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[2022] ZAGPPHC 37
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Msibi v Office of the Public Protector and Others (75594/2019) [2022] ZAGPPHC 37 (26 January 2022)

IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
·
REPORTABLE: NO
·
OF INTEREST TO OTHER JUDGES: NO
·
REVISED
26
January 2022
CASE
NO: 75594/2019
Heard
on:
15
O
ctober 2021
Delivered
on: 26 January 2022
In the matter
between:
MAKHOSINI
MSIBI
Applicant
and
THE
OFFICE OF THE PUBLIC PROTECTOR
First
Respondent
BUSISIWE
MKHWEBANE
Second
Respondent
ROAD
TRAFFIC MANAGEMENT CORPORATION                                  Third
Respondent
JUDGMENT
VUMA,
AJ
INTRODUCTION
[1]
The Office of the Public Protector is an institution created in terms
of Chapter 9 of the Constitution
and is aimed at strengthening our
constitutional democracy independently, impartially and effectively.
In order to achieve its objective
to strengthen constitutional
democracy, this Chapter 9 Institution is required to be subject only
to the Constitution and the law.
In the same vein, the Public
Protector is further required to exercise the powers and functions
vested in her without fear, favour
or prejudice.
[2]
Alive to the above, this Rule 53 review application follows a Part A
and B urgent application launched
by the applicant on 11 October
2019. Part A of the Notice of Motion sought an interim interdict of
the remedial action directed by
the Public Protector contained in
paragraph 7 of the Public Protector’s Report No. 69 of 2019/20
dated 16 September 2019 (“the
report”) pending the final
determination of this review application as set out in Part B of the
Notice of Motion.
[3]
Part B of the Notice of Motion seeks an order in the following terms:
“
1.
The remedial action directed by the Public Protector in paragraph 7
of the Report No. 69 of 2019/20 (“the Report”)
dated 16 September
2019 is reviewed and set aside in its entirety;
2.
The findings in the Report related to the following
issues are reviewed and set aside:
2.1
Whether Ms. Julia Manamela was
improperly
appointed in
the
Supply Chain Management Unit;
2.2
Whether the bodyguards assigned for the protection of the CEO were
paid excessive overtime; and
2.3.
Whether lawyers and legal firms were improperly appointed.
3.
It is declared that, in terms of section 172(1)(a)
read with section 181(2) of the Constitution, that the Public
Protector failed to comply with her constitutional obligations;
4.
The First Respondent is ordered to pay the costs of this application
including the costs of two counsel, which costs
shall also be paid
jointly and severally by the Third Respondent in the event that it
opposes the relief sought and;
5.
Further and/or alternative relief”.
[4]
Effectively, Part B of the Notice of Motion seeks to review and set
aside the Report of the Public Protector
in its entirety.
[5]
To give context, the applicant is the Chief Executive Officer of the
third respondent, the Road Traffic Management
Corporation.
[6]
The first respondent is the Office of the Public Protector of the
Republic of South Africa, an institution
established by sections 181
and 193 of the Constitution of the Republic of South Africa, Act 108
of 1996 (hereinafter “the Constitution”).
[7]
The second respondent is Busisiswe Mkhwebane who is the Public
Protector (hereinafter “the Public Protector”)
and is cited in
her personal capacity. The personal costs order initially sought
against her was withdrawn mid-hearing by agreement
between the
parties.
[8]
The third respondent is the Road Traffic Management Corporation,
(hereinafter “the RTMC”) a state-owned
juristic entity as
provided for in terms of
section 3
of the
Road Traffic Management
Corporation Act 20 of 1999
.
[9]
To the extent that RTMC did not oppose the relief sought, the
applicant seeks no relief against it considering
that it has in fact
been cited herein because it has been directed to implement the
remedial action by the Public Protector in her
report and/or because
it may have an interest in the proceedings.
[10]
For what it’s worth, may I take this opportunity and thank both
Counsel for extending themselves
and indulged me pertaining to my
request for their assistance in regard to the meaning and/or
definition of ‘maladministration’,
in light of the fact that all
the Acts relied on by both parties are silent in this regard. I am
truly indebted.
[11]
Of chief importance is the confirmation of the ‘concession’ made
by the first and second respondent
at the outset of the hearing to
the relief sought by the applicant in paragraph 1 of Part B in terms
of the Notice of Motion in respect
of the proposed remedial action
that same may indeed be ordered by this court in light of the
President of the
Republic v Public Protector
decision
cited below herein. That concession accordingly disposes of this
issue for purposes of determination.
[12]
Lastly, the applicant submits that given that the grounds of his
review application are both procedural
and substantive in nature,
once this court finds in his favour in respect of his procedural
grounds of review, such a finding should
be made to be dispositive of
the entire application entitling him to the relief he seeks.
FACTUAL
BACKGROUND
[13]
The events outlined hereinafter are the precursor to the impugned
report published by the Public Protector
on 16 September 2019 in
terms of
section 182(1)(b)
of the
Public Protector Act 23 of 1994
entitled: “
Report on an investigation into allegations of
procurement irregularities, maladministration and nepotism within the
Road Traffic
Management Corporation (RTMC) by the CEO, Advocate
Makhosini Msibi”.
[14]
On or about 18 November 2016 the first respondent directed a letter
to the Chairman of the Board of the
RTMC regarding the investigation
into allegations of a complaint that was lodged anonymously on 4
April 2016. Of the original nine
issues that speak to the allegations
of procurement irregularities, maladministration and nepotism within
the RTMC that were perpetrated
and/or furthered by the applicant
which are raised in the report, the Public Protector found that only
three thereof were substantiated.
In the letter to the RTMC Board,
the Public Protector listed the issues under investigation and
requested a response to same as well
as specific documentation that
would assist her office with the investigation.
[15]
On or about 2
nd
December 2016 the RTMC delivered its first
response to the allegations in the complaint, which response it
supplemented on 28 February
2018.
[16]
On or about 26 March 2019, the Public Protector issued a notice in
terms of section 7(9)(a) of the Act
to the RTMC and the applicant.
The RTMC responded to the aforementioned notice on 2
nd
April 2019 indicating that it takes note of the preliminary findings
contained therein.
[17]
The applicant delivered his first response to the notice to the
Public Protector on or about
10 April 2019 and met with her in person
on 12 April 2019, after which he supplemented his 10 April 2019
response in a letter dated
16 April 2019. The applicant received the
16 September 2019 report a day after its release.
[18]
As already stated above, of the nine issues identified in the
complaint, the Public Protector found six
to be unsubstantiated, thus
finding that the following three have been substantiated:
18.1
That an employee named Ms. Julia Manamela was improperly
employed to a position in the Supply Chain Management
Unit and that
the appointment amounted to maladministration as contemplated by
section 6(4) of the Act;
18.2
That the bodyguards assigned to the applicant for his protection were
paid excessive overtime and their appointment
amounted to
maladministration as per section 6(4) of the Act; and
18.3
That the lawyers and/or legal firms were improperly appointed to
conduct disciplinary cases against employees and
that their
appointment amounted to improper conduct and maladministration in
terms of section 6(4) of the Act.
[19]
Following her investigation of the above three complaints, the
Public Protector in her report found
that the applicant as a public
official, had failed to adhere to the standard as is required in
section 195 of Constitution and proposed
a remedial action in her
report.
THE
APPLICANT’S GROUNDS OF REVIEW
[20]
The applicant raises two grounds of review,
viz
,
procedural and substantive.
20.1
In
re
the
procedural grounds, the applicant argues that the Public Protector
violated his right to procedural fairness in that:
20.1.1
in conducting her investigations she failed to hear him (the
applicant); and
20.1.2.
she failed to disclose the proposed remedial action to the him prior
to issuing the impugned report,
thus violating his right to be
afforded a reasonable opportunity to make representations on matters
that detrimentally affect his
interests.
20.2
In
re
the
substantive grounds, the applicant argues that the Public Protector’s
findings and conclusions and the remedial action that
she prescribed
are either:
20.2.1.
Based on material errors of law and/or fact in the conclusions that
she reached;
20.2.2.
Irrational;
20.2.3.
Not rationally connected to the evidence that served before her; or
20.2.4
A combination of the above.
[21]
In this regard the applicant submits that all of the above
grounds of review bear the potential to overlap
and that all six of
them can be accommodated under PAJA and the principle of legality as
the applicant relies on both.
THE
LEGAL PRINCIPLES
[22]
Section 7(9)(a)
of the
Public Protector Act 23 of 1994
provides that:
“
If
it appears to the Public Protector during the course of an
investigation that any person is being implicated in the matter being
investigated and that such implication may be to the detriment of
that person or that an adverse finding pertaining to that person
may
result, the Public Protector shall afford such person an opportunity
to respond in connection therewith in any manner that may
be
expedient under the circumstances
”.
[23]
Section 33(1) of the Constitution provides that:
“
Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair.
”
[24]
Section 172(1)(a) of the Constitution provides:
“
(1)
When deciding a constitutional matter within its power, a court –
(a)
must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency.”
[25]
Section 181 of the Constitution provides:
“
(1)
The following state institutions strengthen constitutional democracy
in the Republic:
(a)
The
Public Protector....
(b)
……
(2)
These institutions are independent, and subject only to the
Constitution and the law, ……
”.
[26]
Section 182 of the Act provides:
“
(1)
The Public Protector has the power, as regulated by national
legislation-
(a)
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 result in any impropriety or prejudice;
(b)
to
report on that conduct; and to take appropriate remedial action.”
[27]
Section 195(1)(a) of the Constitution provides
that:
“
Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following
principles:
(a)
a
high standard of professional ethics must be promoted and maintained.
(b)
…”
.
[28]
In
President
of the Republic of South Africa v Public Protector and Others
(Information
Regulator as amicus curiae)
2020 (5) BCLR 513
(GP) at 156 -)
,
the Full Court held:
“
156.
Section 7(9)(a) of the
Act
obliges the Public
Protector to afford a hearing to persons implicated in any
investigation. It provides that:
‘
If
it appears to the Public Protector during the course of an
investigation that any person is being implicated in the matter being
investigated and that such implication may be to the detriment of
that person or that an adverse finding pertaining to that person
may
result, the Public Protector shall afford such person an opportunity
to respond in connection therewith in any manner that may
be
expedient under the circumstances
”
.
157.
In addition, the right to be afforded a reasonable opportunity to
make representations on matters that may detrimentally affect
one’s
interests is a well-established principle of natural justice and of
our common law. It is an important component of the right
to just
administrative justice and is expressly recognized as such in the
Constitution. Whether or not a decision decision-maker
has complied
with this obligation or not will depend on the facts of a particular
case.
158.
The Public Protector’s stance is that section 7(9)(a) does not
oblige her to give a person being investigated a hearing on
her
contemplated remedial action. She says that in her notice to the
President she forewarned him that the remedial action could
be a
referral of the matter to the relevant authorities. She contends that
this was sufficient compliance with her obligations under
the audi
alteram partem principle.
159.
Section 7(9)(a) does not expressly require the Public Protector to
include her contemplated remedial action in the notice to
a party
under investigation. However, that does not mean that the Public
Protector may not be obliged to do so. The facts may be
such that in
order to constitute compliance with a person’s constitutional right
to just administrative action, she should afford
them this
opportunity.
160.
In this case, the remedial action directed by the Public Protector
has potentially serious implications for the President…..
162.
Given these serious implications of the remedial action, the
President’s right to just administrative action placed an
obligation
on the Public Protector to be forewarned of them, and to
be given an opportunity to make representations. She failed to comply
with
this obligation. In the circumstances, the remedial action she
included in her report falls to be reviewed and set aside.
”
[29]
In regard to section 195 of the Constitution, the Constitutional
Court in
Glenister
v President of the Republic of South Africa
2011
(3) SA 347
(CC) at para 176
stated
that:
“
Endemic
corruption threatens the injunction that government must be
accountable, responsive and open; that public administration must
not
only be held to account but must also be governed by high standards
of ethics, efficiency and must use public resources in an
economic
and effective manner. As it serves the public, it must seek to
advance development and service to the public. In relation
to public
finance, the Constitution demands budgetary and expenditure processes
underpinned by openness, accountability and effective
financial
management of the economy. Similar requirements apply to public
procurement, when organs of state contract for goods and
services
”.
[30]
In
South
African Reserve Bank v Public Protector
[2017]
4 All SA 269
(GP);
2017 (6) SA 198
(GP)
Murphy J
stated:
“
It
is disconcerting that [the Public Protector] seems impervious to the
criticism, or otherwise disinclined to address it. This court
is not
unsympathetic to the difficult task of the Public Protector. She is
expected to deal with at times complex and challenging
matters with
limited resources and without the benefit of rigorous forensic
techniques. It is easy to err in informal-alternative
dispute
resolution processes. However, there is no getting away from the fact
that the Public Protector is the constitutionally appointed
custodian
of legality and due process in the public administration. She risks
the charge of hypocrisy and incompetence if she does
not hold herself
to an equal or higher standard than that to which she holds those
subject to her writ. A dismissive and procedurally
unfair approach by
the Public Protector to important matter placed before her by
prominent role players in the affairs of state will
tarnish her
reputation and damage the legitimacy of the office.
”
[31]
To be lawful, the Public Protector’s exercise of power must be both
non-arbitrary and rational. The
test for rationality is explained by
Navsa ADP in the Supreme Court of Appeal in the matter of
Zuma
v Democratic Alliance and Others; Acting National Director of Public
Prosecutions and Another v Democratic Alliance and Another
2018
(1) SA 200
(SCA) at para 82
:
“
Rationality
review is concerned with the evaluation of a relationship between
means and ends: the relationship, connection or link
(as it is
variously referred to) between the means employed to achieve a
particular purpose on the one hand, and the purpose or end
itself on
the other. The aim of the evaluation of the relationship is not to
determine whether some means will achieve the purpose
better than
others but only whether the means employed are rationally related to
the purpose for which the power was conferred. Rationality
review
also covers the process by which the decision is made and the
decision itself must be rational
(my
emphasis).
If
a failure to take into account relevant material is inconsistent with
the purpose for which the power was conferred there can be
no
rational relationship between the means employed and the purpose
.”
[32]
In
Democratic
Alliance v President of the Republic of South Africa
2013
(1) SA 248
(CC) at paras 39 - 40
,
it was held that all public power can also be challenged that the
decision-maker failed to take into account relevant considerations.
[33]
In
Chairman,
State Tender Board v Digital Voice Processing (Pty) Ltd
…
,
Plasket J
stated that:
“
In
order to be rational, the decision must be ‘based on accurate
findings of fact and a correct application of the law
.”
[34]
The first and second respondent submit that the following are
requirements of procedural fairness in multi-staged
decisions which
they further argue, accords with an investigation in terms of section
7 and what is stated by De Ville states in
Judicial
Review of Administrative Action in South Africa, Revised first
Edition, p 239
:
“
Administrative
decisions are often taken at various stages….The question that
arises is at which point in the process the requirements
of
procedural fairness (and especially the audi alteram rule) should
find application. The more recent approach of the courts is
to hold
that one must enquire into the context of the whole decision-making
process. What fairness requires is to be determined with
reference to
administrative efficiency, the prejudice suffered at a specific stage
of the process and the opportunities given to
minimize or everse such
prejudice at any later stage
.”
[35]
In
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
2011
(4) SA 113
(CC) paras 81 – 85
,
the Constitutional Court held that in exercising judicial review, a
court must declare conduct that is inconsistent with the Constitution
to be unlawful, before exercising its remedial discretion to grant a
just and equitable order.
ISSUES
FOR DETERMINATION
[36]
As already stated in paragraph 11 above, the issue in regard to
prayer 1 of Part B of the Notice of Motion,
namely, that t
he
remedial action directed by the Public Protector in paragraph 7 of
the Report No. 69 of 2019/20 (“the Report”) dated 16 September
2019 be reviewed and set aside in its entirety
have since
become moot for determination purposes in light of the first and
second respondent’s concession. Consequently the issues
remaining
for determination are the following:
36.1
Whether the applicant’s right to procedural
fairness was infringed upon and more particularly,
whether:
36.1.1
It is required in terms of the provisions of section 7
the
Public Protector Act to
grant the applicant an opportunity to
respond to the complaint in the preliminary stages of the
investigation, that is, before the
section 7(9)(a)
notice is issued.
36.1.2
The Public Protector was required to provide the applicant with the
evidence that the Public Protector used in
arriving at the
preliminary findings as recorded in the
section 7(9)(a)
notice, under
circumstances where the applicant provided the evidence to the Public
Protector.
36.2.
Whether the Public Protector’s failure to disclose the intended
remedial action in the
section 7(9)(a)
notice renders the entire
report reviewable or whether the omission to grant the applicant that
opportunity is severable from the
remainder of the report.
36.3.
Whether the employment or recruitment of Ms Julia Manamela in the
Supply Chain Management unit of RTMC met the requirements
of fairness
and transparency set out in section 195(1) of the Constitution; or
put differently, whether she was improperly employed
in the position
of Admin Assistant: Travel.
36.4
Whether the overtime worked and claimed by bodyguards assigned for
the protection of the applicant
was in excess of the requirements of
the BCEA and RTMC’s Policy on conditions of service.
36.5
Whether the appointment of Senior Counsel was unnecessary and
contrary to the obligations
of RTMC to utilize state resources
efficiently, effectively and economically as required by section
195(1) of the Constitution.
SUBMISSIONS
BY THE APPLICANT
[37]
Despite the Public Protector’s ‘concession’ in regard to the
reviewing and setting aside
of the report, the applicant contends
that the impugned report and the adverse findings contained therein
is demonstrative of the
Public Protector’s blatant disregard of her
constitutional mandate and her failure to conduct herself in an
objective manner as
would be expected of a person occupying her
office, arguing further that the report is plagued with factual
inaccuracies, illogical
conclusions and errors of law. It is plainly
irrational, unreasonable and unlawful, thus making it liable to be
reviewed and set
aside on multiple grounds, including on the
principle of legality and several other grounds as set out in section
6 of the Promotion
of Administration of Justice Act 3 of 2000
(“PAJA”).
[38]
The applicant states that his contention is premised on the fact that
despite him being the subject of
the investigation, the Public
Protector never afforded him the same opportunity as the RTMC to
provide a response to the allegations
and that already on or about
the 26
th
March 2019 when the Public Protector issued the
section 7(9)(a) notice to both the RTMC and himself in which he was
requested to
provide a response in relation to the allegations, his
reputation was damaged. The applicant was being requested to provide
a response
almost three years after the anonymous complaint was
allegedly lodged. The applicant further argues that the Public
Protector mischaracterizes
his complaint as being about him not
having knowledge of the allegations made against him or
investigations that were underway whereas
in fact his complaint has
always been about the Public Protector’s failure to engage him
directly prior to releasing her adverse
preliminary findings, which
he contends, is what is at the heart of the infringement of his
administrative and constitutional right
to be heard.
[39]
Whilst acknowledging the Public Protector’s competence to determine
the format and procedure of the investigation
in terms of section 7
of the Act, the applicant argues that such format and process must
conform to a procedure that is ultimately
rational and procedurally
fair to an accused party. The applicant submits that
in casu
the Public Protector has breached the
audi alteram partem
principle in this regard in that he was not afforded the
opportunity to exercise his right to be heard before the preliminary
findings
were made and the section 7(9)(a) notice issued, including
the proposed remedial action to which he was never afforded an
opportunity
to make representations before the release of the report.
Thus, the applicant cites
President v Public Protector
above and argues that the report of the Public Protector be
reviewed and set aside in its entirety in that she acted in a
procedurally
irrational and unfair manner, thus failing to adhere to
her statutory mandate, both in respect of her preliminary findings
and the
proposed remedial action.
[40]
The applicant further argues that the Public
Protector was required to provide him with the evidence
that she used
in arriving at the preliminary findings as recorded in the section
7(9)(a) notice, this, despite him being the person
who provided such
evidence to the Public Protector
via
the RTMC Board in
response to the Public Protector’s request. He argues that she was
administratively duty-bound nevertheless.
[41]
The applicant makes extensive submissions in regard to the
substantive grounds of review as outlined
in paragraphs 36.3 to 36.5
above. However, as already stated above, he argues that to the extent
that the court upholds the procedural
grounds of this review as set
out above, that same should be dispositive of this matter in its
entirety.
SUBMISSIONS
BY THE RESPONDENT
[42]
In rebuttal of the issues raised by the applicant, the Public
Protector argues that the applicant’s
grounds to review and set
aside the report are unmeritorious if regard is had to both section
195(1)(a) of the Constitution and
Glenister
above and
further states the following:
42.1.
That since the Board of the RTMC was requested to provide a response
to the complaint and whereas the applicant
is a member of the Board,
he had knowledge of the complaint;
42.2.
Second to para 42.1 above, the applicant, in his capacity as an
ex
officio
Board member
assisted with the compiling of documentation to her office and that
since all of the evidence that served before her
office was furnished
by the RTMC, the request for information was disingenuous;
42.3.
That since no additional documentation was later provided by the
applicant, it evidences that the applicant
had nothing to add to the
investigations;
42.4.
That
section 7
of the
Public Protector Act confers
upon her the
right to determine the format and procedure to be followed in an
investigation and only requires her office to seek
a response to the
complaint once it appears that the applicant is implicated in the
matter, which she purportedly did. Following
on from this, as the
Public Protector contends, there is no statutory obligation on her to
seek the applicant’s response or input
during the investigation
prior to releasing her preliminary findings;
42.5
That over and above paragraph 36.4 above, the need to engage
the applicant only arises when the requirements set
out in
section
7(9)(a)
have been met and which provides the applicant with an
opportunity to respond and furnish his side of the story in
compliance with
the
audi
alteram partem
rule.
This requirement, the first and second respondents argue, the Public
Protector met.
42.6
That any prejudice that the applicant may have suffered in not being
granted a hearing prior to the Public Protector
issuing the notice
vis-à-vis
the preliminary investigations, was cured by the Public Protector
granting him ample opportunity after the determination in terms
of
section 7(9)(a) of the Act, to respond to the contents of the notice.
In response to the section 7(9)(a) notice, the applicant
filed two
written responses (on 10 and 16
th
April 2019 respectively) and further attended an in-person meeting
with the Public Protector on 12 April 2019. The Public Protector
took
the applicant’s responses into consideration before publishing the
report.
42.7
That the applicant, being aware of the complaint, could have been
proactive even before being formally requested
to do so when he
received the notice. Instead, he elected not to do so but only
responding in his personal capacity after the completion
of the
preliminary investigation and after receipt of the notice.
[43]
Applying what is known as the “no difference”
argument, the Public Protector argues that an
accused person’s
right to a fair procedure may be dispensed with if it can later be
demonstrated that affording him a fair process
would not have aided
him in any event and then asked for the dismissal of the applicant’s
case with costs, including costs of two
counsel.
[44]
In regard to the question whether the Public Protector’s failure to
disclose the intended remedial action in the
section 7(9)(a) notice
renders the entire report reviewable or whether the omission to grant
the applicant that opportunity is severable
from the remainder of the
report, the Public Protector argues for the latter.
[45]
Regarding the alleged delay in inviting the applicant for a hearing
by the Public Protector in regard to the preliminary
findings, she
argues that the reason why the applicant could not be heard as early
as when the initial nine complaints were received
and subsequently
reduced to the three which were found to be substantiated was a
cost-cutting measure on her the part.
ANALYSIS
[46]
It is common cause that sections 7 and 7A of the Act describe
the extensive investigative powers the Public
Protector enjoys. It
cannot be gainsaid that in fulfilling these functions, the Public
Protector plays an important role in establishing
and maintaining an
efficient, equitable and ethical public administration which respects
fundamental rights and is accountable to
the broader public, as was
held by the Constitutional Court in
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
2000 (1) SA 1
(CC) at paras 133 –
134
.
[47]
The principle of legality is evidently applicable in this
matter given that the impugned findings, decision
and/or the report
involve the exercise of public power. It is trite that “
every
exercise of public power, including every executive act
” must
comply with the principle of legality, (see
Minister of
Defence & Military Veterans v Motau
2014 (5) SA
69
(CC) at para 69)
.
It is further trite that whenever
the Public Protector exercises her statutory powers, she is
constrained by the principle of legality
which applies to all who
exercise public power. The principle allows for a review on the
grounds of irrationality and also on the
basis that the
decision-maker did not act in accordance with the empowering statute.
[48]
Whereas the applicant argues that the Public Protector violated his
right to be heard by not hearing
him prior to her release of her
preliminary findings in respect of the section 7(9)(a) notice, the
Public Protector contends that
section 7(9)(a) does not create any
statutory obligation on her part to seek the applicant’s response
or input during the investigation
prior to releasing her preliminary
findings. Leaning on what is known as the “no difference”
argument, the Public Protector argues
that an accused person’s
right to a fair procedure may be dispensed with if it can later be
demonstrated that affording him fair
process would not have aided him
in any event.
[49]
It is common cause that the Public Protector invited the applicant in
his personal capacity to
give a response to the complaint only after
the release of her preliminary findings in March 2019, to which the
applicant provided
two written responses in April 2019. In
determining this issue, one borrows from the
ratio
held by the
Full Court in
President of the Republic v Public Protector
above. Just as was the case in the above matter, this issue under
consideration relates to an expectation by the applicant to be
heard
by the Public Protector before the release of her preliminary
findings. It is common cause that this ‘obligation’, as correctly
contended by the Public Protector, is not specifically enacted in the
Act. However, in my view, the applicant’s expectation is
legitimate
when regard is had to the principles of natural justice and the
Constitution itself, namely, section 33(1) thereof. Furthermore,
on
closer scrutiny and interpretation of section 7(9)(a) of the Act, the
only reasonable deduction and interpretation one arrives
at is that
the section tacitly creates an obligation on the part of the Public
Protector to afford any person against whom ‘
an adverse finding
pertaining to that person
may
result
’……
‘
during the course of an investigation
’ with ‘
an
opportunity to respond in connection therewith
’.
[50]
This ‘unlegislated’ obligation on the part of the Public
Protector to hear an implicated person arises
as a matter of course
even if her argument was found to have credence, given that her Act
is subject to the Constitution which enshrines
every person’s right
to fair administrative actions, which includes the right to be heard.
In
casu
, the proper enforcement of the applicant’s right to
be heard could only have been correctly applied either before the
release of
the preliminary findings (even to the RTMC) or the making
of such findings altogether. Glaringly and contrary to the Public
Protector’s
argument, when one considers section 7(9)(a), what
comes out is the expectation by the Legislature that the engagement
by the Public
Protector with the implicated person shall take place
and precede the making and/or release of any such adverse finding
that
may
(my emphasis) result’. Furthermore,
section 7(9)(a) envisages a situation where the Public Protector
hears the implicated person
during the course of the
investigation
and
not
after
the release of the so-called preliminary findings
as the Public Protector has done
in casu
. For the Public
Protector to invite the applicant to hear his version after the
release of her preliminary findings is therefore
in stark
contravention of section 7(9)(a). I rest on this view because the
word ‘
may’
specifically relate to the findings
,
to
the which the applicant’s response was only sought after the fact
or post their making and/or release. Effectively, the horse
had
already bolted and any invitation for a hearing with the applicant
can arguably be seen as a whitewash. This can only be seen
in a dim
view against the spectrum of the Constitution, resulting in
unlawfulness and thus invalidity.
[51]
Further to the above, to minimize her disregard of the Constitution
and what I have found as the Legislature’s
unscripted yet assumed
obligation on the Public Protector as created by section 7(9)(a) of
the Act, the Public Protector argues that
the findings were only
preliminary and that the responses by the applicant, which she did
consider, could still have persuaded otherwise.
I am none the wiser
even after this argument given her misinterpretation of section
7(9)(a) of the Act, section 33(1) of the Constitution
and the rules
of natural justice which enjoin her to hear the applicant in line
with the
audi alteram partem
rule. This she failed to do. As
was held by Plasket J in
Chairman, State Tender Board v
Digital Voice Processing (Pty) Ltd
that in
order to be rational, the decision must be ‘based on………a
correct application of the law’. In the premises I find
that her
decision not to hear the applicant during the course of her
investigation of the ‘substantiated’ three complaints and
also
before her preliminary findings were released and/or made was indeed
based on her incorrect application of the law, which renders
same to
be irrational and thus unlawful, competent to be reviewed and set
aside.
[52]
In considering further what the Constitutional Court held in
Bengwenyama Minerals (Pty) Ltd and Others v Genorah
Resources (Pty) Ltd and Others
above, I am
satisfied that given that the Public Protector’s conduct is
inconsistent with the Constitution, that same stands to
be declared
unlawful as I hereby do. The right of a party to be ‘meaningfully’
heard in administrative actions is an integral
part of our democracy
to which the Public Protector has to put a high premium and thus
avoid to be seen to exercise her powers arbitrarily
outside and/or
above her constitutional mandate.
[53]
To the extent that the Public Protector’s contention is that but
for the fact that the Act creates
no such obligation on her part to
hear an accused or implicated person before the release of her
preliminary findings, in my view
the applicant’s argument that her
processes are flawed given their inconsistencies with Constitution is
tenable. It is trite that
the power which the Public Protector enjoys
is subject to the Constitution and in this instance, her failure to
comply with her own
Act, that is section 7(9)(a) and even
misinterpreting its purport, renders such conduct both
unconstitutional and irrational. For
the Public Protector to argue
that the applicant cannot escape blame for him not having been heard
since he could have approached
her office uninvited before the
release of the preliminary findings is assailable because between the
Public Protector and the applicant,
the person on whom the
legislative burden and obligation to hear the other is created is the
Public Protector and not the applicant
or the implicated person.
[54]
The minute the Public Protector found that the three complaints she
found to be meritorious detrimentally
implicated the applicant and
that an adverse finding may result therefrom, she was enjoined to
grant him a hearing, which she failed
and/or neglected to do. Even
her “no difference” argument that an accused person’s right not
a fair procedure may be dispensed
with if it can later be
demonstrated that affording him fair process would not have aided him
in any event is assailable given that
no person or administrator is
permitted to second guess with impunity what the outcome of their
investigations and findings may have
been but for their neglect to
put paid to section 33(1) of the Constitution in regard to procedural
fairness to a party.
[55]
In regard to issue regarding the neglect by the Public
Protector to provide the applicant with the evidence
she used in
arriving at her preliminary findings as recorded in the section
7(9)(a) notice, I am of the view that given the uncontroverted
argument that the applicant was the main person who availed same to
the RTMC Board for the attention of the Public Protector, I find
that
the request by the applicant was illogical and thus this issue lacks
substance.
[56]
In so far as his substantive grounds of review are
concerned, the applicant refutes all the findings
of the Public
Protector. He argues that to the extent that this court upholds his
argument in respect of the procedural fairness,
it should follow
therefore that the second prayer in Part B of the Notice of Motion be
granted, thus reviewing and setting aside
the Public Protector’s
findings. This, he argues, should make dispositive of this matter in
its entirety and bring mootness to
his substantive grounds of review.
[57]
In regard to whether the Public Protector’s
failure to disclose the intended remedial
action in the section
7(9)(a) notice renders the entire report reviewable or whether the
omission to grant the applicant that opportunity
is severable from
the remainder of the report, I find in favour of the former and that
the Public Protector’s omission is thus
not severable from the
remainder of the report which effectively renders the entire process
and her conduct unlawful and thus invalid.
[58]
Taking into all of the above and in view of the fact that the
Public
Protector failed to hear the applicant during her investigation of
the three ‘substantiated’ complaints and prior to the
release of
the preliminary findings, including the fact that she failed to
afford the applicant an opportunity  to make representations
prior to releasing same nor included same in the section 7(9)(a)
notice since same were fundamentally detrimental to him, I am
therefore
satisfied that her report is flawed, irrational,
unreasonable, unlawful and invalid, thus making it liable to be
reviewed and set
aside on multiple grounds, including on the
principle of legality and several other grounds as set out in section
6 of the Promotion
of Administration of Justice Act 3 of 2000
(“PAJA”).
[59]
In my view, the conspectus of the facts
in casu
are such
that this court, just as it found favourably for the applicant in
regard to his procedural grounds of review, that by the
same token
and since both the procedural and substantive grounds of review in
the main share a common thread, namely, failure by
the Public
Protector to hear the applicant in line with the Constitution and not
arbitrarily, that the Public Protector’s substantive
findings be
reviewed and set aside. Effectively, this ruling disposes of this
matter in its entirety and brings to mootness the substantive
issues
raised by the applicant. The reason for this ruling is simply because
the impugned procedure is the bedrock upon which the
Public
Protector’s findings are premised. Logically-speaking, it will be
irrational to impugn the procedure but the consequential
findings.
[60]
In regard to the question whether the Public Protector has failed to
comply with her constitutional obligations
vis-à-vis
section
172(1)(a) read with section 181(2) of the Constitution, I am
satisfied that she has failed in that whereas section 181(2)
recognizes and cement the independence of her office, such
empowerment does not in any way make her office’s investigative
processes
independent of and/or above the Constitution. However,
section 7(1) of the Public Protector Act’s failed to enact
legislating provisions
that will obligate the Public Protector’s
processes to give full effect to section 7(9)(a) by ‘unpacking’
what it envisages
to achieve, namely, the object of the principles of
natural justice
in re
the
audi alteram partem
principle.  This in itself shows that the Public Protector
failed and/or neglected to bring into effect the object of the
Constitution
and the law to the prejudice of the applicant. The
argument that her investigative processes are in line with section
7(1) of the
Act does not take away from the unassailable obligation
she has towards the Constitution, namely, to tailor-make her
processes such
that they are within the scope and ambit of the
Constitution, even reflecting its purposes and spirit. Given the
above finding and
pursuant to section 172(1)(a) of the Constitution,
this court is enjoined to declare that the Public Protector’s
conduct is inconsistent
with the Constitution, thus invalidating her
findings resultantly in their entirety.
[61]
In the premises I am satisfied that in exercising her power, the
Public Protector failed to pass the
non-arbitrary and rationality
muster as explained by Navsa ADP in
Zuma
v Democratic Alliance
above
in that her exercise of public power is informed by mistake of law.
She did not act in accordance with her empowering statute,
namely
section 7(9)(a) which enjoins her to engage with the implicated party
during the course of her investigations and not after
her preliminary
findings are made, as she has done
in
casu
. What these
findings mean for the public Protector is that both her findings and
conclusions are based on material errors of law
and procedural
irrationality in relation to her prejudicial and unfair process of
investigation. As already stated above, the fact
that the Public
Protector advances the ‘no difference’ argument cannot be
countenanced. By the time the applicant was invited
to respond to the
Public Protector’s preliminary findings and it is safe to say that
despite the latter’s protestations, the
applicant’s response was
already on the back foot.
[62]
In conclusion, I am satisfied that the Public Protector’s Report
and the remedial action dated 16 September
2019 stands to be reviewed
and set aside for the following procedural grounds:
62.1
The Public Protector failed to hear from the applicant in conducting
her investigations, even prior to her release of the preliminary
findings, which she was constitutionally and by operation of law
obligated to; and
62.2
The Public Protector failed to disclose the proposed remedial action
to the applicant prior to issuing the impugned
report, thus violating
the applicant’s right to be afforded a reasonable opportunity to
make representations on matters that detrimentally
affect his
interests.
[63]
In the result, I am further satisfied that the applicant has made out
a case entitling him to the relief
he seeks.
[64]
In the premises I make the following order:
ORDER
1.
The remedial action directed by the Public Protector in paragraph 7
of the Report No. 69 of 2019/20 (“the Report”)
dated 16 September
2019 is reviewed and set aside in its entirety.
2.
The findings in the Report related to the following issues are
reviewed and set aside:
2.1
Whether Ms. Julia Manamela was improperly
appointed
in the Supply Chain
Management Unit;
2.2
Whether the bodyguards assigned for the protection of the CEO
were paid excessive overtime; and
2.3.
Whether lawyers and legal firms were improperly appointed.
3.
It is declared that, in terms of section 172(1)(a) read with
section 181(2) of the Constitution, the Public Protector
failed to
comply with her constitutional obligations.
4.
The First Respondent is ordered to pay the costs of this application
including the costs of two counsel.
Livhuwani Vuma
Acting
Judge
Gauteng
Division, Pretoria
Head on:
15
O
ctober 2021
Judgment delivered:
26 January 2022
Appearances:
For Applicant: Adv.
P. Strathern SC
Assisted by:  Adv.
Kameel Magan
Instructed by:
Selepe Attorneys
For 1
st
&
2
nd
Respondent:
Adv. H. Smith
Assisted by: Adv. S.
Nhantsi
Instructed by:
VZLR Inc.
For 3
rd
Respondent: None