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[2022] ZANCHC 22
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Lekwene and Another v Public Protector of South Africa and Others (1303/2021) [2022] ZANCHC 22 (7 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
1303/2021
Heard:
22/11/2021
Delivered:
07/03/2022
Reportable:
YES
/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates YES/NO
In
the matter between:
MARUPING
LEKWENE
First Applicant
MEMBER
OF THE
EXECUTIVE
COUNCIL
FOR
HEALTH:
NORTHERN
CAPE
Second Applicant
and
THE
PUBLIC PROTECTOR OF SOUTH AFRICA
First Respondent
BUSISIWE
MKHWEBANE
Second Respondent
PREMIER
OF THE NORTHERN
CAPE
Third Respondent
MEC
FOR
FINANCE,
ECONOMIC
DEVELOPMENT
AND
TOURISM
Fourth Respondent
Coram:
Mamosebo J et SL Erasmus AJ
JUDGMENT
ON REVIEW
Mamosebo
l
[1]
This review
application is brought in terms of Rule 53 of the Uniform Rules of
Court.
The
applicants, Mr Maruping Lekwene and Member of the Executive Council
(MEC)
for
Health,
Northern Cape, seeks to review and set aside the remedial action in
the Public Protector's Report Number 09 of 2021/2022
dated 03 June
2021 pertaining to certain
findings
by
the
Public
Protector
following
an
investigation
that she had conducted in terms of s 6 of the Public Protector Act
[1]
(PPA).
The
third and fourth respondents, Premier of the Northern Cape, and MEC
for Finance, Economic Development and Tourism respectively,
abide the
decision
of
the
Court.
[2]
The applicants served the respondents with a Notice of Motion on 29
June
2021. On 02 July 2021 this Court granted the order in Part A
unopposed, suspending the remedial action prescribed in paragraphs
7.5 to 8.1.2 of the report and further interdicting and restraining
the First and Second respondents (the respondents) from enforcing
the
said remedial action pending the final determination in Part B of the
application. The costs of Part A of the application were
held over to
be decided by the Court hearing Part B. The proceedings before us
relate to Part B of the application.
[3]
This application is "supposedly" opposed by the Public
Protector,
who is cited with her office as first and second
respondents, jointly referred to as the Public Protector. The Notice
of Motion
in relevant part informed the respondents as follows:
"Be pleased to
take notice further that if you intend to oppose Part B of this
application, you are required to:
(a)
Deliver a notice of your intention to oppose within 15
days after receipt of the Notice of Motion, or any amendment thereto
as contemplated
in Rule 53(
4) and in such notice
appoint an address
within 8
kilometres
from
the
office of the Registrar
of this Court,
at which you will accept notice and service
of all process in these proceedings;
and
(b) Within
30 days after expiry of the time referred to in Rule 53(4), deliver
your answering affidavits, if any, in
respect of Part B of this
application." {own emphasis added)
[4]
The respondents had until 20 July 2021 to file their notice of
intention to oppose Part B of the application and
until 10 August
2021 to file their answering affidavit. The respondents filed a
Notice to oppose the main application dated 01
October 2021.
[5]
On 11 October 2021, the applicants served and filed a notice in terms
of Rule 30A of the Uniform Rules of Court. It is opportune at this
stage to quote the rule seeing that the respondents have already,
in
their Notice to Oppose (above) made an incorrect reference thereto:
"30A Non-compliance
with rules
(1)
Where a party
fails
to
comply
with
these Rules
or
with a request
made
or
notice
given
pursuant
thereto,
any
other party
may
notify
the defaulting
party
that he or
she intends,
after the lapse of 1 O days, to apply for an order that such rule,
notice or request be complied with or that the claim
or defence be
struck out.
(2)
Failing compliance
within 1O days, application
may on notice be made to the court and the court may make such
order thereon as to
it
seems meet.
"
[6]
In the applicants' Rule 30A notice the Public Protector notified of
their
irregular step in failing to comply with the Uniform Rules of
Court and the following is quoted in part:
"1.
The
First
and
Second
Respondents
have
failed
to
file
a
notice
of
intention
to
oppose
the
above
matter
as
required
in
terms
of
Uniform
Rule
53(5)(a)
read
with
Uniform
Rule
53(b)
[2]
.
The
filing
of
the
Rule
53(5)(a)
notice
on
01
October
2021
is
impermissible and/or irregular.
2.
The
purported
Rule
53(5)(a)
notice
is
out
of
time
for
the
following reasons:
2.1
The founding papers in the above matter were filed on
30 June 2021.
2.2
The purported Rule 53(5)(a) notice was formally served
on 01 October 2021, without any attempt to seek condonation for the
late
filing of the purported notice."
[7]
The respondents were afforded 10 days within which to remove the
causes
of the aforementioned complaint but failed to do so. No
further documents were filed subsequent to the Rule 30A notice by the
applicants.
Their Notice to Oppose dated 29 October 2021, some three
months later, was handed up in Court with our leave as it did not
form
part of the Court file. The contents of the notice are
significant to note:
"Be pleased to
take note that the First and Second Respondents hereby give notice of
their intention to oppose the applicants'
application in terms of
Rule 30A and shall accept service of all documents in these
proceedings at its address, situated at 48
Sydney Street, Ewing
Building, Kimberley, 8300 and via email:
Maletjekat@pprotect.org."
The
author and signatory of this notice on behalf of the Public Protector
is under signature of Ms Maletjeka Tsolo, Legal Advisor
- Legal
Services, Public Protector House, 175 Lennon Street, Hillcrest Office
Park, Pretoria.
[8]
At the commencement of the review proceedings Mr TM Sithole appeared
on
behalf of the Public Protector. He is an admitted attorney, on
good standing with the Legal Practice Council, but not on the roll
of
practicing attorneys. He was not robed. He made the submission that
whereas he is the Head of the Legal Division rendering,
among other
services, advice to the office of the Public Protector, he has an
admission certificate as an attorney.
[9]
Mr Van Niekerk SC, for the applicant, invoking s 33(1) and (3) of the
Legal Practice Act, challenged Mr Sithole's right of appearance. The
relevant section in part provides:
"33 Authority to
render legal services
(1)
Subject to any other law, no person other than a practicing
legal practitioner who has been admitted and enrolled as such in
terms
of this Act may, in expectation of any fee, commission, gain or
reward
-
(a)
appear in any court of law or before any board,
tribunal or similar institution in which only legal practitioners are
entitled to
appear; or
(b)
draw up or execute any instruments or documents
relating to or required or intended for use in any action, suit or
other proceedings
in a court of civil or criminal jurisdiction
within the Republic.
(2)
……
(3)
No
person
may,
in
expectation
of
any
fee,
commission,
gain or reward, directly or
indirectly, perform any act or render any service
which
in terms
of any
other
law
may
only
be done
by
an advocate, attorney, conveyancer or notary, unless that person is a
practicing
advocate, attorney, conveyancer or
notary
as the
case
may
be." (own
emphasis)
[10]
Mr Van Niekerk intimated that while the appearance of Mr Sithole on
behalf of the respondents
may seem trivial but it is not; not only is
he purporting to represent the Office of the Public Protector but
also Ms Mkhwebane
in her personal capacity whilst not being a
practicing attorney. Of importance to note is that he is an employee
of the Public
Protector and the services he is rendering entitle him
to a salary, which can be described as "gain" or "reward".
If Mr Sithole is permitted by this Court to appear on behalf of the
PP what would prohibit any other company or institution from
being
represented by their in-house employees instead of practicing
attorneys or advocates. This could not have been the intention
of the
legislature when promulgating s 33 of the Legal Practice Act. Should
this be allowed, legal representation in our courts
will be,
proverbially, a "free for all" so the argument went.
[11]
Neither Mr Van Niekerk nor Mr Sithole made reference to s 34 of
the Legal Practice
Act, which deals with the forms of legal practice,
and is, in our view, relevant in this matter. Section 34(5)
stipulates:
"(5)
Attorneys may only practice
-
(a)
For
their
own
account;
(b)
As part of a commercial juristic entity referred to in
subsection (7) and as such, may only make over to, share or divide
any portion
of their professional fee whether by way of partnership,
comm1ss1on, allowance, or otherwise with an attorney;
(c)
As part of a law clinic established in terms of
subsection (8);
(d)
As part of Legal
Aid South
Africa;
or
(e)
As
an
attorney
in
the
full-time
employment
of
the State as a state attorney or the South African Human
Rights Commission."
[12]
It was clearly not the intention of the legislature to include
non practicing
attorneys and advocates in the list of
practitioners. Had that been the case, s 34(5) (above), would not
have specified as it does,
the forms of legal practice an attorney
should be affiliated to in order to qualify to practice. The text is
clear and unambiguous.
Having carefully considered the
point in
limine
pertaining to the legal representation by Mr Sithole, and
more particularly sections 33 and 34 of the Legal Practice Act, we
came
to the conclusion that Mr Sithole, as a non-practicing attorney,
does not fall under the category of attorneys listed under s 34(5)(a)
- (e) and can therefore not be permitted to represent the first and
second respondents in this Court. We were satisfied that the
review
application was properly before us without any satisfactory or
persuasive submissions from the respondents regarding their
participation. We were satisfied with the matter proceeding unopposed
and permitted Mr Van Niekerk to proceed with the arguments
on the
merits.
[13]
In
his written
heads of argument, Mr Van Niekerk, invoking
Minister
of Home Affairs v Public Protector
[3]
contended
that the application is based on the principle of legality.
This
anomaly was set straight by the Constitutional Court in
Public
Protector and Others v President of the Republic of South Africa and
Others
[4]
when it
held:
"[50]
Recently in Minister of Home Affairs, the Supreme Court of
Appeal has concluded that decisions taken by the Public Protector,
including
remedial action, do not constitute administrative action.
This decision appears to be at variance with one taken by this
Court in South African Reserve Bank [Public Protector v South African
Reserve Bank
[2019] ZACC 29
;
2019
6
SA
253
(CC);
2019
(9)BCLR
1113
(CC)].
This Court implicitly
endorsed the application of the Promotion of Administrative Justice
Act (PAJA) in the decision making process
followed by the Public
Protector when she takes remedial action."
Request
for an investigation
[14]
The office of the Public Protector had received an anonymous request
for an investigation (complaint) on 03 August 2020
in terms of s 6(1)
of the PPA pertaining to the secondment of Mr Vincent Mothibi as the
Chief Executive Officer (CEO) from the
Northern Cape Department of
Development and Tourism to the Northern Cape Gambling Board (NC/GB)
over a period of three years by
Mr Maruping Lekwene, then MEC for
Finance, Economic Development and Tourism. The complaint alleged a
violation of section 15 of
the Public Service Act and Regulation 62
in asserting that Mr Mothibi's secondment was improper citing the
following: that whereas
the prescripts prescribed a period of 12
months Mr Mothibi was seconded for three years; secondly, he did not
meet the requirements
or possess the competencies qualifying him for
the position of CEO; thirdly, the secondment was not through any
arrangement between
the Gambling Board and the Department; and
fourthly, no recruitment processes were followed to fill the vacancy
as required by
the prescripts. Simply put, the allegation is that his
appointment was not competent in law.
The
investigation
[15]
The Public Protector, following her constitutional mandate launched
an investigation in terms of s 182 (1)
of the Constitution.
Section
182 stipulates:
"(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 to result in any
impropriety or prejudice;
(b)
to report on that conduct;
and
(c)
to take appropriate remedial action.
(2) The Public
Protector has the additional powers and functions prescribed by
national legislation."
[16]
The applicable national legislation is the Public Protector Act (PPA)
which regulates the method of investigation.
Section 6(4)(a) in
relevant part provides:
"(
4)
The Public Protector
shall
be
competent
-
(a)
to investigate, on
his or her own initiative or
on receipt of a complaint, any alleged
-
(i)
maladministration in connection with the affairs of government
at any level;
(ii)
abuse
or
unjustifiable
exercise
of
power
or
unfair, capricious, discourteous or other
improper conduct or
undue delay by a person performing a public function;
(iii)
improper or dishonest act, or omission or offences referred to
in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to
the aforementioned offences) of Chapter 2 of the
Prevention
and Combating of Corrupt Activities Act, 2004
, with respect to
public money;
(iv)
improper or unlawful enrichment, or receipt of any improper
advantage, or promise of such enrichment or advantage, by a person as
a result of an act or omission in the public administration or in
connection with the affairs of government at any level or of
a person
performing a public function; or
(v)
act or omission by a person in the employ of government at any
level, or a person performing a public function, which results in
unlawful or improper prejudice to any other person."
[17]
Section
7
(9)
reads:
"(9) If it
appears to the Public Protector during the course of an investigation
that any person is being implicated in the
matter being investigated,
the Public Protector shall afford such person an opportunity to be
heard in connection therewith by
way of the giving of evidence, and
such person or his or her legal representative shall be entitled,
through the Public Protector,
to question other witnesses, determined
by the Public Protector, who have appeared before the Public
Protector in terms of this
section."
[18]
The Public Protector identified the following issues in her report
for investigation:
(a)
Whether the secondment of Mr Mothibi to act as the CEO of the
Gambling Board by Mr Lekwene,
the former Northern Cape MEC for
Finance, Economic Development and Tourism for a period of three (3)
years with effect from 2 September
2019 was not [in] accordance with
the relevant laws and prescripts regulating the secondment of
employees in the Public Service;
and if yes, whether the conduct of
the MEC was improper and constitutes maladministration; and
(b)
Whether the appointment of Mr Mothibi as the CEO of the Gambling
Board by Mr Lekwene, the
former Northern [Cape] MEC for Finance,
Economic Development and Tourism with effect from 1 January 2020 to
31 December 2020 was
not [in] accordance with the relevant laws and
prescripts regulating the appointment of the CEO of the Gambling
Board; and if yes,
whether the conduct of the MEC was improper and
constitutes maladministration.
[19]
On
23 December
2020 the Public Protector addressed a
notice to
Mr Maruping Lekwene, MPL, who now holds the portfolio of MEC for
Health, in terms of
s 7(9)(a)
of the PPA
[5]
,
informing
him that she was in the process of finalising an investigation into
allegations of improper conduct and maladministration
by him in his
former portfolio pertaining to the secondment of Mr Mothibi as the
CEO of the NC/GB. The Public Protector afforded
him 10 business days
from the date of receipt of the notice within which to respond.
[20]
Mr Lekwene advanced the following reply to the Public Protector's
notice. He conceded that the secondment
of Mr Mothibi for 36 months
was erroneously made and was corrected before the Public Protector
launched her investigation. The
correction followed the advice from
the officials in the department but not because of the complaint. In
as far as the appointment
of Mr Mothibi by Mr Lekwene and not by the
Board is concerned, the explanation is to the effect that the
appointment was an interim
appointment pending the rationalisation
process and the provincial moratorium. The NC/GB could not exercise
its authority to appoint
the CEO because of the moratorium. Mr
Lekwene, however, consulted the Board's Chairperson, Adv. Itemogeng
Steenkamp, before making
the appointment because the CEO position had
been vacant since 2013 when Mr Bobeje was relieved of his
responsibilities. According
to Mr Lekwene, his predecessor, MEC
MacColleen Jack, had also intervened by seconding Ms Heidi Dipico to
act as CEO. All the interventions
in respect of interim CEO
appointments were made in consultation with the chairperson of the
Board.
[21]
Mr Lekwene contended that the Gambling Act and the CEO regulations do
not prescribe minimum academic qualifications
for the CEO. The
requirements that a CEO candidate must be in possession of a B
Commerce Law or Public Administration degree is
not a prescribed
requirement. He persists that the three-year diploma that Mr Mothibi
possesses coupled with his extensive experience
as a manager in the
public service made him a suitable candidate as interim CEO. He
concluded by stating that his actions were
in the best interests of
the Gambling Board and his intentions were aimed at good governance
and administration. He denies that
his actions contravened s 136(2)
of the Constitution, which enjoins that an MEC must act in accordance
with a certain code of ethics
and may not act in a way that is
inconsistent with their office etc.
The
report
[22]
The Public Protector released her final report on 03 June 2021
rejecting the representations made by Mr Lekwene
and made the
following findings inter alia:
"6.1.5 The
decision by the MEC to second Mr Mothibi was in violation of section
15(3) of the Public Service Act, 1994 and Regulation
62 of the Public
Service Regulations, 2016, and was therefore improper and amounts to
maladministration.
6.1.4 The conduct of
the MEC [in effecting the secondment] was in violation of section 136
of the Constitution and clauses 2.1 and
2.3 of the Executive Ethics
Code in that it was not made in good faith, in the best interests of
good governance and consistent
with the integrity of his office as
MEC.
6.2.3 The appointment
of Mr Mothibi as CEO of the Board was not in accordance with the
provisions of the Northern Cape Gambling
Act, the regulations
promulgated in terms of that act and applicable policy and was
therefore improper and constitutes maladministration.
6.2.5
The
conduct
of
Mr
Lekwene
in
effecting
the
appointment
of Mr Mothibi was in violation of
section 136 of the Constitution and clauses 2.1 and 2.3 of the Code
of Ethics, as it was not made
in good faith, in the
best
interest of good governance and
consistent
with
the
integrity
of
his
office as
MEC."
[23]
The Public Protector issued the following remedial orders, relevant
in part, pursuant to the findings which
forms the basis of this
review:
"7.5
Consequently,
the
appropriate
remedial
action
that the Public
Protector is taking in terms of s 182(1)(c) of the Constitution
is the following:
7.5.1Premier
of
the
Northern
Cape to:
7.5.1.1
To take appropriate steps in
respect of
disciplinary
action
against
Mr Lekwene
for
his
improper
conduct relating to the irregular secondment and
the
subsequent
irregular appointment
of
Mr
Mothibi
as
the
Chief
Executive
Officer
of
the
Northern Cape Gambling Board, in terms
of
the
applicable
legislation and
prescripts,
within
thirty
(30) days
from
the
date
of
this
report.
7.5.1.2
Submit a report to the Northern Cape Provincial Legislature on
the action taken against the MEC as referred to in paragraph 7.5.1.1
above within 60 days
from
the date
of
this
report.
7.5.2
The Northern Cape MEC for
Finance, Economic
Development and Tourism to:
7.5.2.1
Institute proceedings for judicial review of the secondment
and appointment of Mr Mothibi as the Chief Executive Officer of the
Northern Cape Gambling Board, in terms of thirty (30) business days
from the date of this report.
7.5.2.2
Submit
a
report
on
the
progress made
with
instituting
a
judicial
review proceedings to the Northern Cape Executive Council, the
Northern Cape Provincial Legislature and the Northern
Cape
Gambling
Board within 60 days from the date of
this report.
8
Monitoring
8.1.1
The
Premier of the Northern Cape and the Northern Cape MEC for Finance,
Economic Development and Tourism to submit an implementation
plan to
the Public Protector within 30 days from the date of this report on
how the remedial action referred to in paragraphs 7.5.1
and 7.5.2
will be implemented.
8.1.2
The
submission of the implementation plans and the implementation of the
remedial action taken shall in the absence of a court order,
be
complied with within the period prescribed in this report to avoid
being in contempt of the Public Protector."
[24]
The applicants attack the Public Protector's decision on the
following grounds:
24.1 She broadened the
scope of her investigation outside the perimeters of the complaint
received and in doing so acted
ultra vires
the Constitution
and various statutes from which she derives her powers of
investigation;
24.2 She failed to
conduct a proper, full and unbiased investigation in accordance with
her constitutional mandate;
24.3 She failed to take
into account relevant evidence placed before her and her findings are
therefore irrational;
24.4 She failed to give
effect to the principle of
audi
alteram partem
and
therefore the remedial action ordered was the result of unfair
procedural action, which does not accord, with the principle
of
legality;
24.5 The remedial action
ordered by her is not authorised in law and therefore does not accord
with the principle of legality.
[25]
I now consider the grounds raised by the applicants in countering the
remedial action recommended by the
Public Protector.
Broadening
the scope of investigation
[26]
The
constitutional mandate and duty of the Public Protector is embodied
in s 182 of the Constitution referred to at para 15 (above)
while her
investigative powers are encompassed in s 6 of the PPA. Of importance
to note are the Constitutional Court remarks in
Economic
Freedom Fighters v Speaker, National Assembly and Others
[6]
:
"[58] The
constitutional powers of the Public Protector are to investigate
irregularities and corrupt conduct or practices
in all spheres of
government, to report on its investigations and take appropriate
remedial action. Section 182(1) and (2) recognise
the pre-existing
national legislation which does regulate these powers and confer
additional powers and functions on the Public
Protector. This
obviously means that since our Constitution is the supreme law,
national legislation cannot have the effect of
watering down or
effectively nullifying the powers already conferred by the
Constitution on the Public Protector. That national
legislation is
the Public Protector Act and would, like all other laws, be invalid
if inconsistent with the Constitution. In any
event s 182(1) alludes
to national legislation that 'regulates' the Public Protector's
three-dimensional powers."
[27]
The
finding by
the Public Protector is
that Mr
Lekwene
violated
s
136 of the Constitution and clauses 2.1 and 2.3 of the Code of Ethics
envisaged in the Executive Members Ethics Act
[7]
.
The Code
provides:
"2.1
Members of the Executive must, to the satisfaction of the
President
or
the
Premier,
as the
case may
be
-
(a)
perform their duties and exercise their powers diligently and
honestly;
(b)
fulfil
all
the obligations
imposed
upon
them
by
the Constitution and law;
(c)
act
in
good
faith
and
in
the
best
interests
of
good governance; and
(d)
act in all respects in a manner that is consistent with the
integrity of their office or the government.
2.2
In deciding whether members of the Executive complied
with the
Provisions of clause 2.1, the
President
or Premier, as the case may be, must take into account the promotion
of an open, democratic and accountable government.
2.3
Members
of
the
Executive
may
not
-
(a)
wilfully
mislead
the
legislature
to
which
they
are accountable;
(b)
wilfully
mislead
the
President
or Premier, as the case may be;
(c)
act in a way that is inconsistent
with
their position;
(d)
use their position or any information entrusted to
them, to enrich themselves or improperly benefit any other person;
(e)
use information received in confidence in the course of
their duties otherwise than in connection with the discharge of their
duties;
(f)
expose themselves to any situation involving the risk
of a conflict between their official responsibilities and their
private interests;
(g)
receive remuneration for any work or service other than
for the performance of their functions as members of the Executive;
or
(h)
make improper use of any allowance or payment properly
made
to
them,
or
disregard
the administrative rules which apply
to such allowances or payments."
[28]
Mr Van
Niekerk contends that since there was no complaint that the Mr
Lekwene
has
breached
the
provisions
of
the
Code
of Conduct,
it was not
proper and competent for the Public Protector to investigate such
a
breach.
But
this
contention,
in
my
view,
does
not
find
merit. In
Economic
Freedom Fighters
[8]
the
Constitutional Court has already pronounced that the Public Protector
carries very wide powers that leave no lever of government
power
above scrutiny, coincidental embarrassment
and
censure.
Section
3(4)
of the
Ethics
Act
[9]
provides:
"When conducting
an investigation in terms of this section, the Public Protector has
all the powers vested in the Public Protector
in terms of the Public
Protector Act."
[29]
Regard being had to the aforegoing it is evident the Public Protector
has made sweeping statements pertaining
to the purported breach of
clauses 2.1 and 2.3 of the Executive Ethics Code, resultantly lacking
specificity. It is unclear whether
Mr Lekwene has breached the entire
list or not as the exact transgressions do not appear anywhere in her
report neither are they
properly analysed. The concern expressed by
the Public Protector concerning the alleged irregular expenditure
caused by Mr Lekwene
in the appointment of Mr Mothibi has not been
clearly articulated the silence in her report regarding the extension
of Mr Mothibi's
contract and what its repercussions are.
Failing
to conduct an unbiased full and proper investigation
[30]
Mr Lekwene takes issue with the Public Protector's report and that
she should have investigated to establish:
first, whether or not a
moratorium was placed on the filling of vacancies; secondly, whether
there was a pending rationalisation
process; and thirdly, it would
also have been prudent for her to have investigated how Mr Lekwene's
predecessors have dealt with
the issue of secondment of interim CEO's
since 2013. Mr Lekwene contends that his intervention to second Mr
Mothibi as he did was
done in consultation with the chairperson of
the Board but the Public Protector's report does not shed light on
whether she engaged
the chairperson on this aspect.
[31]
The following is an extract from Mr Mothibi's response to the Public
Protector dated 26 February
2021:
"According to my
knowledge, as pertaining to my arrival on the morning of the Monday
09 September 2019 at the offices of the
Board, I was warmly welcomed
and introduced to the staff. I had already received a call from the
chairperson of the Board Advocate
Itemogeng Steenkamp who had
congratulated me prior to my arrival at the office. He indicated that
he would like us to have a meeting.
At the meeting on the morning of
the 10 September 2019, Tuesday, we met at the Kimberley Ann Hotel and
discussed the issues he
said the Board regarded as important and
urgent, and preparations for the Board meeting that was to take place
on 17 October 2019.
At that meeting he phoned all the members of the
Board and we had a short introductory telephonic conference. He asked
all of them
whether they agreed with the decision of my secondment by
the MEC, there was no disapproval.
I did not get the
sense of any discomfort as I could gather that he had received the
notification from the Department and duly informed
the members of the
Board prior to our meeting. Anyway, if there was such, the issue
should have been raised at the Board meeting
of 17 October 2019 by
the members and the Board would have resolved on the matter and
informed the MEC about their disagreement
[with] his decision."
The
Public Protector has not recorded any evidence in her report of
engaging the Board and its chairperson to ascertain the averments
by
both Messrs Lekwene and Mothibi. It remains inexplicable, or at least
not covered in her report, why the vacant position of
CEO was not
filled by the Board by way of an acting appointment. If the position
remained unfilled what would have been the effect
thereof on the
Gambling Board's operations. The issue of what informed the
intervention by Mr Lekwene and whether there was any
pressing need
for him to intervene does not seem to have received serious
attention, if at all.
[32]
The Northern Cape Gambling Board Human Resources Policies and
Procedures form part of the applicants' founding
papers. Clause
2.2.6
deals with 'secondment of persons' and reads:
"2.2.6.1
The Board may utilise the services of seconded
personnel
from the Provincial Administration of the Northern Cape, the South
African Police Services, other government
departments
or
a
council,
institution
or
body established by or under any law to
assist it in the performance of its functions.
2.2.6.2
Persons who are seconded shall comply with the requirements of
paragraph
4 and shall, for the duration of such secondment, be
subject to the rules and regulations of all provisions applicable to
the employees
of the Board in respect of probity, the Board's Code of
Conduct and any other rules applicable to ordinary employees of the
Board
applicable from time to time."
The
report does not reveal this situation. An investigation would also
have shed light on the candidates selected and the processes
followed.
[33]
Nugent
JA
in
Public
Protector
v
Mail
&
Guardian
Ltd
and
Others
[10]
sounded the
following
warning:
"[21] ...But I
think there is nonetheless one feature of an investigation that must
always exist
-
because it is one that is
universal
and indispensable to an investigation of any kind
-
which is
that the investigation must have been conducted with an open and
enquiring mind. An investigation that is not conducted
with an open
and enquiring mind is no investigation at all."
Nugent
JA's instructive remarks at para 17 in
Mail
&
Guardian
makes it plain that the duty of the Public Protector is not only
to discover the truth but also to inspire public confidence that
in
each investigation, the truth has been discovered.
[34]
The Public Protector wrote a letter to the current MEC for Finance,
Economic Development and Tourism deduced
from the MEC's response
dated 07 September 2020 that starts with the para:
"Your
letter dated 07 August 2020 refers."
The question
posed to the current MEC was whether the secondment of Mr Mothibi
took place as a result of any 'request or concurrence
of the Board'.
The MEC's response was to this effect:
"As far as I can
gather, the secondment was not made on the request or concurrence of
the Board per se but on my predecessor's
discretion to ensure the
continued functionality of the Gambling Board as the entity falling
within his executive authority."
[35]
Of significance is that the current MEC for Finance, Economic
Development and Tourism, Mr A Vosloo, extended
the fixed term
contract of Mr Mothibi as Chief Executive Officer: NC Gambling Board
to 31 March 2021 or until the post is permanently
filled or
rationalisation process has been concluded, whichever comes first. On
what authority was the impugned secondment and
appointment extended
by the current MEC?
[36]
It would also have been prudent for the Public Protector to have
obtained information from the following
persons: the then Acting Head
of Department, Mr GS Mabilo, as well as Mr DO Babuseng, ostensibly
the official entrusted with the
drafting of all correspondence in
respect of the secondments and appointments who also at some stage
acted as Head of Department.
There were apparently no interviews
conducted. The only written enquiries were directed to Mr Vosloo, the
HR Manager of the Board,
Mr Lekwene and Mr Mothibi. It therefore
follows that the contention by the applicants that the Public
Protector has not conducted
an unbiased, full and proper
investigation, is substantiated.
[37]
The complainant, who has exercised the right to remain anonymous,
averred that there was no agreement between
the Department and the
Board for Mr Mothibi's secondment. It boggles the mind how without
any enquiry or any further interviews
of relevant parties, the Public
Protector was able to arrive at this finding:
"5.1.13
No
evidence was found of an agreement between the Department and the
Gambling Board relating to Mr Mothibi's secondment."
[38]
The phrases
"improper conduct" and "maladministration" are
not defined
in any of
the relevant statutes. The Supreme Court of
Appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[11]
pronounced:
"[18]...
Whatever
the
nature
of
the
document,
consideration
must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context in which the
provision
appears;
"
Improper Conduct means
behaviour that
a
reasonable and sensible person would not do.
It
is behaviour that is unfitting and not suited to the character, time,
and place.
[12]
The
word
"maladministration"
means
inefficient or dishonest administration; mismanagement.
[13]
For
an investigator to reach a conclusion that there was improper conduct
or maladministration, there must have been full and proper
investigation conducted. The mere fact that Mr Vosloo uttered the
following:
"As
far as I can gather, the secondment was not made on the request or
concurrence of the board per
se,
but on
my
predecessor's discretion to ensure the continued functionality of the
Gambling Board as the entity falling within his executive
authority."
In the absence of any countervailing submissions the finding by
the Public Protector becomes unsubstantiated.
[39]
Regard being had to these considerations it is my view that they
support the contention by the applicants
that the Public Protector
has failed to consider relevant information. It is against this
backdrop that the Public Protector's
findings that the conduct of Mr
Lekwene was improper and constituted maladministration is not
supported by any cogent evidence.
I further find that the Public
Protector's findings that Mr Lekwene acted without good faith and
contrary to the best interests
of good governance and inconsistent
with the integrity of his office was made without any supporting
evidence. It therefore follows
that such findings are irrational and
stands to be reviewed and set aside.
Remedial
action not authorised in law
[40]
Jafta J,
writing for the majority, in
Public
Protector and Others v President of the Republic of South Africa and
Others
[14]
had occassion to consider whether a person against whom remedial
action is contemplated by the Public Protector is entitled to
a
hearing, remarking that there must be
certainty
and fairness in the procedure followed by the Public Protector in
taking decisions which adversely affect the rights of
those who
become the subject of her remedial action.
[41]
The
following
are
instructive
remarks
by
Jafta
J
pertaining
to
the aspect
of
hearing
preceding
remedial
action
[15]
:
"[126] For all
these reasons, I conclude that when the Public Protector contemplates
taking remedial action against the subject
of an investigation, that
subject is entitled to an opportunity to make representations on the
envisaged remedial action. For a
proper opportunity to be given, the
Public Protector must sufficiently describe the remedial action in
question to enable the affected
person to make meaningful
representations."
[42]
It is common cause that Mr Lekwene was served with a s 7(9) notice.
What is patent in that notice
is that the remedial action
contemplated
by
the
Public
Protector
was
omitted
in
the notice.
There was no further correspondence
addressed to Mr Lekwene dealing with the investigation other than the
s7 (9) notice followed
by the final report by the Public Protector
with adverse findings and remedial action to be taken.
[43]
The
shortcomings of not affording the subject of an investigation an
opportunity
to make
representations were not only pointed out to the Public Protector in
the
President
of the Republic of South Africa
judgment
but also in
Gordhan
v Public Protector and Others
[16]
where the Court held:
"[230]
This issue to be determined by this court of whether the
Public
Protector
is obliged
to
afford
a person
implicated in her
investigation a hearing in relation to the contemplated remedial
action, was canvassed and decided
by
a
Full
Court
of
this
Division
in
President
of
the
Republic
of
South
Africa
[President
of
the
Republic of South Africa
&
Another v The Public
Protector
&
Others
2020 (6) BCLR 513
(GP)
para 157 to 159]. That Court held that:
'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 recognised as such in the Constitution. Whether or
not a decision
maker has complied with this obligation or not
will depend on the facts of the particular case....
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."
[44]
It is of significance to note that despite this aspect of
affording her subjects of investigation a
hearing pertaining to the
remedial action to be taken being settled how, she still disregarded
those pronouncements. On 23 December
2020 when she issued the s 7(9)
notice to Mr Lekwene, the pronouncements in the
Gordhan
judgment
were already in place as early as 07 December 2020.
[46]
What stands out in her remedial action, is that the Premier of the
Northern Cape must institute disciplinary proceedings
against MEC
Lekwene. The Premier is further ordered to submit an implementation
plan to the Public Protector within 30 days from
date of the report.
It
is incomprehensible and not supported by any
empowering legislation for the Premier to exercise such disciplinary
powers.
The action
will not be
competent because
the
relationship
between
the
Premier
and
the
MEC is
not
an
employer-employee
relationship.
In my
view, the Premier can, if not satisfied with the MEC's conduct or
performance, dismiss him from office as empowered by s 132(2)
of the
Constitution.
[46]
The
Public
Protector
also
found
that
Mr
Lekwene
has
breached
his Code of Ethics. In
the
President
of the Republic of South Africa
Jafta
J remarked
[17]
:
"[134]
Having
proper regard to the scheme of the
Members
Act,
it is doubtful that the Public Protector can herself take remedial
action
for
the
violations
of
the
Code.
In
terms of section 3 of the Act, it is the President who may
take action if the culprit was a member of Cabinet or a Deputy
Minister.
With regard to MECs, the power vests in the
Premier"
[47]
It remains inexplicable why the Public Protector would
assume
powers to
order
the
Premier
of a
Province
to
report to her.
It is further incomprehensible why
she would want to usurp the functions of the Premier
by ordering
the dismissal of the MEC,
a decision completely outside her
domain. Almost a similar type of remedial action was ordered in the
Gordhan
matter, which the Public Protector should be cognizant
of.
[48]
Regard being had to the aforementioned shortcomings, it follows
that the remedial action ordered by
the Public Protector stands to be
reviewed and set aside.
[49]
I am now left with the question of costs. Mr van Niekerk urged this
Court to consider ordering the second
respondent, Ms Busisiwe
Mkhwebane, to pay the costs of this review jointly and severally from
the first respondent, The Public
Protector of the Republic of South
Africa, based on the following submissions:
49.1
The lack of substance in the investigation by the Public
Protector coupled with her irrational findings were not far keeping
with
her constitutional mandate and duty.
49.2
Her serious and reckless dereliction of duty exacerbated by
her complete disregard of the applicable legal principles as
enunciated
in the numerous Court judgments.
49.3
Her lack of following proper procedures regarding remedial
action amounts to nothing more than a contemptuous disregard for the
Court judgments.
[50]
Counsel did not persist on a punitive attorney and client scale but
sought costs to include the costs of
two counsel. The costs in Part A
of the judgment were also deferred to Part B of the application.
There is no reason why costs
should not follow the result. In my view
there is no justification for Adv Busisiwe Mkhwebane to pay the costs
of this application
in her personal capacity.
[51]
The following order is made:
1.
The Public Protector's Report No. 09 of 2021/22, dated 03 June
2021, including the findings at paragraph (x) and the remedial action
at paragraphs 7.5 to 8.1.2 are declared unlawful and invalid and
accordingly reviewed and set aside.
2.
The first and second respondent (in her official capacity) are
ordered, jointly and severally, to pay the costs of Part A and Part
B
of the review application, including the costs consequent upon the
employment of two counsel.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
agree
SL
ERASMUS
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the 1
st
& 2
nd
Applicants:
Adv.
JG Van Niekerk SC
Adv.
B
Babuseng
Instructed
by:
Magoma Attorneys
For
the 1
st
and 2
nd
Respondents:
Mr TM Sithole
Instructed
by:
Office of the Public Protector
For
the 3
rd
& 4
th
Respondents:
Office of the State
Attorney Kimberley
[1]
23 of 1994
[2]
Rule 53 stipulates:
"(5)
Should the presiding officer, chairperson or officer, as the case
may be, or any party affected desire to oppose the
granting of the
order prayed in the notice of motion, he or she shall -
within
fifteen days after receipt by him or her of the notice of motion or
any amendment thereof deliver notice to the applicant
that he or she
intends so to oppose and shall in such notice appoint an address
within 15 kilometres of the office of the registrar
at which he or
she will accept notice and service of all process n such
proceedings; and
(b)
within thirty days after the expiry of the time referred to in
sub-rule (4) hereof, deliver any affidavits he or she may desire
in
answer to the allegations made by the applicant."
[3]
[2018] ZASCA 15
;
2018 (3) SA 380
(SCA);
[2018] 2 All SA 311
(SCA )
at para 37
[4]
[2021] JOL 50632
(CC) at para 50
[5]
Section 7(9)(a) provides:
"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."
[6]
2016 (3) SA 580
(CC) at para 58
[7]
82 of 1998
[8]
Id at para 53
[9]
Executive Members' Ethics Act 82 of 1998
[10]
2011 (4) SA 420
(SCA) at 426 para 21
[11]
2012 (4) SA 593
(SCA) para 18
[12]
https://
www.lawinsider.com
>
dictionary
[13]
Definitions from Oxford Languages
[14]
[2021] JOL 50632
(CC) at para 51
[15]
At para 126
[16]
2021 (1) All SA 428
(GP) at para 230
[17]
At para 134