Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public Protector (11311/2018; 13394/2018) [2019] ZAGPPHC 132; [2019] 3 All SA 127 (GP); 2019 (7) BCLR 882 (GP) (20 May 2019)

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[2019] ZAGPPHC 132
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Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public Protector (11311/2018; 13394/2018) [2019] ZAGPPHC 132; [2019] 3 All SA 127 (GP); 2019 (7) BCLR 882 (GP) (20 May 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 11311/.2018
Reportable
Of
interest to other judges
Revised
Date:
20/5/2019
In
the matter between:
DEMOCRATIC
ALLIANCE

APPLICANT
VS
THE
PUBLIC
PROTECTOR

RESPONDENT
CASE
NO: 13394/2018
COUNCIL
FOR THE ADVANCEMENT OF THE
SOUTH
AFRICAN
CONSTITUTION

APPLICANT
VS
THE
PUBLIC
PROTECTOR

RESPONDENT
JUDGMENT
TOLMAY,
J:
INTRODUCTION
[1]
The Democratic Alliance (the DA) and the Council for the Advancement
of the South African Constitution (CASAC) launched applications
based
on the same facts. These applications, which were heard
simultaneously, related to the investigating and reporting by the

Public Protector (the PP) on the Free State's Department of
Agriculture Vrede Integrated Dairy Project ("the Project")

and sought to review and set aside the PP's report, because it was
alleged that she acted unlawfully and in violation of her
constitutional
mandate in terms of section 182(1) of the Constitution
and section 6 and 7 of the Public Protector's Act 23 of 1994, ("the

PP Act'').
[2]
On 8 February 2018, the PP released Report, No 31 of 20187/2018 ("the
Report') titled ''Allegations of ma/administration
against the Free
State Department of Agriculture - Vrede Integrated Dairy Project".
The Report was the culmination of nearly
four years of investigation
by the incumbent PP and her predecessor, Adv Madonsela, into
allegations of widespread corruption,
maladministration and
impropriety in respect of the Project.
[3]
Both the DA and CASAC in essence sought an order that the PP's report
be reviewed and set aside. Both also sought an order that
the PP
should pay the costs of this application in her personal alternative
official capacity.
[4]
In
Absa Bank Limited & Others v Public Protector and others
[1]
a personal costs order was granted against the PP the matter went on
appeal to the Constitutional Court (CC) and the CC has not
yet given
judgment in that matter. This judgment was initially held back
pending the judgment of the CC, but seeing the controversy

surrounding the Project, and in order to prevent further delay in the
matter, this Court deemed it in the interest of justice to
deliver
judgment on the merits and to postpone the judgment relating to costs
until the CC has handed down its judgment in the
Absa Bank matter.
[5]
Although
the application for review was initially based on the grounds for
review provided for in the Promotion for Administrative
Justice Act 3
of 2000 (PAJA), following the Supreme Court of Appeal’s (SCA)
decision in Minister of Home Affairs and Another
v Public Protector
of the Republic of South Africa
[2]
,
the Applicants in the end only relied on the pleaded grounds of
legality as the basis for the review.
[6]
Initially the PP filed a notice to abide, but in due course filed
answering affidavits, which contained a full blown attack
on the
merit of the applications. This aspect will be d alt with more fully
in the Juqgn1ent on costs.
FACTUAL
BACKGROUND
[7]
During 2012, the Free State Department of Agriculture (the
"Department") launched a provincial policy intervention

known as Mohama Mobung, which was aimed at revitalizing the Free
State agricultural sector through investment in various initiatives.

The Project was identified as flagship project to realise such
intervention. It was intended to uplift the Vrede community, through

sustainable job creation opportunities.
[8]
During April 2012 Estina (Pty) ltd (Estina") submitted a
business proposal for the management of the Project at the
Krynaauwslust
Trust farm. It also represented, falsely, it would turn
out later, that it was in partnership with an Indian company, Paras,
which
allegedly had the necessary technical expertise. On 5 July
201.2, the Department submitted a request for approval to accept
Estina's
business proposal and to enter into an agreement with
Estina, for the establishment and management of the Project.
[9]
On 31 May 2013, the amaBhungane Centre for Investigative Journalism
(amaBhungane) published their first article about the Project,
this
article was titled "Guptafarm cash cows in Free State". On
7 June 2013, another article titled "Gupta dairy
project milks
Free State coffers" was published.
[10]
During October 2013 National Treasury (Treasury) investigated the
Department's contracts with Estina. Some of the findings
were
disclosed by amaBhungane on 7 February 2014, after a leaked
transcript of an interview between investigators and the Department's

CFO, Ms Dipatle Olamine (Ms Dlamini), was obtained. This report by
Treasury was not made public.
[11]
According to the amaBhungane report the following occurred:
(i)
no supply chain procedures were followed;
(ii)
no due diligence procedures were performed
(iii)
grants were paid directly into Estina's bank account, without any
evidence of how they were spent;
(iv)
a feasibility study was only performed, after the contract was
signed;
(v)
the contract, apparently drawn up by Premier Ace Magashule's ("the
Premier'') legal advisors committed the Department to
paying R342
million, while Estina would only be billed for the balance "if
necessary";
(vi)
small-scale farmers, who were supposed to be the beneficiaries of the
Project, had only been identified at a much later stage,
and could
not explain how they had been chosen; and
(vii)
approval for the Project had been rushed through, despite there being
no budget, no feasibility study and no urgency.
[12]
During 2017, hundreds of thousands of emails revealed the Gupta
family's seemingly corrupt business dealings with the state
and
politicians ("the GuptaLeaks·"). These emails were
reported on at length by investigative journalists. They
corroborated
the earlier 2013 reports that the Project was tainted, not only by
serious irregularities, but also possibly by corruption.
[13]
During mid-2017, more than six months before the PP released her
Report, three further investigative reports were published
in the
media. These reports, based on the empils in the GuptaLeaks, provided
further evidence of alleged irregularities and possible
corruption
linked to the Project. The reports sought to illustrate that the
Gupta family exercised control over the Project and
that millions of
taxpayers' monies were pilfered from the public purse. The reports
alleged that senior provincial officials, including
the HOD, Mr
Thabethe, (Mi Thabethe), MEC Mosebenzi Zwane (Mr Zwane) and the
Premier may have been complicit in the wrongdoing.
[14]
Treasury commissioned an investigation into the Department's
contracts with Estina. The report was dated January 2013, but
it must
be a typographical error, as the report itself stated that Treasury
was requested on 12 June 2013 to investigate the possibility
of
procurement irregularities, relating to the Project. It would seem
then that the correct date of the report must be January
2014.
[15]
In this report from Treasury the following findings were made,
regarding the conduct of specific officials within the Department:
1.1
that Mr Thabethe was involved at "every stage of the
identification and appointment of Estina/Paras". He signed the

99-year rent free lease in Estina's favour and the agreement with
Estina.
1.2
the Department made payment to Estina, without any form of oversight,
and without verifying how funds were spent.
1.3
despite the Project having been justified, on the basis that the
beneficiaries would benefit from it, the Department paid R114
million
to Estina, before even identifying any beneficiaries.
1.4
the Premier and Mr Zwane were identified as being involved in various
suspicious aspects of the Project. In particular, it was
stated they
enabled, encouraged and authorised Mr Thabethe to execute the
implementation of the Project.
1.5
both the·Premier and Mr Zwane were involved in concluding the
99 year rent-free lease agreement with Estina.
1.6
the Premier signed a delegation of authority to Mr Zwane, to conclude
a rental greement between the Department and the municipality.
Mr
Zwane then delegated further authority to Mr Thabethe.
1.7
the Provincial Executive Committee, which the Premier headed, then
approved Mr Thabethe's request to implement the Project,
and
supported the sourcing of additional funding of R84 million from the
province.
1.8
mr Zwane, as MEG for Agriculture, personally contacted the MEC for
Finance to request an urgent, expedited R30 million payment
to
Estina.
[16]
In light of these findings, the Treasury report recommended that
disciplinary action be taken against:
1.
mr Thabethe for concluding an unlawful agreement on behalf of the
Department, and for committing funds to the Project on the

Department's behalf, when they were not available; and
2.
the Chief Financial Officer, Ms Dhlamini, for failing to put in place
proper financial oversight and controls.
COMPLAINTS
[17]
Between 2013 and 2016, a Member representing the DA in the Free State
provincial legislature, Dr Roy Jankielsohn MP (the "Complainant")

lodged a series of complaints with the PP concerning the Project:
i.
On 12 September 2013, the Complainant alleged maladministration in
respect of the agreement between the Free State Province,
Estina and
its business partner.
ii.
On 28 March 2014, the Complainant submitted a further complaint,
alleging that the government investment of R342 million was
subject
to hugely inflated costs, that compliance with environmental
requirements was imperilled, and that between 40 and 100 cows
had
died and their carcases dumped in a stream running into the Vrede
water catchment area. .
iii.
On 10 May 2016 the Complainant submitted yet another complaint,
including further allegations that-
a.
Estina's appointment fell afoul of state procurement processes;
b.
Estina misrepresented itself as being in partnership with Paras, a
large lnd.ian company, which could not have been overlooked
by those
who approved the project including the Premier;
c.
Estina being both partner and implementing agent on the Project was
highly irregular;
d.
It appeared that Estina received R183 million for the construction of
infrastructure and purchasing of cattle at inflated costs;
e.
Estina was permitted to abscond from the Project without any
accountability, once the FDC took over its management role;
f.
The intended beneficiaries of the Project had been side-lined;
g.
Serious irregularities revealed by the Treasury investigation against
the HOD and Chief Financial Officer had been ignored by
the
provincial government and the Premier; and
h.
The Department continued to make monthly payments even after FDC had
taken over the Project.
THE
POWERS AND DUTIES OF THE PP
[18]
Before analysing the merits of the applications, it is important to
consider the powers and duties of the PP, and her pivotal
role in our
democracy,
[19]
The
importance of the institution of the PP and her constitutional
mandate was described in Economic Freedom Fighters v Speaker
of the
National Assembly and Others; Democratic Alliance Speaker of the
National Assembly and Others
[3]
where it was stated that the PP is "one of the most invaluable
constitutional gifts to our nation in the fight against corruption,

unlawful enrichment, prejudice and impropriety in State affairs and
for the .betterment of good governance
[4]
"
. It is a constitutional mechanisrn that "gives the poor and
marginalised a voice, and teeth [to] bite corruption and
abuse
excruciatingly”.
[5]
'
[20]
That
the PP plays a special and indispensable role in South Africa's
constitutional democracy has been illustrated in various instances

and is thus trite. The office of the PP was created under section
181
[6]
of the Constitution to
"strengthen constitutional democracy in the Republic ". To
achieve this objective, section 181
(2) of the Constitution requires
the PP to be independent and subject only to the Constitution and the
law, and to be impartial.
The PP is charged with rooting out improper
conduct in Government for the public benefit. The institution of the
PP was ultimately
created to serve the people, and to protect their
interests against those in power, who might be tempted to abuse it
for nefarious
purposes.
[21]
To perform her constitutional mandate and functions, the PP is vested
with broad investigative and remedial powers. Under section
182(1) of
the Constitution, the PP has the power_,.
"(a)
to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged
or
suspected to b improper or to result in any
impropriety
or prejudice;
(b)
to report on that conduct; and
(c)
to take appropriate remedial action".
[22]
Sections 181(2) and (3) of the Constitution provide that the chapter
nine institutions must exercise their powers and perform
their
functions without fear, favour or prejudice and oblige all organs of
state to assist these institutions "to ensure the
independence,
impartiality, dignity and effectiveness of these institutions".
The effect of these provisions is to provide
a constitutional
guarantee that these institutions will exercise their powers
independently, impartially and effectively. Section
182 of the
Constitution states that the powers of the PP are regulated by
national legislation. The national legislation envisaged
in this
section, culminated in the promulgation of the PP Act.
[23]
The PP is entitled to the assistance of other organs of state, where
this
may
be required under section 181(3) of the Constitution. Other organs of
state, through legislative and other measures, must assist
and
protect the PP to ensure the independence, impartiality, dignity and
effectiveness of the institution.
[24]
Section 6 of the PP Act, describes the matters that fall within the
jurisdiction of the PP. It also describes how the PP assumes
that
jurisdiction, when matters are reported to her office or otherwise
come to her attention.
[25]
Under
sections 6(4)(a)
[7]
and
6(5)(a)
[8]
, the PP is competent
to investigate, on her own initiative, or on receipt of a complaint,
any alleged maladministration abuse or
unjustifiable exercise of
power, improper or dishonest conduct, corruption or improper or
unlawful enrichment in government affairs
and the public
administration or in state-owned or public entities.
[26]
The PP Act, defines and expressly circumscribes the instances where
the PP may refuse, or must refuse, to investigate a complaint

reported to her office. Section 6 provides for only four such
instances:
i.
It provides in section 6(3) that:
"(3)
The Public Protector may refuse to investigate a matter reported to
him or her, if the person ostensibly prejudiced in
the matter is
(a)
an officer or employee in the service of the State or is a person to
whom the provisions of the Public Service Act; 1994 (Proclamation
103
of 1994), are applicable and has, in connection with such matter not
taken all reasonable steps to exhaust the remedies conferred
upon him
or her in terms of the said Public Service Act, 1994; or
(b)
prejudiced by conduct referred to in subsections (4) and (5) and has
not taken all reasonable steps to exhaust his or her legal
remedies
in connection with such matter."
ii.
Under section 6(4)(c), the PP m y at any time (prior to, during or
after an investigation) "refer any matter which has
a bearing on
an investigation to the appropriate public body or authority''. The
PP may, therefore, refer matters to another, more
appropriate public
body or authority, instead of investigating the matter herself.
iii.
Under section 6(6), the PP is prohibited from investigating "the
performance of judicial functions by any court of law''.
iv.
Section 6(9) restricts the PP's power to entertain matters reported
more than two years after the occurrence of the incident
or matter
concerned.
[27]
Sections
7
[9]
of the PP Act describes the
investigative powers of the PP, Scrutiny of these sections reveals
the PP's extensive investigative
powers, which includes the power to
subpoena any person to give evidence on affidavit or in person, to
produce documents, or to
appear as a witness.
[28]
The
PP is also vested with the power to enter, or authorise another
person to enter any building or premises for purposes of an

investigation and to search and seize anything on those premises that
in her opinion has a bearing on the investigation, subject
to
obtaining warrant as set out in section 7A
[10]
.
[29]
Under section 7(3) of the PP Act, she may call upon any person,·
at any level of government or performing any public
function, to
assist her in the performance of her functions with regard to a
particular investigation. This includes the·power
to designate
any person to conduct an investigation and to report to her. To
emphasise both the importance and power of the PP,
section 11 of the
PP Act stat s that contempt of the PP is an offence.
[11]
[30]
The PP must, like any public functionary, exercise her powers and
functions lawfully in compliance with her constitutional
and
statutory mandate and duties. The proper and effective performance of
the functions of the PP is of particular importance,
given her
constitutional mandate and the extraordinary powers that are vested
in her office. When the PP fails to discharge her
mandate and duties,
the strength of South Africa's constitutional democracy is inevitably
compromised and the public is left without
the assistance of their
constitutionally created guardian. It means that vital constitutional
check against abuses of public power
is lost.
[31]
It
is for these reasons that the Court stated in Absa Bank that "The
Public Protector is subject to a higher duty and higher
standards
than ordinary administrators".
[12]
Thus the failure by the PP to perform her functions properly and
effectively is, therefore, a matter of grave constitutional
importance.
[32]
In
Public Protector vs Mail & Guardian,
[13]
he SCA specifically addressed the nature of the PP's duty to
investigate complaints or suspicions of improper conduct and abuses

of power in the public administration. The SCA held that, when the PP
investigates a matter, she is obliged to be proactive, impartial
and
determined in her investigations and to retain " an open and
enquiring mind'.
[33]
The Court described the benchmark of 'an open and enquiring mind' as
follows:
"
... That state of mind is one that is open to all possibilities and
reflects upon whether the truth has been told. It is
not one that is
unduly suspicious but it is, also not one that unduly believes. It
asks whether the pieces that have been presented
fit into place. If
at first they do not then it asks questions and seeks out information
until they do. It is also not a state
of mind that remains static. If
the pieces remain out of place after further enquiry then it might
progress to being a suspicious
mind. And if the pieces still do not
fit then it might progress to conviction that there is deceit
..."
[14]
[34]
It was argued, and correctly so, that this means that, when the PP
conducts an investigation she is not entitled to be passive,
supine
and static in her approach. Nor can she fail to address complaint or
allegations without good cause, or narrow the $cope
of investigations
to the point that they do not meaningfully address the allegations
and prjma facie evidence of misconduct and
impropriety in public
affairs,
[35]
In Mail and Guardian the Court further described the importance of
public confidence in the PP's duty to be proactive in her

investigations. The following was said in this regard:
"The
Public Protector must not only discover the truth but must also
inspire confidence that the truth has been discovered.
It is no less
important for the public to be assured that there has been no
malfeasance or impropriety in public life, if there
has not been, as
it is for malfeasance .and impropriety to be exposed where it exists.
There is no justification for saying to
the public that it must
simply accept that there has not been conduct of that kind only
because evidence has not been advanced
that proves the contrary.
Before the Public Protector assures the public that there has not
been such conduct he or she must be
sure that it has not occurred.
And if corroboration is required before he or she can be sure then
corroboration must necessarily
be
found.
The
function of the Public Protector is as much about public confidence
that the truth has been discovered as it is about discovering
the
truth
."
[15]
[36]
It
follows that when the PP receives complaints of impropriety or abuse
of public office, she is obliged to use the powers vested
in her.
This will include her power to call for assistance from organs of
state, or to refer matters to other appropriate authorities,
to
ensure that the complaint is properly and effectively addressed.
Where an investigation is required, it should be conducted
s
comprehensively a possible, in order to inspire public confidence
that the truth has been discovered, that her reports are accurate,

meaningful and reliable, and that the remedial action that she takes
is appropriate. That means, as the CC held in Nkandla, "
nothing
less than effective, suitable, proper or fitting to redress or undo
the prejudice, impropriety, unlawful enrichment or
corruption, in a
particular case".
[16]
Thus, if the remedial action does not meet these criteria, it will
not be appropriate.
[37]
The
purpose of the PP's office is, in general terms, ''to ensure that
there is an effective public service which maintains a high
standard
of professional ethics, and that government officials carry out their
tasks effectively, fairly and without corruption
or prejudice."
[17]
[38]
The
failure to have regard to relevant facts and considerations can
result in the irrationality of a decision. In Democratic Alliance
v
President of South Africa
[18]
,
the CC devised a three-part test to determine when the ignoring of
facts or considerations leads to irrationality:
1.
whether the factors
ignored are relevant;
2.
whether the failure to
consider the material concerned is rationally related to the purpose
for which the power was conferred; and
3.
whether ignoring relevant
facts is of a kind that colours t e entire process with irrationality
and thus renders the final decision
irrational.
[391
In Chairman of the State Tender Board v Digital Voice Processing
(Pty) Ltd it as explained that, "in order to be rational,
the
decision must be 'based on accurate findings of fact and a correct
application of the law.”
[19]
[40]
It is against this legal frc;1mework that the PP's report and
proposed remedial actions must be considered, to determine whether

the requirements of legality have been met.
THE
PUBLIC PROTECTOR'S REPORT
[41]
On 8 February 2018, the PP published her Report. It is of importance
to n9te that a provisional report was done by the PP's
predecessor,
Adv Madonsela, as these two reports have to be compared, within the
factual matrix of what occurred in the implementation
and execution
of the Project. A comparison of the findings, conclusions and
proposed remedial action is inevitable. The provisional
report was
included in the Rule 53 record and was dated November 2014.
[42]
The PP described the scope of her investigation in the Report. She
recorded that she investigated only the following three
issues:
-
"Whether the Department entered into a Public Private
Partnership (PPP) agreement for the implementation of the Vrede Dairy

project";
-
"Whether the Department failed to manage and monitor
implementation of the terms of the agreement in relation to budget
evaluation, expenditure control and performance by Estina”; and
-
"Whether the prices for goods and services ·procured were
inflated, specifically alleged expenses. in respect of construction,

processing equipment, procurement of cows and administration cost ".
[43]
Seen within the context of the factual background, the scope of the
investigation, as identified by the PP, seems to be too
narrow and
seems to ignore the issues raised in the report from Treasury, the
media reports as well as the complaints lodged. There
does not seem
any logical and legitimate explanation for the narrowing of the scope
of the investigation.
[44]
The PP also recorded in the Report that she did not investigate
certain issues, due, she said, to capacity and financial constraints

experienced by her office. The issues not investigated were the
following:
a)
the cause of the alleged deaths of cattle. She said that the Minister
of Water Affairs intervened and issued instructions on
the removal of
the dead cows;
b)
issues emanating from the complaint sent on 10 May 2016 [i.e., the
complainant's third complaint]; as the issues pertaining to
the
investigation were already identified;
c)
the issue of value for money obtained by the Government in terms of
the agreements, as it was, investigated by Treasury;
d)
the newspaper articles on the emails reported, relating to the Gupta
family, that surfaced around June 2017, referring to the
Project were
noted, but did not form part of the scope of her investigation;
e)
how the money transferred to Estina was spent by Estina, as the
Directorate for Priority Crime was dealing with the issue;
f)
the matter relating to beneficiaries who were intended to benefit
from the project was not investigated. Her reason for this
was an
alleged lack of information.
[45]
It was accordingly not in dispute that the PP did not investigate the
DA's third complaint. It was also not in dispute that
the PP did not
do the following:
a.
investigate who the true beneficiaries of the Vrede Dairy project
were;
b.
investigate the role played by MEC Mr Zwane, the Premier, Mr Thabethe
and Ms Dlamini in pushing through the project;
c.
consider the allegations that were in the public domain that
suggested that Mr Zwane and the Premier had corrupt relationships

with the Gupta family and received kickbacks directly or through
their family from the Gupta family, following the Project;
d.
consider how President Zuma allegedly abused his position as
President of the Republic to protect and promote the officials in
the
Free State province that had allegedly served the interests of the
Gupta family through the Project;
e.
address the fact that the Free State Provincial Government under the
Premier had failed to implement National Treasury'$ recommendation

that disciplinary action be taken against the Department of
Agriculture's HOD and CFO.
[46]
The PP also failed to investigate the impact of the Project on the
so-called "farm empowerment" partner promoted
by Mr Zwane,
or the impact on the approximately eighty beneficiaries, who were
supposed to have benefited as stakeholders in the
Project.
[47]
Her decision to limit the scope of her investigation so dramatically
was irrational as it side stepped all the crucial aspects
regarding
the complaints and led to a failure on her part to execute her
constitutional duty.
[48]
In her report the PP indicated that on assuming office during October
2016, she took the following steps regarding the investigation
into
the Project:
a.
she sourced four additional documents - namely, a list of employees
at the Project; the milking records for the Vrede Dairy Farm
from ·1
April 2016 to 31 March ,2017; the financial statements for the Vrede
Dairy Farm from September 2014 to March 2017;
and a company report
from CIPC on Vargafield (Pty) Ltd,
b.
she held three interviews, namely with the Free State Department of
Agriculture, the Manager of Studbook, SA Holstein Breeders

Association and with the CFO of the Free State Development
Corporation,
c.
she conducted one inspection in loco at the Vrede Dairy Farm.
d.
she consulted one website, the CIPC website (to confirm the details
of the Mohoma Mobung company).
[49]
The steps taken by her seem wholly inadequate, considering the
magnitude and importance of the complaints raised.
[50]
The PP claimed in her report not to have had information relating to
the beneficiaries. However during December 2017 the leader
of the DA,
Mr Mmusi Maimane, attended the office of the PP. He took along
several of the intended beneficiaries of the Project.
At the meeting
the lead representative of the beneficiaries was introduced to the
PP, and her assistant was requested to take down
the beneficiaries'
contact detai.ls to facilitate future engagement with them. The
record shows that the information was indeed
obtained, and in the
possession of the PP, and formed part of the Rule 53 record supplied
by the PP. The DA also furnished the
PP with the Department's list of
intended beneficiaries, together with a letter of complaint from
representatives of the Beneficiaries'
Steering Committee. In addition
to recording the beneficiaries' identity numbers and addresses, the
list also included their cell-phone
numbers.
[51]
Despite having access to this information the PP made no effort at
all to engage with the intended. beneficiaries. She, in
her answering
affidavit laid the blame on the DA and said that the DA failed to
provide her office with the promised assistance
to obtain statements
from the beneficiaries.
[52]
The DA denied this and stated that Mr Maimane agreed to assist the
PP, where possible. It was agreed that Mr Maimane's office
would be
the contact point for communications from the PP. However, Mr Maimane
did not give any undertaking to obtain statements
from the
beneficiaries for the PP's office, as is alleged. The PP requested no
further assistance from the DA at all. One would
have expected her
office to request assistance if she needed it. This is yet another
inexplicable failure on the part of the PP.
[53]
In the context of what occurred some consideration must be given to
the provisional report and how the final report deviated
from it. As
was detailed in the supplementary founding affidavits filed by the DA
and CASAC, there are differences between the
provisional report and
the final report issued by the PP in February 2018. Some of the
issues for investigation according to the
DA and CASAC seemed to be
narrowed, and several findings and remedial steps proposed were
omitted from the final report. The PP’s
response in answer to
the differences was:
"Whatever
the difference in findings may be, they have not had any material
effect in the lawful remedial action that I have
taken within the
powers conferred on me by the Public Protector Act and the
Constitution."
[54]
I do not deem it necessary to deal in detail with all these
differences, but what is of importance, is the impact of these

differences on the legality of the report and the appropriateness of
the remedial action proposed by the PP.
[55]
The first issue identified by the PP, was whether the Department
improperly entered into a Public Private Partnership (PPP)
agreement
for the implementation of the Project. The provisional report
prepared by Adv. Madonsela identified, the first issue
as “Whether
or not the Treasury Prescripts in respect of Public Private
Partnerships were adhered to and whether or not the
contribution of
40% of the funds for an allocation of 4 9% of the shares in the
company was contrary to Treasury prescripts".
[56]
Adv. Madonsela found that the prescripts in respect of the
procurement of the agreement were not adhered to. This was confirmed

by the Treasury report. According to Adv Madonsela this constituted
maladministration. She pointed out, that after this report,
which
found that the agreement was unlawfully entered into. that the Free
State Department of Agriculture proceeded to pay a further
R143 950
million to Estina. She concluded inter alia that the conduct of the
accounting officer was improper and constituted maladministration
and
an abuse of power. It is patently obvious that this conclusion was
correct. It is inconceivable that, following Treasury's
report, the
Department could, with impunity, proceed to pay out millions of rands
to Estina and that the PP in her final Report
failed to address this
gross irregularity.
[57]
In the final Report, the PP redefined the primary issue as follows;
"Whether the Department improperly entered into a
Public Private
Partnership agreement for the implementation of the Vrede Dairy
project in violation of treasury prescripts".
[58]
The PP explained her narrowing of the issue in her answering
affidavit as follows:
"The
reason for this change is that National Treasury had already
investigated the matter of adherence to National Treasury
Prescripts
and made a finding. With our limited resources, it would have been
imprudent to duplicate an investigation into the
same issue."
[59]
One must however keep in mind that Treasury had already found gross
irregularities and non-compliance with procurement law,
and had made
recommendations, which had not been acted on by the Department or the
Provincial Government. This should have been
of great concern to the
PP given her constitutional duties. She should have investigated the
failure of the Department and the
Provincial Government and she
should have addressed those irregularities and failure to comply with
procurement procedures. The
excuse of financial constraints
preventing her from investigating certain aspects, being an
impediment, will be dealt with later
on, but financial constraints
cannot explain her failure to act decisively and- in accordance with
the powers afforded to her.
[60]
Significantly, whereas the provisional report had sought to give
effect to Treasury's investigations and recommendations, the
PP did
not accept these findings. She instead found, that compliance with
the requirements for concluding a PPP was not required
for the Estina
agreement. On what basis she could justifiably come to such a
conclusion is unclear. It points either to ineptitude
or gross
negligence in the execution of her duties.
[61]
She furthermore, removed the remedial action that had been proposed
in the provisional report, which required the MEC to implement
the
recommendations in the Treasury report.
[62]
On the first issue, as redefined, the PP found that while "the
initial impression created was that the agreement between
the
Department and Estina was a public-private partnership", this
was not the case. The only basis for this conclusion, is
the finding
of Treasury's report that the arrangement was neither a PPP nor a
sole provided agreement.
[63]
The PP followed the same reasoning by citing other formal
requirements for a PPP that w re not followed in respect of Estina,

including the critical requirement of prior approval from Treasury,
to support her conclusion that the project was not a PPP.
[64]
The PP missed the point completely and erred in coming to the
aforesaid conclusion, When Treasury stated that "The
investigation
has revealed that the Vrede project is neither a PPP
nor a sole provider arrangement", it dearly meant, when read in
proper
context, that it was neither a valid PPP nor a sole provider
arrangement, as the supply chain management pr9cesse$ prescribed for

them were not followed. This inference is the only logical one in the
broader context of the Report. Treasury did not find, as
suggested in
the final Report, that the "inherent requirements" for a
PPP were not present but went further and act1;1ally
pronounced on
the legality of the Project.
[65]
It also did not follow from the Treasury's findings that the
Department was not required to follow the processes prescribed
for a
PPP arrangement, in concluding the Project as the PP found. The
Department was obliged to follow the prescribed processes,
and it
acted unlawfully in not .doing so.
[66]
The conclusion by the PP was Clearly irrational. The fact that the
PPP was not registered did not determine or change the nature
of the
commercial arrangement. Instead it suggested that, if the true nature
of the commercial transaction was indeed a PPP, then
there were
serious irregularities in the conclusion of the transaction and that
should have bee. n the focus of her investigation.
[67]
One would have expected the PP to have engaged in an examination of
the true, inherent nature of the agreement entered into
between the
Department and Estina. The PP did not enquire any further into the
nature of the irregularities committed, or whether
the agreement and
execution thereof resulted in misappropriation of public funds. This
is inexplicable seen in the broader context
of her duties and powers.
[68]
The PP removed all findings contained in the provisional report,
against the Department, of non-compliance with statutory
requirements. She relegated these too vague and inconclusive
"observations" in her report.
[69]
The PP considered whether the Department failed to manage and­
monitor implementation of the terms of the agreement in
relation to
budget evaluation, expenditure control and performance by Estina. In
addressing this issue, the PP. recorded, repeatedly,
that the
Department failed to finish supporting documents to verify the
correctness of the financial statements it produced, including

invoices and proof of payments for goods and services procured.
However, she failed to exercise her statutory powers to obtain
the
Department or Estina's records: She issued no subpoenas for bank
records, and accounts; She did not calI any persons to appear
before
her to give evidence on the expenditure, accounting thereof, and
services procured; She conducted no search to obtain such
evidence.
None of this was denied by her in her answering affidavit instead,
the PP said the following:
"In
2014 my office was informed by the department that information or
documents required w re never in possession of the department,
but
that of Estina. An attempt to get documents or information from
Estina was unsuccessful, as Estina had closed shop and the
building
out of which it used to operate had been abandoned and vacated. As a
result of the about), my office was unable to secure
the documents by
way of subpoena or search and seizure".
[70]
There was no explanation for why the PP failed to subpoena any of the
implicated officials to answer questions under oath or
to produce
whatever records the Department was required by law to retain, in
particular, by the Public Finance Management Act.
[71]
The PP could have conducted search and seizure at the Department and
the offices of the implicated officials, to obtain whatever
evidence
might have been available a to the implementation and management of
the Project;. The provisional report had required
other investigative
agencies to conduct such investigations, subject to the PP's
oversight This requirement was however removed
from the final Report
and thus it was never done.
[72]
Therefore, instead of productively investigating the nature and
extent of the irregularities committed to uncover the facts,
the PP
merely drew "an inference" that "no management and
monitoring of the project in relation to budget, expenditure
control
and performance by the Department before the project was handed over
to the FDC".
[73]
The PP's findings on this issue, ultimately, were as follows:
“
6.2.1
The allegation that the Department failed to manage and monitor
implementation of the terms of agreement is substantiated.
6.2.2
No documents and/or policies or measures were provided by the
Department that proper financial control and risk management
of the
Project were in place. The Public Protector could find no evidence or
indication that the Accounting Officer invoked the
provisions of the
agreement in respect of the control over the Project and this raises
serious concern. This concern was supported
by the report of the
Accountant General and the lack of effective, efficient and
transparent systems of financial and risk management
and internal
control amounts to gross negligence and maladministration.
6.2.3
No supporting evidence in the form of actual invoices/receipts was
submitted to substantiate the expenditure as claimed in
the financial
statements submitted except for 9 invoices for procurement of cattle.
6.2.4
The evidence outlined earlier points to gross irregularities in
ensuring ·the effective and efficient performance of
the
agreement and resulted in maladministration.
6.2.5
From the above it is clear that this amounts to gross negligence and
also constitutes improper conduct as envisaged in section
182(1) of
the Constitution and rnaladministration as envisaged in section 6 of
the Public Protector Act."
[74]
The aforesaid must be compared with the provisional report which
found:
"8.2.2
No supporting evidence in the form of actual invoices/receipts was
submitted to substantiate the expenditure as claimed
in the financial
statements submitted. In fact the payment vouchers for the
disbursement of the R.173,950 million to EST/NA were
substantiated
only by the project proposal. of EST/NA/PARAS and the agreement
concluded between the Department and ESTINA.
8.2.3
From. the above it is clear that this amounts to gross negligence,
maladministration and ultimately irregular expenditure
in terms of
Treasury prescripts. · · · · ·
8.2.4
In terms of the Regulations a PPP agreement does not divest the
accounting officer of the responsibility for ensuring that
the
relevant institutional function is effectively and efficiently
performed in the public interest. The evidence I have outlined

earlier points to gross irregularities in ensuring the effective and
efficient performance of the agreement and resulted.in irregular
and
fruitless expenditure." [Court's emphasis].
[75]
The finding in paragraph 6.2.2 of the final report is identical to
the finding i t1 the provisional report. However, the findings
of
irregular expenditure in the provisional report were omitted from the
final report. In the light of all the facts, this omission
by the PP
is inexplicable. One may justifiably ask whether this was. done for
some ulterior purpose. Unfortunately no explanation
was given by the
PP for these changes.
[76]
The PP also determined whether the prices for goods and services
procured were inflated. On this issue the provisional report
stated
that independent evidence indicated that, prices of processing
equipment and the cows purchased were considerably higher
than.
market value, which confirmed that proper procurement processes were
not followed. It indicated that lack of proper monitoring
and control
measures were the reasons for discrepancies noted in the financial
statements, which in tum pointed to gross negligence
and
maladministration which led to fruitless expenditure.
[77]
These findings were revisited by the. PP. In the final Report, there
are no findings of inflated prices and irregular and fruitless

expenditure. The revised finding reads simply as follows:
"6.3.1
The allegation that the prices for goods and services procured were
inflated, specifically expenses in respect of construction,

processing equipment, procurement of cows and administration costs
is
difficult to determine
".
[78]
The following explanation is given in the answering affidavit for
this conclusion:
"6.3.1.1.
ESTINA did not follow public procurement processes when procuring the
Services of the service providers in the project;
6.3.1.2.
Due to the lack of resources and financial constraints, the Public
Protector was unable to conduct a comprehensive investigation
in
order to determine the fair market value for goods and services
procured,' and
6.3.1.3.
The Public Protector was not provided with all the invoices and proof
of payments for the goods and services procured by
Estina on behalf
of the Department.”
[79]
The PP's contention that she was unable to obtain market prices is
unsustainable. There was no reason, as the DA argued, why
one of her
staff appointed for investigations in her office could not assess the
market value of the goods and services procured.
Assessing the market
value of the goods procured requires obtaining quotations from
suppliers. The DA’s staff performed this
task to assess the
market value of the cattle procured, and furnished this information
to the PP in the complainant's second complaint.
It seems that the PP
chose to simply ignore the information supplied to her and then
blamed financial constraints for her failure
to execute this simple
task.
[80]
Furthermore, Treasury’s report had included a report by a
senior economist at AgriSA on the costs and value for public
money
associated with the Project. The senior economist, Mr Maree,
considered the project proposal, business plan and feasibility
study
that Estina provided to the Department. Mr Maree raised several red
flags, in his assessment which ought to have been investigated

further.
[81]
Mr Maree recommended that a detailed cost analysis of the project
should have been be done on the basis of more detailed information.

However, on the information available, Mr Maree advised that the
costs associated with the project were very high, with a good

probability that the state would not receive value for money on the
project in its current state.
[82]
Mr Maree's full report was exhibit 27 to Treasury's report, which the
PP stated she never received. lnstead of requesting Treasury.
to
furnish her with Mr Mare 's report and the other annexures, the PP
merely stated that resource constraints in her office made
it
impossible for her to determine whether fair market value for goods
and services was obtained. She did not explain why she simply
did not
request Treasury to supply her with the report. The PP made no
mention at all of Mr Maree's assessment, even though she
had
Treasury's report which summarised the outcome of his assessment.
[83]
The lack of invoices and proof of payments furnished by the
Department were also not a satisfactory explanation. The PP should

have exercised her statutory powers to obtain the necessary financial
records from the Department and Estina to determine what
was paid
for, to whom, and what amounts were paid.
[84]
The failure of the PP to execute her constitutional duties in
investigating and compiling a credible and comprehensive report

points either to a blatant disregard to comply with her
constitutional duties and obligations or a concerning lack of
understanding
of those duties and obligations.
CAPACITY
AND FINANCIAL CONSTRAINTS
[85]
The PP explained in her affidavits that capacity and, financial
constraints impeded her office's capacity to investigate the

complaints appropriately. One cannot disregard the fact that the PP's
office, as many other state institutions' capacities. are
often
constrained by inadequate financial .and other resources.
[86]
The
Court's approach to evaluating a defence that budgetary constraints
precluded a public functionary from fulfilling its constitutional

obligations was dealt with in Rail Commuters Action Group v Transnet
Ltd t/a Metrorail
[20]
. The CC
adopted a context-sensitive, reasonableness standard. It enquired
whether the functionary had shown that it had taken all
reasonable
measures within its available resources. The Court held:
''..
.an organ of State will not be held to have reasonably performed a
duty simply on the basis of a bald assertion of resource
constraints.
Details of .the precise character of the resource constraints,
whether human or financial, in the context of the overall
resourcing
of the organ of State will need to be provided. The standard of
reasonableness so understood conforms to the constitutional

principles of accountability, on the one hand, in that it requires
decision-makers to disclose their reasons for their conduct,
and the
principle of effectiveness on the other, for it does not unduly
hamper the decision-maker's authority to determine what
are
reasonable and r3ppropriate measures in the overall context of their
activities. "
[21]
[87]
In
City of Johannesburg Metropolitan Municipality vs Blue Moonlight
Properties 39 (Pty) Ltd & another,
[22]
the CC responded to a claim by the City of Johannesburg that it did
not have sufficient resources to provide for temporary emergency

housing. The CC rejected this contention, holding that "it is
not good enough for the City to state that it has not budgeted
for
something, if it should indeed have planned and budgeted for it in
the fulfilment of its obligations''.
[23]
The CC also upheld the SCA's findings that the City had not shown
that it lacked the resources to meet its obligations. In its

judgment, the SCA emphasised, inter alia, the fact that the City’s
claims about the affordability of meeting demands were
made "in
the vaguest possible terms", and that the City did not state
that it was unable to reallocate resources within
its available
budget.
[24]
[88]
The PP in her answering affidavit did not set out supporting facts to
illustrate why a prop r investig91tion could not be accomplished.

This made it very difficult to determine whether in this instance,
this defence should be accepted as a bona fide impediment to
her
ability to execute her duty.
[89]
In this instance there was not only a provisional report by her
predecessor, but Isa a report by Treasury that clearly indicc1ted

misappropriation of funds on an astronomical scale. There were also
countless media reports implicating certain individuals and
linking
them to the project of state capture. All of these should have
assisted the PP in her investigation, and should have limited
the
financial impact of the investigation on her resources.
[90]
One must consider whether taking certain steps, during the
investigation would have had caused a huge financial drain on the

PP's resources. It would seem that, if one considers the provisional
report and Treasury's report, a huge amount of work had already
been
done, which should have limited the expenses that the PP had to incur
to properly and adequately complete her investigation.
[91]
The PP's most blatant failure was to not properly investigate the
circumstances surrounding the beneficiaries of the Project,
this she
also blamed on a lack of resources, The PP had the names and
telephone numbers of some twenty beneficiaries, and some
even visited
her offices with Mr Maimane . Yet no attempt was made to get a
statement from any of them. In this regard she put
the blame on the
DA and said that they undertook to get the statements. Leaving the
duty in the hands of a political party was
totally inappropriate and
could potentially have impacted on the impartiality of any statement
so obtained. Whether the DA did
give such an undertaking or not, is
in my view, irrelevant, as it was the duty of the PP to follow up and
obtain those statements.
The beneficiaries were the people who should
have taken centre stage in this investigation, as they were the
people, the vulnerable
ones, for which her office was specifically
created and who were deprived of an opportunity to benefit and better
their circumstances.
Instead they were ignored and their interests
were relegated to a mere peripheral issue. It is an absolute disgrace
that some,
as yet unidentified people, benefited, while the poor and
the marginalized were yet again robbed of an opportunity to better
their
circumstances.
[92]
The exercise to obtain their statements could not have caused a
significant strain on her resources. In any event seeing that
they
were supposed to benefit from the Project, any resources that she had
should have been spent to obtain their input. She had
their
particulars and telephone numbers, one would have expected her office
at least to have contacted them and to have attempted
to obtain
statements from them. Their story has not been told, neither did they
get any benefit from this project. Yet R342 million
was paid to
entities connected to this Project and unknown people were enriched.
This, in my view, was the most significant failure
of the PP to
execute her constitutional duty in this investigation.
[93]
As far as the missing annexures from Treasury's report were
concerned, to request these annexures could not have required more

than an email. These annexures were essential, and she should have
known that, it could have assisted her, and would have enabled
her to
limit the costs that could have been incurred by her own office. Yet
no attempt at all was made to obtain these very important
documents.
[94]
Interviewing and taking statements from the implicated officials and
interviewing the journalist who had reported on the project,
seems to
me to be quite simple and could not have resulted in huge
expenditure, The PP's failures to undertake these simple and
cost
effective measures are to put it lightly, of serious concern, as it
may point to a concerning incomprehension of the nature
and extent of
her obligation towards the people of this country and her obligations
in terms of the Constitution and the PP Act.
[95]
Whatever her office's resource constraints were, they could perhaps
conceivably explain the narrowing of the scope of the investigation,

but never explain and justify the irrational and arbitrary findings
and material errors of law in the Report, or the inappropriate
and
ineffective investigation executed by her office.
THE
DISCRETION TO "OPT OUT”
[96]
The PP in addition stated in her affidavit that she exercised her
discretion to opt out'' and not to investigate. Her suggestion
in the
answering affidavit that she deferred the investigation stood in
direct contradiction with her statement that she decided
to "opt
out".
[97]
The PP contended that she has "a very wide discretion"
under the PP Act to ''opt-out” and not to investigate
even
those complaints that fall within her jurisdiction. On this basis,
the PP contended that it was open to her to refuse to investigate
the
third complaint at all.
[98]
This is not a proper reading of the constitutional and statutory
provisions contained in the legislation. The language used
in the
Constitution and the PP Act in describing the PP's powers and
functions make it clear that the investigative power vested
in the PP
is coupled with a duty to exercise that power. It is accordingly
clear from a proper reading of the Constitution and
the PP. Act, that
the PP does not have such a wide discretion, as she claimed, to
refuse to investigate a complaint that falls
within her jurisdiction.
[99]
If one compares the language used in section e(4)(a) and section
6(4)(b) of the Act the following transpires. Whereas section
6(4)(b)
expressly confers a discretion on the PP in respect of the remedial
action to be taken, section 6(4)(a) confers no such
discretion in
respect of the investigation of conduct under her jurisdiction.
[100]
This interpretation is also supported by the wording of section 7(1)
of the Act, which defines the PP's investigative power.
Section 7(1)
provides:
"(1)(a)
The Public Protector shall have the power, on his or her own
initiative or on receipt of a complaint or an allegation
or on the
ground of informe1tion that has come to his or her knowledge and
which points to conduct such as referred to in section
6 (4) or (5)
of this Act, to conduct a preliminary investigation for the purpose
of determining the merits of the complaint, allegation
or information
and the mariner in which the matter concerned should be dealt with.
(b)(i)
The format and the procedure to be followed in conducting any
investigation shall be determined by the Public Protector with
due
regard to the circumstances of each case."
[101]
This provision confers a discretion on the PP to determine the format
and procedure to be followed in investigating a complaint.
It also
afford the PP a discretion after a preliminary investigation, to
determine the merits of the complaint and the manner in
which the
matter concerned should be dealt with. It does not, however, permit
the PP .to decline to conduct any investigation at
all and in the
context of her duties it would be inconceivable that the PP could
have discretion to choose to ''opt out" in
the context of the
factual background of this case.
[102]
The effect of these provisions, it seems to me, is that when the PP
receives a complaint reporting a matter within her jurisdiction,
she
must conduct at least a preliminary investigation to determine the
merits of a complaint, unless one of the exceptions in section
6
applies. Only after conducting a preliminary investigation of the
merits. may she, for good reason, decline to investigate the
matter
further. Should she find that there is merit in the complaint that
requires further investigation, she is obliged to either
investigate
the matter herself, or to refer the matter for further investigation
to another appropriate authority. Should she choose
to undertake a
further investigation, she must investigate the matter proactively
and effectively.
[103]
This
textual interpretation must be favoured when the empowering
provisions are read purposively and in light of section 39(2)
[25]
of the Constitution, that is, in the manner that best promotes the
spirit, purport and objects of the Bill of Rights. The interpretive

injunction in section 39(2) requires the Court, not only to avoid an
interpretation that may limit rights in the Bill of Rights,
but also
to prefer any interpretation that best promotes those rights.
[26]
[104]
The
CC has interpreted statutory provisions that confer a power on a
functionary as 'a power coupled with a duty to use it' in several

cases.
[27]
In Saidi and Others
v Minister of Home Affairs and Others
[28]
the CC held that section 22(3) of the Refugees Act imposed a duty on
Refugee Reception Officers to extend asylum permits pending

finalisation of the judicial review of a decision refusing asylum.
Section 22(3) reads as follows:
"A
Refugee Reception Office may from time to time extend the period for
which a permit has been issued ... or amend the conditions
subject to
which a permit has been so issued.
The
CC held that interpreting the “may" as a "must"
was required, as "This interpretation better affords
an asylum
seeker constitutional protection whilst awaiting the outcome of her
or his application".
[29]
[105]
Interpreting the PP's power to investigate· a complaint of
improper conduct as a 'power coupled with a duty to investigate',

better promotes the constitutional objects and the rights in the Bill
of Rights. It also ensures the impartiality and independence
of the
PP, by ensuring that the PP cannot be selective regarding which
investigations to conduct and cannot be subjected to pressure
by any
person not to investigate complaint.
[106]
This interpretation also ensures that complaints about corruption,
abuses of public power and resources are properly investigated,

exposed and remedied. Since corruption and abuses of power for
self­gain inevitably impact on the realisation of the rights
in
the Bill of Rights, In Glenister v President of the Republic of South
Africa
[30]
the following was
held:
"
... Corruption has become a scourge in our country and it poses a
real danger to our developing democracy. It undermines
the ability of
the government to meet its commitment to fight poverty and to deliver
on other social and economic rights guaranteed
in our Bill of
Rights.
[31]
"
In
the majority judgment, Moseneke DCJ and Cameron J stated:
"There
can be no gainsaying that corruption threatens to fell at the knees
virtually everything we hold dear and precious in
our hard-won
constitutional order. It blatantly undermines the democratic ethos,
the institutions of democracy, the rule of Jaw
and the foundational
values of our nascent constitutional project. It fuels
maladministration and public fraudulence and imperils
the capacity of
the State to fulfil its obligations to protect, promote and fulfil
all the rights enshrined in the Bill of Rights.
When corruption and
organised crime flourish, sustainable development and economic growth
are stunted. And in turn, the stability
and security of society is
put at risk.
[32]
"
[107]
The investigation of such complaints is vital to the protection and
promotion of right in the Bill of Rights, The investigation
of
complaints submitted to the PP is also a key mechanism for promoting
the foundational constitutional democratic principles of

accountability, openness and responsiveness and the principles
governing public administration.
[108]
The importance of the investigations and remedial action of the PP
for the protection of the rights in the Bill of Rights,
was
emphasised by the Constitutional Court in Nkandla. It was stated
that:
"In
the execution of her investigative, reporting or remedial powers, she
is not to be inhibited, undermined or sabotaged.
When all other
essential requirements for the proper exercise of her power are met,
she is to take appropriate remedial action.
Our constitutional
democracy can only be truly strengthened when: there is zero
tolerance for the culture of impunity; the prospects
of good
governance are duly enhanced by enforced accountability; the
observance of the rule of law; and respect for every aspect
of our
Constitution as the supreme law of the Republic are real.
Her
investigative powers are not supposed to bow down to anybody, not
even at the door of the highest chambers of raw State power...
...
The purpose of the office of the Public Protector is therefore to
help uproot prejudice, impropriety, abuse of power and corruption
in
State affairs, all spheres of government and State controlled
institutions. The Public Protector is a critical and indeed
indispensable
factor in the facilitation of good governance and
keeping our constitutional democracy strong and vibrant.”
[33]
[109]
The Report by the PP did not address the major issues raised in the
complaints, nor the numerous indications of irregularities.
In this
instance the PP did nothing to assure the public that she kept an
open and enquiring mind and that she discovered, or at
least
attempted to discover the truth.
THE
REMEDIAL ACTION PROPOSED BY THE PP
[110]
The Public Protector directed the following remedial action to be
taken:
"7.1
The Premier of the Free State Province [i.e. Mr Ace
Magashule]
must:
7.1.1
Initiate and institute disciplinary action against all implicated
officials involved in the Vrede Dairy Farm project;-
7.1.2
Submit the report regarding the remedial action in 7.1.1 to the
Public Protector after the conclusion of the disciplinary
processes;
7.1.3
Ensure that he conducts a reconciliation of the number of cows
initially procured and found during April 2017 as per his undertaking

(…);
7.1.4
Ensure that he submits an implementation plan within 30 days of the
issuing of this report.
7.2
The Head of the Free State Department of Agriculture [i.e. Mr
Mbana Peter Thabethe] must:
7.2.1
Ensure that the officials of the Supply Chain Management Division and
Management of the Department are trained on the prescripts
of the
National and Provincial Treasuries in respect of procurement and
specifically in respect of deviations;
7.2.2
Take corrective measures to prevent a recurrence of the failure of
the management proc ss referred to in this report;
7.2.3
Ensure that all Departmental staff involved in the implementation and
execution of Projects are properly trained and capacitated
to manage
Projects assigned to them;
7.2.4
Develop and revise current policies for the implementation of
internal control measures in line with Treasury prescripts and

regulations.”
[111]
The Applicants, in both applications took issue, not surprisingly,
with the fact that the Premier and the Head of Department,
Mr
Thabethe, who were both implicated in the Project were tasked with
taking disciplinary actions, corrective measures and departmental

training to avoid a recurrence of the incident.
[112]
The result was that it was left to the Premier, who was himself
implicated, to determine who constituted an "implicated

official". Despite admitting that he was an implicated official,
the PP failed to identify Mr Thabethe in the findings as
a primary
instigator in the scheme and held responsible as the accounting
officer.
[113]
The PP, in order to justify her stance pertaining to the remedial
action in respect of the HOD, stated that the Executive
Authority (ie
the MEC) has no power to discipline a provincial HOD. She contended
that, only the Premier has that power in terms
of the Public Service
Act. However, this legal conclusion is obviously incorrect. Under the
Public Finance Management Act 1 of
1999 ("the PFMA"), read
with the National Treasury Regulations, the head of department, as
the "a<;;counting
officer" is accountable to the
Executive Authority responsible for the department. The MEC is
specifically empowered to commence
investigations and take
disciplinary action against the accounting officer in the event of
alleged financial misconduct.
[114]
The provisions of the Public Service Act (sections 16A(1)(a) and
16B(1)(a)) similarly provide that " the relevant executive

authority" is responsible for taking disciplinary action against
the head of department. The "executive authority"
in
relation to a provincial department is defined to mean °the
member of the Executive Council responsible for such portfolio".
[115]
Secondly, the PP contended that she referred generally to "implicated
officials”, because she "wanted to ensure
that all
officials who worked on the project are not excluded from
disciplinary action". But this did not explain the removal
of
the specific direction in the provisional report that disciplinary
action be taken against the HOD, who played a pivotal role
in the
alleged irregularities that occurred.
[116]
The removal of this specific direction was especially inappropriate
and irrational given that the PP afforded the Premier,
the discretion
to determine who the "implicated officials" were as already
stated. This must be seen in the context that
the Premier had
recorded in his response to the section 7(9) notice that there was
"no credible basis for taking disciplinary
steps against the
Head of Department". This position taken by the Premier should
have deeply concerned the PP and should have
influenced her
consideration of appropriate remedial actions. To put people who are
implicated in wrongdoing in a position to investigate
that very same
wrongdoing, is absurd and goes against every known principal of law
and logic.
[117]
In the provisional report, the PP directed that the disciplinary
action was to be taken by the HOD against the incumbent and

implicated HOD, Mr Tthabethe, as he was "an implicated
official''.
[118]
This remedial action was removed by the PP in her final Report and in
so doing she rendered the remedial action that was required
to be
implemented by the HOD, ineffective and irrational, the instructions
to the HOD could not be expected to be properly implemented
or
achieve their purpose, unless coupled with the specific requirement
that the incumbent HOD be subjected to disciplinary action.
[119]
The PP's third change to the remedial action in the provisional
report was the removal of the requirement that the Premier
and the
MEC must "ensure that the findings of the Accounting General are
noted and the recommendations as mentioned in his
report of January
2013 are implemented'. This referred to the report prepared by
Treasury's Specialised Audit Services arid ENS
Forensics. The
Treasury report had recommended that:
a.
disciplinary action be taken against the HOD, Mr Thabethe for his
role in concluding the agreement between the Department and
Estina
and for committing the Department financially, without ensuring that
funds were available;
b.
disciplinary action be taken against the Department's Chief Financial
Officer, Ms Dhlamini for failing to ensure that proper
financial
oversight and controls were in place before transferring funds to
Estina;
c.
no further money was to be invested in the project until the risk
factors identified ln the report were addressed;
d.
the project must be reassessed and the necessary due diligence
completed to ensure that the project is viable, with various specific

steps to be taken for the reassessment.
[120]
The PP did not give any explanation for the removal of the aforesaid
action proposed in her answering affidavit.
[121]
In the provisional report, it was proposed that matters be referred
for further investigation to other appropriate public
authorities.
All such remedial action was removed from the Report. The PP made
several arguments to justify these amendments. She
inter alia
contended that there was no need to investigate the political
leadership in the Province, because "there was nothing
in the
main complaint, second complaint or the Provisional Report which
implicated the Premier'.
[122]
This answer is factually incorrect, for various reasons. In his first
and second complaints, the Complainant raised concerns
about the lack
of transparency, non-compliance with procurement law, and the failure
to obtain value for money in the implementation
of the Project. The
complaint was levelled against the "Free State Provincial
Government" in general. The fact that he
did not mention the
Premier specifically did not mean that the Premier was not implicated
in the complaints, as he was the Premier
of the Free State Provincial
Government and as such, the head of the Provincial Government, who
was instrumental in the conclusion
of the suspect agreements and who
ensured that the irregular payments were made.
[123]
The Premier's personal involvement in promoting the Project md the
close association between the Premier (through his son,
Tshepiso
Magashule, who was employed by the Gupta family) and the
Gupta­associates involved in Estina, was reported in the
media
from as early as 2013. Likewise, Mr Zwane's direct involvement in
facilitating the Project, and the allegations of kickbacks
from the
Gupta family was a matter of public record.
[124]
The PP did not explain her failure to investigate, or at least to
refer to another authority to investigate, the allegations
in the
Complainant's third complaint. These included the specific
allegations that the Estina contract '' was approved by the le9al

department in the Office of the Premier: and that the National
Treasury's findings and recommendations had been "ignored by
the
provincial government and the Premier'. It must also be noted, as
already stated, that the Premier in his response to the section
7(9)
notice, disregarded Treasury's findings and recommendations.
[125]
The PP contended that the remedial action in respect of the
SIU had "been overtaken by events" specifically because:
"The
idea of sending these matters for investigation to the SIU
was to recover irregular expenditure. But by the time the final
report
was finalised the recovery of irregular expenditure was
already under way by the Hawks and the SIU."
[126]
The remedial action directed in the provisional report in
respect of the SIU was not merely "to recover" irregular or
illegal expenditure. It was considerably broader, and reads as
follows:
"The
Head of the Special Investigating Unit to: Conduct a forensic
investigation into serious maladministration in connection
with the
Vrede Dairy Integrated Project of the Free State Department of
Agriculture, the improper conduct by official of the Department
and
the unlawful appropriation or expenditure of public money or property
with the view of the recovery of los es by the State”.
[127]
The PP justified her decision not to investigate the third
complaint that was lodged on 10 May 2016, because, she said, it was
too
late to do so. One must in this regards note that the final
report was only issued in February 2018. It is inconceivable that,
having regard to the dates, she could seriously contend that it was
too late for her proper consideration.
[128]
The removal of the remedial action in the provisional report.
referring the matter for further investigation by the SIU, (to
conduct
a forensic investigation, into serious maladministration,
improper conduct and unlawful expenditure) and to the Auditor-General

(to conduct a forensic and due diligence audit verifying the
expenditure of public money), was explained by the PP as follows:
the
reason that Adv Madonsela referred these matters for investigation to
the SIU was to recover irregular and illegal expenditure,
and by the
time the final report was finalised, that was already underway by the
Hawks and Asset Forfeiture Unit (the "AFU")
and had thus
been ''overtaken by events". It was incorrect to state, as the
PP did, that the remedial action was "overtaken
by events".
Even if the SIU and the Hawks had commenced an investig11tion to
recover money unlawfully obtained under the Project,
they were no
longer required by the PP to do so.
[129]
It is crucial to note that these remedies were removed from the
provisional Report before the PP was even aware of any parallel

investigations, which immediately causes one to doubt the
truthfulness of this explanation. The aforesaid is clear, because
they
had already been removed from the Report when the section 7(9)
notices were sent to the Premier and Mr Thabethe, among others, on
7
June 2017.
[130]
The investigation into improper conduct by officials, which the PP
claimed she could not undertake previously, because of
financial and
resource constraints, would have been referred in the provisional
report to the SIU for investigation. The PP omitted
that remedial
action.
[131]
CASAC argued that the PP was mistaken that the SIU investigation
proposed in the provisional report was only about recovering

irregular and illegal expenditure: It was instead aimed to secure the
recovery of losses. It expressly included a forensic investigation

into "serious maladministration" and, more importantly,
"the improper conduct by officials of the Department”.

This argument is clearly correct. The instruction to the SIU was
coupled in the provisional Report, with a reporting obligation
and
ongoing monitoring by the PP. The provisional Report stated that "
The referral of the report to the Special Investigation
Unit and the
Auditor-General will be monitored on a bi-monthly basis”.
[132]
The PP stated that 'The remedial action involving the SIU and the
Auditor General were removed because I considered that I
did not have
the power to instruct either of them to conduct an investigation on
my behalf”.
[133]
That remedial action was successfully challenged on review in the
matter of ABSA Bank.
[34]
However the judgment in that matter was given on 16 February 2018,
after the Report was published. In those proceedings, the PP
had
defended the remedial action as being within her powers.
[134]
In the ABSA Bank
[35]
matter,
the Court noted that the provisions of the Special Investigating
Units and Special Tribunals Act 74 of 1996 (the SIU Act)
are
important in assessing remedial action directed at the SIU. Section 2
of the SIU Act provides that the President may establish
special
investigating units. Section 4 refers to the functions of a SIU
whereas section 5 sets out the powers of such a unit. Subsection

(6)(b) provides:
"The
Head of a special investigating unit may refer any matter which, in
his or her opinion, could best be dealt with by the
Public Protector,
to the Public Protector and the Public Protector may, if he or she
deems it appropriate, refer any matter which
comes to his or her
attention and which falls within the terms of reference of a special
investigating unit, to such unit."
[135]
The Court interpreted this provision as follows :
"Again
the operative words applying to both a SIU and the Public Protector
are 'may refer'. This subsection allows the Public
Protector and the
head of a SIU to refer matters to one another. The SIU is a statutory
institution established by the President
in terms of section 2 of
this Act. It has, like the Public Protector, only those powers
assigned to it by statute. This subsection
does not create a
hierarchy between the two. Each can bring a matter to the attention
of the other, but neither can instruct the
other on how to deal with
a matter.'"
[36]
[136]
In Absa Bank the Court also considered the wording of s 6(4)(c) of
the PP Act, which empowers the PP "to bring to the
notice of and
to refer any matter, or to make an appropriate recommendation to
another public body or authority, The Court said:
"It
does not empower the Public Protector to be prescriptive or to
instruct the SIU as to how to deal with the matter she brings
to its
notice. Once the Public Protector has referred a matter to the SIU,
or has made an appropriate recommendation, she has exhausted
her
powers under this subsection. The decision as to how the matter must
be handled is not that of the Public Protector, but the
prerogative
of the public body or authority concerned, in this instance the
SIU.”
[37]
[137]
Although the PP is clearly empowered to refer a matter to the SIU for
investigation, as is specifically provided for in section
5(6)(b) of
the SIU Act. The effect of the ABSA Bank decision is that it is not
open to the PP to instruct the SIU how to exercise
its powers, as she
had purported to do in the Report in that matter.
[138]
As regards the Treasury report, the PP contended that the remedial
action directed at this office in the provisional report
was
incompetent, because "the Auditor-General does audits of
accounts and financial statements. He does not do forensic and
due
diligence investigation ."
[139]
Section 188 of the Constitution, states that "the
Auditor-General may audit and report on the accounts, financial
statements
and financial management
of … '' (b) any
institution that is authorised in terms of any law to receive money
for a public purpose'' [Court's emphasis.]
[140]
It
is accordingly clear that the PP's contention in this regards is
incorrect. The Public Audit Act no 25 of 2.004 further defines
the
powers and functions of the Auditor-General. Section 4
[38]
of the Act defines the Auditor-General's constitutional functions.
Section 5 of the Public Audit Act defines the " other functions"

that are extended to the Auditor General under the Act These include
the power, under s 5(1)(d) (read with s 29) -
"to
carry out an appropriate investigation or special audit of any
institution referred to in section 4(1) or (3) [which includes

provincial state departments and administrations] if the
Auditor-General considers it to be in the public interest or upon the

receipt of a complaint or request".
[39]
[141]
Accordingly, the Auditor General is vested with special investigative
powers, which extend beyond its regular auditing function,
and which
may be exercised in the public interest and on request.
[142]
Furthermore the PP contended that she did not have the legal power to
instruct either the SIU or the Auditor-General to conduct
an
investigation. This interpretation of the law is incorrect as section
5(4)(c) of the PP Act expressly empowers the PP to, at
any time prior
to, during or after an investigation, refer any matter to the
appropriate public body or authority to make an appropriate

recommendation,
[143]
The PP was clearly aware of this fact, as she included the following
in her final Report:
"There
is nothing in the Public Protector Act or Ethics Act that prohibit
the Public Protector from instn1cting another entity
to conduct
further investigation, as she is empowered by section 6(4)(c)(ii) of
the Public Protector Act'.
[144]
The
Court held in Nkandla
[40]
as
follows, "[i]t ought to be borne in mind that the Public
Protector regularly instructs members of the executive, including

high ranking government officials, to exercise discretionary powers
assigned by law to them." In that case, the Court was
provided
with various examples where the Public Protector "had
instructed. organs of state to perform functions that are ordinarily

left to their discretion".
[145]
The PP committed yet another error of law, when she assumed that she
lacked such a power. The evidence suggested, that she
was aware that
she possessed the power, but elected nevertheless to exclude the
remedial action.
[146]
In
the light of the analysis set out above I am of the view that the
remedial action in the report obviously did not constitute
an
effective remedial action. It did not redress or undo "prejudice
impropriety, unlawful enrichment or corruption"
[41]
that occurred during the project. In Nkandla the following was said
regarding appropriate remedial actions
[42]
:
“
[68]
Taking appropriate remedial action is much more significant than
making a mere endeavour to address complaints as the most
the Public
Protector could do in terms of the interim Constitution. It connotes
providing a proper, fitting suitable and effective
remedy for
whatever complaint and against whomsoever the Public Protector is
called upon to investigate. However sensitive, embarrassing
and
far-reaching the implications :o f her report and findings, she is
constitutionally empowered to take action that has that
effect, if it
is the best attempt at curing the root cause of the complaint
Remedial action must therefore be suitable and effective.
For it to
be effective in addressing the investigated complaint, it often has
to be binding. In SABC v DA the Supreme Court of
Appeal correctly
observed:
'The
Public Protector cannot realise the constitutional purpose of her
office if other organs of state may second-guess her findings
and
ignore her recommendations. Section 182(1)(c) must accordingly be
taken to mean what it says. The Public Protector may take
remedial
action herself. She may determine the remedy and direct the
implementation. It follows that the language, history and
purpose of
s 182(1)(c) make it clear that the Constitution intends for the
Public Protector to have the power to provide an effective
remedy for
state misconduct, which includes the power to determine the remedy
and direct its implementation.
[69]
But, what legal effect the appropriate remedial action has in a
particular case depends on the nature of the issues under
investigation and the findings made...."
[43]
[147]
An analysis of the aforesaid illustrates the many failure of the PP
in the conclusions she arrived at and the ineffectiveness
of the
remedial action proposed by her.
CONCLUSION
[148]
The PP accused the DA of having political motives, while it is
definitely not inconceivable and even probable that such an
agenda
may exist, the PP should rise above any political agenda real or
perceived and should look objectively at the complaints
lodged,
irrespective of where it may emanate from, and whatever the political
objectives may be. Anyone, including any political
party, should feel
confident that the PP will investigate any legitimate complaint
properly and objectively. The PP, like judicial
officers, should
transcend criticism and act without fear, favour and prejudice in al!
matters that come before them. The public
should rest assured that
those that preside over them or investigate their complaints will
always execute their duties with due
regard to the principles of the
Constitution and the Rule of law.
[149]
Regarding
the question of rationality it is important to note what was stated
in Pharmaceutical Manufacturers Association of South
Africa &
others vs President of the Republic if South Africa & others
explained, "[d]ecisions must be rationally related
to the
purpose for which the power was given, otherwise they are in effect
arbitrary and inconsistent with this requirement. "
[44]
[150]
Accordingly, the starting point is to determine what the purposes are
of the PP's powers and functions generally, and her
powers to
investigate and take remedial action specifically.
[151]
The purpose of her- specific power to investigate and report is to
discover and expose evidence of corruption md prejudice,
with a view
to maintaining an effective public service and good governance. The
purpose of her power to devise and implement remedial
action is to
remedy instances of corruption and prejudice, to ensure that those
responsible are held accountable and that those
affected obtain
appropriate relief and to prevent re-occurrence of the same conduct.
[152]
Given the above, in my view the Report is unlawful and
unconstitutional and as a result fails to comply with the requirement

of legality. In particular, the PP has failed to comply with section
6 of the PP Act and section 182 of the Constitution. This
follows
because of her failure to properly investigate the complaints of 12
September 2013 and 2.8 March 2014, seen together with
her failure to
use her statutory powers, and to adopt the stance of a proactive
investigator. She contravened section 6(4)(a) and
6(5) of the Public
Protector Act and section 182(1)(a) and (b) of the Constitution.
[153]
The failure to properly investigate the complaints of 12
September 2013 and 28 March 2014 was plainly irrational, in that it
was
not rationally related to the purpose of the PP or her specific
powers to investigate and report, it was also not rationally related

to the information before her, which provided at least prima facie
evidence of corrupt activity. Relevant considerations were ignored

which point to irrationality. There had also not been a correct
application of the law as was set out above.
[154]
The failure to have regard at all to the complaint of 10 May
2016, or to have regard to the information in the public domain of
evidence implicating high ranking public officials and the Gupta
family in corruption was irrational in that the facts ignored related

directly to the serious allegations of corruption and malfeasance in
the Project and were patently relevant
[155]
Her proposed remedial action, which envisaged that implicated senior
officials act as the arbiters of disciplinary proceedings
and
procurement training, contravened section 6(4) of the PP Act and
section 182(1)(c) of the Constitution, in that it failed to
devise a
remedy that was appropriate, proper, fitting, suitable or effective,
as a result her failure to devise an appropriate,
proper, fitting,
suitable or effective remedy was irrational.
[156]
The PP's belief that she was not empowered to take r medial action
referring the mc1tter to another organ of state for further

investigation constituted a profo1Jnd mistake of law as fully
explained above.
[157]
It
is now trite that a Report of the PP is legally binding and of full
force and effect until it has been reviewed and set aside
[45]
.
Section 172
[46]
of the
Constitution provides the starting point. In term of section
172(1)(a)
[47]
, as a matter of
constitutional principle, an invalid decision must be declared
invalid.
[48]
[158]
Following
a declaration of invalidity, this Court has the power to order a just
and equitable remedy under section 172(1)(b)
[49]
.
As a default position, the just and equitable relief must be aimed at
correcting or reversing the consequences of the invalid
exercise of
public power:
"Logic,
general principle, the Constitution, and the binding authority of
this Court all point to a default position that requires
the
consequences of invalidity to be corrected or reversed where they can
no longer be prevented. It is an approach that accords
with the rule
of law and principle of legality."
[50]
[159]
Having found that an exercise of public power is constitutionally
invalid, the court must grant appropriate relief that is
corrective
of the consequences of unlawfulness. This demands that the report be
declared invalid, reviewed and set aside. Due to
the specific
circumstances in this case it will not be appropriate to refer the
matter back to her.
[160]
As a result I make the following order:
1.
It is declared that in investigating and reporting on the Vrede Dairy
Project for purposes of her report No 31 of 2017/18, dated
8 February
2018, the PP failed in her duties under section 6 and 7 of the Public
Protection Act and section 182 of the Constitution.
2.
The PP's report No 31 of 2017/18 date 8 February 2018 is accordingly
reviewed, set aside and declared unlawful, unconstitutional
and
invalid.
3.
The costs order is postponed sine die.
_________________
RG
TOLMAY
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 23 - 24 October 2018
DATE
OF JUDGMENT: 20 May 2019
CASE
NO: 11311/2018
ATT
FOR APPLICANT: MINDE, SHAPIRA & SMITH ATTORNIEYS
ADV
FOR APPLICANT: S BUDLENDER et J BLEAZARD C TABATA
ATT
FOR RESPONDENT: TSHISEVHE GWINA RATSHIMBlLANI INC
ADV
FOR RESPONDENT: V NGALWANA (SC) et F KARACHI et L RAKGWALE
CASE
NO: 13394/2018
ATT
FOR APPLICANT: LEGAL RESOURCES CENTRE
ADV
FOR APPLICANT: M LE ROUX et M MBIKIWA
ATT
FOR RESPONDENT: TSHISEVE GWINA RATSHIMBILANI INC
ADV
FOR RESPONDENT: A PLATT (SC) et C DAUDS
[1]
[2018] 2 AII SA 1 GP (Absa Bank)
[2]
2018 (3) SA 380
(SCA) para 37.
[3]
2016(3) SA 580 (CC) (Nkandla)
[4]
Nkandla para 52
[5]
Nkandla, para 52
[6]
Section 181 of the Constitution of the Republic of South Africa.
1996. deals with the
Establishment
and governing principles
(1)
The following state institutions strengthen constitutional democracy
in the Republic
(a)
The Public Protector.
(b)
...
(c)
...
(d)
...
(e)
...
(f)
...
(2)
These institutions are independent, and subject only to the
Constitution and the law, and they must be impartial and must

exercise their powers and perform their functions without fear,
favour or prejudice.
(3)
Other organs of state, through legislative and other measures, must
assist and protect these institutions to ensure the independence,

impartiality, dignity and effectiveness of these Institutions.
(4)
No person or organ of state may interfere with the functioning of
these institutions.
(5)
These institutions are accountable to the National Assembly, and
must report on their activities and the performance of their

functions to·the Assembly at least once a year.
[7]
6 Reporting matters to and additional powers of Public Protector
(4)
The Public Protector shall, be competent-
a)
to investigate, on hi 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;
[Subpara.
(iii) substituted by
s 36
(1) of .Act 12 of 2004.]
(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;
[8]
(5) In addition to the powers referred to in subsection (4), the
Public Protector shall on his or her own initiative or on receipt
of
a complaint be competent to investigate any alleged-
a)
maladministration in connection with the affairs any institution in
which the State is the majority or controlling shareholder
or of any
public entity as defined in section 1 of the Public .Finance
Management Act, 1999 (Act 1 of 1999): (Para. (a) substituted
by s. 7
of Act 22 of 2003 (wef 7 October 2003).]
[9]
7 Investigation by Public Protector
(1)
(a)  The Public Protector shall have the power, on his or her
own initiative or on receipt of a complaint or an allegation
or on
the ground of Information that has come to his or her knowledge and
which pain to conduct such as referred to in section
6 (4) or (5) of
this Act, to conduct a preliminary investigation for the purpose of
determining the merits of the complaint,
allegation or Information
and the manner in which the matter concerned should be dealt with.
(b)(i)
The format and the procedure to be followed In conducting any
investigation shall be determined by the Public Protector
with due
regard to the circumstances of each case.
(Ii)
The Public Protector may direct that any category of persons or all
persons whose presence is not desirable, shall not be
present at any
proceedings pertaining to any Investigation or part thereof.
(Sub-s,
(1) substituted by s. 9 (a) of .Act 113 of 19 98 (wef 27 November
1998).]
(2)
Notwithstanding anything to the contrary contained in any law no
person shall disclose to any other person the contents of
any
document in the possession of a member of the office of the Public
Protector or the record of any evidence given before the
Public
Protector, the Deputy Public; Protector or- a person contemplated in
subsectjon (3) (b) during an investigation, unless
the Public
Protector determines otherwise.
[Sub-s.
(2) substituted by s. 8 (a) of Act 22 of 2003 (wef 7 October 2003).]
(3)
(a) The Public Protector may, at any time prior to or during an
investigation, request any person-
(i)
at any level of government, subject to any law governing the terms
and conditions of employment of such person;
(ii)
performing a public function, subject to any law governing the terms
and conditions of the appointment of such person; or
(iii)
otherwise subject to the jurisdiction of the Public Protector,
to
assist him or her, under his or her supervision and control, in the
performance of his or her functions with regard to a particular

investigation or Investigations in general.
(b)(i)
The Public Protector may designate any person to conduct an
investigation or any part thereof on his or her behalf and
to report
to him or her and for that purpose such a person shall have such
powers as the Public Protector may delegate to him
or her,
(ii)
The provisions of section 9 and of the regulations and instructions
issued by the Treasury under section 76 of the Public
Finance
Management Act, 1999 (Act 1 of 1999), in respect of Commissions of
Inquiry, shall apply with the necessary changes In
respect of that
person.
[Sub
-para. (ii) substituted by s. 8 (b) of Act 22 of 2003 (wef 7 October
2003).]
[Para.
(b) substituted by s. 9 (b) of Act 113 of 1998 (wef 27 November
1998).]
(4)
(a) For the purposes of conducting an investigation the Public
Protector may 'direct any person to submit an affidavit or
affirmed
declaration or to appear before him or her to give evidence or to
produce any document In his or her possession or under
his or her
control which has a bearing on the matter being investigated, and
may examine such person.
(b)
The Public Protector or any person duly authorised thereto by him or
her may request an explanation from any person whom he
or she
reasonably suspects of having information which has a bearing on a
matter being or to be Investigated.
(5)
A direction referred to in subsection ( 4) (a) shall be by way of a
subpoena containing particulars of the matter in connection
with
which the person subpoenaed is required to appear before the Public
Protector and shall be signed by the Public Protector
and served on
the person subpoenaed either by a registered letter sent through)
the post or by delivery by :a person authorised
thereto by the
Public Protector.
(6)
The Public Protector may require any person appearing as a witness
before him or her under subsection ( 4) to give evidence
on oath or
after having made an affirmation.
[10]
7A Entering upon premises by the Public Protector
(1)
The Public Protector shall be competent to enter, or authorise
another person to enter, any building or premises and there
to make
such investigation or inq1.1iry s he or she may deem necessary, and
to seize anything on those premises which in his
or her opinion has
a bearing on the investigation.
(2)
the premises referred to in subsection (1) may only be entered by
virtue of a warrant issued by a magistrate or a judge of
the area of
jurisdiction within which the premises is situated: Provided that
such a warrant may be issued by a judge in respect
of premises
situated In another area of jurisdiction, if he or she deems It
justified.
(3)
...
[11]
11 Offences and penalties
(1)
Any person who contravenes the provisions of sections 3 (14), 7 (2)
and 9 of this Act, or interferes with the functioning
of the office
of the Public Protector as contemplated in section 181 (4) of the
Constitution, shall be guilty of an offence.
[Subs.
(1)
substituted by s. 12 (a) of Act 113 of 1998 (wef 27 November 1998).]
(2)
Any person who fails to disclose. an interest contemplated in
section 3 (14). shall be guilty oi an offence.
Any
person who without just use, refuses or fails to comply with a
direction or request under section7 (4) or refuses to. answer
any
question put to him or·her under that section or gives to
such question an answer which to his or her knowledge 'is
false, or
refuses to take the oath or to make an affirmation at the request of
the Public Protector in terms of section 7 (6),
shall be guilty of
an offence.
[Subs.
(3)
substituted by s, 12 (b) of Act 113 of 1998 (wef 27 November 1998).]
(4)
Any person convicted of an offence in terms of this Act shall be
liable to a fine not exceeding R40 000 or to imprisonment
for a
period not exceeding 12 months or to both such fine and such
imprisonment.
[12]
Absa Bank par 98
[13]
2011 (4) SA 420
(SCA) (Mail and Guardian).
[14]
Mail and Guardian par 22
[15]
Mail and Guardian, para 19
[16]
Nkandla paras 68 and 71(e).
[17]
South African Broadcasting Corporation Soc Ltd and others v
Democratic Alliance & Others
2016 (2) SA 522
(SCA) at para 26
(SABC)
[18]
Democratic Alliance v President of South Africa 2013(1) SA 249 para
39; See also Scalabrini Centre, Cape Town and Others. v Minister
of
Home Affairs
2018 (4) SA 125
(SCA) para 51.
[19]
2012 (2) SA 16
(SCA) at para 40.
[20]
[2004] ZACC 20
;
2005 (2) SA 359
(CC) (Rail Commuters)
[21]
Rail Commuters, para 88
[22]
2012 (2) SA 104
(CC) (Blue Moonlight)
[23]
Blue Moonlight, at para 74
[24]
Blue Moonlight. a para 71.
[25]
Section 39(2) of the Constitution proves:
"(2)
When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum
must promote
the spirit, purport and objects of the Bill of Rights.”
[26]
Saidi and Others. v Minister of Home Affairs and Others
[2018] ZACC
9
at para 38, and the references cited therein.
[27]
See, for instance, Van Rooyen v The State (General Council of the
Bar of South Africa intervening)
[2002] ZACC 8
;
2002 (5) SA 246
(CC)
para 34 - 35; Joseph v City of Johannesburg South African Police
Service v Public Servants Association
2007 (3) SA 521
(GQ) para 19 -
20.
[28]
2018 (4) SA 333 (CC)
[29]
Saidi, par 35
[30]
2011 (3) SA 347
(CC), Glenister
[31]
Glenister, par 57
[32]
Glenister, par 166
[33]
Nkandla at paras 54-56
[34]
Absa Bank, par 23
[35]
Absa Bank, par 23
[36]
Absa Bank, par 23
[37]
Absa Bank, supra, para 69
[38]
4. ConstitutionaI functions
(1)
The Audit or-General must audit and report on the accounts,
financial statements and financial management of-
(a)
all national and provincial state; departments and administrations;
(b)
all constitutional institutions;
(c)
the administration of Parliament and of each provincial legislature
;
(d)
all municipalities;
(e)
all municipal entities; and
(f)
any other institution or accounting entity required by other
national or by provincial legislation to be audited by the Auditor

-General,
(2)
The Auditor General must audit and report on the consolidated
financial statements of­
(a)
the national government a required by
section 8
of the
Public
Finance Management Act;
>
(b)
all provincial governments as required by section 19 of the Public
Finance Management Act and
(c)
a parent municipality and all municipal entities under its sole or
effective control as required by section 122 (2) of the
Municipal
Finance Management Act.
(3)
The Auditor-General may audit and report on the account , financial
statements and financial management of-
(a)
any public entity listed in the
Public Finance Management Act; and
(b)
any other institution not mentioned in subsection (1) and which is -
(i)
funded from the National Revenue Fund or a Provincial Revenue Fund
or by a municipality; or
(ii)
authorised in terms of any legislation to receive money for a public
purpose.
(3A)
The discretion of the Auditor -General as contemplated in subsection
(3)· applies to any public entity contemplated
in subsection
(3) (a)and any other institution contemplated in subsection
(3)
(b) that meets prescribed criteria.
(Sub-.s.
(3A) inserted by s . 2 (a) of Act 5 o f 2018 (wef 1 April 2019).]
(4)
In the event of any conflict between this section and any other
legislation, this section prevails.
[39]
Sections 5(2)(a) and 5(3) further provide that the .Auditor-General
may "co-operate with persons. institutions and associations.

nationally and internationally' , and “may, in the public
interest, report on any matter within the functions of the Auditor

General arid submit such a report to the relevant legislature and to
any other organ of state with a direct interest in the matter"
[40]
Nkandla, par 68 and 71
[41]
Nkandla, par 68 and 71
[42]
Nkandla, par 68 and 69
[43]
Nkandla, par 68 & 69
[44]
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at par 85
[45]
Nkandala, paras 73-75.
[46]
172 Powers of courts in constitutional matters
[47]
(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
[48]
Bengwenyama Minerals (Pty) Limited v Genorah Resources (Pty) Limited
2011 (4) SA 113
(CC) at para 84.
[49]
(b) may make any order that is just and equitable, including·
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority
to correct the
defect
[50]
Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others (No 2)
2014 (6) BCLR 641
(CC) Para 30.