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[2021] ZAGPPHC 170
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Van Rooyen v Office of the Public Protector and Others (44020/2018) [2021] ZAGPPHC 170 (29 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG,
PRETORIA
CASE
NO: 44020/2018
Reportable
Of
Interest to Other Judges
In the matter between:
DAVID
DOUGLAS DES VAN
ROOYEN
Applicant
And
THE
OFFICE OF THE PUBLIC
PROTECTOR
First
Respondent
THE
PUBLIC PROTECTOR
Second Respondent
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
Third
Respondent
JOHN
HENRY STEENHUISEN, MP
Fourth Respondent
KEVIN
MILEHAM,
MP
Fifth Respondent
JUDGMENT
Introduction
[1]
The issue in
this opposed review is whether the Public Protector’s findings
that the applicant, Davis Douglas Des Van Rooyen,
deliberately misled
parliament when he responded to question number 927 during 2016.
Pertinent to the aforesaid is the rationality
of the Public
Protector’s findings.
[2]
In these
proceedings, the Public Protector’s Office is the first
respondent and the Public Protector is cited in her official
capacity
as the second respondent. Both respondents have opted to abide this
court’s decision. The President of the Republic
of South Africa
is cited as the third respondent and does not oppose this
application. He also chose to abide.
[3]
The fourth and fifth respondents,
John Henry Steenhuisen and Kevin Mileham are Members of Parliament
(MP) and members of the Democratic
Alliance (DA), oppose this review
application. In the judgment where reference is made to respondents,
it is the fourth and fifth
respondent that I refer to.
Relief
[4]
The relief sought by the applicant
as amended is set out for easy reference below:
‘
1.
It is hereby declared that the findings and remedial action contained
in The Public Protector Report No: 11 of 2017/2018, entitled
"Report
on an investigation into the allegations of a violation of the
executive ethics code by the minister of co-operative
governance and
traditional affairs, Mr David Douglas van Rooyen, MP" ("
The Public Protector Report”) are factually
unfounded,
irrational and unlawful.
2. It is declared that
the Applicant did not deliberately mislead Parliament when he replied
Parliamentary Question No. 927 in 2016.
3. The Public Protector
Report is accordingly reviewed and set aside.
4.
The fourth and fifth respondents are ordered to pay the costs,
inclusive of costs consequent to the employment of two counsel.’
Grounds
of review
[5]
The review is directed at the lawfulness
and rationality of the Public Protector’s findings and remedial
action. In broad
terms the grounds of review are as follows:
(a)
The complaint of the fourth and fifth
respondents was not related to the parliamentary question posed;
(b)
The Public Protector relied on irrelevant
evidence in reaching her decision that the applicant deliberately
misled parliament;
(c)
There exist apparent contradictions in the
Public Protector’s report having made two findings, that being,
the applicant evaded
the parliamentary question and he deliberately
misled parliament; and
(d)
The contradictory stance taken by the
fourth and fifth respondents who aver that the applicant evaded the
parliamentary question,
and in the same breath state that he refused
to answer the parliamentary question.
Background
[6]
On 9 December 2015 the applicant was
appointed as Minister of Finance by former President Jacob Zuma. He
was removed as such, and
on 13 December 2015 he was appointed as
Minister of Cooperate Governance and Traditional Affairs. On 11 April
2016 and during the
course of a National Assembly sitting, the fourth
respondent asked the applicant the following parliamentary question,
noted as
Question No. 927:
‘
Has
(
a
) he
and/or (
b
)
his Deputy Minister ever (i) met with any (
aa
)
member, (
bb
)
employee and/or (
cc
)
close associate of the Gupta family and/or (ii) attended any meeting
with the specified persons (
aa)
at the Gupta’s Saxonwold Estate in Johannesburg or (
bb
)
anywhere else since taking office; if not, what is the position in
this regard; if so, in each specified case, (
aaa
)
what are the names of the persons who were present at each meeting,
(
bbb
)(
aaaa
)
when and (
bbbb)
where did each of such meetings take place and (
ccc
)
what was the purpose of each specified meeting?’
[7]
Subsequently, the applicant responded as
follows:
‘
(
a
)(
aa
)(
cc
)(
b
)
The
Minister and his Deputy Ministers have never met with members,
employee and/or close associates of the Gupta family in their
official capacities.
(
aa)
(
bb
)(
aaa
)(
bbb
)(
aaaa
)(
bbbb
)(
ccc
)
Not applicable.’
[8]
The applicant’s response precipitated
the fifth respondent lodging a complaint to the Public Protector on
31 October 2016.
The fifth respondent took issue with the manner in
which the applicant answered the parliamentary question, stating that
he did
so in violation of the Executive Ethics Code. This was the
basis upon which they lodged the complaint. The complaint was
articulated
as follows:
‘
It
has recently been reported in several media outlets that Minister Des
Van Rooyen visited the Gupta family residence in Saxonwold
several
times in the run up to his short lived tenure as Finance Minister.
The reports claim that the Minister visited the Gupta
home on
consecutive days between 2 December and 8 December 2015. In contract,
in reply to a Democratic Alliance Parliamentary question
the Minister
had denied ever visiting the residence of the Gupta family. It is
thus clear that the Minister lied and intentionally
misled
parliament; in so doing he has contravened the Executive Ethics Code
to which all Cabinet Ministers are bound.’
[9]
In terms of
section 4
of the
Executive
Members’ Ethics Act 82 of 1998
, the Public Protector is obliged
to investigate a possible violation of the Executive Ethics Code. To
this end, the Public Protector
dispatched correspondence dated 6
February 2017 to the applicant drawing his attention to the complaint
lodged by the fifth respondent.
The correspondence from the Public
Protector summarised the complaint as reflected below:
‘
2
In summary the complainant is as follows; that
2.1
It has been reported in several news
outlets that you visited the Gupta family residence in Saxonwold
several times in the run up
to your tenure as Finance Minister and
also visited their home on consecutive days between 02 December 2015
and 08 December 2015.
2.2 In response to a DA
parliamentary question, during a National Assembly sitting, you
denied ever visiting the residence of the
Gupta family.
3. It is the
contention of the Complainant that you lied and deliberately misled
Parliament and in doing so, contravened Section
2.3(a) of the
Executive Members’ Ethics Code.’
The
applicant was to respond within 10 days from the date of this
correspondence.
[10]
The applicant only received the letter from
the Public Protector on 10 March 2017, and on 24 March 2017 he
submitted his response,
wherein he explains that between 4 December
2015 and 11 December 2015 he was in Durban with his family. In
substantiation, of the
aforesaid, he tenders confirmation in respect
of his reservations for accommodation and flights.
[11]
Significantly, the applicant stated
that:
‘
[o]n
the 7
th
December 2015 I flew from Durban to Johannesburg at 13h55 for
Umkhonto We Sizwe Military Veterans Association (MKMVA) meetings,
where we also met with the Gupta family’
He
explains that these meetings were in his capacity as Treasurer
General of MKMVA, and as such, from time to time he would meet
business people ‘to enlist support’ for MKMVA programmes.
The Gupta family were such business people.
[12]
On 21 August 2017, the Public Protector
issued a notice in terms of
section 7(9)(a)
of the
Public Protector
Act 23 of 1994
to the applicant. This informed him that she was in
the process of finalising her investigations with regards to the
complaint.
She further advised, that she had obtained evidence from
the State of Capture Report relating to his cellphone records. These
records
confirmed that his cellphone was within the area of Saxonwold
on 8 December 2015. She emphasised that the records illustrated that
this was the day prior to him being appointed as the Minister of
Finance. In light of this evidence she invited him to respond
by no
later than 4 September 2017, alternatively, he was encouraged to
engage with the investigating team as regards to this evidence
before
4 September 2017. He was requested to advance any evidence to the
contrary as a matter of urgency.
[13]
The applicant responded by way of
correspondence dated 31 August 2017, and further, 2 October 2017. In
essence, these dealt with
his role and position as Treasurer of the
MKMVA since September 2015. He explained that his responsibility is
to raise funds and
that the MKMVA’s relationship with the
Gupta’s was akin to a relationship between sponsor and
benefactor. After proffering
this explanation the Public Protector
sought further details from the applicant. She pointed out that he
ought to bear in mind
that the relevant period concerned, in the
parliamentary question, was ‘since he took office’ as
Finance Minister.
[14]
The applicant’s response was as
follows:
‘
With
regard to more details required in terms of the engagement as
Treasurer General of MKMVA mentioned in the background of the
response letter dated the 31
st
August 2017 where I stated that I have been (am still) a Treasurer
General of Umkhonto we Sizwe Military Veterans (MKMVA), a position
I
held prior to becoming a Minister in December 2015.’
…
Since my appointment as
Treasurer General in September 2015 there has been engagement with
the Gupta solely in my capacity as Treasurer
General MKMVA.
…
As
Treasurer General of the MKMVA my responsibilities include constant
engagement with other shareholders to protect the MKMVA’s
interest and obtain regular updates on financial and operational
performance.’
The
Public Protector’s Findings
[15]
In terms of section 182(1)(b) of the
Constitution of the Republic of South Africa 1996 (the Constitution),
section 8(1)
of the
Public Protector Act read
with
section 3(2)
of
the
Executive Members’ Ethics Act, having
completed her
investigations the Public Protector penned her report dated 9
February 2018. Her report was submitted to the President
calling on
him to implement the remedial action recommended in her report.
[16]
In her report the Public Protector recorded
that the key issues for consideration were:
‘
4.3.1.
Whether Minister Van Rooyen
deliberately
or inadvertently
made a misleading
statement to the National Assembly when he replied to the question of
ever having met with and visited the residence
of the Gupta family
since taking office, and if so;
4.3.2.
Whether Minister Van Rooyen's conduct violated the provisions of
paragraph 2.3(a) of the Executive Ethics Code.’ [Emphasis]
[17]
In her report, the Public Protector
acknowledged that the applicant had admitted that he had met with the
Gupta family albeit that
he states that it was in his capacity as
Treasurer General of the
MKMVA
.
She noted that the applicant ‘emphasized that he confined his
response to Mr Steenhuisen’s question to meetings in
his
capacity as Minister of Finance’ and she went on to quote his
reply:
‘“
If
the question was phrased to include whether I visited the said family
in my official capacity as a Minister OR in any other capacity,
the
answer would have been YES.”
…
He
denied having misled the National Assembly.’
[18]
She pointed out that his meeting with the
Gupta family was in the public domain and this clearly precipitated
Steenhuisen’s
question, as it was likely to be inferred that
his meeting with the Gupta family was linked to his appointment as
Minister of Finance.
[19]
The Public Protector placed emphasis on the
fact that the cellphone records in her possession pertaining to the
State of Capture
Report dated 14 October 2016 had no influence on her
findings. Even though she refers to these records as being evidence
in her
possession, for which she sought a further explanation from
the applicant. In dealing with the issue of the cellphone records it
is relevant to set out how this was approached by the Public
Protector:
‘
5.1.9
Referring to Minister Van Rooyen's written reply to Mr Steenhuisen's
question, the Public Protector stated as follows:
"This assertion
was not consistent with the investigation done in the State of
Capture report in which your cell phone records
were reviewed and
confirmed that your cell phone was in the Saxonwold area on 8
December 2015, the day prior to your appointment
as Minister of
Finance. The records further show that calls were further made from
your cellular phone from within the Saxonwold
area in the weeks post
your appointment as Minister of Finance."
5.1.10
Minister Van Rooyen responded on 3 September 2017 submitting, inter
alia that the Public Protector could not use
"the
said cell phone records as evidence contained in the State of Capture
report which is under judicial review until the
conclusion of a
judicial process’’.
’
[20]
She identified that when the applicant
answered the parliamentary question he had an opportunity to inform
and explain his meeting
with the Gupta family to the National
Assembly, but instead ‘he opted not to do so and deliberately
made a misleading statement
to the National Assembly’. It is
this conduct which led her to conclude that he contravened the
Executive Members’
Ethics Code as per section 2.3(a), which
reads:
‘
Members
may not deliberately or inadvertently mislead the President, or the
Premier or, as the case may be; the Legislature.’
[21]
Noticeably, she then concluded that the
parliamentary question related to the applicant having met the Gupta
family in his official
capacity since taking office as Minister of
Finance. She reasoned that the pertinent period sought by the
parliamentary question
was ‘since taking office’ as
Minister of Finance.
[22]
The aforesaid culminated in the remedial
action sanctioned by the Public Protector in her report which reads
as follows:
‘
8.1.1
The President must, within thirty (30) days of publication of this
report, take the appropriate action against Minister Van
Rooyen for
violating the Executive Ethics Code and the Constitution.
8.1.2
The President must within a reasonable time, but not later than 14
days after receiving this report, submit a copy thereof
and any
comments thereon together with a report on any action taken or to be
taken in regard thereto, to the National Assembly.’
Condonation
and amended notice of motion
[23]
In
October 2018 the Supreme Court of Appeal (SCA) in
Minister
of Home Affairs and Another v The Public Protector of South Africa
[1]
held that the findings and remedial action of the Public Protector
could not be reviewed in terms of Promotion of Administration
of
Justice Act 3 of 2000( PAJA), but instead on the principle of
legality. The applicant sought condonation to amend his papers
accordingly and this was not opposed.
[24]
The applicant submits that he only became
aware of the SCA decision around December 2018, thus he filed his
supplementary affidavit
on 16 January 2019, with his amended notice
of motion on 29 May 2019.
[25]
The delay is not inordinate and there is no
opposition for the condonation sought. I am guided by the dicta in
Brummer v Golfil Brothers Investments
(Pty) Ltd and Others
:
‘…
It
is appropriate that an application for condonation be considered on
the same basis and that such an application should be granted
if that
is in the interests of justice and refused if it is not. The
interests of justice must be determined by reference to all
relevant
factors including the nature of the relief sought, the extent and
cause of the delay, the nature and cause of any other
defect in
respect of which condonation is sought, the effect on the
administration of justice, prejudice and the reasonableness
of the
applicant’s explanation for the delay or defect.
’
[2]
[26]
In my view, it would be in the interest of
justice to grant condonation as the SCA determination was after this
review application
was launched.
Analysis
[27]
An investigation by the Public Protector is
initiated by a complaint being lodged. In this instance the fifth
respondent lodged
a complaint pertaining to the applicant’s
conduct. The conduct complained of is central to the parliamentary
question and
the applicant’s manner in responding thereto.
[28]
It is trite that no court can prescribe how the Public Protector
conducts her investigations,
save that same ought to be conducted in
a fair and rational manner.
[3]
In addition, it ought to be conducted with an open and enquiring
mind, if not, it amounts to no investigation at all. This was
aptly
pointed out in
Public
Protector v Mail and Guardian
by Nugent JA:
‘
[20]
The second important observation I need to make is that we are not
called upon to direct the Public Protector as to the manner
in which
an investigation is to be conducted and I do not purport to do so in
this judgment. A proper investigation might take
as many forms as
there are proper investigators. It is for the Public Protector to
decide what is appropriate to each case and
not for this court to
supplant that function. To the extent that I have suggested what
might have been done in this case it is
only to assess what might be
expected in the proper performance of the functions of the Public
Protector so as to determine the
adequacy or otherwise of his
investigation.
[21]
There is no dispute in this case that an investigation and report of
the Public Protector is subject to review by a court.
I do not find
it necessary to pronounce upon the threshold that will need to be
overcome before the work of the Public Protector
will be set aside on
review. It would be invidious for a court to mark the work of the
Public Protector as if it was marking an
academic essay. But I think
there is nonetheless at least 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. That is the benchmark
against which I have assessed the investigation in this case.’
[4]
[29]
There are various interpretations of the parliamentary question
before this court, that being
the applicant’s interpretation,
the Public Protector’s interpretation and respondent’s
interpretation. In my
view it is best to commence by examining the
Public Protector’s interpretation of the parliamentary
question.
[30]
Apparent from her report is that she
inferred that she ought to investigate whether the applicant
‘deliberately or inadvertently’
made a misleading
statement to the National Assembly when he answered the parliamentary
question.
[31]
According to the Public Protector the
parliamentary question sought that the applicant answers whether he
met with the Gupta family
‘since he took office’ as a
Minister. She was adamant that the parliamentary question made no
reference to ‘in
his capacity as a Minister.’ Thus, it
was pertinent ‘when’ he met them and not in which
‘capacity’
he met them. This was the Public Protector’s
understanding of the parliamentary question raised.
[32]
The Public Protector concluded that there
was a time bar in the question, being ‘since taking office’
as Minister. To
this the respondents concedes that the Public
Protector got the parliamentary question wrong. However, they assert
that her answer
to the parliamentary question was correct.
[33]
She states that it was the applicant who
ascribed a ‘distorted interpretation to the phrase ‘since
taking office’
to mean only in his official capacity.’
Thus, she made the supposition that his response advanced was in
violation of section
2.3(a) of the Executive Members’ Ethics
Code.
[34]
The respondents argue that the
parliamentary question was not time barred as was incorrectly
interpreted by the Public Protector.
Their interpretation of the
question is, that it sought to establish whether the applicant ‘ever’
had ‘any’
meetings with the Gupta family. Therefore, they
were referring to meetings held before and after the applicant’s
appointment
as Minister of Finance.
[35]
The respondents acknowledge that the Public
Protector misunderstood the parliamentary question in respect of the
time bar and relevant
period inferred in the parliamentary question.
Interestingly, the respondents argue that she ultimately came to the
correct conclusion.
[36]
To cure the time bar placed by the Public
Protector, the respondents argue that there may have been a
typographical error or an
attempt on the part of the Public Protector
to rectify her erroneous view. They attribute the aforesaid
contention to the fact
that she later states in her report that the
question was not limited to the applicant’s official capacity.
This is why the
respondents are adamant that the parliamentary
question does not relate to the applicant’s official capacity.
[37]
I have already set out the applicant’s
interpretation of the parliamentary question above. He avers that the
question refers
to his official capacity. That being so, the question
could only be referring to the period when he had taken office as the
Minister
of Finance.
[38]
This being a rationality review I refer to
Motau
which
eloquently explains what constitutes a rationality review. Khampepe J
states that:
‘
the
principle of legality requires that every exercise of public power,
including every executive act, be rational. For the exercise
of
public power to meet this standard, it must be rationally related to
the purpose for which the power was given. It is established
that the
test for rationality is objective and distinct from that of
reasonableness.’
[5]
Simply
put there has to be a ‘sufficient connection between the means
chosen and the objective sought to be achieved’.
[39]
On an examination of the complaint specific reference is had to the
period 2 to 8 December 2015,
which amounted to ‘the run-up’
to the applicant’s appointment as Minister of Finance. Thus,
the period referred
to in the complaint is clearly stated.
Confirmation of that specific period is also found in the Public
Protector’s referral
to the media reports which were in the
public domain. These media reports allude to an inference being
drawn, linking the meetings
held between the applicant and the Gupta
family to his appointment, so claims the respondent. This in my view
is indicative that
the complaint refers to the period 2 to 8 December
2015, before the applicant’s appointment as the Minister of
Finance.
[40]
Looking at the parliamentary question the period referred, in my
view, is to be found in the
phrase ‘since taking office’.
This is so, even on the respondent’s version. If one takes into
consideration the
words ‘ever’ and ‘any’ as
suggested by the respondent, one cannot wish away the phrase ‘since
taking
office’ in the parliamentary question. Thus, in my view,
the period referred to in the question would be after the applicant
took office, from 9 December 2015.
[41]
Clearly the applicant’s response of,
not in his ‘official capacity’, is relative to the time
period when he took
office on 9 December 2015. His interpretation
with regards to the period when did his ‘official capacity’
commence,
ties in with when he took office as the Minister of
Finance.
[42]
Both the Public Protector and the applicant were
ad
idem
as regards to the period of time
relevant to the parliamentary question. It is the period in the
complaint that caused confusion
for the Public Protector. This is so,
as the latter refers to a different period, that being
‘the run up to his [the
applicant’s] short lived tenure as Finance Minister’.
This clearly refers to the period
before the applicant was appointed.
[43]
In the circumstances, the applicant is correct when he states that
the complaint should not have
been entertained in the first place as
it was not related to any alleged breach on the part of the
applicant. Thus, I agree with
the applicant’s argument that the
Public Protector should have rejected the complaint on the grounds of
relevance. The complaint
not being relevant to the parliamentary
question asked and answered by the applicant. I am fortified in my
view that the parliamentary
question and the complaint are not in
sync with each other as they pertain to two different periods.
[44]
It is against this backdrop, that I have come to the conclusion that
the Public Protector commenced
her investigations from an incorrect
premise. Consequently, the investigation could not have been
conducted with the relevant enquiring
mind and in a fair and rational
manner. This is so as the focus of the enquiry and investigations
were for a period not relevant
to the parliamentary question posed to
the applicant.
[45]
It must be pointed out that the applicant did respond to the
parliamentary question posed by
the respondents. From his answer, it
is clear that his response is within the confines of the question
posed. Therefore, his response
amounts to the following: that when he
assumed office as Minister of Finance from 9 December 2015, in his
official capacity, he
did not meet with the Gupta family. In the
circumstances, it cannot be said that the applicant was evasive or
that he sought to
‘dodge’ the question. He did not deny
that he met with the Gupta family but as explained this was in his
capacity as
Treasurer General of the MKMVA.
[46]
The Public Protector having not differentiated between the two
periods is undoubtedly telling
of the investigation conducted and
points to it being disjointed. Accordingly, the applicant’s
response to the parliamentary
question could not amount to
deliberately or inadvertently misleading the National Assembly.
Hence, the finding of the Public Protector
that this complaint had
been substantiated cannot be correct. It stands to reason that her
findings cannot be correct and the remedial
action suggested cannot
be implemented.
[47]
Consequently, the applicant has made out a
case that the investigations, findings and remedial action proposed
by the Public Protector
are not rationally connected to the
parliamentary question posed and answered to. The complaint was not
relevant to the parliamentary
question and accordingly the Public
Protectors report is irrational and falls to be set aside.
Remedy
[48]
Section 172 of the Constitution directs this court to exercise a wide
discretion to issue an
order that is just and equitable. I am also
mindful of the fact that the Public Protector exercises her powers in
terms of section
182 of the Constitution and the Public Protectors
Act, in investigating, making findings and proposing remedial action.
[49]
I am guided by the
dicta
in
Economic Freedom Fighters and
Others v The Speaker of the National Assembly and Another
as sets
out below:
‘
[210]
However,
this Court’s remedial power is not limited to declarations of
invalidity. It is much wider. Without any
restrictions or
conditions, section 172(1) (b) empowers courts to make any order that
is just and equitable. In
Hoërskool
Ermelo
the
Court said about a just and equitable remedy: “The power to
make such an order derives from section 172(1) (b) of
the
Constitution. First, section 172(1)(a) requires a court, when
deciding a constitutional matter within its power, to declare
any law
or conduct that is inconsistent with the Constitution invalid to the
extent of its inconsistency. Section 172(1)
(b) of the
Constitution provides that when this Court decides a constitutional
matter within its power it ‘may make any order
that is just and
equitable’. The litmus test will be whether
considerations of justice and equity in a particular case
dictate
that the order be made. In other words, the order must be fair
and just within the context of a particular dispute.”
[211]
The
power to grant a just and equitable order is so wide and flexible
that it allows courts to formulate an order that does not
follow
prayers in the notice of motion or some other pleading. This
power enables courts to address the real dispute between
the parties
by requiring them to take steps aimed at making their conduct to be
consistent with the Constitution....’
[6]
[50]
In proposing the relevant remedy to be implemented the applicant
placed emphasis on the fact
that the Public Protector did not oppose
the proceedings and choose rather to abide by this court’s
decision. It was further
pointed out that her findings took into
consideration what she constitutes to be ‘admissions’
made by the applicant.
Lastly, the facts are common cause and there
is nothing in dispute.
[51]
The applicant having made out a case that investigations, findings
and remedial action are factually
unfounded, irrational and unlawful
renders the Public Protector’s conduct inconsistent with the
Constitution. Thus, the report
must be declared invalid.
[52]
The fourth and fifth respondent seek, that the report be set aside
and the matter be remitted
to the Public Protector for
reconsideration, if it is found that her conduct is not consistent
with the Constitution.
[53]
The applicant argues that on the facts of the case, no further value
could be added by way of
further investigations, if the matter is
remitted. It is further pointed out, by the applicant, that any
remedial action recommended
would not be relevant, as the applicant
is no longer a Member of Parliament nor a member of the National
Executive. The applicant
avers that these are exceptional reasons
which warrant that the matter not to be remitted.
[54]
The relief sought by the applicant is extraordinary in comparison to
the usual order of remittal
to the Public Protector. In exercising my
discretion, I especially took into account that the parliamentary
question was answered
and such answer was substantiated during the
course of the Public Protector’s investigations. I also took
into account that,
by way of the cellphone records, it was
established that the meetings held with the Gupta’s were prior
to the applicant taking
office as Minister. Thus, falling outside of
the scope of the parliamentary question.
[55]
The circumstances, thus dictate that an extraordinary remedy be
implemented, for even if remitted
to the Public Protector, further
investigations would be fruitless. Hence, it is a foregone
conclusion that the outcome will
not be different if the matter is
remitted.
[7]
Costs
[56]
The respondents argue that the costs ought to be granted in the usual
manner against the decision
maker, being the Public Protector. They
further contend that, though the Public Protector did not oppose this
application, the
State ought to bear the costs in line with the
principles set out in
Biowatch
Trust v Registrar Genetic Resources and others.
[8]
[57]
The applicant avers that the respondents who chose to oppose the
application bear the costs.
He argues, that their opposition was not
justified, especially as the decision maker sought to abide.
[58]
I have considered the argument and the case of
Magnificent
Mile Trading 30 (Pty) Limited v Charmaine Celliers NO and others
[9]
referred
to by the respondents. In my view, the fourth and fifth respondents
were within their rights to defend their parliamentary
question and
complaint.
Magnificent
Mile
referred to by the respondents is distinguishable to this matter. In
that in
Magnificent
Mile
,
it was the government as respondents who created the debacle. Thus,
Magnificent
Mile
took the stance that it did, which the Constitutional Court found to
be understandable.
[59]
In this matter, the debacle in my view was caused by the fourth and
fifth respondents. This is
so, as the complaint raised was not in
respect of or even relevant to the parliamentary question. Thus, the
resultant investigations
and report of the Public Protector emanates
from the irrelevant complaint raised to the parliamentary question.
The initiators
are the fourth and fifth respondents.
[60]
In the result, the costs are to follow the result.
Order
[61]
Accordingly, the following order is made:
1.
The late filing of the applicant’s supplementary affidavit is
condoned.
2.
It is hereby declared that the findings and remedial action contained
in the Public Protector Report No: 11 of 2017/2018, titled
‘Report
on an investigation into the allegations of a violation of the
executive ethics code by the Minister of Co-operative
Governance and
Traditional affairs, Mr David Douglas van Rooyen, MP’ (The
Public Protector Report) are factually unfounded,
irrational and
unlawful.
3.
It is declared that the applicant did not deliberately mislead
parliament when he replied to parliamentary question No. 927 in
2016.
4.
The Public Protector report is accordingly reviewed and set aside.
5.
The fourth and fifth respondents are ordered to pay the costs of the
applicant, jointly and severally, such costs to include
the costs of
two counsel where so employed.
W Hughes
Judges of the Gauteng
High
Court, Pretoria
Virtual Hearing: 11
November 2021
Electronically
Delivered: 29 March 2021
Appearances:
For the Applicant: Adv.
Masuku SC
Adv.
Mathipa
Instructed
by: Lucky Thekisho Attorneys
For the Respondent: Adv.
Bishop
Instructed
by: Minde, Schapiro & Smith
[1]
Minister
of Home Affairs and Another v The Public Protector of South Africa
2018
(3) SA 380
9SCA) at para’s [36], [37] and [56].
[2]
Brummer
v Golfil Brothers Investments (Pty) Ltd and others
[2000] ZACC 3
;
2000
(2) SA 837
(CC) at para
[3]
.
[3]
South
African Bureau of Standards v The Public Protector and Another
(34290/15A)
[2019] ZAGPPHC 101 (27 March 2019) at para [12].
[4]
Public
Protector v Mail and Guardian
2011
(4) SA 420
(SCA) at para [20] and [21].
[5]
Minister
of Defence and Military Veterans v Motau and Others
2014(5)
SA 69 at para 69.
[6]
Economic
Freedom Fighters and Others v The Speaker of the National Assembly
and Another
2018 (2) SA 571
(CC) at para 210-211.
[7]
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
2015
(5) SA 245
(CC) at paras [42] and [47].
[8]
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC) at paras [26] – [28].
[9]
Magnificent
Mile Trading 30 (Pty) Limited v Charmaine Celliers NO and others
2020
(4) SA 375
(CC).