it to achieve any of the objects that are contained in the
Proclamation, he argued. He submitted
that the extension of the scope
by the investigators contrary to the Proclamation constitutes abuse.
In this regard, he relied
on the
Thint
( Pty) Ltd v National Director of Public Prosecutions : Zuma v
National Director of Public Prosecutions
[3]
.
He further submitted that the fact that whilst the SIU was aware that
there was this pending application it attempted to get a
search
warrant against the applicant, also demonstrates, the abuse of power.
[23]
He submitted that there is a
prima facie
right to the
interdict because the Proclamation does not cover the Master’s
programme and that the actions of the SIU are
irrational. He further
submitted that if the investigation were to proceed the applicant
would suffer irreparable harm because
there is a threat of a criminal
sanction. He submitted that once there is a threat of a criminal
sanction then there is harm.
[24]
He submitted that the irreparable harm, is in his client, having to
subject himself and appear in an illegal process.
If he does so that
would affect his freedom to privacy and once he is subjected to an
unlawful action that cannot be undone. On
the issue of costs he
submitted that the applicant should benefit from the Biowatch rule
because this is a constitutional matter.
[25]
Ms Gabriel SC who appeared for the President, as aforementioned,
invited the applicant to withdraw the application, once
that was
accepted, she was excused from further participation in the
proceedings.
SIU’s
legal submissions
[26]
Mr Marcus SC , appearing on behalf of the SIU , in his opening
address referred to the words of Lord Denning, in
Moran
v Lloyd’s
[4]
, where
he stated:
“
To my mind the
law should not permit any such tactics. They should be stopped at the
outset. It is no good for the tactician to
appeal to ‘rules of
natural justice’. They have no application to a preliminary
enquiry of this kind. The inquiry is
made with a view to seeing
whether there is a charge to be made. It does not decide anything in
the least. It does not do anything
which adversely affects the man
concerned or prejudices him in any way. If there is, there will be a
hearing, in which an impartial
body will look into the rights and
wrongs of the case. In all such cases, all that is necessary is that
those who are holding the
preliminary inquiry should be honest men-
acting in good faith- doing their best to come to the right
decision.”
[27]
He submitted that there are four overarching principles, namely,
first, that an interim interdict restraining the exercise
of a
statutory power is exceptional. In this regard, he referred to the
OUTA judgment
[5]
. He submitted
that, second, the separation of powers is an even vital component and
it must be considered when a test for an interim
interdict is to be
applied. Third, the Constitutional Court has warned of the separation
of powers harm in the OUTA judgment because
a restraining order will
intrude on the powers of the other statutory bodies well ahead of the
applicant’s case. Fourth,
the Constitutional Court has warned
that an interdict in these circumstances must only be granted in the
clearest of cases. He
submitted that not one of the requirements are
present in the present case.
[28]
He further submitted that even if the applicant had met all the
requirements for an interdict this court still has the
power to
refuse to grant it. If the applicant fails on any of the
requirements, the court still retains a discretion. He argued
that
the applicant has subjected the parties to an abusive process where
there was an urgent time table and a supplementary case
made an hour
before the answering affidavits were to be delivered. There were
unsubstantiated allegations of bad faith.
[29]
On the issue of complaint by the applicant that there is private
residence that was going to be subjected to a search.
He submitted
that the SIU has those powers, it is part and parcel of the powers
that had been granted to it as one of the means
with which they can
achieve what is sought to be achieved in an investigation. However,
the search warrants are always subject
to judicial oversight and in
this case although it was sought, it was refused. When it sought the
warrant, the SIU out of respect
for the process that was pending had
undertaken that it would place everything that it had recovered under
seal, pending the outcome
of this application. In any event, he
submitted that, this case is not about the validity of the search
warrant.
[30]
He submitted that new argument was advanced on behalf of the
applicant which was based on irrational conduct on the part
of the
SIU in pursuing the applicant. He submitted that this was a case
where the investigation was crucial and that the applicant
had no
right to be heard before the investigation was commenced with. In
answer to the submissions relating to the exclusion of
the Master’s
programme from the Proclamation, he submitted that the Proclamation
specifically includes matters that are relevant
to, connected to,
ancillary to matters mentioned in the schedule. He submitted that the
allegations of impropriety do not simply
relate to the applicant
alone, they involves more people and it would be impossible for the
registrar or the Head of Department
to be able to investigate without
the assistance of the SIU.
[31]
In this case, because the applicant claims innocence there is nothing
to fear, he argued. He submitted that what the
applicant is trying to
do is to stop the investigation at all costs. The documents that were
requested from the applicant were
not intrusive documents and
although he had undertaken to produce them, he failed to do so. He
even failed to attach them to this
application except attaching some
documents in reply. He further submitted that applicant seems to
believe that if he has a right
to a review that right then entitled
him to an interdict. He submitted that is not a
prima
facie
right. He has to show an injury that has occurred that is outside the
review process. In this regard he relied on
Simelane
NO v Seven- Eleven Corporation SA ( Pty) Ltd.
[6]
[32]
He submitted that maladministration extended beyond just the
management of funds but extended to the awarding of degrees
and the
Proclamation had made it clear that all other matters that are
relevant to those contained in the schedule would be applicable.
In
this regard he relied on the
Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro – Tech
Systems ( Pty ) Ltd
[7]
.
The applicant has not been questioned at all and none of his rights
have been infringed and he is fully protected and on this
basis no
prima
facie
right
has been established.
[33]
In dealing with balance of convenience he submitted that for as long
as the applicant’s case is immunized from
the investigation,
there will always be suspicion and reputational risk to the
university and that prejudice is ongoing. In addressing
the
alternative remedies he relied on the
Simelane decision, supra,
that
prejudice can be fully cured at the tribunal.
He submitted that a legality review may be raised at the special
tribunal because
it is capable of entertaining a legality review and
on this basis he submitted that an interdict must fail because there
are available
remedies to the applicant.
University’s
legal submissions
[34]
Mr Swartbooi SC appeared on behalf of the university. He submitted
that the very scope of the Proclamation is fairly
wide. Although the
submissions made by the applicant suggest that the investigation is
aimed at him, that is not so because clearly
from the reports that
have been filed, there are numerous people that are involved who are
being investigated. In addressing the
contents of the affidavit
deposed to by Professor Ijeoma, he submitted that Professor Ijeoma
puts certain matters raised by the
university in dispute. However,
the court should bear in mind that Professor Ijeoma is a subject of
the investigation. He submitted
that there are massive disputes of
fact that had been raised by the respondents and that the court must
apply the
Plascon Evans
rule in favour of the respondents.
[35]
In addressing the balance of convenience he submitted that the
applicant does not deal with the prejudice that the university
suffers and continues to suffer. The university is in a desperate
struggle to curb corruption and to have those who are involved
in it
prosecuted as soon as possible. It relies on the SIU because of its
extra ordinary powers of investigation. It preferred
that these
matters be investigated by the SIU as the university does not have
capacity to do so on its own. He submitted that after
the forensic
report was obtained by the university it became clear that there were
series of emails that indicated complicity of
the applicant in
maladministration. In this regard the applicant does not deal with
those but simply denies them.
[36]
The university also contends that to the extent that the applicant
has been complicit in the maladministration in the
university’s
department of Public Administration, the scope of the Proclamation
permits the SIU to investigate him and that
cannot constitute abuse
of power or be unconstitutional. It also contends that the fact that
the investigation may reveal that
the applicant is also implicated in
a fraudulent process that ended up with him being admitted as a
Master’s student follows
from the investigation into the
maladministration of the university. In this regard it contends that
the balance of convenience
favours the university. It also contends
that the scope of the investigation authorized by the Proclamation is
to investigate maladministration
on the part of the university and
any unlawful and improper conduct by any person which caused or may
cause serious harm to the
interests of the public, falls within the
ambit of the Proclamation.
[37]
It contends that there is email exchange which involves Professor
Ijeoma, his assistant Ms Candyce Dawes and the post
graduate students
who assisted the applicant in providing him with research topics to
consider and prepare and finalize drafts
of his research proposals
with no meaningful input from the applicant. This according to the
university constitutes unethical conduct
which is unlawful. It also
contends that the fact that the applicant was complicit in this email
exchange falls within the general
scope of the Proclamation, namely,
to investigate unlawful or improper conduct of any person or entity
in relation to the maladministration
in the affairs of the
university’s faculty of Public Administration.
[38]
In reply, Mr Ngcukaitobi
distinguished
the Simelane judgment from the facts of this case.
He
submitted that this matter is not about separation of powers at all.
The question is whether the Proclamation authorizes this
particular
investigation and whether the applicant’s rights have been
violated. He referred to the decision of
Eskom
v Vaal River
[8]
which
judgment also deals with OUTA. He submitted that the Proclamation
triggers the right to privacy which is about whether or
not the
Proclamation entitled the SIU to look at how the applicant obtained
his Master’s degree. He submitted that the SIU
is not entitled
to investigate. He also referred the court to a judgment of Dodson J
in
Hlatshwayo
& Another v Hein
[9]
where
the court dealt with functions that were expressly conferred.
[39]
In reply to the submissions made by the university he submitted that
the President was aware of the request from the
university but it was
intentional that in the ultimate product, he excluded the Master’s
programme. He submitted that there
is no real defence to that
argument from the respondents. He submitted that there are other arms
of government that can investigate
the applicant. He may be referred
to the National Director of Public Prosecutions or the Public
Protector’s office for investigations.
He submitted that the
pursuit of the higher goal must be lawful.
[40]
He submitted that although it was submitted on behalf of the SIU that
interdicts are about interdicting future conduct,
the fact that there
were search warrants and other search warrants on the way and
therefore that, too, should be interdicted. That
is the reason for
the interdict. He submitted that if the court is not inclined to give
the applicant the benefit of the Biowatch
rule, this is a case where
each party is to bear its own costs or simply no order as to costs
should be made.
Discussion
Urgency
[41]
The facts advanced by the applicant that render the matter urgent can
be summarized as follows: He alleged that he found
out about his
inclusion in the ambit of the investigation on 9 May 2023 when he
received a letter from the SIU. He then raised
the issue about being
heard by the SIU before the investigation went forward. He was
informed that he would be afforded an opportunity
to meet the
officials of the SIU on 7 June 2023.
[42]
On 22 May 2023 his attorneys wrote to the SIU and informed it that he
considered the Proclamation to be unlawful. His
attorneys also
requested that the SIU provide him with information about certain
matters, namely ,copies of the source documents,
which served before
the President before he issued the Proclamation, a copy of a
motivation for the Proclamation, a copy of any
SIU reports which
include the applicant’s name that the SIU may have sent to the
President’s office in relation to
the investigation, any other
information that in the SIU’s view would be relevant to the
allegations and investigations undertaken
by it against the
applicant.
[43]
The SIU was given until 26 May 2023 to respond to the letter failing
which legal proceedings would be instituted where
the Proclamation
would be challenged including the SUI’s unlawful and
unconstitutional investigations.
[44]
On 30 May 2023, the SIU responded and it, amongst others, disputed
the issues raised about the legality of the Proclamation.
It
indicated its attitude that it would persist in the investigation. On
the same day, 30 May 2023, the SIU sent a notice requesting
the
applicant to appear before it at its offices. The applicant contends
that it is that letter that confirmed that he was part
of the
investigation which was being conducted in terms of the Proclamation.
He then brought this application.
[45]
He contends that he has not delayed in bringing the application. He
acted speedily as soon as it appeared to him that
his rights were
under threat. He contends that he afforded the respondents sufficient
time to respond to the application.
[46]
All the respondents objected to the urgent time frames that were
imposed on them by the applicant where the challenge related,
inter
alia
, to a Proclamation that has been in existence since 2022.
They contend that the urgency was self- created. However, it is
common
cause that the correspondence and interactions between the SIU
and the applicant took place on the dates stated by both parties.
It
is also not in dispute that prior to the issuing of the notice the
applicant co- operated with the investigation. In fact the
university
confirmed that at the beginning of the investigation the applicant
was a witness.
[47]
Urgency is provided for in rule 6 (12) of the Uniform Rules of Court.
An applicant is expected to set out facts which
render the matter
urgent. In our courts urgency leads to truncation of the time period
allowed in terms of the rules for filing
of papers. It may be
inconvenient to a respondent party because of the shorter time
frames. However, the overall consideration
is whether or not an
applicant has shown that the matter is so urgent that he will not
otherwise be afforded substantial redress
at a hearing in due
course.
[10]
The applicant
alleged in the founding affidavit that the notice issued by the SIU
bore a threat of criminal consequences. The attempt
to obtain a
search and seizure warrant, on its own, is a matter that calls for
urgent attention. Most importantly, where an allegation
of an
investigation that is allegedly carried out without authority, is
made, it is in the interests of justice to entertain such
a matter on
an urgent basis.
[48]
The argument about the Proclamation having been in existence since
2022 loses sight of the fact that the interaction that the
applicant
had with the SIU revealed only on 30 May 2023 that his registration
into the Master’s programme was under investigation.
I am
satisfied that the urgency was not self – created as the
applicant explained the steps he took as soon as he realized
that the
investigation was directed at him.
Prima
facie right
[49]
Applicant contends that his right to privacy is under threat due to
the attempt by the SIU to search his home. The SIU
admits the attempt
to obtain a search warrant but denies that the search was going to be
at the applicant’s home. It doesn’t
indicate where it was
going to be. In this case the applicant brought the review
application and seeks an interdict pending finalization
of that
review
.
He has
demonstrated that he has good prospects of success on review
[11]
.
The SIU
and the university contend that he has no right to be immunized from
an investigation. In this case the applicant contends
that the SIU is
acting outside the powers conferred on it by the Proclamation. I am
satisfied that the applicant has shown that
he has a right worth
protecting pending the finalization of the review.
Irreparable
Harm
[50]
The respondents are of the view that there is no need for an
interdict. The investigation must be allowed to continue
without any
hindrance. To
the extent that there is a suggestion that the
actions of the SIU are ultra vires, therein lies the harm. As we all
know, harm in
this sense doesn’t have to be physical. Emotional
or reputational harm deserve protection as well. Similarly, potential
harm
to one’s dignity and privacy would also deserve
protection. The university contends that it will suffer greater harm
if the
investigation is halted. The university, as an entity, is not
going to be subjected to, for example, the section 5 notice and its
criminal sanction because the investigation is primarily for its
benefit and the public.
[51]
On the issue of balance of convenience an infringement of a person’s
right to privacy, to a fair and lawful investigative
process, will
always be upper most and that those rights cannot be sacrificed in
circumstances where it is apparent that the authority
of the
investigation itself is non-existent. The balance of convenience
favours the applicant. To allow the continuation of the
investigation
and disregard the legitimate concerns raised in the application would
be unfair.
Is
the investigation ultra vires?
[52]
In his article dated 16 January 2021 entitled “
Constitutional
Interpretation of Statutes in the Republic of South Africa”,
Clive Brian Jaars
in its summary stated “
the
interpretation of statutes or to be more precise, the judicial
understanding of the legal rules, deals with those rules and
principles which are employed to construct the correct meaning of the
legislative text to be applied in legal disputes. In laymen
terms
interpretation is about making sense of the total relevant
legislative scheme applicable to the situation at hand...”
[53]
The question is whether the Proclamation excluded a Master’s
programme as part of the matters to be investigated
in relation to
the university. In
The
Western Cape Provincial Government & Others v North West
Provincial Government
[12]
Ngcobo
J (as he then was), when interpreting a Proclamation listed in
Schedule 6 of the Constitution at paragraph 36 he stated:
“
[36] The
inquiry into whether the Proclamation dealt with a matter listed in
schedule 6 involves the determination of the subject
matter or the
substance of the legislation, its essence, or true purpose and
effect, that is what the Proclamation is about. In
determining the
subject matter of the Proclamation it is necessary to have regard to
its purpose and effect. The inquiry should
focus on beyond the direct
legal effect of the Proclamation and be directed at the purpose for
which the Proclamation was enacted
to achieve. In this inquiry the
preamble to the Proclamation and its legislative history are relevant
considerations, as they serve
to illuminate its subject matter. They
place the Proclamation in context, provide an explanation for its
provisions and articulate
the policy behind them.”
[54]
There is a rule commonly known as
expressio unis est exclusion
alterius
which means that the express mention of one thing is the
exclusion of the other. Where things are specifically included in a
list
and others have been excluded, that means that all others have
been excluded except where certain words are used, namely,
‘including’
or ‘such as’.
[55]
Section 101 of the Constitution deals with decisions made by members
of the executive arm of government:
“
Executive
decisions
101. (1)
A decision by the President must be in writing if it—
(a) is taken in terms
of legislation; or
(b) has legal
consequences.
(2)
A written decision by the President must be countersigned by another
Cabinet member if that decision
concerns a function assigned to that
other Cabinet member.
(3)
Proclamations, regulations and other instruments of subordinate
legislation must be accessible to the
public.
(4)
. . . . . .”
[56]
In
Kruger
v President of the Republic of South Africa & Others
[13]
Skweyiya J stated:
“
[6]
The publishing of proclamations in the Government Gazette
facilitates easy and quick access by the public to formal orders
and
decisions by legal authorities. In the present matter such authority
is the President who is the head of State and head of
the National
Executive. The authority is vested in him and he exercises such
authority with other members of Cabinet.”
[57]
In that case the Constitutional Court declared invalid the
President’s action of issuing a Proclamation purporting
to
correct an obvious error in an earlier Proclamation. Although the
Constitutional Court found that the President had made a genuine
and
bona fide
mistake, because the first Proclamation was
objectively irrational, in that the provisions of the Amendment Act,
which it purported
to put into operation were an arbitrary selection.
Under the doctrine of objective invalidity, the first Proclamation
was declared
as having been a nullity from the outset.
[58]
That decision is indicative of how the Constitutional Court preferred
an interpretation that upholds constitutional rights
to the one that
sought to interfere with them. It adopted a strict approach even
though the error made was bona fide. The complaint
is that the SIU
has no authority to investigate a Master’s degree because that
programme has been expressly excluded in the
Schedule of matters to
be investigated.
[59]
I am mindful of the fact that one may have regard to what served
before the President, restrictively. I do not seek to
call into aid
those documents for the purpose of interpreting the Proclamation but
simply to show that the SIU has misconstrued
its authority. If one
has regard to annexure “B” to the President’s
answering affidavit, being the motivation
from the Head of the
Special Investigating Unit dated 30 March 2021, Advocate JL Mothibi,
in the relevant part it is recorded:
“
8.1 The
procurement of or constructing for goods and services by or on behalf
of the University of Fort Hare and payments
made in respect of
payments thereof in a manner that was –
(a)
not fair, competitive, transparent, equitable or
cost-effective; or
(b)
. . . .”
“
8.2
Maladministration in the affairs of the University of Fort Hare
Faculty of Public Administration in relation to the:
(a)
Awarding of Honours degrees;
(b)
Management of funds;
(c)
Sourcing of public servants for study into various Faculty
programmes by an individual for personal gain;
8.3 Any
improper or unlawful conduct by officials or employees of the
University of Fort Hare or the applicable service
providers or any
other person or entity, in relation to the allegations set out
in
8.1 and 8.2
above.”
(my emphasis)
[60]
In paragraph 9.30 of the motivation it is recorded by the SIU:
“
9.30
Horizon Forensics recommended further investigation into this matter.
Ad maladministration in the affairs of the Faculty
of Public
Administration (the Faculty) in relation to the awarding of
Honours
degrees
, the management of funds and the sourcing of
public servants for study in the Faculty (HF report).
9.31
Honours degrees
(HF report) Horizon Forensics received
allegations that students at the UFH were admitted into the Public
Administration
Honours
programme without having met the
minimum admission requirements. It was further alleged that these
students had however subsequently
graduated despite this material
shortcoming.”
[61]
Although there is mention of Masters and Doctoral qualifications
somewhere in the motivation, the SIU did not place those
as matters
that needed to be investigated as it did with paragraphs 8.1 and 8.2,
and the specific mention of the Honours degree,
above.
[62]
The motivation made by the SIU to the President was very specific and
it excluded the Master’s programme. The motivation
for the
Proclamation by the Minister of Justice and Correctional Services
deals specifically with matters that fall under section
2(2) of the
SIU Act which provide that the President may exercise the powers on
the grounds of, inter alia, any alleged serious
maladministration in
connection with the affairs of any state institution, improper or
unlawful conduct by employees of any State
institution, unlawful
appropriation or expenditure of public money or property, unlawful
irregular or unapproved acquisitive act
or transaction, measure or
practice having a bearing upon State property, intentional or
negligent loss of public money or damage
to public property, offences
referred to in terms of amongst others Prevention of Combating or of
Corrupt Activities Act 2004,
and unlawful or improper conduct by any
person which has caused or may cause serious harm to the interests of
the public or any
category thereof.
[63]
Having looked at the purpose and context of the Proclamation, the
interpretation that the university and the SIU seek
to accord to it,
is with respect, not consistent with what is expressly stated
therein. Paragraph 1 and 2 of the Schedule clearly
limit the powers
of anyone who is to implement the Proclamation. Any act must be
relevant to, incidental to, matters listed in
paragraphs 1 and 2 of
the Schedule.
[64]
The Proclamation in paragraph 2 has not employed the terms “such
as” or ‘including’ in which
case one would find
that the extended meaning accorded to the Proclamation would be
justified. The Proclamation clearly specified
that it would apply to
the awarding of Honours degrees only.
[65]
I accordingly find that the complaint by the applicant in this regard
is justified. In as much as the applicant was aware
of the
Proclamation as early as 2022, his allegation that he became aware of
the fact that the investigation was directed at him
when he received
a notice from the SIU, is supported by the letters he relied upon.
This explanation is reasonable because up until
that time there was
no indication that he was a subject of the investigation and it is
not denied that he does not possess an Honours
degree. He has stated
under oath that he does not have an Honours degree. In the answering
affidavits of both the University and
the SIU there is no allegation
that he does in fact have one in which event that would bring him
within the ambit of the Proclamation.
[66]
The President has stated clearly in his answering affidavit that in
terms of section 4 of the
SIU Act
he has
powers to amend the Proclamation. To the extent that there is
evidence that implicates unlawful conduct in so far as the
Masters
degree is concerned, there is nothing stopping the SIU from preparing
a motivation as it did with the earlier Proclamation
and request the
President to proclaim that the registration for Master’s
degree, too, should be investigated. The SIU issued
the notice
calling upon the applicant to furnish certain information which
clearly demonstrates that the enquiry was directed at
the
investigation of the Masters degree and / or registration in respect
of that programme.
[67]
The SIU and the university have raised a complaint about the
separation of powers harm as the Constitutional Court warned
in the
OUTA decision. A Proclamation has the force of law. It is
legislation. The reason why it is made easily accessible to the
public is to ensure that no one defies compliance therewith. The same
applies where the Proclamation does not expressly provide
for any
conduct or act. It is not up to the SIU or any law enforcement agent
to extend its territory so as to ensure that it continues
with its
investigations. To do so, goes against the purpose for which the
Proclamation was enacted.
[68]
I have demonstrated above that even the SIU in its motivation did not
seek an investigation into the Masters programme.
It may have
inadvertently omitted that but the end result is very clear that the
Masters programme was not included.
[69]
In defence of its actions the SIU contends that the Proclamation
refers to ‘incidental’, ‘relevant
to’,
‘connected with’. Mr Marcus argued that the applicant
accords a narrow interpretation and yet these words
lawfully extend
to the investigation into the Master’s programme. This
submission, with respect, omits the qualification
that follows
immediately after those words ‘
but is relevant to, connected
with, incidental or ancillary
to the matters mentioned in
the Schedule
or involve the same persons,
entities or contracts investigated under authority of this
Proclamation
....”
[70]
The words: ‘mentioned in the Schedule’ and ‘under
authority of this Proclamation’ are the limiting
words. Any
matter that is not ‘under authority of the Proclamation’
is excluded. Those four words (connected with,
ancillary to or
relevant to or incidental to) are directly linked to matters
mentioned in the Schedule. No other plausible interpretation
could be
given to those words. To extend their relevance to matters that are
not on the Schedule, would be to usurp the President’s
powers.
The SIU relied on
R
v Levy & Another
[14]
for
its contention that
where
a legislative or administrative provision is susceptible of more than
one meaning, the Court should lean towards an interpretation
. . .
which renders it valid, rather than giving it meaning which is so
extravagant or wide as to render it invalid.
[71]
At page 468 para G to H of that decision, the Court stated:
“
While, as
stated in Union Government v Mack
[15]
the court will in the interpretation of statutes depart from the
ordinary meaning of the language used to remove an absurdity,
this
principle is not applicable to statutory regulations or bye-laws,
which must be positive and certain in their terms
.
If
the provisions of the regulation are circuitous, so that their
intention has been defeated, this is a matters for amendment by
the
governor-general not legislation by the court
. . . .” (my underlining)
[72]
In
Port
Elizabeth Municipality v Uitenhage Municipality
[16]
,
the
court dealt
with
increases of tariffs scale by ten percent where there were increases
in the costs of fuel. The court in interpreting the applicable
agreements stated:
“
The increase of
five percent has not received the approval of the administrator, and
is therefore unenforceable. . .
A power given to a public
body for a particular purpose cannot be used for obtaining any other
object, however laudable. A statutory
power may not be used for a
‘collateral or outside purpose.”
(my emphasis)
[73]
On this issue of interpretation the SIU also relied on
Mpumalanga
Tourism v Barberton Mines
[17]
.
In that matter the Supreme Court of Appeal found that the area
concerned was properly indicated with sufficient certainty to meet
the challenge that the 1996 Proclamation was void for vagueness. The
issue before the Supreme Court of Appeal in the Mpumalanga
matter was
whether a certain area formed part of a nature reserve or protected
environment. That was a distinct and different issue
to the one
before this Court.
[74]
Mr Swartbooi submitted that the Proclamation must clearly extend to
any person involved in the maladministration of the
university. He
submitted that limiting the scope to employees would mean that any
other person implicated or complicit in the maladministration
would
be free to go. In this regard, the university associated itself with
the submissions made by the SIU that ‘relevant
to’,
‘connected to’ and ‘incidental’ would include
an investigation into the complicit conduct of
the applicant.
[75]
The university relied on
Economic
Freedom Fighters v Gordhan & Others
[18]
for the submission that the applicant has failed to establish that he
has a
prima
facie
right that has been infringed. It further relied on the
National
Treasury v Opposition to Urban Tolling Alliance
[19]
for the submission that “
the
right to review the impugned decisions did not require any
preservation pendente lite.
[76]
Mr
Swaartbooi also relied on
Bernstein
v Bester
[20]
for the submission that an investigation ‘as opposed to any
subsequent decision’ carries no serious or final consequences
for a person investigated. In the
Bernstein
case
the Constitutional Court was dealing with issues relating to
enquiries in terms of section 417 and 418 of the Companies Act 61
of
1973 which related to summoning and examination of persons in
relation to the affairs of the company which has been liquidated.
In
those instances, as found by the Constitutional Court, there was
already an order of court and creditors clearly had an interest
in
those proceedings.
[77]
E. A. Kellaway
in his work entitled:
Principles of Legal
Interpretation; Statutes, Contracts& Wills,
deals with
extending the meaning of a statute as follows:
“
A statute
has no elasticity; that is to say it may not be stretched to meet a
case for which provision has clearly not been made.
In other words a
casus omissus cannot be remedied by a court.”
[21]
These
remarks apply equally herein.
[78]
Looking at the Proclamation, objectively, there are prospects that
the review court may set aside the decision of the
SIU to include the
Master’s programme in its investigations without authority from
the President. It follows that such investigation
may be set aside on
review. The threats posed by the notice issued by the SIU, for
non-compliance therewith, was never retracted.
The applicant had
accordingly succeeded in establishing a
prima facie
right
deserving of protection from harm that may befall him if the
investigation continues in circumstances where such investigation
falls outside the ambit of the Proclamation.
[79]
The interim interdict itself is not permanent in nature as it will
only endure up to the time when the review application
is determined.
The interdict is not sought against the university, it is only sought
against the SIU. Nothing stops the university
from conducting or
continuing with its investigations until such time as the matter is
finalized on review. The applicant would
suffer irreparable harm if
he continues to be subjected to an investigation that may be found to
be unlawful on review. The integrity
of any investigation is in its
lawfulness. It can never be in the public interest to allow an
investigation to be continued where
it appears to fall outside the
authority of the Proclamation.
[80]
There are suggestions that the applicant does have alternative
remedies. The issue of alternative remedies cannot arise
where the
authority upon which the investigation is purportedly based is
non-existent. To allow the investigation to continue when
the issue
being investigated does not appear on the Proclamation itself would
be to allow unlawful conduct to continue. It is so
that the matter is
of public importance in the sense that people would want to see
perpetrators who are involved in the unlawful
conduct being brought
to book as soon as possible and that the investigations be done as
soon as possible. It is in the interests
of justice that
investigations must be conducted in accordance with the law,
otherwise they would be tarnished.
[81]
In this case the SIU does not have the original authority to
investigate university affairs and it is for that reason
that
extending the operation of the Proclamation to matters that are not
expressly stated therein, may be found to be unjust by
the review
court. For all the reasons I find that a case is made out for an
interdict pending finalization of Part B.
Costs
[82]
The SIU and the university asked for costs on a punitive scale. They
complained about the late filing of the supplementary
affidavit by
the applicant. They both failed to file a notice to have the
supplementary affidavit struck out. The supplementary
affidavit was
intended to limit the issues. That, in my view, was a concession well
made by the applicant. As a result of that
concession the validity of
the Proclamation is no longer impugned. I do not find reason to
punish the applicant with a punitive
cost order for narrowing down
issues.
[83]
Although the applicant contends that the SIU was malicious, there is
no evidence of such malice. The matter involved
interpretation of the
Proclamation and whether the investigation against the applicant
should be restrained at this point. To the
extent that the SIU
extended the investigation to a Master’s programme, a degree
that is offered by the university, may only
demonstrate
overzealousness but not malice. This is a matter that was of great
importance to all the parties and they each sought
to protect their
interests. There is still Part B that will determine with certainty
the rights of the parties. That court will
be armed with a full
record which will indicate whether the actions of the SIU were
malicious or not. I am of the view that this
is a matter where each
party is to bear its own costs.
ORDER
[84]
In the circumstances I grant the following Order:
1.
The Special Investigating Unit is interdicted from enforcing
Proclamation 84 of 2022, published in the Government Gazette No.
47199
on 5 August 2022 in so far as the SIU has taken steps or
intends to take steps that are directed at the applicant, pending the
determination of Part B.
2.
Each party is to bear its own costs.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Matter
heard on 13 June 2023
Judgment
Delivered on 20 June 2023
APPEARANCES:
For
the APPLICANT:
ADV
NGCUKAITOBI SC with
ADV
MASHIYI-NXAZONKE
ADV
SALUKAZANA
Instructed
by:
SAKHELA
INC.
54
STEWARD DRIVE BAYSVILLE
EAST
LONDON
REF:
Mr Sakhela
TEL:
043 721 1404
EMAIL:
sakhelan@sakhelainc.co.za
For
the 1
ST
RESPONDENT:
ADV
GABRIEL SC
Instructed
by:
STATE
ATTORNEY
17
FLEET STREET
OLD
SPOORNET BUILDING
CNR
FLEET & STATION STREET
EAST
LONDON
TEL:
043 706 5100
REF:
307/23 – P2 (Mr Mosia)
For
the 2
nd
RESPONDENT:
ADV
MARCUS SC
Instructed
by:
MODISE
MABULE ATTORNEYS
81
AMPTHILL, CENTRAL HOUSE BUILDING
1
ST
FLOOR, SUITE NO. 102
TEL:
066 054 5929
CELL:
082 661 2057
EMAIL:
admin@modisemabuleinc.co.za
c/o:PHIWOKUHLE
NYOBO INC.
100
ALEXANDER ROAD
QONCE
EMAIL:
admin@nyoboinc.co.za
For
the 3
RD
RESPONDENT:
ADV
SWARTBOOI SC with
ADV
SWARTBOOI
Instructed
by:
BRADLEY
CONRADIE HALTON CHEADLE
GO4,
THE GATEHOUSE
CENTURY
WAY
CENTURY
CITY
CAPE
TOWN
TEL:
021 418 2196
EMAIL:
liezl@bchc.co.za
keagan@bchc.co.za
kirsten@bchc.co.za
REF:
LM MOUTON
c/o:GORDON
MCCUNE ATTORNEYS
36
TAYLOR STREET
KING
WILLIAMS TOWN
TEL:
043 642 1519
EMAIL:
gordon@gmattorney.co.za
[1]
2002 (1) SA 605 (SCA).
[2]
2023
(1) SACR 610
(GJ) at para 17.
[3]
Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v
National Director of Public Prosecutions 2009 (1) SA 1 (CC).
[4]
Moran
v Lloyd’s (A statutory Body) [1981] 1 Lloyd’s Reports
423 (CA) at 427.
[5]
[5]
National
Treasury v Opposition to Urban Tolling Alliance
2012 (6) SA 223
(CC)
at para 50.
[6]
[
2003] 1 All SA 82
(SCA) paras 54 and 55.
[7]
[2010]
ZACC 21.
[8]
2023 (5) BCLR 527
at paras 299 – 304.
[9]
1998 (1) BCLR 123
at para 5.
[10]
Luna
Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers)
1977 (4) SA 135
(W) at 137 F.
[11]
South
African Informal Traders Forum v City of Johannesburg and Others;
South African National Traders Retail Association v City
of
Johannesburg
2014 (4) SA 371
(CC);
2014 (6) BCLR 726
(CC).
[12]
CCT 22/99, heard 7 September 1999 Decided 2 March 2000.
[13]
[2008] ZACC 17
;
2009 (1) SA 417
CC at 422.
[14]
1953 (3) AD.
[15]
1917 AD at page 739.
[16]
1971 (1) AD at page 727 para H.
[17]
2017 (5) SA 62
SCA paras 15 & 16.
[18]
2020 (6) SA 325
(CC) at para 42.
[19]
2012 (6) SA 223
(CC) at para 50.
[20]
[1996] ZACC 2
;
1996 (2) SA 751
(CC) at para 97.
[21]
Page
140 para 18: “Extending the meaning of a statute”.